FACULTY OF LAW
DEPARTMENT OF PUBLIC INTERNATIONAL LAW
Academic Year 2012-2013
INTERNATIONAL CODE OF CONDUCT FOR
SUSTAINABLE ACTIVITIES IN OUTER SPACE
Master Thesis for the Study Program
‗Master of Law‘
Submitted by
JOACHIM LOMMELEN
(00706800)
Promotor: PROF. DR. FRANK MAES
Commissaris: HENDRIK SCHOUKENS
“space science, like nuclear science and all technology,
has no conscience of its own. Whether it will become a
force for good or ill depends on man.”
― JOHN F. KENNEDY
i
ACKNOWLEDGEMENTS
The writing of this dissertation would not have been possible without the support of many. I
owe my gratitude to Prof. Frank Maes and Prof. René Oosterlinck for allowing me to take up
this subject as well as for their guidance and assistance in finding an appropriate angle to
approach it. My sincere gratitude must also go to Mr. Adebayo Babajide, Chair of the
Disarmament and Space Experts Working Group at the European External Action Service,
for being so kind to answer some of my many questions. Interactions with Mr. Badajide and
various other experts have been invaluable to identify the objectives and history of the
proposal for an international code of conduct. I express particular thanks to Prof. Steven
Freeland who introduced me to the wonderful field of space law and inspired me with his
excellent classes on public international law. I would also like to thank my dear friends
Magdalena Biereder, Inneke Plasschaert and Bernhard Heinzl for taking the time to
proofread this work and make some final suggestions.
As this dissertation concludes my Law studies at Ghent University I wish to direct my
gratitude to all friends and family who have supported me throughout these studies. Special
recognition must go to my mother for always letting my own happiness and education take
predominance over her well-being throughout my law studies. In addition I would like to
thank my former colleagues at the Gentse StudentenRaad, the Ghent University Student
Union. Without them the past year could not have been such an exceptionally interesting and
challenging experience, which has fundamentally changed my outlook on life.
Finally, I would like to thank all members of the Ghent University community that have
allowed me, and many others, to combine excellent education with an active commitment to
the representation of our students and a participation in the many debating societies at our
university. This open attitude towards combining academic efforts with active citizenship has
enriched my time as a student. For this, Ghent University has my eternal gratitude and I shall
endeavour to take the motto of our university with me, wherever I‘ll go. Durf Denken.
Joachim Lommelen
Ghent University
August 2013
iii
ABSTRACT IN DUTCH
Deze masterproef onderzoekt het EU voorstel tot een gedragscode voor activiteiten in de
ruimte. Dit voorstel werd in 2008 gelanceerd in een poging om de toekomst van ons gebruik
van de ruimte veilig te stellen.
Om een volledig beeld te scheppen worden in het eerste hoofdstuk de relevante
internationale regels van het ruimterecht uit de doeken gedaan. Hieruit blijkt dat waar het
internationaal ruimterecht wordt gekenmerkt door een aantal principes die afwijken van het
algemene internationaal publiek recht, deze principes zelden zijn uitgewerkt. Er zijn dan ook
verschillende onzekere elementen met betrekking tot de uitdagingen van vandaag.
In hoofdstuk twee trachten we de verschillende bedreigingen voor het voortbestaan van
activiteiten in de ruimte te duiden en gaan we na waar het juridisch kader faalt. De drie
belangrijkste bedreigingen zijn ruimteafval, de stijgende drukte in bepaalde banen rond de
aarde en de bedreigingen die volgen uit het militair gebruik van de ruimte. Deze laatste
bedreiging uit zich onder andere in de blokkade die ze vormt voor het bereiken van bindende
afspraken over verantwoordelijk gedrag in de ruimte.
Vervolgens wordt in het derde hoofdstuk de precieze betekenis van het begrip duurzaamheid,
zowel in de praktijk als in het internationaal recht, onderzocht en gaan we na of dit begrip
een rol kan spelen in het garanderen van de toekomst voor onze activiteiten in de ruimte. We
concluderen dat er op heden onvoldoende basis is om binnen het internationaal publiek recht
te spreken van een algemeen principe van duurzame ontwikkeling maar dat gezien de
afwijkende principes die gelden binnen het internationaal ruimterecht zulk een principe goed
zou kunnen functioneren voor het beoordelen van ruimteactiviteiten. Deze eerste drie
hoofdstukken leiden ons tot de voorlopige conclusie dat er nood is aan een versteviging van
het bestaande internationaal kader voor ruimteactiviteiten.
In het tweede deel onderzoeken we het voorstel tot gedragscode. We bekijken de oorsprong
en het diplomatiek proces tot aan mid-2013 in hoofdstuk 5. Vervolgens onderzoeken en
becommentariëren we de individuele artikels van het meest recente ontwerp van de
gedragscode in hoofdstuk 6 om in hoofdstuk 7 over te gaan tot een algemene evaluatie.
Op basis van de evaluatie in het tweede deel concludeert de auteur dat het voorstel tot
internationale gedragscode voor activiteiten in de ruimte een uitermate waardevol initiatief is
dat een belangrijke rol kan spelen in het remediëren van de gebreken in het huidige juridisch
kader. Wel worden twee opmerkingen gemaakt. De eerste betreft het recht op zelfverdediging
dat binnen de gedragscode verwoord is op zulk een wijze dat ruimte activiteiten iedere
bescherming verliezen in tijden van gewapend conflict. Dit lijkt de auteur een grote vergissing
maar de opmerking wordt gemaakt dat hiervoor waarschijnlijk een apart internationaal
verdrag nodig is. De tweede opmerking betreft het concept duurzaamheid. Het lijkt de auteur
aangewezen om het concept duurzaamheid een centralere rol in de gedragscode te geven
omdat het een gemeenschappelijk doel kan geven aan de onderhandelende staten en de
meest volledige benadering geeft van de vele uitdagingen die de mensheid in de ruimte moet
aangaan.
v
TABLE OF CONTENTS
Acknowledgements .......................................................................................................................... i
Abstract in Dutch ........................................................................................................................... iii
Table of Contents .............................................................................................................................v
Table of Abbreviations and Acronyms.......................................................................................... ix
Introduction ..................................................................................................................................... 1
Part I: The Need for Action - Defining the Problem ..................................................................... 3
Chapter 1: Legal Framework for Outer Space Activities........................................................... 3
1.1
A Short History of Public International Space Law................................................... 3
1.2
Customary International Law ......................................................................................7
1.3
Demarcation Boundary of Outer Space ...................................................................... 9
1.4
Peculiarities and Basic Principles of the Space Law Regime ................................... 11
1.4.1
Public International Law in Outer Space........................................................... 11
1.4.2
Freedom of Exploration and Use ....................................................................... 11
1.4.3
For the Benefit of All ........................................................................................... 12
1.4.4
The Non-Appropriation principle ...................................................................... 13
1.4.5
Peaceful Purposes Principle ............................................................................... 15
1.4.6
International Responsibility and Liability for National Activities ...................19
1.4.7
Jurisdiction and Control .................................................................................... 22
1.5
International Cooperation and Dispute Settlement ................................................ 24
Chapter 2: Contemporary Threats to Outer Space Activities ................................................. 28
2.1
Dependency on Outer Space ..................................................................................... 28
2.2
Space Debris ................................................................................................................ 31
2.2.1
Definition ............................................................................................................. 31
2.2.2
Scope of the Problem .......................................................................................... 31
2.2.3
Sources of Space Debris ..................................................................................... 35
2.2.4
Basic Legal Regime............................................................................................. 35
2.2.5
International Response to the Threat of Space Debris .................................... 38
2.2.6
Issues Regarding Remediation ...........................................................................41
2.3
Orbital Crowding........................................................................................................ 44
2.3.1
Congested, Contested and Competitive ............................................................ 44
2.3.2
Space Situational Awareness ............................................................................. 45
2.3.3
Limited Natural Resources ................................................................................ 47
vi
2.3.4
2.4
The International Telecommunication Union ................................................. 48
Militarization of Outer Space .................................................................................... 52
2.4.1
Words of Peace and Militarized Practice .......................................................... 52
2.4.2
Change in US Space Policy at the Turn of the Century .................................... 54
2.4.3
The 2007 Chinese ASAT test ..............................................................................57
2.4.2
Regulatory Regime for Military Uses of Outer Space ...................................... 60
2.4.3
Legality of Targeting Space Objects .................................................................. 62
2.4.4
Response of the International Community ...................................................... 66
2.4.5
Strengthening the Regulatory Regime .............................................................. 68
Chapter 3: Sustainability .......................................................................................................... 70
3.1
Sustainability and the Concept of Sustainable Development ................................. 70
3.2
The Principle of Sustainable Development as a Binding Norm under Customary
International Law....................................................................................................... 72
3.3
Sustainability in International Space Law ............................................................... 74
Chapter 4: Preliminary Conclusion.......................................................................................... 76
Part II: European Union Proposal for an International Code of Conduct for Outer Space
Activities ........................................................................................................................................ 78
Chapter 5: Drafting History of the EU Proposal ..................................................................... 78
5.1
Introduction to The Proposal for a Code of Conduct .............................................. 78
5.2
European Union Initiative......................................................................................... 80
5.3
Revised Draft .............................................................................................................. 82
5.4
Multilateral Negotiations .......................................................................................... 85
Chapter 6: Commentary on the Individual Provisions ........................................................... 88
6.1
Preliminary Remarks ................................................................................................. 88
6.2
Preamble ..................................................................................................................... 88
6.2
Purposes and Scope (Provision 1) ............................................................................. 88
6.3
General Principles (Provision 2) ............................................................................... 89
6.4
Compliance with and Promotion of Treaties, Conventions and Other
Commitments Relating to Outer Space Activities (Provision 3)............................. 90
6.5
Measures on Space Operations and Mitigation of Space Debris (Provision 4) ..... 90
6.6
Promotion of Relevant Measures in Other Fora (Provision 5) ............................... 92
6.7
Notification of Outer Space Activities (Provision 6)................................................ 93
6.8
Registration of Space Objects (Provision 7) ............................................................. 93
6.9
Information on Outer Space Activities (Provision 8) .............................................. 94
6.10
Consultation Mechanism (Provision 9) ................................................................ 94
vii
6.11
Meeting of Subscribing States (Provision 10) ...................................................... 95
6.12
Central Point of Contact (Provision 11) ................................................................ 95
6.13
Outer Space Activities Database (Provision 12) ................................................... 96
6.14
Participation by Regional Integration Organisations and International
Intergovernmental Organisations (Provision 13) ................................................ 96
Chapter 7: General Commentary ............................................................................................. 97
7.1
Strengthening the Normative Framework ............................................................... 97
7.2
Improving International Cooperation ...................................................................... 97
7.4
A Comprehensive Approach – or not? ..................................................................... 98
7.4
The Code of Conduct as a Soft Law Instrument ...................................................... 99
7.5
Future Prospects of the Code ................................................................................... 101
‗Final‘ Conclusion on a Provisional Document ......................................................................... 102
Annex 1: Monthly Number of Space Object in Earth Orbit by Object Type............................ 105
Annex 2: Text of the 2012 Revised Draft of the International Code of Conduct for Outer Space
Activities .......................................................................................................................................107
Bibliography ................................................................................................................................. 115
ix
TABLE OF ABBREVIATIONS AND ACRONYMS
AASL
Annals of Air and Space Law
ASAT
Anti-Satellite
CD
United Nations Conference on Disarmament
CoC
EU Proposal for an International Code of Conduct for Outer Space
Activities
CODUN
Global Disarmament and Arms Control Working Group (European
Union)
CODUN SPACE
Disarmament and Space Experts Working Group (European Union)
COPUOS
United Nations Committee on the Peaceful Uses of Outer Space
EEAS
European External Action Service (European Union)
ESA
European Space Agency
ESPI
European Space Policy Institute
EU
European Union
GAOR
Official Records of the General Assembly of the United Nations
GGE
Group of Governmental Experts
GEO
Geostationary Orbit
IADC
Inter-Agency Space Debris Coordination Committee
ICBM
Intercontinental Ballistic Missile
ICJ
International Court of Justice
ITU
International Telecommunication Union
LEO
Low Earth Orbit
LSC
Legal Subcommittee of the United Nations Committee on the Peaceful
Uses of Outer Space
LTSSA
Working Group on Long Term Sustainability of Outer Space Activities
of the United Nations Committee on the Peaceful Uses of Outer Space
MEO
Medium Earth Orbit
NASA
National Aeronautics and Space Administration
ODQN
Orbital Debris Quarterly News
x
OST
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies; the Outer Space Treaty
PAROS
Prevention of an Arms Race in Outer Space
PCA
Permanent Court of Arbitration
PLA
People‘s Liberation Army of the People‘s Republic of China
PPWT
Treaty on Prevention of the Placement of Weapons in Outer Space and
of the Threat or Use of Force against Outer Space Objects
Pub. L.
Public Law (United States)
SDI
Strategic Defense Initiative
SSA
Space Situational Awareness
SSO
Sun-Synchronous Orbit
SSQ
Strategic Studies Quarterly
STSC
Scientific and Technical Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space
SWF
Secure World Foundation
TVFA
The View From Above (Denver Journal of International Law & Policy
blog)
UN
United Nations
UN GA
General Assembly of the United Nations
US
United States of America
ZLW
Zeitschrift für Luft- und Weltraumrecht
1
INTRODUCTION
―Space is big. Really Big. You just won't believe how vastly, hugely, mindbogglingly big it is. I
mean, you may think it's a long way down the road to the chemist's, but that's just peanuts to
space‖ observed novelist Douglas Adams. This vastness of outer space has had a profound
attraction upon mankind as it stirs our deepest nomadic instincts. When in 1957 the Soviet
Union launched Sputnik I the world was introduced, with a shock, to the Space Age. During
the following decades the progress in the field of space exploration was extraordinary. To the
public at large it seemed only matter of time before humankind would quite literally reach for
the stars. On a less prosaic level, but even more important, the world discovered a vast range
of space applications. Remote sensing from satellites, direct broadcasting, improved
telecommunications and satellite navigation changed the way we live. It is thus not
unsurprising that the legal world quickly responded to the changes in the material world. As
early as 1959 the United Nations (UN) created the Committee on the Peaceful Uses of Outer
Space (COPUOS). Under its auspices space treaties were negotiated and the foundation of the
legal regime for outer space laid out. However, just as public interest for space activities
faded after the high of the Apollo program, so did the development of space law slow down.
In the meantime western society has become totally dependent on the uses of outer space.
The list of space faring nations is also quickly lengthening and the private sector is within
grasp of capabilities that until recently only nation-states could have hoped to achieve. Thus,
not without reason it is said that we are on the eve of a new golden age in space exploration
and exploitation. In the past many disputes regarding space law were of an academic nature.
These abstract disagreements over legal principles often did not touch the practical interest
of states. Yet with new opportunities and an increased use of outer space by a growing
number of space actors come new challenges. The crowding of certain orbits, the danger
posed by space debris and the military usage are only some of the issues that space policy
makers around the globe have to worry over.
For some time calls have been made for new legal initiatives to face these challenges and
ensure the sustainability of outer space activities. In this dissertation the focus is on one of
these initiatives, the EU proposal for an international code of conduct. We will therefore
examine the use of soft law (a somewhat vague and disputed concept) to ensure the
sustainability (according to one study defined in at least 300 different ways) of activities in
outer space (which is the area that begins at 90, 100 or beyond 36.000 km altitude,
depending on who you ask). Despite this vagueness, the challenges that space faring nations,
and humanity as a whole, face in outer space are very real. To avoid some of the confusion
that might otherwise arise we will first cover the basic principles of space law (chapter 1), the
different contemporary threats to the sustainability of outer space activities (chapter 2) and
the concept of sustainability (chapter 3). For this first part the intention of the author is to
show where the legal regime fails in dealing with the contemporary issues. The author will
also take the view that new approach is needed to deal with the issues at hand. This approach
must be a comprehensive approach that aims to ensure the sustainability of outer space
activities.
In the second part the EU proposal for an international code of conduct is examined. The
origins and drafting history will be looked into (chapter 5) and every provision will be
2
examined (chapter 6) before some general observations of the proposal as a whole are made
(chapter 7).
In this dissertation our main thesis is that the existing legal regime for outer space needs
strengthening and that the EU proposal for an international code of conduct is an invaluable
initiative to achieve that goal. Although if accepted the code will not single-handedly restore
the outer space regime the author is of the view that it olds within its provisions a
comprehensive approach to the contemporary challenges that mankind faces beyond the
limitations of our home planet.
3
PART I: THE NEED FOR ACTION - DEFINING THE PROBLEM
CHAPTER 1: LEGAL FRAMEWORK FOR OUTER SPACE ACTIVITIES
1.1
A SHORT HISTORY OF PUBLIC INTERNATIONAL SPACE LAW
For obvious reasons there was no practical need for regulating outer space before the launch
of Sputnik 1 in 1957.1 This makes space law a relatively young branch of public international
law.2 With the sputnik shock the regulatory work to deal with this brave new world started
instantly.3 As early as 1958 the United Nations (UN) established the Committee on Peaceful
Uses of Outer Space (COPUOS).4 Since those days at the dawn of the space age an extensive
regulatory regime has emerged governing the usage of outer space.5 The majority of these
international rules can be found in treaties, bilateral agreements and United Nations General
Assembly resolutions.6 The use of every type of these different legal instruments has not been
equally popular as a means of regulating outer space throughout the past 65 years. In fact,
based on which instruments were predominantly used at a certain point in time we can
subdivide the history of space law into multiple phases of law-making.7
If we take this approach the first phase began with the establishment of COPUOS and lasted
until 1979. During this phase, the five main space treaties were drafted and adopted under
the auspices of the UN. In doing so, COPUOS played a vital role in laying down the
foundations of space law.8 The first treaty adopted was the Outer Space Treaty,9 the Magna
That is not to say that there had been no legal interest in outer space before. Although the legal
regime for a region above airspace was discussed from the early start of air law, the discussion really
took off after the second world war. A first doctoral thesis about space law (―Luftrecht und Weltraum‖
by Welf Heinrich, Prinz von Hannover.) was written in 1953, well before humankind reached into
space. See F. LYALL and P. B. LARSEN, Space Law: A Treatise, Farnham, Ashgate Publishing, 2009, p.
4-8 and N. JASENTULIYANA, Space Law and the United Nations, Vienna, Kluwer Law International,
1999, p. 2
1
2
F. LYALL and P. B. LARSEN, supra, note 1, p. 39
See also K. NYMAN-METCALF, ―Space for the Benefit of Mankind?: New Developments and Old
Problems‖, AASL 2009, 624
3
4
N. JASENTULIYANA, supra, note 1, p. 2
Yet some describe space law as still being ―an embryonic domain of International Law.‖ See G. M.
GOH, Dispute Settlement in International Space Law: A Multi-door Courthouse for Outer Space,
Leiden, Martinus Nijhoff Publishers, 2007, p. 17
5
W. RATHGEBER, N. REMUSS and K. SCHROGL, ―Space security and the European Code of Conduct for
Outer Space Activities‖, Disarmament Forum 2009, p. 33
6
7
See also S. HOBE and J. H. MEY, ―UN Space Debris Mitigation Guidelines‖, ZLW 2009, 396-397
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, An Introduction to Space Law, Alphen aan den Rijn,
Kluwer Law International, 2008, p. 23; F. TRONCHETTI , The Exploitation of Natural Resources of the
Moon and Other Celestial Bodies: A Proposal for a Legal Regime, Leiden, Martinus Nijhoff
8
4
Carta of outer space.10 It set out the basic principles governing outer space.11 In the years
after some of these basic rules of space law were expanded upon by the Rescue Agreement, 12
the Liability Convention13 and the Registration convention. 14 While the drafting of these
treaties was often difficult,15 states have generally respected the treaties they are party to 16
and many provisions are considered to be customary international law. 17 The law-making
phase of the UN space treaties ended with the adoption of the Moon Agreement18 and the
failure it entailed.19 The low number of ratifications20 greatly undermined its authority as a
Publishers, 2009, p. 10 and J-L VAN DE WOUWER and F. LAMBERT, European Trajectories in Space
Law 2007, Luxembourg, Office for Official Publications of the European Communities, 2008, p. 28
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (General Assembly resolution 2222 (XXI)), adopted on
19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967
9
The use of the nickname Magna Carta has, rightly so, been criticized for showing limited
understanding of the content and effect of the Magna Carta of 1215. Nevertheless, the term is
commonly used to indicate the momentous importance of the outer space treaty. See F. LYALL and P. B.
LARSEN, supra, note 1, p. 54
10
UNITED NATIONS OFFICE FOR OUTER SPACE AFFAIRS, United Nations Treaties and Principles on Outer
Space, Vienna, United Nations Publication, 2008, p. vi; KHAN, S., ―Space Law for Peace: A Critical
Review‖, Pakistan Horizon 2006, 87 and F. TRONCHETTI, supra, note 8, p. 19
11
It could be noted however that with exception of article IV all the normative provisions were based on
the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of
Outer Space, adopted on 13 December 1963 (General Assembly resolution 1962 (XVIII))
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (General Assembly resolution 2345 (XXII)), adopted on 19 December 1967,
opened for signature on 22 April 1968, entered into force on 3 December 1968
12
Convention on International Liability for Damage Caused by Space Objects (General Assembly
resolution 2777 (XXVI)), adopted on 29 November 1971, opened for signature on 29 March 1972,
entered into force on 1 September 1972
13
Convention on Registration of Objects Launched into Outer Space (General Assembly resolution
3235 (XXIX)), adopted on 12 November 1974, opened for signature on 14 January 1975, entered into
force on 15 September 1976
14
15
G. M. GOH, supra, note 5 , p. 18
B. A. HURWITZ, The Legality of Space Militarization, Amsterdam, Elsevier Science Publishers, 1986,
p. 1
16
17
See infra, p. 5
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (UN Doc.
A/RES/34/68), adopted on 5 December 1979, opened for signature on 18 December 1979, entered into
force on 11 July 1984
18
This failure was in part caused by the New International Economic Order advocates‘ attempt to use
the numerical superiority of developing world to prescribe the law governing the moon and other
celestial bodies to the developed world. See K. BASLAR, The Concept of the Common Heritage of
Mankind in International Law, The Hague, Kluwer Law International, 1998, p. 176
19
5
source of law21 and meant that the legal subcommittee of COPUOS moved away from drafting
treaties.22
In a second phase of law-making, space law was further developed by several sets of
principles, adopted in four UN General Assembly resolutions. These sets of principles
describe rules for specific areas of outer space activities. 23 As UN General Assembly
resolutions they can play a role in the formation of customary international law.24 In 1982 the
Direct Broadcasting Principles 25 were adopted, followed by the Remote Sensing Principles 26
in 1986, the Nuclear Power Source Principles 27 in 1992 and the Declaration on Space
Benefits28 in 1996. From the establishment of these sets of UN space principles the space lawmaking within COPUOS dwindled into various non-binding resolutions that attempt to
(re)interpret existing international treaty law.29
Another reason is the uncertainty regarding the meaning and implications of certain provisions,
especially regarding the common heritage of mankind. See F. TRONCHETTI, supra, note 8, p. 56-57
Although the Moon Agreement was adopted by consensus, both by COPUOS and the General
Assembly, enthusiasm for the treaty, said to be the most poorly drafted of the five UN space treaties,
has been limited at best. It took until 1984 for the treaty to reach its fifth ratification needed to come
into force. As the number of party states remained low in the following years the treaty is generally
considered to be a failure. More so as the major space faring nations are no signatories to the treaty.
See K. BASLAR, supra, note 19, p. 175-177date)
20
Most colorfully described by VON GLAHN as being ―little more than a declaration of ‗principles‘… it is
only a set of ‗self-denying statements‘‖. Quoted from ibid., p. 177
21
It should be noted, however, that there has been increased interest for the Moon Agreement in recent
years. Most importantly this has not been limited to the curiosity of scholars but also materialized in
the ratification of the Moon Agreement by a multitude of states. Yet, even today the total number of
ratifications remains low compared to the other space treaties. See F. G. VON DER DUNK, ―The Moon
Agreement and the Prospect of Commercial Exploitation of Lunar Resources‖, AASL 2007, 91-92
22
See also J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 71
23
S. HOBE and J. H. MEY, supra, note 7, 396
ICJ, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ
Reports 1996, 70
24
Principles Governing the Use by States of Artificial Earth Satellites for International Direct
Television Broadcasting, adopted on 10 December 1982 (UN Doc. A/RES/37/92)
25
Principles Relating to Remote Sensing of the Earth from Outer Space, adopted on 3 December 1986
(UN Doc. A/RES/41/65)
26
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted on 14 December
1992 (UN Doc. A/RES/47/68)
27
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,
adopted on 13 December 1996 (UN Doc. A/RES/51/122)
28
29
S. HOBE and J. H. MEY, supra, note 7, 396
6
Now we may be entering yet another phase. The legal subcommittee of COPUOS is a mere
shadow of what it once was concerning its capability to drive forward the development of
space law and a return of the general space treaty making seems unlikely.30 This new phase
could be characterised by a smaller role for the UN and a focus on more technical rules of the
road addressing particular problems.31 An illustration of this new approach can be found in
the UN Space Debris Mitigation Guidelines. 32 These technical33 guidelines, which are based
on the work of the Inter-Agency Space Debris Coordination Committee (IADC),34 were not
incorporated into a UN General Assembly resolution but merely endorsed35 by the General
Assembly. 36 Other initiatives, such as the EU proposal for a Code of Conduct for Activities in
Outer Space, are deliberately kept outside the UN framework. The tendency to take a socalled ‗technical approach‘ is not necessarily a negative thing. The UN space treaties and
declarations of principles lay out a general legal framework but do not provide specific
standards and procedures. This creates a weakness in the treaties.37 Standard practices and
recommended practices could make the space treaties and principles a lot more
meaningful.38
30
F. LYALL and P. B. LARSEN, supra, note 1, p. 37 and S. HOBE and J. H. MEY, supra, note 7, 396
31
ibid., 396-397
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (UN Doc.
A/62/20, Annex)
32
The UN Space Debris Mitigation Guidelines were drafted by the technical subcommittee of COPUOS
instead of the legal subcommittee and supposedly of a more technical nature.
33
The IADC is an organization established by multiple leading national space agencies. See S. HOBE
and J. H. MEY, supra, note 7, 391-393
34
35
International Cooperation in the Peaceful Uses of Outer Space (UN Doc. A/RES/62/217), 26
36
S. HOBE and J. H. MEY, supra, note 7, 396-397
An example is how the OST requiring states to ―adopt appropriate measures‖ so as to avoid harmful
contamination (Art. IX of the OST) but is missing the criteria to determine which measures are
appropriate or what harmful contamination is. See N. JASENTULIYANA, supra, note 1, p. 402
37
See also G. M. GOH, supra, note 5, p. 23; F. TRONCHETTI, supra, note 8, p. 19-20 and NEGER, T., and E.
WALTER, ―Space Law - An Independent Branch of the Legal System‖ in BRÜNNER, C. and SOUCEK, A.
(Eds.), Outer Space in Society, Politics and Law, , Springer, 2012, p. 241
38
N. JASENTULIYANA, supra, note 1, p. 402
7
1.2
CUSTOMARY INTERNATIONAL LAW
Although it is an important feature of space law that its early formation was dominated by
treaty law,39 customary international law plays a major role as well and has done so from the
moment Sputnik 1 entered orbit.40 Custom is primarily important within space law with
regard to whether the UN space treaties are binding on non-party states and the extent to
which the UN space principles have become legally binding.
The existence of a rule of customary international law requires the presence of two elements:
state practice and opinio juris. 41 Both the ICJ and the PCIJ describe international custom in
those two elements.42 For a treaty to generate rules of customary international law it must be
shown that the provision is of norm-creating character. The convention must have very
widespread and representative participation including the states who are most affected by it
and that third parties show consent to the rule. Finally, within a short time after the
adoption, state practice should be extensive and uniform.43
When we apply these requirements to the UN space treaties many provisions qualify as
customary international law. Whereas disputes continue over some provisions the high
number of ratifications and the lack of formal objections to the Outer Space Treaty44 indicate
that at a bare minimum the rule of international law applying in outer space (Art. III), the
non-appropriation principle (Art. II), the freedom of exploration and use (Art. I), the rule
that this use should be for the benefit of all (Art. I), the responsibility for national activities
including the duty to supervise (Art. VI) and the rule that states are liable for damage caused
to other states during space activities (Art. VII) should be considered as rules of customary
V. S. VERESHCHETIN and G. M. DANILENKO, ―Custom as a Source of International Law of Outer
Space‖, Journal of Space Law 1985, 22 and I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note
8, p. 23
39
When Sputnik entered its orbit around earth it crossed over many territories, yet no state objected to
the violation of its airspace. This is considered to have almost instantly created a new rule of
Customary International Law on the freedom of extra-atmospheric space or outer space. See R.
HANDBERG, ―Rationales of the Space Program‖ in E. SADEH (ed.), Space Politics and Policy: An
Evolutionary Perspective, Dordrecht, Kluwer Academic Publishers, 2004, p. 29-30 and A.
KACZOROWSKA, Public International Law, Abingdon, Routledge, 2010, p. 37
40
The formation of this rule is one of the few examples of instant customary international law. As made
clear by the ICJ, ―the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law‖ See ICJ, North Sea Continental Shelf (Federal
Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, ICJ
Reports 1969, 74
See ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), Judgment, ICJ Reports 1969, 77
41
42
See A. KACZOROWSKA, supra, note 40, p. 35
43
See ibid., p. 43
44
F. LYALL and P. B. LARSEN, supra, note 1, p. 78
8
international law.45 In addition, multiple authors have indicated that many provisions from
the other UN treaties (other than from the Moon Agreement) and the UN principles
described above are also, at least partly, customary international law.46
B. A. BOCZEK, International Law: A Dictionary, Oxford, Scarecrow Press, 2005, p. 239 and F. LYALL
and P. B. LARSEN, supra, note 1, p. 78
45
46
F. LYALL and P. B. LARSEN, supra, note 1, p. 45-46
9
1.3
DEMARCATION BOUNDARY OF OUTER SPACE
One of the most glaring shortcomings within existing space law is the missing demarcation
between airspace and outer space.47 None of the UN space treaties and principles defines
where outer space begins, 48 nor has air law defined what airspace actually comprises. 49
Different schools of thought exist on the matter.50 Firstly some have argued that there is no
need for a clear demarcation.51 It is indeed true that the absence of a demarcation line has not
yet led to any significant conflict situation.52 This position has however been criticised53 and a
majority of states now agree that there is a need for such a demarcation.54 One approach is to
base the demarcation between airspace en outer space on a scientific or technological
criterion. One could for instance look how far the earth‘s atmosphere reaches, the maximum
altitude that airplanes can fly or the lowest perigee a satellite can orbit.55 Many other criteria
are possible yet all have certain flaws. Criteria based on technological capabilities are prone
to uncertainty due to technological advances, whereas many other criteria are either
unpractical or place the boundary well beyond much of low earth orbit which is full of activity
we consider to be a usage of outer space.56
G. OBUNTAN, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for
Spatial Delimitation, Abingdon, Routledge, 2012, p. 284
47
48
ibid., p. 283
49
See I. H. PH. DIEDERIKS-VERSCHOOR and V. KOPAL, supra, note 8, p. 15
50
See Boczek, supra, note 45, p. 239
For instance, in 1959 the ad-hoc COPUOS classified ―determining where outer space begins‖ as a
non-priority issue. See B. CHENG, Studies in International Space Law, Oxford, Clarendon Press, 1997,
p. 101
51
Boczek, supra, note 45, p. 239 and G. OBUNTAN, supra, note 47, p. 285-286
52
See I. H. PH. DIEDERIKS-VERSCHOOR and V. KOPAL, supra, note 8, p. 15
Yet, the lack of a demarcation has been used to circumvent some of the basic principles of space law in
claims by some states. A notable example is the Bogotá declaration. This declaration is an attempt by
some equatorial countries to extent their national sovereignty over the geostationary orbit. See also K.
NYMAN-METCALF, supra, note 3, 630-631
Cheng for instance stated that ―How it can be argued that these two zones need not in law be clearly
demarcated has always remained a great mystery to me.‖ See B. CHENG, supra, note 51, p. 393
53
See also G. OBUNTAN, supra, note 47, p. 289-290
See I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 15 and G. OBUNTAN, supra, note
47, p. 290-292
54
Some western states, including the US, do however maintain that a delimitation is not necessary, nor
advisable. See ibid., p. 285-290 and D. ST. JOHN, ―Where Does Outer Space Begin?‖ in The View From
Above 2013, <djilp.org/3891/where-does-outer-space-begin> (accesed 2 August 2013)
55
See G. OBUNTAN, supra, note 47, p. 297-300 and 306-309
56
See also I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 17-18
10
A suggested alternative is to take a functional approach.57 According to this approach the
focus should be on the nature of the activity rather than the region in which it takes place.58
Aeroplanes are governed by air law, whereas space objects are governed by space law,
wherever they take place. As such there is no need for a boundary line between airspace and
outer space. To some extend the functional approach is in accordance with the current
practice of applying space law on objects as soon as they are intended to reach outer space,
including when they traverse airspace. 59 This approach also manages to reconcile the
functional needs for a different legal regime that aeroplanes and space objects require. Still, it
cannot be denied that certain parts of the Outer Space Treaty require a spatial demarcation.60
In addition it creates new problems as well given that we then need a precise definition of
aeroplane and space object.61
A final approach is to simply decide upon an arbitrary boundary. One could simply agree on a
certain altitude at which airspace stops and outer space begins. 62 In recent years this
approach offered the most hope for a solution in the near future 63 and consensus among
many space actors and scholars is emerging that the arbitrary boundary between airspace
and outer space should be placed (has been placed?) at an altitude of 100 km.64
See G. OBUNTAN, supra, note 47, p. 293, I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note
8, p. 18-19 and ST. JOHN, D., supra, note 54,
57
58
G. OBUNTAN, supra, note 47, p. 294-250
59
See also ibid., p. 289 and J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 23
Examples of elements of Space Law that require a spatial area distinct from airspace are the
principle that outer space is the province of mankind (art. I of the OST) or the non-appropriation
principle (art. II of the OST). See I. H. PH. DIEDERIKS-VERSCHOOR and V. KOPAL, supra, note 8, p. 19
60
61
G. OBUNTAN, supra, note 47, p. 295
62
ibid., p. 309
63
See I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 19
R. ABEYRATNE, Space Security Law, Heidelberg, Springer, 2011, p. 14 and NEGER, T., and E. WALTER,
supra, note 37, p. 241
64
See also J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 73
A notable illustration of a space actor defining outer space at beginning at 100 km above sea level is the
National Space Legislation of Australia. See art. 8 of the Australian Space Activities Act of 1998 (as
amended), <www.comlaw.gov.au>
11
1.4
PECULIARITIES AND BASIC PRINCIPLES OF THE SPACE LAW REGIME
1.4.1
PUBLIC INTERNATIONAL LAW IN OUTER SPACE
Before looking into the peculiarities of the space law regime clarity is required on the status
of general public international law in outer space. Initially some authors suggested that
certain core principles of public international law, or even international law in its entirety,
may not apply in outer space. This view, however, cannot be followed. Rules of public
international law apply everywhere, including outer space, without the need for a
conventional agreement to expand it to newly discovered domains. 65 This view has been
reaffirmed by the OST as well, where special reference is made to the Charter of the UN.66 It
also accords best with the development of customary international law in outer space.67 This
of course does not mean that all norms of international law apply to outer space. Many norms
are of a lex specialis nature and as such only applicable to certain environments or situations
that do not occur in outer space or fit to outer space activities.68
1.4.2
F REEDOM OF EXPLORATION AND USE
The starting point of the legal condition of outer space is basically the same as that of the high
seas, but without the specific rules within the law of the sea which are only applicable to the
high seas. 69 One aspect of this basic regime is the freedom to navigate. It is a rule of
customary international law that formed remarkably fast, almost instantaneous at the
beginning of the space age.70 It is thus considered a rare example of instant custom in Public
International Law.71 This freedom to navigate is included as the freedom of exploration and
See also F. LYALL and P. B. LARSEN, supra, note 1, p. 71; J.N. MAOGOTO and S. FREELAND, ―Space
Weaponization and the United Nations Charter Regime on Force: A Thick Legal Fog or a Receding
Mist?‖, The International Lawyer 2007, 1099 and B. CHENG, supra, note 51, p. 524-525
65
―State Parties to the Treaty shall carry on activities in the exploration and use of outer space,
including the Moon and other celestial bodies, in accordance with international law, including the
Charter of the United Nations, in the interest of maintaining international peace and security and
promoting international cooperation.‖ Art. III of the OST
66
67
J.N. MAOGOTO and S. FREELAND supra, note 65, 1098
M. LACHS, The Law of Outer Space: An Experience in Contemporary Law-Making, Reissued on the
occasion of the 50th anniversary of the International Institute of Space Law, Leiden, Martinus
Nijhoff Publishers, 2010, p. 13; S. FREELAND, and R. JAKHU, ―Article II‖ in HOBE, S., SCHMIDT-TEDD, B.
and SCHROGL, K. (Eds.), Cologne Commentary on Space Law Vol. I, Cologne, Carl Heymanns Verlag,
2009, p. 46 and J.N. MAOGOTO and S. FREELAND supra, note 65, 1098
68
69
B. CHENG, supra, note 51, p. 525
Cf. J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 22
―[T]he first instruments that man sent into outer space traversed the airspace 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
recognized as law within a remarkably short period of time.‖ ICJ, North Sea Continental Shelf (Federal
Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Dissenting Opinion
Judge Lachs, ICJ Reports 1969, p. 230
70
71
See R. HANDBERG, supra, note 40, p. 29-30 and A. KACZOROWSKA, supra, note 40, p. 37
12
use principle in art. I paragraph 2 of the OST.72 This paragraph, however, is wider in its scope
and gives states three different but related rights: the right of free access, the right of
exploration and the right of free use.73 It might be useful to note that the phrasing ―by all
states‖ is not to be interpreted as banning private entities from the exploration and use of
outer space.74
One of the questions that arise from the right of free access to outer space is whether this
gives a right of innocent passage through national airspace. In practice this seems to be
allowed.75 The right of exploration refers to discovery for scientific reasons.76 Unlike with the
previous two some controversy exists regarding to the right of free use. As we will see below,
multiple authors are convinced that this only includes peaceful use. 77 Others question
whether the right to use encompasses exploitation.78 This is based on the for the benefit of all
clause and the non-appropriation principle. These will be covered below. Finally, the freedom
of exploration and use, as formulated in the OST, is considered to be a rule of customary
international law. 79
1.4.3
F OR THE BENEFIT OF ALL
The OST proscribes that the exploration and use of outer space, while free to all, should be
for the benefit and in the interest of all countries and is the province of all mankind.80 The
term province of all mankind is problematic in that sense that its use in the OST is its first
and only occurrence. The OST fails to offer a definition. Hence it is not fully clear what it is
supposed to mean.81 In general terms it seems to implicate that the exploration and use of
outer space should not be aimed at only serving the interests of any particular state, but of
the international community as a whole. 82 This shows similarities with the more recent
concept of the common heritage of mankind, yet without the concrete system for
―Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by
all States without discrimination of any kind, on a basis of equality and in accordance with
international law, and there shall be free access to all areas of celestial bodies.‖ Art. I paragraph 2 of
the OST
72
73
F. TRONCHETTI, supra, note 8, p. 22
74
See infra, p. 16
75
G. OBUNTAN, supra, note 47, p. 289
76
F. TRONCHETTI, supra, note 8, p. 22
77
See infra, p. 17 et seq.
78
F. TRONCHETTI, supra, note 8, p. 22
79
F. LYALL and P. B. LARSEN, supra, note 1, p. 71
―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.‖ Art. I paragraph 1 of the OST
80
81
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 25
82
F. TRONCHETTI, supra, note 8, p. 23
13
management of resources offered by the latter in the Moon Agreement.83 Under the province
of all mankind regime states are free to use and explore outer space as long as they don‘t
harm other states.84
The first part of the article however, states that the use and exploration should also be for the
benefit and in the interest of all countries. This is a recurring theme in space law85 and it is
considered to be a rule of customary international law codified by the OST. 86 Nevertheless,
due to the vagueness of terminology and the general way in which art. I paragraph 1 of the
OST is formulated that the for the benefit of all clause cannot be self-executing.87 Rather it
should be seen as a general principle that requires states through voluntary means to share
the benefits received from the use and exploration of outer space.88 The existence of this
general rule was confirmed by the Declaration on Space Benefits.89
1.4.4
THE NON-APPROPRIATION PRINCIPLE
Before the OST the status of the celestial bodies, including the moon, was unsure.90 Some
authoritative authors considered them to be a territorium nullius and thus subject to
acquisition of territory under the rules of general international law.91 During the late fifties
and early sixties an alternative idea gained popularity. According to this view the celestial
83
NYMAN-METCALF, supra, note 52, 625 and F. TRONCHETTI, supra, note 8, p. 44-45
See also G. OBUNTAN, supra, note 47, p. 205
84
F. TRONCHETTI, supra, note 8, p. 44
85
K. BASLAR, supra, note 19, p. 167
See inter alia International co-operation in the peaceful uses of outer space, adopted on 20 December
1961 (General Assembly resolution 1721 (XVI)), the Declaration of Legal Principles Governing the
Activities of States in the Exploration and Use of Outer Space, adopted on 13 December 1963 (General
Assembly resolution 1962 (XVIII)), the Outer Space Treaty and 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, adopted on 13 December 1996 (UN
Doc. A/RES/51/122)
F. LYALL and P. B. LARSEN, supra, note 1, p. 71, F. TRONCHETTI , supra, note 8, p. 25-26 and K.
BASLAR, supra, note 19, p. 167
86
87
F. TRONCHETTI, supra, note 8, p. 24-25
88
See ibid., p. 27
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,
adopted on 13 December 1996 (UN Doc. A/RES/51/122)
89
F. TRONCHETTI , supra, note 8, p. 78
90
ibid., p. 10
91
See also B. CHENG, supra, note 51, p. 525 and F. TRONCHETTI, supra, note 8, p. 11
14
bodies were, or should become, a res communis omnium.92 Thus whereas at the beginning of
the space age the US and the Soviet Union might have successfully claimed parts of outer
space they choose not to do so and agreed to the prohibition of national appropriation of
outer space.93 With the inclusion of the non-appropriation principle, art. II of the OST94 made
outer space a res communis omnium, 95 a territorium extra commercium. 96 The article
prevents that outer space, including the celestial bodies, 97 could be subject to ownership
rights and prohibits sovereign or territorial claims.98
The non-appropriation principle of art. II OST is a rule of customary international law99 and
a fundamental element of space law ―constituting an absolute legal barrier in the realization
of every kind of space activity.‖ 100 Together with the freedom to use outer space it is the most
well established and uncontroversial, yet defining aspect of the outer space regime. 101
Whereas some private actors have claimed differently,102 the non-appropriation principle is
A res communis omnium is available to all and cannot be owned. In Space Law it is used to indicate
that no state can expand its sovereignty territory in outer space. See ibid., p. 12
92
In 1961 the UN GA unanimously adopted a resolution stating that outer space and celestial bodies ―are
not subject to national appropriation.‖ See International co-operation in the peaceful uses of outer
space, adopted on 20 December 1961 (General Assembly resolution 1721 (XVI)), 1(b)
See S. FREELAND, and R. JAKHU, supra, note 68, p. 45 and F. TRONCHETTI, supra, note 8, p. 14
H.A. Wassenbergh, Principles of Outer Space Law in Hindsight (Martinus Nijhoff 1991), p. 81 and
F. TRONCHETTI , supra, note 8, p. 27
93
―Outer space, including the Moon and other celestial bodies, is not subject to national appropriation
by claim of sovereignty, by means of use or occupation, or by any other means.‖ Art. II of the OST
94
G. OBUNTAN, supra, note 47, p. 195, F. TRONCHETTI, supra, note 8, p. 16 and J-L VAN DE WOUWER
and F. LAMBERT, supra, note 8, p. 23
95
96
B. CHENG, supra, note 51, p. 525 and G. OBUNTAN, supra, note 47, p. 197
The term res extra commercium is used to stress that outer space is an area outside commerce. See F.
TRONCHETTI, supra, note 8, p. 13
This includes even the smallest of celestial bodies, such as asteroids. See G. OBUNTAN, supra, note
47, p. 199
97
S. FREELAND, and R. JAKHU, supra, note 68, p. 45, NYMAN-METCALF, supra, note 52, 624 and J-L
VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 24
98
F. LYALL and P. B. LARSEN, supra, note 1, p. 71, S. FREELAND, and R. JAKHU, supra, note 68, p. 53 and
63, F. TRONCHETTI, supra, note 8, p. 27-28 and Boczek, supra, note 45, p. 239
99
100
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 26
101
NYMAN-METCALF, supra, note 52, 622 and F. TRONCHETTI, supra, note 8, p. 26
This is not to say that there are no authors who keep on insisting that the celestial bodies are a res
nullius and are thus open for appropriation. This is however a minority view and state practice has
been wholly different. See G. OBUNTAN, supra, note 47, p. 195-197
102
See S. FREELAND, and R. JAKHU, supra, note 68, p. 55-57
15
not limited to the actions of states.103 Activities of private entities are national activities also
under international space law.104 Ownership over (parts of) outer space is denied to both
states and non-governmental entities105 and states must ensure that their nationals comply
with the non-appropriation principle.106
1.4.5
PEACEFUL PURPOSES PRINCIPLE
Even before mankind reached the heavens many were worried about the possibility of ―extraterrestrial imperialism and subsequent conflict.‖107 During the first decade of the space age,
with the memory of the second world war very much alive and a raging cold war there was a
strong sentiment that outer space should be used for peaceful purposes only. 108 This
sentiment was translated into some of the early space law documents 109 and it is one of the
fundamental principles of space law.110 Despite this sentiment there were no specific rules
limiting the military use of outer space before the 1967.111 This changed with the OST. Much
misunderstanding, be it due to propaganda or because of a genuine misreading of the treaty
provision, exists over the reach of the peaceful purposes clause in the Outer Space treaty. 112
Whereas the primary vision within the UN was that the whole of outer space should be used
for peaceful purposes only this is not reflected in the wording of the OST.113
103
ibid., p. 49
104
F. TRONCHETTI, supra, note 8, p. 30-31
See infra, p. 18
F. TRONCHETTI, supra, note 8, p. 30 and J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p.
236
105
106
S. FREELAND, and R. JAKHU, supra, note 68, p. 63
107
F. LYALL and P. B. LARSEN, supra, note 1, p. 8
108
B. CHENG, supra, note 51, p. 514
See C. D. SULLIVAN, ―The Prevention of an Arms Race in Outer Space: An Emerging Principle of
International Law‖, Temple International and Comparative Law Journal 1990, p. 211 and B. CHENG,
supra, note 51, p. 514
109
Note also that the UN named the committee on outer space the Committee on Peaceful Uses of Outer
Space.
110
Albeit within a more limited scope then often suggested. See infra.
J.N. MAOGOTO and S. FREELAND supra, note 65, 1100
111
B. CHENG, supra, note 51, p. 513
112
ibid., p. 527-528
113
S. KHAN, supra, note 11, 87
16
Art. IV of the OST, 114 which deals with the issue, consists of two elements. In the first
paragraph it bans the placement of nuclear and other weapons of mass destruction in earth‘s
orbit, on celestial bodies and in outer void space. In the second paragraph it then goes on to
proclaim that ―[t]he Moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes.‖ It is contested what the exact meaning and scope is
of the word peaceful.115 The majority opinion within the legal literature is that peaceful means
non-military, 116 but that the usage of military personnel or equipment does not make a usage
of outer space a military usage. 117 It is the intended goal of the usage that is relevant. 118
However, when the potential of military space applications became apparent, some party
states, led by the US, have interpreted the word ―peaceful‖ differently.119 According to their
view peaceful refers to non-aggressive use instead of non-military. 120 This alternative
interpretation has been a cause of grave anxiety for many states and scholars.121 Those who
maintain that the correct interpretation is that of a non-military use refer to the definition of
peaceful purposes given in the Antarctic Treaty.122 Because art. I of the Antarctic Treaty is
very similar to art. IV of the OST the definition given there is a useful one.123 In the Antarctic
Treaty the peaceful purposes requirement clearly bans military activity and not only
―State Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying
nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial
bodies, or station such weapons in outer space in any other matter.
114
The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for
peaceful purposes. The establishment of military bases, installations and fortifications, the testing of
any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden.
The use of military personnel for scientific research or for any other peaceful purposes shall not be
prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and
other celestial bodies shall also not be prohibited.‖ Art. IV of the OST
J.N. MAOGOTO and S. FREELAND supra, note 65, 1100 and I. H. PH. DIEDERIKS-VERSCHOOR, and V.
KOPAL, supra, note 8, p. 137
115
116
J.N. MAOGOTO and S. FREELAND supra, note 65, 1103
Contra M. BOURBONNIERE and R. J. LEE, ―Legality of the Deployment of Conventional Weapons in
Earth Orbit: Balancing Space Law and the Law of Armed Conflict‖, European Journal of International
Law 2007, 877
117
B. CHENG, supra, note 51, p. 519
118
J.N. MAOGOTO and S. FREELAND supra, note 65, p. 1102
119
B. CHENG, supra, note 51, p. 515
J.N. MAOGOTO and S. FREELAND supra, note 65, 1100; B. CHENG, supra, note 51, p. 515; I. H. PH.
DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 27 and S. KHAN, supra, note 11, 97-98
120
121
B. CHENG, supra, note 51, p. 513
The Antarctic Treaty, UNTS Vol. 402, p. 71, opened for signature on 1 December 1959, entered into
force on 23 June 1961
122
123
B. CHENG, supra, note 51, p. 518
17
aggressive activity.124 Whereas it is clear that a ban on activity with a military purpose adds
something new and distinctive to the outer space regime, this cannot be said of the
alternative interpretation. A definition of aggression is given by the UN Resolution on the
Definition of Aggression125 and aggressive acts are illegal by virtue of the UN Charter,126 not
just on celestial bodies127 but in the entire universe, including earth.128 If peaceful were to
mean non-aggressive the second paragraph of art. IV of the OST would simply be
meaningless.129 Given that the inclusion of the peaceful purposes principle in art. IV OST was
―1. Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any
measures of a military nature, such as the establishment of military bases and fortifications, the
carrying out of military manoeuvres, as well as the testing of any kind of weapons.
124
2. The present Treaty shall not prevent the use of military personnel or equipment for scientific
research or for any other peaceful purpose.‖ Art. I of the Antarctic Treaty
Although the legal value of the Moon Agreement is disputed it may be noted that in this treaty peaceful
purposes seems to indicate both non-aggressive and non-military usage.
―1. The moon shall be used by all States Parties exclusively for peaceful purposes.
2. Any threat or use of force or any other hostile act or threat of hostile act on the moon is prohibited.
It is likewise prohibited to use the moon in order to commit any such act or to engage in any such
threat in relation to the earth, the moon, spacecraft, the personnel of spacecraft or man- made space
objects.
3. States Parties shall not place in orbit around or other trajectory to or around the moon objects
carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such
weapons on or in the moon.
4. The establishment of military bases, installations and fortifications, the testing of any type of
weapons and the conduct of military manoeuvres on the moon shall be forbidden. The use of military
personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of
any equipment or facility necessary for peaceful exploration and use of the moon shall also not be
prohibited.‖ Art. 3 of the Moon Agreement
See also J.N. MAOGOTO and S. FREELAND supra, note 65, 1101; S. KHAN, supra, note 11, 88-89 and B.
CHENG, supra, note 51, p. 533
―Aggression is the use of armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner inconsistent with the Charter of the
United Nations, as set out in this Definition.‖ Definition of Aggression, adopted on 14 December 1974
(General Assembly Resolution 3314 (XXIX))
125
―All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.‖ Art. 2 (4) of the UN Charter
126
As mentioned above the prevalent view is that the United Nations Charter, including the regulation
concerning the use of force, applies to outer space. See supra, p. 8
127
128
B. CHENG, supra, note 51, p. 521
129
ibid., p. 521
18
part of a compromise between the US and the Soviet Union it seems very unlikely that the
intended meaning was a mere restatement of existing law. 130
The above raises the question as to why the US insists on its alternative interpretation of
peaceful. Part of it may be explained by a dispute regarding the status of reconnaissance
satellites in the sixties and early seventies. The Soviet Union initially took the view that the
use of military reconnaissance satellites had a non-peaceful purpose.131 By defining peaceful
as non-aggressive the US offered support to its own assertion that reconnaissance satellites
are a peaceful use of outer space. The legal status of remote sensing activities goes beyond the
topic of this dissertations yet this example betrays a major misunderstanding regarding the
peaceful purposes requirement. The OST treaty did not limit outer void space, including the
orbits used by reconnaissance satellites (or for that matter all the other satellites with a
military purpose in use at present-day) for peaceful purposes. 132 The peaceful purposes
principle is applicable to the moon and other celestial bodies, not to the void in between
them.
How did this misunderstanding come to us? From the late fifties it became fashionable for
the major powers of the day to add the label peace to a multitude of activity, without
necessarily altering their behaviour or intention.133 This political façade should however be
clearly separated from legal norms. Not wishing to go against the popular but incorrect
notion that the whole of outer space was reserved for peaceful purposes but still feeling the
need to continue with its military activity the US chose to redefine the meaning of the word
peaceful.134 Be it deliberate or not, it seems that US policy makers and authors who support
the notion that peaceful means non-aggressive failed to make the distinction between a
political non-binding intention for the whole of outer space and a legal norm regarding
celestial bodies.135 Another cause for the deliberate136 misinterpretation by the US may well
be domestic. Shortly before the US changed its interpretation of the word peaceful, Congress
declared that it ―is the policy of the US that activities in space should be devoted to peaceful
During the negotiations the US was of the view that the use of military personnel and equipment
should be allowed whereas the Soviet Union opposed this notion initially. The Soviet Union abandoned
its reservations when the peaceful purposes principle was added. See J.N. MAOGOTO and S. FREELAND
supra, note 65, 1102
130
131
ibid., p. 1101
132
B. CHENG, supra, note 51, p. 515
133
ibid., p. 514
134
ibid., p. 515
135
ibid., p. 529
136
S. KHAN, supra, note 11, 97-98
19
purposes for the benefit of mankind.‖137 Reinterpreting the word peaceful allowed the US the
stay in compliance with its own national space policy.138
The debate about the correct interpretation of the peaceful purposes principle continues. Yet
in this dissertation the view is taken that a correct reading of art. IV of the OST clearly bans
the placement of weapons of mass destruction in outer space while reserving the celestial
bodies for purely non-military activity. It cannot be denied that outer space is present day a
highly militarized environment.139 While this poses a major threat to the sustainability of
outer space activities,140 it does not necessarily go against existing space law. This is an issue
in which we should be very weary of legal campaigning. Be it in an attempt to justify an
unjustifiable reinterpretation of a core principle of space law by one major space actor or for
the idealistic goal of making the whole of outer space a demilitarized zone. By expanding the
geographical, or more appropriately: the astronomical scope of the peaceful purposes
principle, we risk removing it of all its normative value.
1.4.6
INTERNATIONAL RESPONSIBILITY AND LIABILITY FOR NATIONAL ACTIVITIES
That states should bear international responsibility for their activities in outer space is a
logical consequence of the applicability of public international law to outer space.141 Yet early
on the question arose as to whether the existing law would be adequate to deal with the
unknown dangers posed by outer space activities.142 In this respect it should be noted that
until very recently the theory of the law of the state responsibility in general international law
was not well developed.143 The basis for the international responsibility of states for space
activities was laid out in Art VI and VII OST 144 and further expanded upon by the Liability
Convention and Registration Convention. Art. VI and VII of the OST are considered to be
customary international law. 145 Whether the same is true for the Liability Convention
remains unsure but it should be noted that the convention has now been ratified by almost
137
US National Aeronautics and Space Act of 1958, Pub. L. 85–568, Section 102 (a)
138
B. CHENG, supra, note 51, p. 515
139
J.N. MAOGOTO and S. FREELAND supra, note 65, 1097 and S. KHAN, supra, note 11, 83
140
See infra, p. 40 et seq.
141
M. LACHS, supra, note 68, p. 112
142
ibid., p. 112
D. J. HARRIS, Cases and Materials on International Law, s.l., Sweet & Maxwell, 2010, p. 421 and B.
CONFORTI and A. LABELLA, An Introduction to International Law, Leiden, Martinus Nijhoff Publishers,
2012, p. 106
143
144
G. M. GOH, supra, note 5 , p. 27-28
145
F. LYALL and P. B. LARSEN, supra, note 1, p. 78
20
all, including all the major, space faring nations.146 The resulting law of state responsibility
for outer space activities differentiates somewhat from general public international law.
The first basic principle laid down in the OST is that states bear responsibility for all national
space activities.147 National activities do not only include activities carried out by government
agencies but also by non-governmental entities. 148 The inclusion of non-governmental
entities was a compromise during the drafting of the OST between the US, which wanted to
allow private entities to engage in space activities and the Soviet Union which was reluctant
to do so.149 Following this compromise, private entities can go to space, but they should
remain under the supervision of their respective states and this state will continue to bear
international responsibility for their actions. Likewise any state that launches a space object,
procures a launching or has a space objected launched from their territory or facility is liable
for damage caused to another state or its nationals.150 The rules for responsibility and liability
tend to overlap.151 By making states responsible for damage caused by their nationals the OST
diverges from the law of state responsibility under general public international law.152 This
basic principle of state liability in International space law is reaffirmed and expanded by the
Liability Convention.153
As of 1 January 2013 there are 89 parties and 24 signatories to the Liability Convention. See X,
Status of International Agreements relating to Activities in Outer Space, 2013,
<www.unoosa.org/oosa/en/SpaceLaw/treatystatus/index.html> (accessed 21 July 2013)
146
―State 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
government agencies or by non-governmental entities, and for assuring that national activities are
carried out in conformity with the provisions set forth in present Treaty. The activities of nongovernmental entities in outer space, including the Moon and other celestial bodies, shall require
authorization 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
organization, responsibility for compliance with this Treaty shall be borne both by the international
organization and by the States Parties to the Treaty participating in such organization.‖ Art. VI of the
OST__)
147
B. CHENG, supra, note 51, p. 482 and G. T. HACKET, Space Debris and the Corpus Iuris Spatialis,
Gif-sur-Yvette Cedex, Editions Frontières, 1994, p. 168
148
149
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 28
―Each State Party to the Treaty that launches or procures the launching of an object into outer
space, including the Moon and other celestial bodies, and each State Party from whose territory or
facility an object is launched, is internationally liable for damage to another State Party to the Treaty
or to its natural or juridical persons by such object or its component parts on Earth, in air space or in
outer space, including the Moon and other celestial bodies.‖ Art VII of the OST
150
151
F. TRONCHETTI, supra, note 8, p. 33
Liability stems from various domestic law systems and, unlike responsibility, requires damage and not
(necessarily) a breach of an international obligation to have occurred. See ibid., p. 35-36
152
G. M. GOH, supra, note 5 , p. 28
S. G. GUNASEKARA, ―Mutually Assured Destruction: Space Weapons, Orbital Debris, and the
Deterrence Theory for Environmental Sustainability‖, Air and Space Law 2012, 157; G. M. GOH,
153
21
An interesting, and sometimes problematic, issue under the general law of state
responsibility is the position of fault. Is a fault on behalf of a state necessary for that state to
be responsible for a breach of an international obligation?154 A definite answer cannot be
found in the Draft Articles on Responsibility of States.155 These draft articles focus on the
secondary rules of state responsibility.156 Whether fault is an element required, or to be taken
into account, depends on the primary rules that differ depending on the source of the
obligation.157 Under the liability convention we differentiate between two situations.158 When
it comes to damage caused by a space object on earth (or to an airplane in flight), no fault is
required for a launching state to be liable.159 Damage caused elsewhere, most notably to other
space objects, does require a fault on behalf of the launching state or the private entity for
which the launching state is responsibly. 160 Damage is defined as both damage to property,
the loss of life and injury161 whereas a launching state is any, and every, state that launches a
space object, procures a launching or does so from its territory or facility. 162 The Liability
supra, note 5 , p. 29 and A. BREARLEY, ―Reflections Upon the Notion of Liability: The Instances of
Kosmos 954 and Space Debris‖, Journal of Space Law 2008, 306
See J. CRAWFORD , ―Revising the Draft Articles on State Responsibility‖, European Journal of
International Law 1999, 438 and O. DIGGELMANN, ―Fault in the Law of State Responsibility Pragmatism ad infinitum?‖, German Yearbook of International Law 2006, 304-305
154
International Law Commission‘s Draft Articles on Responsibility of States for Internationally
Wrongful Acts.
155
For the full text see Official Records of the General Assembly, 56 th Session, Supplement No. 10
(A/56/10), p. 43-59
See James Crawford, ‗The ILC‘s Articles on Responsibility of States for Internationally Wrongful
Acts: A Retrospect‘ (2010) 96 The American Journal of International Law 874–890, p. 876, D. J.
HARRIS, supra, note 143, p. 421 and B. CONFORTI and A. LABELLA, supra, note 143, p. 106
156
See also J. CRAWFORD , The International Law Commission's Articles on State Responsibility: Past
and Future, <untreaty.un.org/cod/avl/ls/Crawford_S.html> (accessed 25 July 2013))
157
See Official Records of the General Assembly, 56th Session, Supplement No. 10 (A/56/10), p. 69-70
See also O. DIGGELMANN, supra, note 154, 293
158
NEGER, T., and E. WALTER, supra, note 37, p. 242
―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.‖ Art. II of the Liability Convention
159
―In 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.‖ Art. III of the Liability Convention
160
―The term ―damage‖ means loss of life, personal injury or other impairment of health; or loss of or
damage to property of States or of persons, natural or juridical, or property of international
intergovernmental organizations‖ Art. I (a) of the Liability Convention
161
―The term ―launching State‖ means: (i) A State which launches or procures the launching of a
space object; (ii) A state from whose territory or facility a space object is launched‖ Art. I (c) of the
Liability Convention
162
22
Convention also clarifies that damage following an attempted launch is also covered.163 Given
the broad definition of launching state it is in many cases possible to identify multiple states
as a launching state. Following the Liability Convention these states will be jointly and
severally liable for the damage that may occur.164 One of the peculiarities of space law is that
liability is not connected to jurisdiction or ownership over a space object. Nor is there a
limitation in time to the liability for damage. 165 The original launching state will remain
liable, even when it no longer has effective control or has renounced its ownership.166 This is
of particular concern to the on-orbit sale of satellites.
1.4.7
JURISDICTION AND CONTROL
According to the OST the jurisdiction and control over a space object remains with the state
on whose registry the object was launched. 167 This was later confirmed by the Liability
Convention.168 Thus, in determining the jurisdiction over a space object the connecting factor
between the state and a space object is registration, not nationality.169 It is worth reminding
that in other matters, such as state responsibility and liability,170 other connecting factors
apply.171 The OST also doesn‘t limit the jurisdiction over a space object in time.172 Whereas an
abandoned and defunct satellite can be deemed to be a res derelicta the lack of ownership
163
―The term ―launching‖ includes attempted launching‖ Art. I (b) of the Liability Convention
―Whenever two or more States jointly launch a space object, they shall be jointly and severally liable
for any damage caused.‖ Art. V, paragraph 1 of the Liability Convention
164
―A State from whose territory or facility a space object is launched shall be regarded as a participant in
a joint launching.‖ Art. V, paragraph 3 of the Liability Convention
165
G. T. HACKET, supra, note 148, p. 196
166
See ibid., p. 194
Or according to an adage Prof. Steven Freeland imprinted on my Space Law class: ―Once a launching
state, always a launching state.
―A State Party to the Treaty on whose registry an object launched into outer space is carried shall
retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or
on a celestial body. Ownership of objects launched into outer space, including objects landed or
constructed on a celestial body, and of their component parts, is not affected by their presence in outer
space or on a celestial body or by their return to the Earth. Such objects or component parts found
beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned
to that State Party, which shall, upon request, furnish identifying data prior to their return.‖ Art. VIII
of the OST
167
168
NYMAN-METCALF, supra, note 52, 633
B. CHENG, supra, note 51, p. 483 and M. MINEIRO, Space Debris Remediation : The Public
International Legal Status of Jurisdiction and Control of Space Objects, 2011, p. 5,
<ssrn.com/abstract=1951562> (accessed 7 August 2013)
169
170
See supra, p. 22 et seq.
171
See also B. CHENG, supra, note 51, p. 483
172
M. MINEIRO supra, note 169, p. 5
23
will not affect the jurisdiction.173 This is important given that space objects may remain in
orbit for multiple decades, or much longer.174 Whether the transfer of jurisdiction is possible
is not stated in the UN treaties.175
The jurisdiction and control provision in the OST was expanded upon by the Registration
Convention, 176 a treaty aimed at providing better identification of space objects. 177 The
number of party states to the Registration Convention, while not unsubstantial, remains well
below that of the OST or the Liability Convention.178 The Registration Convention makes it
clear that a space object also includes component parts and the launch vehicle.179 It also
introduced the term ‗state of registry‘.180 Under the convention states are obliged to keep a
national register and furnish certain information to a central UN Registry181 Since 2008 a
173
G. T. HACKET, supra, note 148, p. 194
174
See S. G. GUNASEKARA, supra, note 153, 149-150
175
M. MINEIRO supra, note 169, p. 5
176
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 44
177
WILLIAMS, S. M., ―The ‗surprise‘ convention on the registration of space objects‖ ZLW 1979, 122
As of 1 April 2013 there are 61 parties and 4 signatories to the Registration Convention compared to
102 parties en 26 signatories for the OST and 89 parties and 22 signatories for the Liability
Convention. See X, Status of International Agreements relating to Activities in Outer Space, 2013,
<www.unoosa.org/oosa/en/SpaceLaw/treatystatus/index.html> (accessed 21 July 2013)
178
―The term ―space object‖ includes component parts of a space object as well as its launch vehicle
and parts thereof‖ Art. I (c) of the Registration Convention.
179
It has been noted that this definition is neither clear nor satisfactory. See I. H. PH. DIEDERIKSVERSCHOOR, and V. KOPAL, supra, note 8, p. 45
―The term ―State of registry‖ means a launching State on whose registry a space object is carried in
accordance with article II.‖ Art. I (d) of the Registration Convention
180
―When a space object is launched into Earth orbit or beyond, the launching State shall register the
space object by means of an entry in an appropriate registry which it shall maintain. Each launching
State shall inform the Secretary-General of the United Nations of the establishment of such a registry.‖
Art. II paragraph 1 of the Registration Convention
181
―Each State of registry shall furnish to the Secretary-General of the United Nations, as soon as
practicable, the following information concerning each space object carried on its registry:
(a) Name of launching State or States;
(b) An appropriate designator of the space object or its registration number;
(c) Date and territory or location of launch;
(d) Basic orbital parameters, including:
(i) Nodal period;
(ii) Inclination;
(iii) Apogee;
24
model registration form exists to standardize the information provided by party states. 182 The
information gathered by the register is publicly available but doesn‘t include information on
space debris.183 The Registration Convention remains silent on the possibility of transfer of
an object from one state of registry to another. Nothing seems to prohibit it and it has indeed
happened on a few occasions.184 Deregistration only occurs when an object returns to earth.185
1.5
INTERNATIONAL COOPERATION AND DISPUTE SETTLEMENT
To create international law requires states to interact and cooperate. Likewise, when states
come together to deal with a common issue the existing law is tested and new rules may form.
―Law calls for cooperation and cooperation calls for law.‖ 186 This is no different in space law.
On the contrary, the need for international cooperation is especially strong within the realm
of outer space.187 This is due to the very nature of outer space where challenges are almost
always global and shared between nations. A climate of confidence and legal certainty is a
precondition for a flourishing exploration and use of outer space. 188 Furthermore the
cooperation between states can diminish the chance of military confrontation.189 The need for
international cooperation was recognized by the various space law treaties and principles and
has in fact become an obligation for states. The OST requires states to encourage
(iv) Perigee;
(e) General function of the space object.‖ Art. IV paragraph 1 of the Registration Convention
It should be noted that a second UN Registry exists for non-party states to the Registration
Convention. This registry was established in 1962 by a UN GA resolution. See International cooperation in the peaceful uses of outer space, adopted on 20 December 1961 (General Assembly
resolution 1721 (XVI)), B
182
See <www.oosa.unvienna.org/pdf/misc/reg/regformE.pdf>
Introduced by the Recommendations on enhancing the practice of States and international
intergovernmental organizations in registering space objects, adopted on 10 January 2008 (UN Doc.
A/62/101), 5
G. HOLLINGSWORTH, ―Space Junk : Why the United Nations Must Step in to Save Access to Space‖,
Santa Clara Law Review 2013, 258
183
184
M. MINEIRO supra, note 169, p. 6
185
ibid., p. 6
186
M. LACHS, supra, note 68, p. 26
M. MINEIRO, Space Technology Export Controls and International Cooperation in Outer Space,
Dorbrecht, Springer, 2012, p. vii
187
188
G. M. GOH, supra, note 5 , p. 20-21
M. KREPON, U.S. Space Cooperation with China, 2013, <www.isn.ethz.ch/DigitalLibrary/Articles/Detail/?ots591=4888caa0-b3db-1461-98b9-e20e7b9c13d4&lng=en&id=167661>
(accessed 10 August 2013)
189
25
international cooperation and understanding. 190 When conducting outer space activities
states should also be guided by the principle of international cooperation and mutual
assistance191 and facilitate international cooperation in the field of scientific exploration.192
The OST also established some more specific obligations. These include a duty to consult
other states before undertaking activities that might cause harmful interference,193 conduct
activities with due care194 and offer under certain conditions the opportunity to other states to
observe launched space objects.195 The obligation to consult requires states to ask the opinion
of a potentially affected state but doesn‘t entail a duty to follow decide according to that
opinion.196 Of equal importance is the obligation that the use of outer space should be for the
benefit of all states and is the province of mankind. 197 Not only is international cooperation
essential to comply with this provision it also show the importance within the branch of
international space law of the community of states and humanity as a whole. The sovereign
state is less at the center of the system than it is under general international law. 198
Nevertheless, history has shown that despite this obligation to international cooperation it
has been difficult to convince states to sign up to binding obligations. 199
Even when there is strong international cooperation there is no guarantee for the absence of
disputes between states. Where conflicts may form systems must be put in place to resolve
―States Parties to the Treaty shall carry on activities in the exploration and use of outer space,
including the Moon and other celestial bodies, in accordance with international law, including the
Charter of the United Nations, in the interest of maintaining international peace and security and
promoting international cooperation and understanding.‖ Art. III of the OST
190
―In 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 […]‖ Art. IX
of the OST
191
―There shall be freedom of scientific investigation in outer space, including the Moon and other
celestial bodies, and States shall facilitate and encourage international cooperation in such
investigation.‖ Art. I paragraph 3 of the OST
192
―If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its
nationals in outer space […] would cause potentially harmful interference with activities of other States
Parties in the peaceful exploration and use of outer space […] it shall undertake appropriate
international consultations before proceeding with any such activity or experiment.‖ Art. IX of the OST
193
―[States] shall conduct all their activities in outer Space […] with due regard to the corresponding
interests of all other States Parties to the Treaty.‖ Art. IX of the OST.
194
―In order to promote international cooperation in the exploration and use of outer space [...] the
States Parties to the Treaty shall consider on a basis of equality any requests by other States Parties to
the Treaty to be afforded an opportunity to observe the flight of space objects launched by those
States.‖ Art. X paragraph 1 of the OST
195
196
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 30
197
See supra, p. 14 et seq.
198
See G. M. GOH, supra, note 5 , p. 2
A. KERREST, ―Treaty vs Resolution‖ in LELE, A., Decoding the International Code of Conduct for
Outer Space Activities, New Delhi, Pentagon Security International, 2012), p. 95
199
26
them in a peaceful manner.200 This is why international law is closely connected to dispute
resolution.201 Although states will comply with most international norms without the need for
enforcement, 202 sometimes enforcement mechanisms providing adequate remedy are
required for international law to be effective.203 Dispute settlement within space law is a
subset of international dispute settlement.204 As such international disputes over outer space
activities can be brought to the attention of the UN205 and be subject to a ruling by the ICJ206
or international arbitration by, for instance the Permanent Court of Arbitration. Unlike other
domains of public international law,207 international space law does not yet have its own
dispute resolution system.208 Neither are there provisions for compulsory dispute settlement
under public international space law.209
Most norms under international space law are substantial and without any procedural
rules.210 However, some provisions regarding dispute resolution do exist. Under the Liability
Convention states should first conduct diplomatic negotiations, 211 after which a claims
―1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
200
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by
such means.‖ Art. 33 of the UN Charter
Dispute settlement under international law diverges from the power struggle of international
relations on two important points. The dispute isn‘t merely settled based on the relations between the
parties and ―it supplies a logical norm that is endorsed by those whose conduct it governs.‖ G. M. GOH,
supra, note 5 , p. 17
201
202
D. J. HARRIS, supra, note 143, p. 5-6
203
See G. M. GOH, supra, note 5 , p. 2
204
ibid., p. 21-22
―Any Member of the United Nations may bring any dispute, or any situation of the nature referred
to in Article 34, to the attention of the Security Council or of the General Assembly.‖ Art. 34, paragraph
1 of the UN Charter
205
206
See Chapter XIV of the UN Charter and Statute of the International Court of Justice
An example of such system is the one provided by the UN Convention on the Law of the Sea of 10
December 1982 (UNCLOS). See Part IX UNCLOS and the Agreement relating to the implementation of
Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982
207
208
G. M. GOH, supra, note 5 , p. 2
209
ibid., p. 23
210
ibid., p. 29
―A claim for compensation for damage shall be presented to a launching State through diplomatic
channels. […]‖ Art. IX of the Liability Convention
211
27
commission should be established.212 The convention also provides for a timeframe in which
a claim must be presented. 213 In practice states will strive to resolve the issue through
negotiations.214 It must be noted that the Liability Convention remains largely untested in
practice.215 Other than the above most of the UN treaties only offer the duty to enter in
consultation when requested to by an affected state. 216 Finally, it should be noted that a
dispute resolution system exists under the rules of the International Telecommunication
Union (ITU). The role of the ITU in international space law will be covered in chapter 3.217
This dissertation will attempt to show that there are various gaps in the existing regulatory
regime and conflicting interpretations on some of the basic principles governing outer space
activities. This increases the risk of disputes between states. At the same time space law is a
branch of international law that is badly equipped to resolve disputes.218 This makes the need
to strengthen and clarify the existing regime even stronger.219
―If no settlement of a claim is arrived at through diplomatic negotiations as provided for in article
IX, within one year from the date on which the claimant State notifies the launching State that it has
submitted the documentation of its claim, the parties concerned shall establish a Claims Commission
at the request of either party.‖ Art. XIV of the Liability Convention.
212
―A claim for compensation for damage may be presented to a launching State not later than one
year following the date of the occurrence of the damage or the identification of the launching State
which is liable.‖ Art. X paragraph 1 of the Liability Convention
213
See C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), Space Debris Removal for a
Sustainable Space Environment, Vienna, 2011, p. 3
214
215
A. BREARLEY, supra, note 153, 292
216
G. M. GOH, supra, note 5 , p. 23
217
See infra, p. 61
218
A. BREARLEY, supra, note 153, 314
219
See also G. M. GOH, supra, note 5 , p. 17
28
CHAPTER 2: CONTEMPORARY THREATS TO OUTER SPACE ACTIVITIES
2.1
DEPENDENCY ON OUTER SPACE
Outer space is a hazardous place. It has always posed significant challenges to all who venture
there. Even today, over half a century after the launch of Sputnik 1, more than 5% of all
launch attempts fail.220 Furthermore, incidents such as the Colombia disaster 221 are a grim
reminder of the potential human cost of failure. Some dangers are more comprehensive than
others and threaten not just a single enterprise but the entire use of outer space. In this
chapter we will look at those threats that undermine the sustainability of activities in outer
space. To fully appreciate the gravity of the threats posed one must keep in mind the
dependency of humankind on these outer space activities. The changes to society brought
about by satellite technology have been compared to those created by the early industrial
revolution. 222 Services such as contemporary telecommunications, direct broadcasting,
remote sensing, weather prediction and satellite navigation would all be impossible without a
reliable access to outer space.223 These are services modern society has come to rely upon. 224
Furthermore, our dependency on outer space activities has been increasing fast since the
beginning of the 21st century.225
Different uses of space have different requirements. The technical aspects of these
requirements go beyond the scope of this dissertation. Yet the most important uses and the
locations where they take place will be briefly discussed. The vast majority of activities in
outer space are situated in an orbit around earth. These different orbits have been subdivided
into various categories. No universal agreement exists on the naming or subdivisions
made.226 We will distinguish between the following. First, there are the Low Earth Orbits
According to <www.spacelaunchreport.com> 6 out of 78 launches failed in 2012, while 6 out of 84
in 2011 and 4 out of 74 in 2010 suffered the same faith.
220
On February the 1st of 2003 the Space Shuttle Colombia disintegrated during re-entry, killing its
crew of 7.
221
222
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 55
SECURE WORLD FOUNDATION, Space Sustainability: a practical guide, Washington, Secure World
Foundation, 2010, p. 4; J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 77 and I. H. PH.
DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 54
223
A. LELE (Ed.), Decoding the International Code of Conduct for Outer Space Activities, New Delhi,
Pentagon Security International, 2012, p. wvii; R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, The Need
for an Integrated Regulatory Regime for Aviation and Space: ICAO for Space?, Vienna, SpringerVerlag, 2011, p. 8; M. KREPON, ―Origins of and Rationale for a Space Code of Conduct‖ in LELE, A.,
Decoding the International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security
International, 2012), p. 31 and D. A. KOPLOW, ―ASAT-isfaction : Customary International Law and the
Regulation of Anti-Satellite Weapons‖, Michigan Journal of International Law 2009, 1190
224
C. JARAMILLO (Ed.), Space Security Index 2012, Ontario, 2012, p. 83, <www.spacesecurity.org/
SpaceSecurityReport2012.pdf>
225
226
See I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 20-21
29
(LEO), which are orbits located up to 2000 km in altitude.227 The majority of satellites can be
found here, 228 as well as all human space flight since Apollo 17. LEO is mainly used for
remote sensing satellites as well as for some types of communications satellites.229 Orbits
above 2000 km in altitude or High Earth Orbits (HEO) are used less except for two specific
regions.230 The many navigation satellites such as those from the GPS and Galileo systems are
generally found at 20.000 km in altitude.231 The second highly used region in HEO is the
geostationary orbit (GEO) at about 36.000 km above the equator. GEO is unique in that
satellites located here orbit the earth at exactly the same speed as the earth rotates.232 About
40% of active satellites can be found in GEO. 233 These satellites are predominantly
telecommunication satellites and meteorological satellites.234 It is of course also possible to
classify orbits not by their altitude235 but by their inclination to the equator. A polar orbit for
instance will have an inclination of 90 degrees bringing the satellite over both Polar Regions.
Most polar orbits in use are LEOs.
What all these activities have in common is that they are undertaken in a fragile
environment. The outer space environment has a limited capacity for self-healing when
polluted.236 Any adverse change of the environment can thus pose problems for activities in
outer space for a long time. Different space actors have identified several specific threats to
227
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 73
228
ibid.
See also ALLIANZ GLOBAL CORPORATE & SPECIALTY, Space Risks : A new generation of challenges,
Munich, Allianz Global Corporate & Specialty, 2012, p. 15
229
230
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 73
231
ibid., p. 73
This orbit is sometimes also labeled as a medium earth orbit (MEO). See I. H. PH. DIEDERIKSVERSCHOOR, and V. KOPAL, supra, note 8, p. 20
C. JARAMILLO (Ed.), Space Security Index 2011, Ontario, 2011, p. 39, <www.spacesecurity.org/
space.security.2011.revised.pdf>
232
The idea to use GEO was popularized by British science fiction writer ARTHUR C. CLARK: ―It will be
observed that one orbit, with a radius of 42,000 km, has a period of exactly 24 hours. A body in such
an orbit, if its plane coincided with that of the earth's equator, would revolve with the earth and would
thus be stationary above the same spot on the planet. It would remain fixed in the sky of a whole
hemisphere and unlike all other heavenly bodies would neither rise nor set. A body in a smaller orbit
would revolve more quickly than the earth and so would rise in the west, as indeed happens with the
inner moon of Mars.‖ See A.C. CLARKE, "Extra-terrestrial relays: Can Rocket Stations Give World-wide
Radio Coverage?‖, Wireless World 1945, 305-308
233
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 73
234
See ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 15
It should be noted that the altitude of a satellite in orbit can, and often does, differ. The highest
point is called the apogee. The lowest point is the perigee.
235
236
S. G. GUNASEKARA, supra, note 153, 149
30
their own future activities. The US National Security Space Policy from 2011 states that
―space is becoming increasingly congested, contested, and competitive.‖ 237 This analysis is
broadly shared by other space actors and commentators. 238 However, not all challenges
facing individual space actors are threatening the sustainability of outer space activities as
such. The main threats to the continued use of outer space can be divided into three
categories: space debris,239 orbital crowding240 and further militarisation.241 They will each be
covered in this chapter.
US DEPARTMENT OF DEFENCE, National Security Space Strategy Unclassified Summary, January
2011, p. 1
237
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), ‗The Role of Transparency and
Confidence-Building Measures in Advancing Space Security‘, 2010, p. 61 and R. P. RAJAGOPALAN, ―The
Space Code of Conduct Debate: A View from Delhi‖, SSQ 2012, 137
238
Contra B. BUTTERWORTH, Obama Administration‟s „Three Cs‟ Means a Failing Space Policy, 2011,
<breakingdefense.com/2011/11/07/obama-administrations-three-cs-means-a-failing-space-policy/>
(accessed 16 July 2013)
Inter alia International cooperation in the peaceful uses of outer space, 2012 (UN GA
A/RES/66/71), Preamble; US EXECUTIVE OFFICE OF THE PRESIDENT, National Space Policy, 28 June
2010, p. 1-2; US DEPARTMENT OF DEFENCE, National Security Space Strategy Unclassified Summary,
January 2011, p. 1; SECURE WORLD FOUNDATION, , supra, note 223, p. 2-3; Resolution of the Council of
the European Union no. 13569/08, Taking forward the European Space Policy, adopted on 16
September 2008, p. 4 ; Communication from the Commission to the Council, the European
Parliament, the European Economic and Social Committee and the Committee of the Regions No.
152/11, Towards a Space Strategy for the European Union that Benefits Its Citizens, 4 April 2011, p. 67; INFORMATION OFFICE OF THE STATE COUNCIL OF THE PEOPLE'S REPUBLIC OF CHINA, China‟s Space
Activities in 2011, 2011, Chapter III.8, <www.china.org.cn/government/whitepaper/node
_7145648.htm> (accessed 18 July 2013) and J. ROBINSON (FOR THE EUROPEAN SPACE POLICY
INSTITUTE), supra, note 238153, p. 11
239
Inter alia US EXECUTIVE OFFICE OF THE PRESIDENT, National Space Policy, 28 June 2010, p. 1-2; US
DEPARTMENT OF DEFENCE, National Security Space Strategy Unclassified Summary, January 2011, p.
2; SECURE WORLD FOUNDATION, , supra, note 223, p. 2 and J. ROBINSON (FOR THE EUROPEAN SPACE
POLICY INSTITUTE), supra, note 238153, p. 11
240
Inter alia International cooperation in the peaceful uses of outer space (UN GA A/RES/66/71
(2012), Preamble; US DEPARTMENT OF DEFENCE, National Security Space Strategy Unclassified
Summary, January 2011, p. 3 and SECURE WORLD FOUNDATION, Space Sustainability 101, 2013,
<swfound.org/space-sustainability-101/> (accessed 25 July 2013)
241
31
2.2
SPACE DEBRIS
2.2.1
DEFINITION
Legal work aimed at countering the threat posed by space debris has been complicated by the
lack of a universal definition of space debris.242 Likewise the terminology is not universal.
One prominent example would be the alternative term orbital debris which is in common use
in the US and includes any object in orbit that does not have a useful purpose.243 Although
only aimed at defining space debris for the purposes of the document; the UN Space Debris
Mitigation Guidelines provided us with the first internationally accepted definition.244 The
influence of this definition can already be noticed in recent literature. According to the
guidelines space debris is defined as ―all man-made objects, including fragments and
elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional.‖ 245
This means that natural objects are excluded246 and that the criterion to separate debris from
other man-made objects is whether the object is functional. This is the definition of space
debris we will adhere to in this dissertation.
2.2.2 SCOPE OF THE PROBLEM
The increased danger posed by space debris is the most urgent issue threatening outer space
activities.247 The main hazard is the risk of collision with an active space object.248 Because of
the high velocities that space objects travel at small bits and pieces can destroy or severely
damage a satellite.249 When the risk of collision becomes too high an entire orbit can be
rendered unusable.250 In the long run this may compromise our access to space altogether.
Although this worst-case scenario might not materialize, every small increase in the risk of
collision has dire consequences for satellite operators. In 2011 satellite operators paid a total
242
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 2-3
243
S. HOBE and J. H. MEY, supra, note 7, 393
244
ibid., p. 393
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (UN Doc.
A/62/20, Annex), endorsed on 22 December 2007 (UN Doc. A/RES/62/217)
245
246
Note the difference with the term orbital debris.
SECURE WORLD FOUNDATION, , supra, note 223, p. 20; J-L VAN DE WOUWER and F. LAMBERT, supra,
note 8, p. 76; A. BREARLEY, supra, note 153, 291 and E. BERNHARDSDOTTER, ―The EU and Star Wars:
The Space Code of Conduct as a Tool for Security Policy‖ in LINDELL, M. T., HELLSTRÖM, J., MOLIN, L.
and WISS, Å., Strategic Outlook 2013, Stockholm, Swedish Defence Research Agency, 2013, p. 85
247
248
S. G. GUNASEKARA, supra, note 153, 151
Debris sized between 1 mm and 1 cm can damage vulnerable areas of satellites. Although shielding
can protect a space object against debris of this size, this added weight comes at great expense
regarding the launching of satellites. It is currently impossible to provide sufficient shielding to protect
against the impact of space debris of a larger size. See ibid., p. 152
249
250
J. H. MEY, ―Space Debris Remediation‖, ZLW 2012, 253
32
of $ 800 million of premiums for on-orbit insurance.251 If the risk of a collision goes up, so
does the premium that needs to be paid. When a satellite is in risk of collision, avoidance
manoeuvres can sometimes be made. However, these spend precious fuel, reducing the life
expectancy of the satellite. 252 Furthermore, it is extremely difficult to calculate the exact
likelihood of a collision 253 and neither are all pieces of space debris large enough to allow for
them to be tracked and thus issue a timely warning. The risk of collision is also a major
danger for manned space missions.254 In May 1988 a viewport of the MIR space station was
severely damaged by a piece of space debris.255 The Space Shuttle was hit regularly by small
pieces of debris and by the end of its service space debris posed 50% of the risk of a
catastrophic loss of the shuttle. 256 To reduce the danger major effort was put into the
protection of the ISS from impacts through shielding. This made the space station the most
heavily protected man-made object in space.257 Still, the ISS often has to change orbit to
avoid collision.258
The amount of space debris is increasing259 and so is the risk of collision with an active space
object. 260 Because every collision creates more space debris this could lead to a cascade
effect,261 commonly known as the Kessler Syndrome.262 This would mean that even if no new
space debris is created through accidents or normal operation the cascading number of
Only a minority of satellites have on-orbit insurance. Less than 30 LEO satellites and 200 GEO
satellites, being worth a total of $20 billion, had insurance in 2011. Most of the insurance policies
cover all risks except for those explicitly excluded. See ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra,
note 229, p. 2
251
See also X, ―Detection of Debris from Chinese ASAT Test Increases; One Minor Fragmentation
Event in Second Quarter of 2007‖, Orbital Debris Quarterly News 2007, 2
252
S. G. GUNASEKARA, supra, note 153, 150; C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE),
supra, note 214, p. 4 and ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 6
253
254
I. H. PH. DIEDERIKS-VERSCHOOR, and V. KOPAL, supra, note 8, p. 94
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), Orbital Debris: A Chronology, Hanover, 1999, p. 56
255
J. KELLY, Debris is Shuttle‟s Biggest Threat, 2005, <www.space.com/792-debris-shuttle-biggestthreat.html> (accessed 8 August 2013) and UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH,
Building the Architecture for Sustainable Space Security: Conference Report, Geneva, United Nations
Publications, 2006, p. 42
256
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Orbital Debris Management & Risk
Mitigation, Washington, National Aeronautics and Space Administration, 2012, p. 20
257
258
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 76
259
See also annex 1, p. 87
260
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 28
See J. H. MEY, supra, note 250, 252 and C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE),
supra, note 214, p. 1
261
The Kessler Syndrome is named after DONALD J. KESSLER, a NASA scientist who proposed this
possibility in 1978. See NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 27
262
33
collisions between space debris, other debris and active space objects would lead to an influx
of ever more debris. New research indicates that we have already reached this point in
LEO.263If correct this would bring forward the urgent need for active debris removal.264 While
the risk of collision is the most pressing issue, it is not the only danger posed by space debris.
Larger parts may not burn up in the atmosphere and cause damage on earth. 265 Space debris
also create interference with radio signals from satellites. 266 Furthermore it adds to the
problem of the congestion of outer space, especially in GEO.267 Even astronomers have felt
the consequences of space debris as the light pollution it creates hinders their
observations.268
Multiple types of space debris exist. Operational debris is a category consisting of largely
intact objects or component parts thereof that were launched or released during normal
operations. 269 Part of this is mission-related debris; items such as engine covers and
sensors.270 Some of the more exotic pieces of debris, such an astronaut glove271 and a golf
ball,272 also belong to this group. A more numerous group within the category of operational
debris is launch equipment. Examples include fuel tanks and rocket bodies.273 The second
category of space debris is that of the inactive payloads.274 These are satellites and probes that
INTER-AGENCY SPACE DEBRIS COORDINATION COMMITTEE, Stability of the Future LEO Environment,
2013, p. 2 and NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 27
263
264
INTER-AGENCY SPACE DEBRIS COORDINATION COMMITTEE, supra, note 263, p. 17
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (UN Doc.
A/62/20, Annex), Part 1 ‗Background‘
265
This is however a rather small risk. Most space objects falling back to earth follow a spiraling
trajectory. This ensures that most of them burn up completely before reaching the ground. On average
about 50 large space objects de-orbit every year. Given the large surface area of our planet the chances
are very low that those who do not burn up in the atmosphere cause damage. See ALLIANZ GLOBAL
CORPORATE & SPECIALTY, supra, note 229, p. 8 and A. BREARLEY, supra, note 153, 391-392
L. VIIKARI, The Environmental Element in Space Law: Assessing the Present and Charting the
Future, Leiden, Martinus Nijhoff Publishers, 2008, p. 37 and C. LEHNERT (FOR THE EUROPEAN SPACE
POLICY INSTITUTE), supra, note 214, p. 1
266
267
ibid., p. 1
268
L. VIIKARI, supra, note 266, p. 37
269
G. HOLLINGSWORTH , supra, note 183, 242
270
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 6
B.
SILLS,
Lost
in
space:
the
killer
screwdriver,
The
Guardian,
2004,
<www.theguardian.com/science/2004/oct/11/sciencenews.spaceexploration> (accessed 1 August
2013)
271
K. THAN, Astronauts Whack Golf Ball and Outfit Station in Spacewalk, 2006,
<www.space.com/3149-astronauts-whack-golf-ball-outfit-station-spacewalk.html> (accessed 5 June
2013)
272
273
S. G. GUNASEKARA, supra, note 153, 150
274
Inactive payloads are also known as non-operational space debris.
34
are no longer controllable by their operators.275 They vary in size anywhere between one
kilogram and multiple tons.276 The next category, fragmentation debris, is created when space
objects break up into (sometimes tiny) bits and pieces.277 These pose the greatest risk as they
are often too small to track, but large enough to destroy an active satellite. 278 A final category
is that of the microparticular matter.279 This category consists of bits of rocket fuel, propellant
particles, paint flecks and similar particles.280 Almost 20.000 pieces of debris larger than 10
cm orbit the earth. Another 500.000 pieces measure between 1 and 10 cm and no less than
an estimated 135 million pieces exist in the 1 mm to 1 cm scale.281 The total amount of debris
consists of about 6700 tons.282
In LEO atmospheric drag will a make space object fall back to earth over time. Objects below
600 km in altitude will typically fall back to earth within a few years, objects at about 800 km
in altitude can be expected to stay there for a few decades and any object situated above 1000
km might stay in orbit for many centuries.283 The general rule is that the higher the orbit, the
longer a space object will remain there.284 Given the high altitude of their orbit any space
debris in GEO will remain there indefinitely.285 This aggravates the problem of congestion in
GEO.286 Still, space debris is most problematic in LEO as the risk of collision is higher and
this is the most used region of outer space. 287
275
S. G. GUNASEKARA, supra, note 153, 149-150
276
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 6
277
S. G. GUNASEKARA, supra, note 153, 150
278
L. VIIKARI, supra, note 266, p. 37 and ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p.
4
See also NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 7
279
G. HOLLINGSWORTH , supra, note 183, 242
280
ibid., p. 242
281
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 13
282
J. H. MEY, supra, note 250, 252
283
S. G. GUNASEKARA, supra, note 153, 149
Sputnik 1, the first artificial satellite, lasted only 3 months before decaying from its low orbit. By
contrast, a satellite in GEO is expected to remain there for millions of years. See D. S. F. PORTREE and
J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI PROGRAM), supra, note
255, p. 1
284
See also L. VIIKARI, supra, note 266, p. 36
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), supra, note 255, p. 1
285
286
See next chapter. Infra, p. 54
287
ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 5
35
2.2.3 SOURCES OF SPACE DEBRIS
The primary sources of space debris today are the accidental and deliberate breakup of
satellites and launch equipment.288 Some of these events have been especially disruptive and
created large quantities of space debris.289 One of the main causes of accidental breakups is
the explosion of a satellite or launch vehicle. The last of which was until recently the source of
a majority of all space debris.290 Accidental explosions are typically caused by leftover fuel or
stored energy. At least 200 of such explosions have been identified. 291 Another cause for the
accidental breakup of a space object is a collision. A prime example is the Iridium-Cosmos
accident. On 10 February 2009 a defunct Russian satellite Cosmos 2251 collided with the
American satellite Iridium 33 at an altitude of 790 km. Of the debris created by this crash
2201 pieces of debris were large enough to be tracked by NASA. In January 2013 1821 pieces
were still in orbit.292 The risk of collision is especially a problem in LEO and it is expected to
become an increasing source of space debris in future. 293 In GEO all satellites are kept in the
same orbital plane and at a constant velocity. This reduces the risk of a collision.294 The final
group of satellite breakups is that of those caused intentionally. Intentional satellite breakups
mainly come in the form of anti-satellite (ASAT) tests.295 The issue of ASAT testing and use
will be covered in this chapter under the title militarization of outer space.296 Other sources of
space debris exist but are responsible for a lower percentage of debris in orbit. These include
the mission-related debris and inactive payloads, the last of which used to be especially a
problem in GEO. Nowadays the creation of mission related debris has been largely eliminated
by the established users of outer space.297
2.2.4 BASIC LEGAL REGIME
As was discussed above, states bear international responsibility for national activities and are
liable for damage caused by their space objects.298 This begs the question whether a piece of
debris is a space object. There is no temporal limit after which space objects seize to be a
288
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 8
The disintegration of just ten satellites is the cause of 30% of the present-day space debris. See
ibid., p. 7
289
290
ibid., p. 9
291
ibid., p. 9
292
X, “An update of the FY-1C, Iridium 33, and Cosmos 2251 Fragments”, Orbital Debris Quarterly News
2013, 5
293
See also NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 27
294
See ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 5
295
An exception is the destruction of USA-193
296
See infra, p. 58
297
See NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 6
298
See supra, p. 21
36
space object.299 Furthermore the Registration Convention states that a space object includes
the component parts.300 Consequently space debris is indeed a space object. There is however
some uncertainty as to whether fragmentation debris should also be considered a space
object as these small bits might, depending on the interpretation, not be ―component parts
thereof‖.301
There is also no limitation in time concerning a state‘s liability for damage.302 The original
launching state will remain liable, even when it no longer has effective control or has
renounced its ownership. 303 In case of a collision with an active space object the state
responsible for the piece of debris will be liable for the damage if it can be shown they bear
fault.304 This poses practical problems as it is unsure what would constitute a fault. Is a state
at fault when the debris that caused the damage was released knowingly during normal
operations in a manner that was consistent with common practice at that time? Would a state
be at fault when the debris originates from an accidental explosion or when the debris is an
inactive payload? There is no certainty in what the answer to these questions is. It is without
much doubt that a state would use this vagueness to attempt avoiding its liability.305 In this
light it must also be stressed that the Liability Convention remains largely untested in
practice.306 Clearly a clarification of what constitutes a fault is needed. 307 The above assumes
that the origin of a piece of debris can be determined. In practice this might often not be the
case. To change this would require not only increased space situational awareness but also
underlines the importance of getting more countries to sign and abide to the registration
convention.
The uncertainty over the liability caused by accidents with space debris must be resolved.
However, that topic reaches beyond the scope of this dissertation. A more pressing issue, and
one that will be addressed here, is how to reduce the risk posed by space debris.308 A central
question is whether an obligation exists upon states to mitigate the creation of space debris.
299
M. MINEIRO supra, note 169, p. 10
――space object‖ includes component parts of a space object as well as its launch vehicle and parts
thereof.‖ Art. I (b) of the Registration Convention
300
301
M. MINEIRO supra, note 169, p. 10
302
G. T. HACKET, supra, note 148, 196
303
See ibid., p. 194
Or according to an adage Prof. Steven Freeland imprinted on those following his Space Law class:
―Once a launching state, always a launching state.‖
304
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 3
305
See ibid., p. 3
306
A. BREARLEY, supra, note 153, 292
307
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 4
308
A. BREARLEY, supra, note 153, 319
37
This is not ad verbum addressed in the UN treaties and principles.309 However, states are
obliged to act with due regard to the interests of other states under article IX of the OST.310
The article provides in three positive legal obligations for states to comply with in order to be
in accordance with their due regard obligation. 311 They must conduct their affairs in a way
that avoids harmful contamination, adopt ―where necessary‖ measures to prevent harmful
contamination312 and they are obliged to undertake consultations before undertaking any
activity that is expected to have a risk of creating harmful contamination. 313 Although the
treaty does not offer a definition of harmful contamination it can understood to mean ―the
introduction of elements that make outer space unfit for use or are likely to be injurious to
users of outer space.‖314 This would certainly include space debris. The OST does not prohibit
the creation of harmful contamination. It rather requires states to avoid it where possible.315
Such an obligation is not unique to international space law. It is considered to be a norm of
general customary international law.316 As was stated in the Iron Rhine Railway Arbitration:
“Environmental law and the law on development stand not as alternatives but as
mutually reinforcing, integral concepts, which require that where development may
cause significant harm to the environment there is a duty to prevent, or at least
mitigate, such harm […].This duty, in the opinion of the Tribunal, has now become a
principle of general international law.”317
In practice the mitigation of space debris is however a complicated issue. The UN treaties and
principles are incapable to fully deal with all of the aspects.318 What is required is a body of
309
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 75
―[States] 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.‖ Art. IX
of the OST
310
M. MINEIRO, ―FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal Obligations under
Article IX of the Outer Space Treaty‖, Journal of Space Law 2008, 333
311
―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 […] and,
where necessary, shall adopt appropriate measures for this purpose.‖ Art. IX of the OST
312
―If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its
nationals in outer space, including the Moon and other celestial bodies, would cause potentially
harmful interference with activities of other States Parties in the peaceful exploration and use of outer
space, including the Moon and other celestial bodies, it shall undertake appropriate international
consultations before proceeding with any such activity or experiment.‖ Art. IX of the OST
313
314
M. MINEIRO, supra, note 311, 339
315
ibid., p. 340
316
L. VIIKARI, supra, note 266, p. 111 and D. J. HARRIS, supra, note 143, p. 39
PCA, Arbitration Regarding the Iron Rhine Railway (Belgium v. Netherlands), Award of the
Tribunal of 24 May 2005, available at <www.pca-cpa.org>, 59__)
317
318
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 6
38
more substantive rules and procedures that approach the problem from both the space safety
and space security perspectives.319
Another point that must be made on the issue of space debris mitigation is its relation to the
right of access to outer space that all states have.320 New space faring nations do not possess
the same know-how and experience as long standing space faring nations. Neither are all
states capable of the same investment in technological improvement. This has an effect on
the ability of a state to mitigate its creation of new space debris. An interpretation of article
IX that is to stringent may therefore come into conflict with the right of free access to outer
space.321
2.2.5 INTERNATIONAL RESPONSE TO THE THREAT OF SPACE DEBRIS
Since the late seventies work has been done on developing space debris mitigation
measures.322 During the last decade of the previous century several states introduced national
guidelines and procedures to limit the creation of space debris.323 On the international level
Space debris has been discussed in the Scientific and Technical Subcommittee (STSC) of the
COPUOS for the past 20 years and it was a key agenda point in recent years. 324 An important
milestone was the publication of the Technical Report on Space Debris in 1999.325 The report
accomplished the first common technical understanding on the space debris environment. 326
However, no consensus could be achieved to let the Legal Subcommittee (LSC) conduct
follow-up activity on the legal aspects of space debris.327 Luckily, this did not stall the work on
319
S. HOBE and J. H. MEY, supra, note 7, 402
320
See supra, p. 12
R. S. JAKHU and K. SINGH, ―Space Security and Competition for Radio Frequencies and
Geostationary Slots‖, ZLW 2009, 76
321
322
M. MINEIRO supra, note 169, p. 2
See also J. H. MEY, supra, note 250, p. 253
Yet, at the same time it took until 1999 before the threat posed by space debris was recognized on the
level of the UN. See ibid., p. 251
323
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 21-23
X, ―Twentieth Year of Space Debris Discussions at the United Nations‖, Orbital Debris Quarterly
News 2013, 1 and K. SCHROGL, C. MATHIEU and N. PETER (Eds.), Yearbook on Space Policy
2007/2008, Vienna, Springer-Verlag, 2009, p. 13
324
Technical Report on Space Debris, 1999 (UN Doc. A/AC.105/720), adopted by the STSC of
COPUOS (UN Doc. A/AC.105/719)
325
See X, supra, note 324, 1
326
S. HOBE and J. H. MEY, supra, note 7, 391
Report of the Scientific and Technical Subcommittee on the work of its thirty-sixth session (UN
Doc. A/AC.105/719), para. 40
327
39
establishing the legal regime. International organisations stepped in to do what was not
achievable within the LSC.328
Paramount for the development of the legal regime is the work done by the Inter-Agency
Space Debris Coordination Committee (IADC).329 This organisation was established as early
as 1993 in response to the threat posed by space debris. 330 It is made up of the leading
national space agencies and the ESA. 331 The purpose of the IADC is to ―exchange information
on space debris research activities between member space agencies, to facilitate opportunities
for cooperation in space debris research, to review the progress of on-going cooperative
activities, and to identify debris mitigation options.‖ 332 In 2002 the IADC submitted a
proposal for space debris mitigation guidelines to the STSC. 333 An endorsement of these
guidelines was however deemed premature by the STSC. Instead the IADC guidelines would
serve as a basis for a new document developed within the framework of the COPUOS.334 That
work was concluded in 2007 when the UN Space Debris Mitigation Guidelines 335 were
adopted by the STSC and endorsed by COPUOS and the GA.336
The guidelines are only applicable to the mission planning and operation of newly designed
spacecraft and orbital stages and ―if possible‖ also to existing ones. They don‘t ban certain
uses of space, not even the most harmful.337 Instead they offer advice on how to conduct outer
space activities in a manner that minimizes the creation of space debris. One of the most
obvious achievements of the guidelines is the establishment of the first internationally
accepted definition of space debris. 338 The guidelines identify two different situations
requiring different solutions. The first is the near-term generation of space debris and
For instance, a legal study on space debris was conducted by the European Center for Space Law
and the findings reported to the LSC in 2002. See S. HOBE and J. H. MEY, supra, note 7, 391
328
329
J. H. MEY, supra, note 250, p. 255
330
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 42
It‘s members are ASI (Agenzia Spaziale Italiana), CNES (Centre National d'Etudes Spatiales), CNSA
(China National Space Administration), CSA (Canadian Space Agency), DLR (German Aerospace
Center), ESA (European Space Agency), ISRO (Indian Space Research Organisation), JAXA (Japan
Aerospace Exploration Agency), NASA (National Aeronautics and Space Administration),
ROSCOSMOS (Russian Federal Space Agency), SSAU (State Space Agency of Ukraine) and UKSpace
(UK Space Agency) See X, Inter-Agency Space Debris Coordination Committee, 2013)
<http://www.iadc-online.org/> (accessed 1 August 2013)
331
332
ibid.
333
S. HOBE and J. H. MEY, supra, note 7, p. 391
334
ibid., p. 392
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space (UN Doc.
A/62/20, Annex), endorsed on 22 December 2007 (UN Doc. A/RES/62/217)
335
336
S. HOBE and J. H. MEY, supra, note 7, 393
337
ibid., p. 394
338
See supra, p. 42
40
―involves the curtailment of the production of mission-related space debris and the avoidance
of break-ups.‖ The second deals with long term generation and requires ―end-of-life
procedures that remove decommissioned spacecraft and launch vehicle orbital stages from
regions populated by operational spacecraft.‖339 In total there are seven guidelines. They all
have a tittle, followed by the guideline and some extra explanation on the purpose and/or
historical background of the guideline. The first four guidelines deal with near-term
generation of debris. According to the first guideline states should avoid, or if that is not
feasible minimize, the creation of new space debris.340 The second requires states to minimize
the potential for break-ups during operational phases. 341 The third is aimed at avoiding
collisions.342 It must be noted that no reference is made to the need for information sharing.
The fourth guideline states that the intentional destruction of space objects should be
avoided.343 The following guidelines deal with end-of-life measures. Guideline five is aimed at
minimizing the risk of ―post-mission break-ups resulting from stored energy‖. 344 This
requires states to deplete all stored energy to prevent an explosion of the space object after its
useful life. This is known as passivation and has been very successful in reducing the space
debris created from the upper stages of launch vehicles.345 The sixth guideline advices the
removal from orbit of space objects in LEO at the end of their life-span.346 To do the same in
339
See part 1 ‗Background‘ of the UN Space Debris Mitigation Guidelines
―Space systems should be designed not to release debris during normal operations. If this is not
feasible, the effect of any release of debris on the outer space environment should be minimized.‖
Guideline 1 of the UN Space Debris Mitigation Guidelines
340
―Spacecraft and launch vehicle orbital stages should be designed to avoid failure modes which may
lead to accidental break-ups. In cases where a condition leading to such a failure is detected, disposal
and passivation measures should be planned and executed to avoid break-ups.‖ Guideline 2 of the UN
Space Debris Mitigation Guidelines
341
―In developing the design and mission profile of spacecraft and launch vehicle stages, the
probability of accidental collision with known objects during the system‘s launch phase and orbital
lifetime should be estimated and limited. If available orbital data indicate a potential collision,
adjustment of the launch time or an on-orbit avoidance manoeuvre should be considered.‖ Guideline 3
of the UN Space Debris Mitigation Guidelines
342
―Recognizing that an increased risk of collision could pose a threat to space operations, the
intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful
activities that generate long-lived debris should be avoided.‖ Guideline 4 of the UN Space Debris
Mitigation Guidelines
343
―In order to limit the risk to other spacecraft and launch vehicle orbital stages from accidental
break-ups, all on-board sources of stored energy should be depleted or made safe when they are no
longer required for mission operations or post-mission disposal.‖ Guideline 5 of the UN Space Debris
Mitigation Guidelines
344
345
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 9
―Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits
that pass through the LEO region 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.‖
Guideline 6 of the UN Space Debris Mitigation Guidelines
346
41
GEO would not be feasible. As such guideline 7 requires states to put satellites residing in
that orbit in another orbit where they pose less danger to other space objects.347
The guidelines are non-binding, as is clearly stated by the guidelines themselves.348 That they
were developed within the STSC and not the LSC illustrates their technical nature. 349 They do
not contain references to existing space treaties or principles, nor do they call for countries to
adhere to them. Nonetheless the guidelines may have an effect within international law. The
‗technical‘ guidelines could serve as a benchmark to determine whether a state has fulfilled its
obligation to act with due diligence and avoid harmful contamination under article IX of the
OST.350 Likewise it could help determine when a state is liable for damage created by its space
debris by determining which behaviour is irresponsible and thus constitutes a fault.
All-in-all the normative response of the international community to the threat of space debris
has been muted. The conclusion of new rules of international law has of yet proved to be
impossible. Space lawyers are left with no other possibility than to use a better technical
understanding of the problem such as shown by the technical UN guidelines as legal facts to
reinterpret existing legal norms. Whereas this can provide useful insights it may not suffice to
change the behaviour of some of the more irresponsible space actors. It will offer little
comfort to space faring states that they can determine who is responsible for a deterioration
of the space environment post hoc instead of having saved the environment and their
activities within.
2.2.6 ISSUES REGARDING REMEDIATION
Above the legal aspects of space debris mitigation were discussed. Debris mitigation limits
the influx of new space debris but does nothing about the existing space debris. 351 Due to the
Kessler Syndrome even an immediate halt in the production of space debris would not create
a stable space environment.352 It is estimated that about 10 large pieces of space debris need
to be removed from orbit on a yearly basis to achieve a stable level of debris. 353 Therefore,
remediation, not just mitigation, is a rising topic on the international agenda.354 Remediation
―Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits
that pass through the GEO region should be left in orbits that avoid their long-term interference with
the GEO region.‖ Guideline 7 of the UN Space Debris Mitigation Guidelines
347
―Member States and international organizations should voluntarily take measures, through
national mechanisms or through their own applicable mechanisms, to ensure that these guidelines are
implemented, to the greatest extent feasible, through space debris mitigation practices and
procedures. […] They are not legally binding under international law.‖ See part 3 ‗Application‘ of the
UN Space Debris Mitigation Guidelines
348
349
S. HOBE and J. H. MEY, supra, note 7, 396
350
ibid., 399-400
351
J. H. MEY, supra, note 250, 251
352
See ibid., 252
353
ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 6
354
J. H. MEY, supra, note 250, 252
42
includes the removal from the outer space environment, removing it from a certain orbit,
repairing defunct satellites or salvaging them. 355 The development of the technical
capabilities to do so has been in the working for some years now.356 Whereas the technical
challenge concerning the remediation of space debris is huge, so are the legal issues.
International law remains silent on the topic of space debris remediation. 357 As always this
creates a situation of uncertainty.
One could take the view that states have an obligation to clean up their own space debris.
However, it is unsure on which norm of international law such an obligation could be based.
Article IX of the OST only speaks of a duty to avoid harmful contamination. It does not
impose an obligation on a state to remediate if contamination were to take place. In addition
no state practice exists of states cleaning up their own space debris.358
Even though states are under no obligation to clean up their own debris others may not be
allowed to. There is no time-limit to the jurisdiction of a state provided by the OST. 359 This is
confirmed by the Rescue Agreement. 360 Some consider a piece of space debris a res
derelicta.361 But even if this is true the lack of ownership would not affect the jurisdiction. 362
Therefore any state engaging in the remediation of space debris is only allowed to intercept
an object if said object is on the registry of that state, or if it has the express permission from
the state on whose registry the object is. 363 This seriously complicates the process of
removal.364 States may also be reluctant to allow another state, or a private actor, to remove
355
M. MINEIRO supra, note 169, p. 3
See also C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 2 and
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 29-30
356
357
M. MINEIRO supra, note 169, p. 4
358
J. H. MEY, supra, note 250, 252
A possible exception may be the downing of USA—193. This satellite was due to re-enter the
atmosphere. According to the US there was a risk that its fuel tank filled with the toxic hydrazine
would not burn up during re-entry. Consequently the US shot its satellite down with a missile
interceptor. Whereas this temporarily created more space debris it was, according to the US version of
events, an effort in the remediation of space debris. This example is of course a special case, aimed at
preventing damage on earth, not within the space environment itself as is the goal of space debris
remediation. See H. T. SCOTT, ―Improving the Shield: Mitigating the Danger of Space Debris by
Enforcing and Developing Already Existing Space Law‖, AASL 2009, 730-734
359
M. MINEIRO supra, note 169, p. 5
360
G. T. HACKET, supra, note 148, p. 196
361
ibid., p. 194
362
See supra, p. 25
M. MINEIRO, supra, note 169, p. 4 and C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE),
supra, note 214, p. 3
363
364
ibid., p. 3
43
their debris. 365 Many satellites include technologies that states consider sensitive and of
which the secrecy is considered to be important for their national security. One suggestion for
the remediation of space debris is to let private companies engage in it.366 This would not
only require a solution to the legal uncertainty regarding jurisdiction and control. It would
also need a stable legal framework with sufficient incentives for private actors to make the
necessary investments as well as some form of international supervision.367
365
ibid., p. 3
366
See ibid., p. 2-3
One suggestion is that this framework and supervision structure could be created within the ITU.
See ibid., p. 5
367
44
2.3
ORBITAL CROWDING
2.3.1
C ONGESTED, C ONTESTED AND C OMPETITIVE
―Space is becoming increasingly congested, contested, and competitive.‖ 368 The usage of
space has increased, and continues to do so, in multiple ways. The number of satellites has
increased at an almost constant rate since the beginning of the space age 369 and in recent
years the use of different space applications has also seen a sharp increase.370 The rising
number of objects in the sky increases not only the risk of collision. It also places a strain on
some of the limited natural resources available in outer space. While the total amount of
space objects and the services they provide is increasing, so is the number of space faring
states. More and more states have the capabilities to go into space. 371 This creates new
challenges to the legal regime as they may not always behave according to existing consensus.
Furthermore the intentions of these new space actors aren‘t always known.372 This may create
uncertainty and distrust between states. Not only states have reached for the final frontier.
Private companies undertake an increasing number of space activities. At present all of the
commercial activity in space takes place in GEO or below, 373 the majority of which is
constituted by the telecommunication satellites in GEO. Still the commercial use of LEO is on
the rise as well374 and when looking beyond orbital flight, the first commercial spaceflight
dedicated to tourism turns out to be just around the corner.375 The commercialization of
outer space poses interesting legal questions as it can come into conflict with the public
character of space law.376 However, these questions go beyond the scope of this dissertation.
What must suffice for now is the observation that commercial activities in outer space require
US DEPARTMENT OF DEFENCE, National Security Space Strategy Unclassified Summary, January
2011, p. 1
368
369
See annex 1, infra, p. 119
370
R. S. JAKHU and K. SINGH, supra, note 321, p. 78 and C. JARAMILLO (Ed.), supra, note 225, p. 83
371
R. S. JAKHU and K. SINGH, supra, note 321, 77
372
A. LELE (Ed.), supra, note 224, p. xix
To date only one commercial mission went beyond GEO. In 1998 a telecommunication satellite,
AsiaSat 3 executed a lunar swingby to salvage the satellite from its initial unusable orbit. See
RIDENOURE, R., Beyond GEO, commercially: 15 years… and counting, the Space Review, 2013,
<http://www.thespacereview.com/article/2295/1> (accessed 8 June 2013)
373
374
See ALLIANZ GLOBAL CORPORATE & SPECIALTY, supra, note 229, p. 2
―First commercial spaceflight dedicated to tourism has announced it may to start operations before
the end of 2013‖ FLYNN, D., Richard Branson: first Virgin Galactic flight on Christmas Day,
Australian Business Traveller, 2013, <www.ausbt.com.au/richard-branson-first-virgin-galactic-flighton-christmas-day> (accessed 24 June 2013)
375
376
J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 16
Particularly interesting is how to reconcile the for the benefit of all provision of the OST with
commercial activity. It is the character of an activity and the benefits that derive from it that are
essential for the application of this provision, not who carries it out. See also NYMAN-METCALF, supra,
note 52, 623
45
a stable legal regime to encourage further investments. To deal with the congestion of outer
space, also known as orbital crowding, two things are needed above all else. Those are
increased space situational awareness and a model for the attribution of limited natural
resources.
2.3.2 SPACE SITUATIONAL AWARENESS
Space Situational Awareness (SSA) is the availability of ―comprehensive knowledge of the
population of space objects, of existing threats and risks, and of the space environment.‖377
One of the aspects of a SSA system is space surveillance.378 This includes both space object
surveillance and space environment monitoring.379 The latter deals primarily with predicting
space weather conditions. There is presently no international space surveillance mechanism
responsible for tracking objects in orbit.380 This is a problem as most states do not possess
the capabilities do so on a large scale themselves. Consequently they are dependent on
information from those states that do possess these capabilities to avoid collisions.381 By far
the strongest system is possessed by the US.382 It is able to continuously track objects as small
as 10 cm in LEO or 1 m in GEO.383 It is also the only global system.384 Centerpiece in its
surveillance system is the Air Force‘s Space Surveillance Network, a worldwide network of
transmitting and receiving stations also known as space fence.385 Much of the world relies on
Definition from the User Expert Group of ESA SSA Requirement Study. Quoted from L. C. MARTA
and G. GASPARINI, ―Europe‘s approach to Space Situational Awareness : A proposal‖ in SCHROGL, K. et
al. (eds), Yearbook on Space Policy 2007/2008, Vienna, Springer-Verlag, 2009, p. 318
377
378
C. JARAMILLO (Ed.), supra, note 232, p. 44
379
See L. C. MARTA and G. GASPARINI, supra, note 377, p. 318
380
C. JARAMILLO (Ed.), supra, note 232, p. 44
In 1978 such system was proposed by France in the UN but it was never realized. This was partly due
to opposition from the US who labeled it too expensive. See I. H. PH. DIEDERIKS-VERSCHOOR, and V.
KOPAL, supra, note 8, p. 139
See also A. LELE, ―Deliberating the Space Code of Conduct‖ in A. LELE, Decoding the International
Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security International, 2012), p. 17
381
Only some states have large scale tracking capabilities. These include some European Countries,
Russia, China, India and the US. See C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra,
note 214, p. 2 and C. JARAMILLO (Ed.), supra, note 225, p. 44
382
ibid., p. 44
383
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 15
384
L. C. MARTA and G. GASPARINI, supra, note 377, p. 318
It was recently announced that space fence will be shut down at the beginning of September 2013.
About 40% of all space debris observations were made by this system raising fears about the
consequences for SSA. See M. GRUSS, Space Fence Shutdown Expected To Weaken Orbit Surveillance
Network, 2013, <www.spacenews.com/article/military-space/36720space-fence-shutdown-expectedto-weaken-orbit-surveillance-network> (accessed 10 August 2013)
385
See also C. JARAMILLO (Ed.), supra, note 232, p. 45
46
the data provided by the US.386 The Russian system is only of limited use and dates from the
cold war. The EU and ESA are however developing their own improved space surveillance
capabilities.387
The increasing orbital crowding also increases the risk of collisions both between active
satellites as with a piece of space debris. To counter this threat there is need for increased
SSA through information exchange related to collision avoidance. 388 This includes
information obtained through large scale space surveillance but also prior warnings from
satellite operators before conducting manoeuvres. This is will become even more important
with the introduction of new propulsion systems that will increase the number of manoeuvres
a satellite makes.389 Under international space law there is however no obligation to share
this data. Even when data is shared the challenge remains of doing this efficiently so that the
right information is received timely by the satellite operators. This requires among other
things a harmonization of data standards and accessible databases on space objects.390 At
present there is no international standard to indicate at which position an object in space
is.391 One of such databases containing information on objects in GEO was created by several
commercial operators and owners in 2008. 392 In future such initiatives could form the basis
for a much needed global space traffic management.393 Still it should be stressed that at
present nobody has the full picture of what is going on in the orbits around our planet. 394
SSA is not only important to increase space safety it is also an essential element of ensuring
space security. 395 States that possess strong SSA capabilities are able to attribute
responsibility for aggressive acts against their space assets to the state that inflicted them. 396
386
C. JARAMILLO (Ed.), supra, note 225, p. 44
387
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 2
388
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 7
389
R. DALBELLO, ―Commercial efforts to manage the space environment‖, Disarmament Forum 2009,
28
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 7-9 and R.
DALBELLO, supra, note 289153, p. 28
390
391
ibid., p. 28
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 8 and R.
DALBELLO, supra, note 289153, p. 9
392
393
See R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 16
One suggestion is to place this new space traffic management system under the control of an existing
international organization, the International Civil Aviation Organization. This would create a unified
system for airspace and outer space. See ibid., 61-68
394
SECURE WORLD FOUNDATION, , supra, note 223, p. 20
B. W. MACDONALD, China, Space Weapons, and U.S. Security, New York, Council on Foreign
Relations, 2008, p. 15
395
396
L. C. MARTA and G. GASPARINI, supra, note 377, p. 141-142
47
Yet the relation with space security can also be an obstructing factor for the development of
improved SSA. Information about satellites with a military purposes is considered sensitive
creating an important obstacle for the sharing of SSA data.397
2.3.3 LIMITED NATURAL RESOURCES
Given the non-appropriation principle the exploitation of natural resources in outer space is
controversial and its legal regime uncertain. It is useful to make a distinction between
different types of natural resources based on how they are used. Those different types are
spatial extension resources, flow resources and stock resources. 398 Spatial extension
resources are locations in space. Flow resources cover solar and other radiation. Stock
resources are the minerals that can be found on celestial bodies. The stock resources stand
out as they can only be used once and are thus the most easily subject to appropriation. The
regulatory regime for the exploitation of stock resources includes many interesting legal
questions but goes beyond the scope of this dissertation.
It is important to observe that it is also possible to appropriate spatial extension resources
and flow resources by using them in a way that denies access to other states.399 At present the
only conflict over space resources concerns a spatial extension resource.400 More precisely it
relates to that is the attribution of locations in GEO also known as slots and the frequency
spectrum.401 As stated above GEO is a unique orbit.402 Those who wish to make use of its
unique properties have no alternative to this orbit. Given the risk of collision there can only
be a limited number of objects in the same orbit at any given moment.403 This limitation is
exaggerated by the lack of atmospheric drag responsible for cleansing LEO of space debris.
Any object in GEO will remain there for millions of years adding to the orbital crowding. 404
An even stronger limitation than the risk of collision follows from the natural limitations
posed by the radio frequency spectrum. The radio frequency spectrum allows for the
transmission of radio signals and is divided into different segments named frequency
bands.405 Yet only a limited group of satellites can use a band of frequencies at the same time
in the same geographic area.406 The crowding of orbits results in signal interference. 407 The
397
C. JARAMILLO (Ed.), supra, note 232, p. 45
This classification was originally made by MCDOUGAL, LASWELL and VLASIC in 1963. See NYMANMETCALF, supra, note 52, 626
398
399
That is not to say that such appropriation would be legal. See ibid., 626
400
ibid., p. 628
401
R. S. JAKHU and K. SINGH, supra, note 321, 74
402
See supra, p. 45
403
See R. S. JAKHU and K. SINGH, supra, note 321, 83
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), supra, note 255, p. 1
404
405
C. JARAMILLO (Ed.), supra, note 232, p. 38
406
R. S. JAKHU and K. SINGH, supra, note 321, 79
48
avoidance of harmful interference requires a lot of resources and concern about it is rising.408
Satellite operators compete for a small portion of the radio spectrum.409 Their availability is
essential for all space systems in use.410 Already current demand succeeds the supply.411 This
shows how both GEO slots and the frequency spectrum are non-exhaustible natural
resources but that their availability is limited in terms of time and space.412
2.3.4 THE INTERNATIONAL TELECOMMUNICATION UNION
The International Telecommunication Union (ITU) was founded in 1865 as an international
organisation responsible for coordinating communications on an international scale. 413 It has
since become a specialised agency of the UN. 414 With the emergence of satellite
communications the task of coordination this branch of international communications fell to
the ITU. The ITU regulatory regime offers a comprehensive regulation on the allocation and
management of frequency bands and orbital slots415 Given its different background it forms
an independent legal regime outside the framework of the UN space treaties and principles.
Reference to the ITU regime has however been made in multiple ‗classic‘ space law
instruments.
Of prime importance for the topic at hand is article 44 of the ITU Convention which deals
with the ―Use of the Radio-Frequency Spectrum and of the Geostationary-Satellite and Other
Satellite Orbits.‖ The article requires states to limit the frequencies and spectrum they use to
the minimum required for their intended use. 416 Article 44 also recognised that radio
frequencies and orbital positions are a limited natural resource. One such practical
consequence is that the ITU enacted regulation to prevent orbital crowding through the
accumulation of inactive payloads the ITU. Operators are now required to remove their
407
C. JARAMILLO (Ed.), supra, note 232, p. 39
408
R. S. JAKHU and K. SINGH, supra, note 321, 84-85 and C. JARAMILLO (Ed.), supra, note 232, p. 39
409
ibid., p. 38
Higher frequencies can transmit more information than lower frequencies, lower frequencies on the
other hand require less power. See ibid., p. 38
410
R. S. JAKHU and K. SINGH, supra, note 321, 75 and S. FREELAND and R. JAKHU, supra, note 68, p. 61
411
R. S. JAKHU and K. SINGH, supra, note 321, 80
G. M. GOH, supra, note 5 , p. 19; R. S. JAKHU and K. SINGH, supra, note 321, 75 and NYMANMETCALF, supra, note 52, 627
412
413
I. H. PH. DIEDERIKS-VERSCHOOR and V. KOPAL, supra, note 8, p. 59
414
S. FREELAND and R. JAKHU, supra, note 68, p. 61
NYMAN-METCALF, supra, note 52, 627; G. M. GOH, supra, note 5 , p. 19; S. FREELAND and R. JAKHU,
supra, note 68, p. 61 and C. JARAMILLO (Ed.), supra, note 232, p. 39
415
416
Article 44 paragraph 1 of the ITU Convention
49
satellite from GEO and place them in a ‗graveyard orbit‘ a few hundred km above GEO. 417
There is almost universal compliance with this obligation.418 For the same reason article 44
requires states to use orbital slots and frequency bands ―rationally, efficiently and
economically‖ so that other states may have equitable access.419 This is in conformity with the
equal right of access to outer space that all states possess under the OST. 420 However, in
practice the orbital slots and frequency bands are assigned on a first come, first served basis
in GEO.421 This has a great deal to do with article 45 of the ITU Convention on harmful
interference. 422 States are free to assign radio frequencies and orbital positions to their
satellites as they choose. Other states that come later are obliged to refrain from
interference.423 Whoever registered his satellite system first is thus protected from those who
come later.424
This system allowed for abuse and gave an incentive for states to register as soon as
possible.425 A well-known consequence is that problem of paper satellites. This involved the
filing of applications for non-existent satellites. Through this system states could secure an
orbital spot even when they had no immediate intention to use it. At a certain point the
problem had become so bad that of the 1300 applications before the ITU 1200 were paper
satellites.426 Paper satellites further exaggerate the scarcity of available slots and can be seen
as form of semi-appropriation.427 This puts them in direct conflict with article II of the OST.
To deal with the problem the ITU introduced new regulation. This regulation requires states
to use a slot they were allocated within a certain timeframe. If they fail to do so they will lose
Guideline 7 of the UN Space Debris Mitigation Guidelines advises now to do the same. See supra.,
p. 57
417
418
J. H. MEY, supra, note 250, 253
419
Article 44 paragraph 2 of the ITU Convention
420
See supra., p. 12
421
C. JARAMILLO (Ed.), supra, note 232, p. 40
Interference is defined as ―the effect of unwanted energy due to one or a combinations of emissions,
radiations, or inductions upon reception in a radiocommunication system, manifested by any
performance degradation, misinterpretation, or loss of information which could be extracted in the
absence of such unwanted energy‖ Article 1.1666 of the ITU Radio Regulations
422
423
Article 45 paragraph 1 of the ITU Convention
424
R. S. JAKHU and K. SINGH, supra, note 321, 87
425
ibid., p. 87
426
C. JARAMILLO (Ed.), supra, note 232, p. 40
427
S. FREELAND, and R. JAKHU, supra, note 68, p. 61
50
it again.428 The extensive regulation that was introduced worked and the problem of paper
satellites has now been all but resolved.429
There is no compulsory dispute resolution or enforcement mechanism within the ITU. 430
Because of the mutual interests to make the system work compliance with ITU regulation has
nevertheless been good in the past. 431 One exception would be the few instances of
jamming.432 Jamming is intentionally caused interference and can be done both from space
as from ground stations.433 It is prohibited under article 45 of the ITU Constitution and in
some cases considered to be an illegal use of force.434
Following article 48 of the ITU Convention military communications are not covered by the
regulations imposed by the ITU. They should however take measures to prevent harmful
interference with civilian communications.435 The largest group of spectrum bands are being
used for military purposes.436 Although they use in principle a different part of the frequency
spectrum cases of harmful interference are increasing. It also raises questions regarding dual
use satellites. It has been observed that ―[i]n a certain way, the increasing use by the military
of commercial space assets might be seen as an indirect abuse of the ITU regulatory system
(i.e. unfair grabbing of scare resources by the armed forces).‖ 437
Although the ITU regime may become more and more a inadequate when the stress on
limited natural resources increases438 it is the only functioning international regime for the
management of outer space resources.439 It has managed rather well to respond to problems
such as the crowding of GEO by inactive payloads and abuse of its regulation through the
428
ibid., p. 61
429
ibid., p. 61
430
R. S. JAKHU and K. SINGH, supra, note 321, 88
431
ibid., p. 88
E.g., in 2005 US military communications in the Mediterranean were disrupted by jamming. In
2006 Libya engaged in the jamming of satellite TV and a vacant transponder was high jacked by the
Tamil Tigers. In 2007 satellite TV jamming was reported in Israel and Lebanon. The source of the
interference was however unknown. See ibid., p. 85; K. SCHROGL, C. MATHIEU and N. PETER (Eds.),
Yearbook on Space Policy 2006/2007, Vienna, Springer-Verlag, 2008, p. 70 and K. SCHROGL, C.
MATHIEU and N. PETER (Eds.), Yearbook on Space Policy 2007/2008, Vienna, Springer-Verlag, 2009,
p. 55
432
433
R. S. JAKHU and K. SINGH, supra, note 321, 85
434
ibid., p. 85
435
C. JARAMILLO (Ed.), supra, note 232, p. 39
436
R. S. JAKHU and K. SINGH, supra, note 321, 88
437
ibid., p 88
438
ibid., p. 88 and 92
439
NYMAN-METCALF, supra, note 52, 630
51
registration of paper satellites. This success of the ITU regulation in outer space does
however underline the failure of space law to deal with emerging problems. It is the failure of
UN bodies such as COPUOS to respond timely to the problem of space debris that resulted in
regulation in ITU regulation for the subset of space activities it coordinates.
52
2.4
MILITARIZATION OF OUTER SPACE
2.4.1
WORDS OF PEACE AND M ILITARIZED PRACTICE
From the beginning of the space age many have felt that outer space should be free of military
conflict. In addition, states have always insisted that their activities in outer space are
peaceful. This is curious because historically there has always been a close connection
between the exploration and use of outer space and military activities.440 The very launch of
Sputnik 1 was driven by the development of technology for military usage. 441 It is also
estimated that more than half of all the US and Russian satellites orbiting earth have served
and continue to serve a military purpose.442
The use of outer space for military applications has gone through an important evolution.443
During the cold war there was a very close connection between nuclear technology and the
military use of outer space.444 Remote sensing allowed for early warning systems, enabled the
adversaries of the cold war to monitor each other‘s activities and verify compliance with
disarmament agreements. 445 The importance of space based assets for the military grew
steadily after the end of the cold war. Navigation, telecommunication, targeting and remote
sensing with space based systems became important assets for many armed forces.446 These
systems were no longer limited to what could be named a passive military use, such as the
gathering of intelligence. Instead they became an active part in engaging adversaries.447 E.g.
the use of GPS guided missiles. The use of space-based systems grew to such an extent that
the first Gulf War of 1991 has been dubbed the first space.448 This evolution continued until
the point that the military use of space was no longer just an asset but had become a central
440
See R. S. JAKHU and K. SINGH, supra, note 321, 78
See also J-L VAN DE WOUWER and F. LAMBERT, supra, note 8, p. 27
441
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 198
442
J.N. MAOGOTO and S. FREELAND supra, note 65, 1100
See also X. PASCO, ―Controlling the freedom of using space: the White House Space Policy dilemma‖
in SCHROGL, K. et al. (eds), Yearbook on Space Policy 2006/2007, Vienna, Springer-Verlag, 2008, p.
197 et seq
443
See J.N. MAOGOTO and S. FREELAND, supra, note 65, 1095 and J. N. MAOGOTO, ―The Military Ascent
into Space: From Playground to Battleground - The New Uncertain Game in the Heavens‖,
Netherlands International Law Review 2005, 461
444
445
D. A. KOPLOW, supra, note 224, 1191
446
X. PASCO, supra, note 443, p. 200
447
See J.N. MAOGOTO and S. FREELAND supra, note 65, 1107
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 116 and J.N. MAOGOTO
and S. FREELAND supra, note 65, 1107
448
53
component.449 Militaries have come to rely on their space capabilities. This is in particular
true for western countries such as the US.450 Satellites however, are very vulnerable.451 This
makes them high profile targets for potential adversaries.452 Luckily, to date no satellite has
been intentionally destroyed as part of an armed conflict.453
A specific subset of the militarization of outer space is weaponization. The weaponization of
outer space, i.e. the development of offensive counter space capabilities such as anti-satellite
weapons (ASATs), can take on multiple forms. These include both earth based and space
based weapon systems. They are primarily aimed at denying other states the use of outer
space. 454 The increased weaponization of outer space poses a significant threat to
international peace and security.455 In a conflict the deliberate destruction of satellites risks
to adversely change the outer space environment. The resulting space debris could last for a
long time after the hostilities have ended.456 Furthermore there is a high risk of harmful
interference with space objects of neutral states. 457 Although a true space war has become a
less than unrealistic possibility,458 even without an actual conflict the weaponization of outer
space could easily result in a situation where all sides are worse off than before.459 The testing
of certain ASAT systems creates large amounts of space debris, 460 negating the benefits
received from the recent efforts undertaken to mitigate the creation of space debris. 461
Furthermore, the uncertainty created by the weaponization of outer space may cause states to
feel less secure and thus add to the proliferation of deterrence weapons such as nuclear
weapons. 462 The same uncertainty undermines the climate of confidence needed to for a
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 201 and F. TRONCHETTI,
―Preventing the weaponization of outer space: Is a Chinese-Russian-European common approach
possible?‖ Space Policy 2011, 81
449
See R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 8; K. SCHROGL, C. MATHIEU and
N. PETER (Eds.), supra, note 432, p. 186-187 and B. W. MACDONALD, supra, note 395, p. 10
450
451
D. A. KOPLOW, supra, note 224, 1200
452
ibid., p. 1200
453
J.N. MAOGOTO and S. FREELAND supra, note 65, 1096
454
B. W. MACDONALD, supra, note 395, p. 5
F. TRONCHETTI, ―Preventing the weaponization of outer space: Is a Chinese-Russian-European
common approach possible?‖ Space Policy 2011, 81 and J.N. MAOGOTO and S. FREELAND supra, note
65, 1093
455
456
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 41
457
J.N. MAOGOTO and S. FREELAND supra, note 65, 1111
458
A. LELE (Ed.), supra, note 224, p. xviii and J.N. MAOGOTO and S. FREELAND supra, note 65, 1096
459
B. W. MACDONALD, supra, note 395, p. 9
460
See also UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 41
461
ibid., p. 42
462
ibid., p. 39
54
flourishing utilisation of outer space 463 and may evaporate the international cooperation
required to deal with space safety issues such as space debris.464
The need to prevent an arms race in outer space was recognised by the international
community in the early nineties.465 Many countries, including important space-faring nations
such as Russia, China and India have made statements that they oppose a weaponization of
outer space466 and discussions were held about in the appropriate international fora, such as
the Conference on Disarmament (CD) in Geneva.467 Yet, progress has been limited and for
some years there is a general feeling that despite the efforts there is a weaponization of outer
space going on.468 This feeling was strengthened by two events occurred at the beginning of
the 21st century: a change in US policy and the Chinese ASAT test of 2007.
2.4.2 C HANGE IN US SPACE POLICY AT THE TURN OF THE C ENTURY
The increasing reliance of the US on its space assets let to the fear that these could form the
Achilles‘ heel in their national security.469 In 1999 a directive signed by William Cohen, then
Secretary of Defence in the Clinton administration announced that space must be considered
"a medium like land, sea and air within which military activities will be conducted to achieve
U.S. national security objectives‖ and that it is vital that ―an adversary cannot obtain an
asymmetric advantage by countering our space capabilities or using space systems or services
for hostile purposes.‖470 This directive became an early example of the move in US policy
towards what seems to be a doctrine of dominance. 471 The doctrine of space dominance
entails that a state, in casu the US, has the ability to freely use outer space while having the
capability of denying other actors the use of their space assets. 472 American space policy
continued on this road during the George W. Bush administration.473 In June 2002 the US
463
G. M. GOH, supra, note 5 , p. 20-21
464
H. T. SCOTT, supra, note 358, p. 717
465
C. D. SULLIVAN, supra, note 109358, 211
466
A. LELE, supra, note 381358, p. 16
467
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 202
468
ibid., p. 197
A 2001 report by a Commission chaired by U.S. Secretary of Defense Donald Rumsfeld famously
warned that ―[t]he U.S. is an attractive candidate for a Space Pearl Harbor.‖ See US DEPARTMENT OF
DEFENCE, Report of the Commission To Assess United States National Security Space Management
and Organization, Washington D.C., 2001, p. 22
469
W. COHEN, Memorandum for Secretaries of the Military Departments, accompanying the Defense
Space Policy Directive #3100.10, Washington D.C., 9 July 1999
470
See K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 203
471
J.N. MAOGOTO and S. FREELAND supra, note 65, 1096
472
S. KHAN, supra, note 11, 83
An important indication for this was the 2002 joint publication by the Joint Chiefs of Staff which
stated that ―[t]he United States must be able to deny [...] the use of space assets by its adversaries.‖
473
55
withdrew from the Anti-Ballistic Missile Treaty.474 The official reason was that the treaty was
out-dated but it is also clear that by withdrawing an important legal obstacle was removed for
the development of space based.475 This further increased the concerns over a weaponization
of outer space.476
In 2006 an updated version of the US National Space Policy was published. 477 The new
version featured considerably stronger language then the 1996 version it replaced. It also
included the intention to develop the capabilities needed to deny adversaries access to outer
space.478 This was criticised on various points. To consider your own space assets as a vital
national interest while at the same time reserving the right to attack those of other states is
inconsistent and disregards the national security interests of those other states.479 In doing so
it denies the equality of states under international law480 by creating one set of rights and
obligations for the US and another for the rest of the world. Furthermore, it seems to go
against the right of free access to outer space.481
While the 2006 version of the National Space Policy showed some elements of a space
dominance doctrine it has also been criticized for lacking a clear doctrinal framework for a
This specific line has since disappeared from the most recent version of the joint publication. See US
JOINT CHIEFS OF STAFF, Joint Doctrine for Space Operations (Joint Publication 3-14), 9 August 2002,
p. vii and US JOINT CHIEFS OF STAFF, Joint Doctrine for Space Operations (Joint Publication 3-14), 29
May 2013
Treaty on the limitation of anti-ballistic missile systems (ABM Treaty),UNTS Vol. 944, p. 13, signed
on 26 May 1972, entered into force on 3 October 1972 (no longer in force)
474
475
J.N. MAOGOTO and S. FREELAND supra, note 65, 1092
This was not the first time the treaty had come under pressure. Back in the eighties the US government
lawyers had already indulged in legal acrobatics to nullify the treaty and thus justify Reagan‘s Strategic
Defense Initiative. See B. CHENG, supra, note 51, p. 535-536
476
M. KREPON, supra, note224, p. 30
One of the 7 principles reads: ―The United States considers space capabilities -- including the
ground and space segments and supporting links -- vital to its national interests. Consistent with this
policy, the United States will: preserve its rights, capabilities, and freedom of action in space; dissuade
or deter others from either impeding those rights or developing capabilities intended to do so; take
those actions necessary to protect its space capabilities; respond to interference; and deny, if
necessary, adversaries the use of space capabilities hostile to U.S. national interests‖ See US EXECUTIVE
OFFICE OF THE PRESIDENT, National Space Policy, 31 August 2006, 10 p.
477
―[T]he Secretary of Defense shall [...] develop capabilities, plans, and options to ensure freedom of
action in space, and, if directed, deny such freedom of action to adversaries." See ibid.
478
See also M. BOURBONNIERE and R. J. LEE, supra, note 116, p. 874
B. W. MACDONALD, supra, note 395, p. 13 and B. SHIXIU, ―Deterrence Revisited: Outer Space‖,
China Security 2007, 2-5
479
The principle of legal equality of states is one of the fundamental principles of international law
ever since the Peace of Westphalia and was confirmed by art. 2 (1) of the UN Charter.
480
481
See supra, p. 12 et seq.
56
US space policy. 482 There are three main doctrinal options open for major space actors
seeking space security: diplomacy, space deterrence, and space dominance.483 These options
are not necessarily mutually exclusive. The first option, diplomacy, entails states to find
agreement on guidelines and treaties with other states, possibly looking for forms of arms
control. This option and in particular the possibility of arms control was rejected by the US
during the George W. Bush administration as a main way of achieving security.484 A second
option is that of deterrence. A doctrine of deterrence requires the possession of a deterrence
force, the will to use that force against an adversary and a clear communication about the
former two.485 One problem with deterrence is that it is unsure how strong the deterrence
factor of a space weapon is, though certainly a lot lower than the deterrence posed by nuclear
weapons. 486 The problem for the US with a doctrine of deterrence concerning outer space is
that the US is far more dependent on space assets than its potential adversaries. 487 Therefore
its ASAT capabilities will not dissuade adversaries to attack US space assets.
The final doctrine available is that of space dominance which would allow the US to fully
control the outer space environment. If successful this would lead to a situation of de facto
privilege. 488 Some within the US administration have been attracted to this doctrine. 489
Whereas military dominance offers many advantages to a state it can be hard to achieve as
other states will look for ways to counter it. This may lead to a proliferation of weapons and
potentially an arms race.490 This raises the question whether it is feasible for the US to
achieve space dominance. Although the number of military space actors is increasing and
both Russia and China are modernising their military space capabilities, the US remains
firmly the main military force in outer space.491 If a challenge were to come it is most likely to
be from China. 492 But that too is many decades away. There is however one major problem
482
B. W. MACDONALD, supra, note 395, p. 17
483
See ibid., p. 17 et seq
―The United States will oppose the development of new legal regimes or other restrictions that seek
to prohibit or limit U.S. access to or use of space. Proposed arms control agreements or restrictions
must not impair the rights of the United States to conduct research, development, testing, and
operations or other activities in space for U.S. national interests‖ Principle number 6 of the 2006
version of the US National State Policy
484
See also S. KHAN, supra, note 11, 84
485
See B. SHIXIU, supra, note 479, 10
486
B. W. MACDONALD, supra, note 395, p. 7
487
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 187
488
S. KHAN, supra, note 11, 84
489
B. W. MACDONALD, supra, note 395, p. 34
490
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 40
491
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 47
492
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 43
57
with any attempt to achieve space dominance. Satellites are fragile. It is far harder to defend
them than attack them.493 With relative modest investments states could acquire sufficient
ground-based ASAT capabilities to eliminate any form of dominance in outer space. 494 As the
US is the most dependent on outer space it has to most to lose from a conflict in space.495
2.4.3 THE 2007 C HINESE ASAT TEST
A second event that alarmed the international community was a Chinese ASAT test on 11
January 2007. The target of the test was an old Chinese meteorological satellite, Fēngyún 1C
(FY-1C) in a LEO.496 The satellite, weighing almost a ton was hit by a ground launched
ballistic missile. 497 The successful test created a debris cloud that represents the worst
contamination event to date. 498 The number of objects created is assumed to be in the
hundreds of thousands. 499 Of those, as many as 35000 pieces measure at least 1 cm in
diameter. This means that this single test caused an increase of about 15% of the total
number of debris of this size.500 Six years later only 10% of the debris has decayed501 and at
present over 3000 pieces created in the test can be tracked.502 Because of the created debris
multiple satellites have had to execute collision avoidance manoeuvres, wasting precious fuel
in the process.503 It is also believed that one of the pieces of debris collided with a Russian
microsatellite in January 2013.504
Governments from all over the world issued diplomatic concern over the test.505 Worryingly,
the Chinese foreign ministry appeared to be unaware of the test in advance. This could
493
B. W. MACDONALD, supra, note 395, p. 34
494
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 39
495
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 187
X, ―Chinese Anti-satellite Test Creates Most Severe Orbital Debris Cloud in History‖, Orbital Debris
Quarterly News 2007, 2 and M. MINEIRO, supra, note 311, 321
496
497
X, supra, note 496, 2
498
ibid., 2 and NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, supra, note 257, p. 7
499
X, supra, note 492, 4
500
‗X, supra, note 496, 2
501
X, supra, note 492, 5
502
ibid., p. 5
503
X, supra, note 252, 2
The collision occurred on 22 January 2013 and damaged the small Russian satellite called BLITS.
See
L. DAVID, Russian Satellite Hit by Debris from Chinese Anti-Satellite Test, 2013,
<www.space.com/20138-russian-satellite-chinese-space-junk.html> (accessed 8 August 2013)
504
These included diplomatic protest from Australia, Canada, the European Union, India, Japan,
South Korea, Taiwan, the United Kingdom and the United States.
505
See D. A. KOPLOW, supra, note 224, 1239-1240 and J.N. MAOGOTO and S. FREELAND supra, note 65,
1091-1092
58
indicate a dangerous coordination problem within the Chinese government and the PLA. 506
At the time the UN Space Debris Mitigation Guidelines were not yet endorsed by the
COPUOS or the UN GA. China had however accepted its predecessor from the IADC in
2002. 507 The test was in direct conflict with both instruments and demonstrated the
weakness of non-binding guidelines. The ASAT test also highlighted another problem for the
international community. Because of limited transparency over its space policy it‘s very
unclear what the Chinese intentions for outer space are.508 Likewise it is unknown how large
budget for outer space is.509 The most important Chinese policy documents are the white
papers.510 The 2006 white paper ―China‘s Space Activities in 2006‖ avoided any discussion of
developing military capabilities and stressed the peaceful nature of its space program. Some
have suggested that regarding space security China follows a theory of minimum deterrence
just has it has done for nuclear weapons in the past.511 The People‘s Liberation Army (PLA)
seems to consider armed conflict in space a distinct possibility and is preparing
accordingly.512
The Chinese ASAT test of 2007 was neither the first nor the last demonstration of a state‘s
ASAT capabilities. Both the Soviet Union and the US have conducted several tests. Within
weeks after the launch of Sputnik 1 the US concluded its first feasibility study on an ASAT
program. 513 In 1959 the first two tests were conducted by the US but created no space
debris. 514 Later the Soviet Union conducted various ASAT tests from the late sixties till
1982s.515 After the 1982 test the Soviet Union imposes a moratorium on ASAT tests and urged
China was unable to answer to the questions posed by other states and it took twelve days of denial
before the test was admitted by the foreign ministry. See B. W. MACDONALD, supra, note 395, p. 28
506
507
supra, note 496, 3
508
B. W. MACDONALD, supra, note 395, p. 9
509
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 39
510
ibid., p. 38
511
B. W. MACDONALD, supra, note 395, p. 8 and B. SHIXIU, supra, note 479, 9
512
B. W. MACDONALD, supra, note 395, p. 9
One indication for this has been the large volume of PLA publications on the topic of armed conflict in
outer space. It has been stated that this literature is of a mere academic interest but obviously in the
aftermath of the 2007 ASAT test that explanation became less satisfactory. See ibid., p. 7
513
D. A. KOPLOW, supra, note 224, 1200-1201
Only one of the two test was successful and consisted of a missile passing at 6,5 km to the target,
Explorer 6. The system was intended to destroy a satellite by detonating a nuclear weapon in the
missile.
514
In 1968 Cosmos 248 was targeted twice, in 1970 Cosmos 373 suffered the same fate, and in 1971
both Comos 294 and Cosmos 459 were targeted. A second series of tests was conducted in 1976
(Cosmos 248), 1977 (Cosmos 970), 1980 (Cosmos 1171) and 1982 (Cosmos 1375).
515
59
the US to follow.516 The Soviet ASAT system works through the detonation of an intercepting
missile close-by the target which is destroyed by the shrapnel.517 This evidently creates space
debris. In 1983, 6 % of space debris came from Soviet ASAT tests. 518 After the Soviet Union
unilaterally imposed a moratorium two more tests that created space debris were conducted
by the US in 1985 and 1986. The first test destroyed the American satellite Solwind P78-1.519
Over 250 detectable pieces of space debris were created the last of which decayed from its
orbit 17 years later.520 The second test, the downing of a special target vehicle, created less
space debris then the first.521 Since then no ASAT tests were conducted until the Chinese test
in 2007. A year later, in 2008, the US did however down its own satellite USA-193. The
destruction of USA-193, a defunct spy satellite, was announced in advance.522 The official
reason for the destruction was the danger that its fuel tank filled with the toxic hydrazine
would not burn up during re-entry. Within months of the destruction all pieces of space
debris had re-entered the atmosphere leading some commentators to suggest that it was ―a
model of responsible state behaviour‖523 Other countries, such as India,524 also possess ASAT
capabilities but have so far refrained from testing them.
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), supra, note 255, p. 37
516
517
J.N. MAOGOTO and S. FREELAND supra, note 65, 1109
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), supra, note 255, p. 32
518
At the time of the test some of the instruments on the satellite were still operational and used for
scientific research. Some scientists were outraged by the destruction because P87-1, which was
instrumented for studies of the sun, had been operating until the instant of its destruction as what one
solar physicist called "the backbone of coronal research through the last seven years." See EBERHART,
J., ASAT Target Was Working Research Satellite, Washington D.C., ScienceNews, 1985,
<www.sciencenews.org/view/feature/id/271236/description/ASAT_Target_Was_Working_Research
_Satellite> (accessed 7 August 2013)
519
The U.S. Air Force and NASA had planned to develop a target vehicle that would minimize the amount
of space debris but due to the impending ban on ASAT tests that create space debris by the U.S.
congress the secretary of defense choose to use an existing satellite as target so the test could take
place before the ban came into effect in October 1985. See D. S. F. PORTREE and J. P. LOFTUS (FOR THE
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI PROGRAM), supra, note 255, p. 46
As part of the same test program another three ASAT missiles were launched at fixed points in space.
See ibid., p. 56
520
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 41
Test second test, the downing of Delta 180, took place at an altitude of 192 km in order to mitigate
the amount of space debris created. See D. S. F. P ORTREE and J. P. LOFTUS (FOR THE NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION, STI PROGRAM), supra, note 255, p. 50
521
522
M. MINEIRO, supra, note 311, 322
523
H. T. SCOTT, supra, note 358, p. 734
524
See D. A. KOPLOW, supra, note 224, 1241
60
Both the indications for an emerging US doctrine of space dominance and the Chinese ASAT
test have had a detrimental effect on the stability of outer space. Not only did the Chinese test
have the immediate consequence of creating vast amounts of space debris it also reinforced
the American scare about the military awakening of the Chinese dragon. 525 In India the test
resulted in the conviction that a space arms race had become inevitable.526 It is questionable
whether a doctrine of dominance could lead to the space security the US hopes to achieve.
Yet, some of the side effects to be expected from a space dominancy doctrine have
materialised. The shift in policy and the withdrawal from the ABM Treaty led to a much
anxiety among other space faring nations undermining the stability of outer space.527
2.4.2 REGULATORY REGIME FOR MILITARY USES OF O UTER SPACE
As we have discussed above, there is at present no blanket prohibition on the military use of
outer space.528 Still, many norms exist under international law regarding the military use of
outer space. 529 Because general international law applies to outer space activities this
foremost includes the prohibition on the use of force unless in self-defence530 and the body
international humanitarian law. Different treaties have added specific provisions to this legal
basis. Most important are the OST, the Nuclear Test Ban Treaty 531 of 1963 and the
Environmental Modification Convention532 of 1976. The Moon Agreement too has multiple
provisions relating to the military use of outer space. However, given the limited acceptance
it has received it is unlikely to play a major role in the regulation of the military use of outer
space.533 It is important to make a distinction between their applicability in peacetime and
during an armed conflict. While the consensus has emerged that treaties do not become
Ironically the foundation of the Chinese space program was laid by a US trained scientist, QIAN
XUESEN who was deported during a previous US scare about the red danger, the McCarthyism of the
1950s. See B. W. MACDONALD, supra, note 395, p. 6
525
RABINOWITZ, G., Indian army wants military space program, 2008, <www.nbcnews.com/
id/25216230/ns/technology_and_science-space/t/indian-army-wants-military-space-program/>
(accessed 7 June 2013)
526
527
B. W. MACDONALD, supra, note 395, p. 12 and M. KREPON, supra, note 224, p. 30-31
In China the policy document was viewed as a monopolization of outer space and undermining
initiatives to control space weaponization. See B. SHIXIU, supra, note 479, 3
528
See supra, p. 17 et seq.
Some have even claimed that Russia and the US have gone further than in other domain to achieve
arms control in outer space. See D. A. KOPLOW, supra, note 224, 1197
529
530
To the extent allowed by art. 51 of the UN Charter
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, UNTS
Vol. 480, p. 44, opened for signature on 5 August 1963, entered into force on 10 October 1963
531
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques, UN Doc. A/RES/31/72, adopted on 10 December 1976, opened for signature on 18 May
1977, entered into force on 5 October 1978
532
533
See B. CHENG, supra, note 51, p. 534
61
automatically suspended in times of armed conflict, the application of some of the norms
they contain may change.534
Since Reagan‘s announcement of the Strategic Defence Initiative (SDI) in 1983, 535 a program
quickly dubbed ‗Star Wars‘,536 the question regarding the legality of space based weapons has
become less theoretic.537 Still it should be kept in mind that up till now these proposals have
rarely achieved much political support, even in the US. 538 Furthermore there are questions
about their technical feasibility and tactical usefulness.539 Yet the role of the military in outer
space has been under review after the change in US policy and some states, such as Russia,
have nonetheless been unsettled by the prospect of space based weapons.540
Whether a certain technology is allowed in outer space depends on the intended usage and
whether it will be stationed in the outer void space or on the surface of a celestial body (other
than earth). 541 Because of the peaceful purposes principle of article IV of the OST the
placement of weapons is not allowed on celestial bodies.542 For outer void space a distinction
should be made between weapons of mass destruction and other weapons. The same article
of the OST also bans the placement of weapons of mass destruction in outer space. It should
be stressed that it is only applicable to the stationing in outer space.543 As such, the passing of
ICJ, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ
Reports 1996, 30
534
Law-making treaties such as the OST have always been considered to stay in effect, but again the
threshold for some provisions may change during an armed conflict. See UNITED NATIONS INSTITUTE
FOR DISARMAMENT RESEARCH, supra, note 256, p. 116
See REAGAN R., Address to the Nation on Defense and National Security including the SDI, 1983,
<www.youtube.com/watch?v=ApTnYwh5KvE> (accessed 8 June 2013)
535
―Critics [...] called it ―Star Wars,‖ first because it sounded like something out of a science fiction
movie, and second because the announcement came just weeks after President Reagan‘s ―Evil Empire‖
speech.‖ See X, March 23, 1983 | Reagan Proposes „Star Wars‟ Missile Defense System, 2012,
<learning.blogs.nytimes.com/2012/03/23/march-23-1983-reagan-proposes-star-wars-missiledefense-system/> (accessed 8 June 2013)
536
537
See also J.N. MAOGOTO and S. FREELAND supra, note 65, 1096
538
That is despite some strong lobbying from various groups.
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 202 and UNITED NATIONS INSTITUTE
FOR DISARMAMENT RESEARCH, supra, note 256, p. 43
B. W. MACDONALD, supra, note 395, p. 8; UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH,
supra, note 256, p. 43 and B. CHENG, supra, note 51, p. 531
539
UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 43 and K. SCHROGL, C.
MATHIEU and N. PETER (Eds.), supra, note 432, p. 202
540
541
J.N. MAOGOTO and S. FREELAND supra, note 65, 1103
542
See supra, p. 17
543
B. CHENG, supra, note 51, p. 530-531
62
nuclear armed ICBMs through outer space is allowed. 544 It has been suggested that nuclear
powered weapons might be allowed under the OST as long as they are not weapons of mass
destruction.545
The use of space based weapons that aren‘t weapons of mass destruction has not been
prohibited. Some limitations were in place before the US withdrew from the ABM Treaty.
Although aimed at missile defence systems the treaty also banned most ASAT weapons
because of the similarity in technology.546 Although no longer in effect, the treaty remains of
some importance today. Its verification mechanism indirectly confirmed that the remote
sensing of another state‘s territory was legal.547 This further confirms that passive military
uses of outer space are legal and well accepted by the space faring states.
2.4.3 LEGALITY OF TARGETING SPACE O BJECTS
More pressing than the legality of space based weapons is the legality of targeting space
objects. States have been developing ASAT systems since the launch of Sputnik 1 and the
Chinese ASAT test of 2007 show they have not disappeared. First it must be determined
whether a foreign space object may in fact be targeted during an armed conflict. To do so
outside an armed conflict would be an illegal use of force. During an armed conflict the
norms provided by international humanitarian law apply. Combatants should adhere to three
fundamental principles: the principle of distinction, the principle of proportionality and the
principle of necessity. 548 The first is the most fundamental principle means that that
distinction should be made between military targets and civilians.549 One should refrain from
deliberately attacking civilian targets. 550 Following the principle of proportionality
combatants are not allowed to attack a military target if it inflicts disproportionate damage to
non-combatants. 551 Finally, based on the principle of necessity, only attacks that are
necessary for the submission of the opposing force are allowed.552
544
D. A. KOPLOW, supra, note 224, 1191
545
B. CHENG, supra, note 51, p. 530
―Each Party undertakes not to develop, test, or deploy ABM systems or components which are seabased, air-based, space-based, or mobile land-based‖ Art. V (1) of the ABM Treaty
546
J.N. MAOGOTO and S. FREELAND supra, note 65, 1109-1110
547
ibid., p. 1109
This had originally been denounced by the Soviet Union as it was in their view illegal under
international law. See B. A. HURWITZ, supra, note 224, p. 91
548
D. A. KOPLOW, supra, note 224, 1243
549
M. BOURBONNIERE and R. J. LEE, supra, note 116, p. 894
550
D. A. KOPLOW, supra, note 224, 1243
551
ibid., p. 1243
552
ibid., p. 1243
63
Applied to space objects it becomes clear those objects with a military purpose may indeed be
targeted. However satellites belonging to neutral states or those which are the property of
civilians may not be intentionally attacked.553 This is where a first problem shows itself. A
large percentage of satellites are dual-use satellites, serving both military and civilian
purposes.554 This would make them legitimate targets. For the principle of proportionality
both long and short term effects must be considered555 which has some implications for outer
space. Some military systems, such as GPS are relied upon for non-military purposes around
the globe. Targeting them may have devastating consequences for many non-combatants.
This may, depending on the circumstances be disproportionate and thus place an obligation
on the attacker to either abort the attack of modify it so to become more proportionate. 556 It
should however be kept in mind that the principle of proportionality in no way prohibits all
forms of collateral damage. As there is no general prohibition on the targeting of satellites
and international humanitarian law remains silent about the testing of these weapons during
times of peace we must look into the various types of ASAT weapons to determine their
legality separately.
There is at present no treaty that places a general prohibition on the testing, use or
development of ASAT weapons. The same observation is valid for customary international
law as there is neither state practice nor opinio juris to this effect.557 International law is
permissive, meaning that unless an act is prohibited it is allowed. 558 However, the lack of a
general prohibition does not mean that there are no international norms available that
prohibit or limit the use of certain ASAT weapons.559 When concerning the use of ASAT
weapons during an armed conflict these norms must be understood in the light of the
overriding effect of the right to self-defence. This does not mean that they will have no effect.
553
ibid., p. 1244
554
J.N. MAOGOTO and S. FREELAND supra, note 65, 1100
555
D. A. KOPLOW, supra, note 224, 1246
556
ibid., p. 1246-1247
The various ASAT tests conducted by the US, Soviet Union and China are testimony to the lack of
state practice. One could also take another view given that all these were tests leaving the possibility
that a ban on the development of ASAT capabilities is not in existence but a ban on their use on other
states‘ space objects is. This however leaves requirement of opinio juris intact.
557
The diplomatic protests made by states after the 2007 ASAT test show that a majority of states did not
consider it a breach of international law. This indicates a lack of opinio juris. See D. A. KOPLOW, supra,
note 224, 1240-1241
―[I]n international law there are no rules, other than such rules as may be accepted by the State
concerned,‖ See ICJ, Case Concerning Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. United States of America), Judgment, ICJ Reports 1986, p. 14
558
559
See also M. MINEIRO, supra, note 187, p. 171
64
Rather their content should be used to determine the conformity of an action with the
principles of necessity and proportionality. 560
A first type of ASAT weapon is the detonation of a nuclear weapon at high altitude. This type
of ASAT weapon clearly raises problems when the principle of distinction is applied to it.
During one high altitude nuclear test in 1962 codenamed Starfish Prime 6 satellites were
accidently damaged or destroyed by the radiation belt created. 561 Nuclear weapons are
incapable of making a distinction thus it is hard to conceive a situation in which they could be
deemed legal. Also relevant for the use of nuclear detonations is the Nuclear Test Ban Treaty
of 1963.562 The Nuclear Test Ban Treaty prohibits, among other things, nuclear explosions in
outer space.563 Importantly, this includes nuclear explosions for other purposes than testing.
In other words, the use of nuclear weapons in outer space is prohibited at any time and for
any purposes, including during a conflict situation.564 It is therefore without doubt that use of
a nuclear explosion as an ASAT weapon is prohibited under international law.
Another group of ASAT weapons makes use of kinetic energy.565 This requires an intercepting
missile to physically hit a satellite. The satellite is destroyed by the impact. A variation of this
system is to bring intercepting missile in proximity with the satellite before detonating a
warhead. The targeted satellite is consequently destroyed by the shrapnel generated.566 The
main problem with kinetic energy ASAT weapons is the space debris they create.567 There are
multiple scenarios imaginable in which this comes into conflict with the principle of
proportionality. 568 Relevant for the legality of kinetic energy ASAT weapons is article IX of
the OST which places an obligation to conduct activities in outer space with due regard to the
interests of other states.569 This includes avoiding harmful contamination and undertaking
consultations before engaging in activities that have a risk of creating harmful
ICJ, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ
Reports 1996, 30
560
Four of those satellites were American, one was British and one Soviet. See UNITED NATIONS
INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 41
561
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, UNTS
Vol. 480, p. 44, opened for signature on 5 August 1963, entered into force on 10 October 1963
562
―Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any
nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or
control: (a) in the atmosphere; beyond its limits, including outer space; or under water, including
territorial waters or high seas […]‖ Art. I of the Nuclear Test Ban Treaty
563
564
See B. CHENG, supra, note 51, p. 531 and J.N. MAOGOTO and S. FREELAND supra, note 65, 1108
565
D. A. KOPLOW, supra, note 224, p. 1201
This system is primarily used by the Russian military. See J.N. MAOGOTO and S. FREELAND supra,
note 65, 1109
566
567
B. W. MACDONALD, supra, note 395, p. 5
568
D. A. KOPLOW, supra, note 224, p. 1246-1247
569
See supra, p. 49
65
contamination.570 Art. IX of the OST makes no distinction between military and non-military
activities.571 This has some important implications for ASAT testing. Tests such as the one
conducted by China in 2007 require consultations with all states that may be affected before
the test is conducted.572 While the state planning to conduct a test is under no obligation to
follow any advice it would allow for diplomatic pressure to dissuade a state from conducting
potentially harmful ASAT tests. In practice neither the US nor the Soviet Union engaged in
international consultations before conducting their ASAT tests during the cold war.573 Article
IX of the OST does not state it is limited to peace time activities in outer space. It does
however limit its obligation of advance international consultations to interference with
another state‘s peaceful exploration and use of outer state. Given the definition of peaceful
within the OST must be held to be non-military the OST seems to allow for interfering with
any military use of outer space. Given the increasing number of dual-use satellites it could be
questioned whether this provision is still adequate in protecting the outer space environment.
Another relevant treaty is the Environmental Modification Convention of 1976. 574 The
Environmental Modification Convention bans the deliberate military or hostile modification
of an environment that has widespread or long-lasting effects in order to damage a state. 575
This is of significant importance for the military use of outer space given that the outer space
environment is very fragile and has only limited capacity to recover without human
intervention, if at all possible.576 It should however be noted that the core element in the
Environmental Modification Convention is intention. A detrimental modification of the
environment as a side effect of an ASAT test may not be covered. The deliberate creation of
vast quantities of space debris so to deny an adversary the use of certain orbits is prohibited.
A third group of ASAT weapons is based on directed energy such as laser beams or radio
waves to disable the satellite.577 While sounding like science fiction a dozen countries have
570
ibid.
571
M. MINEIRO, supra, note 311, 334
572
ibid., p. 344
573
ibid., p. 345
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques, UN Doc. A/RES/31/72, adopted on 10 December 1976, opened for signature on 18 May
1977, entered into force on 5 October 1978
574
―Each State Party to this Convention undertakes not to engage in military or any other hostile use of
environmental modification techniques having widespread, long-lasting or severe effects as the means
of destruction, damage or injury to any other State Party.‖ Art. I paragraph 1 of the Environmental
Modification Convention
575
―As used in article 1, the term "environmental modification techniques" refers to any technique for
changing - through the deliberate manipulation of natural processes - the dynamics, composition or
structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer
space.‖ Art. II of the Environmental Modification Convention
576
S. G. GUNASEKARA, supra, note 153, 149
577
D. A. KOPLOW, supra, note 224, p. 1201
66
access to the technology required to develop high powered lasers capable to be used as an
ASAT weapon.578 The advantage of directed energy systems from a space sustainability point
of view is that they do not create the same amount of space debris as kinetic energy or
nuclear weapons. When used to disable a satellite they will leave it mostly intact. Likewise
they can also be used to temporarily or permanently blind the sensors of a satellite. Together
with the kinetic energy it is the most popular system under development.579
As the use of various types of ASAT weapons differ greatly in their consequences for the
environment implications can be drawn based on the principle of necessity. If during an
armed conflict a state were to have multiple ASAT systems one of which creates limited and
another much of harmful interference then it would be obliged to use the former. This is
because the use of the more harmful ASAT system is no longer necessary.580
Various international norms apply to the use and testing of ASAT systems. Still the legal
regime is unsatisfactory. Much depends on the circumstance of the case and multiple norms
are open to interpretation. 581 This uncertainty undermines international trust and increases
the risk of conflict.582 As is shown by the duty for consultations before engaging in ASAT tests
that may create space debris states do not always follow the international norms already in
place. As the principles that exist are not specific enough to provide appropriate regulation
there is a need for new regulation.583
2.4.4 RESPONSE OF THE INTERNATIONAL C OMMUNITY
The events at the beginning of this century revindicated the on-going debate over the
prevention of an arms race in outer space. 584 This debate has been going on for many years
and has seen the US on one side and Russia and China on the other, with the latter two
advocating weapons control.585 As early as the beginning of the eighties the Soviet Union
placed the topic of the prevention of an arms race in outer space on the agenda of the UN
General Assembly. 586 From 1981 onwards an annual resolution on the Prevention of an Arms
578
ibid., p. 1237
579
ibid., p. 1201
In recent years the possibility of using cyber-attacks has also gained attention. These too would create
only limited space debris. See J.N. MAOGOTO and S. FREELAND supra, note 65, 1110
580
D. A. KOPLOW, supra, note 224, p. 1248
581
J.N. MAOGOTO and S. FREELAND supra, note 65, 1093
582
M. MINEIRO, supra, note 187, p. 171
583
J.N. MAOGOTO and S. FREELAND supra, note 65, 1094 and D. A. KOPLOW, supra, note 224, p. 1240
584
F. TRONCHETTI, supra, note 455, 84
585
R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 32
Given the wide support for arms control one could also state that the debate does not just put China
and Russia against the US but rather the entire would against the US and Israel.
586
F. TRONCHETTI, supra, note 455, 83
67
Race in Outer Space (PAROS) 587 was adopted by the General Assembly. The resolutions
received the support of the entire international community up till 1995 when the US and
Israel started to abstain.588 During the second term of the Bush Administration, from 2005
till 2008 the US voted against the resolution. From 2009 onwards the US abstained again.
PAROS was also added to the agenda of the CD in 1982 and it has remained a topic within the
CD ever since.589 No agreement could however be achieved on the conclusion of a binding
treaty on the topic of arms control.
One of the most significant efforts in recent years is a combined Russian-Chinese proposal. 590
In February 2008 Russia and China jointly submitted a ―Draft Treaty on the Prevention of
the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer
Space Objects‖ (PPWT)591 to the CD.592 The text of the draft treaty was based on a working
paper introduced before the CD from 2002593 and is aimed at prohibiting the weaponization
of outer space.594 Although a majority of states considered it a good basis for negotiations on
an international convention on prohibiting space weaponization it was rejected by the US. 595
The US saw the PPWT as an attempt by Russia and China to gain a military advantage 596 and
stated that compliance with the treaty was impossible to verify. 597 Chinese authors have
criticized this position. In their view it is inconsistent to distrusting any development of
Chinese space capabilities while simultaneously rejecting any proposal to limit deployment of
offensive space capabilities.598 It was however perfectly consistent with the US space policy at
the time that preferred space dominance over diplomacy to achieve space security.
Prevention of an arms race in outer space, adopted on 9 December 1981 (UN Doc. A/RES/36/97,
part c)
587
588
C. JARAMILLO (Ed.), supra, note 232, p. 61
589
F. TRONCHETTI, supra, note 455, 83
590
ibid., p. 84
Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or
Use of Force against Outer Space Objects, 29 February 2008 (Doc. CD/1839)
591
592
F. TRONCHETTI, supra, note 455, p. 84
See G. SIGHN, ―PPWT: An Overview‖ in A. LELE, Decoding the International Code of Conduct for
Outer Space Activities, New Delhi, Pentagon Security International, 2012), p. 47
593
A. LELE, ―Space Code of Conduct: Inadequate Mechanism‖ in A. LELE, Decoding the International
Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security International, 2012), p. 6
and G. SIGHN, supra, note 593, p. 47
594
595
F. TRONCHETTI, supra, note 455, 84
596
ibid., p. 84
597
See also A. LELE, supra, note 594, p. 6 and G. SIGHN, supra, note 593, p. 48
598
See B. SHIXIU, supra, note 479, 5
68
The PPWT proposal was criticized for remaining silent about ground based ASAT weapons. 599
Given that these are by far the biggest threat to the security of space activities this is
considered to be the biggest flaw in the proposal.600 Russia and China have acknowledged
that an amendment to include ASAT weapons would be a possibility.601 Another point to be
made is that the treaty does not prohibit development as the ABM Treaty did. Rather is
prohibits the deployment of space based weapons.602 While this may be essential given the
similarity between technology for peaceful purposes and military uses it is significantly
weaker than what the ABM treaty offered. A third point of criticism is the lack of a
verification system.603 As was stated by the US it is close to impossible to verify compliance
with a prohibition on the placement of weapons in outer space. This was recognised by
China.604 Up till now the PPWT proposal failed to materialize into a binding treaty and the
deadlock in the Conference on Disarmament (CD) remained. 605 Opinion is divided as to
whether it ever could become law. Some consider the proposal deeply flawed606 while others
see it as a good basis that requires some fine tuning.607
2.4.5 STRENGTHENING THE REGULATORY REGIME
Events at the beginning of this century have shown significant weaknesses in the legal regime
regarding military uses of outer space. To ensure the sustainability of outer space activities
action is required to strengthen international space law on a number of points. First and
foremost there is an urgent need for a prohibition on the testing of ASAT weapons that create
space debris.608 Although it could be argued that existing international law already does so,
the Chinese test from 2007 illustrates that even if such norm exists states do not feel obliged
to abide to it. A clear prohibition will prevent the near term creation of large quantities of
space debris.
In the long run this may however not suffice. It is a sad truth that there is no guarantee
against future military conflicts with or between space faring states. In such a conflict
satellites are possible targets, both from a strategic and legal point of view. Although existing
599
A. LELE, supra, note 594, p. 6
600
A. LELE, supra, note 381358, p. 14 and F. TRONCHETTI, supra, note 455, 84
601
ibid., 84
602
ibid., 84
603
ibid., 84
604
B. W. MACDONALD, supra, note 395, p. 27
605
See also A. LELE, supra, note 381358, p. 14
M. KREPON, ‗Space Code of Conduct: Inadequate Mechanism—A Response‘ in LELE, A., Decoding
the International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security
International, 2012), p. 12
606
607
A. LELE, supra, note 594, p. 8
608
See also B. W. MACDONALD, supra, note 395, p. 31
69
international humanitarian law places restrictions on the targeting of satellites these may not
be precise, nor strong enough. Therefore there is also a need to prohibit the use of all ASAT
weapons during an armed conflict. A prohibition on the use of kinetic energy ASAT weapons
alone would be insufficient. Even when a certain state only utilises methods that mitigate the
creation of space debris it seems unlikely that adversaries who lack those more advanced
capabilities will stand by and look how their space assets are destroyed without retaliating
with ASATs that do create large amounts of debris.609 An exception on the prohibition of the
use of ASAT weapons could be for reasons of space safety, but not for space security.
A third improvement of the protection of space activities would be a prohibition on the
placement of weapons in outer space. Although the precise definition of what constitutes a
weapon may require extensive negotiations, such obstacle can be overcome. Although less of
a direct threat to the sustainability of outer space activities the placement of weapons in outer
space is detrimental to the international peace and security. It undermines the desperately
needed international cooperation for outer space activities. Furthermore it seems unlikely for
any state to agree to a prohibition on the use of ASAT weapons if there are at the same time
weapons located in orbit.
To place a prohibition on the testing and use of ASAT weapons rather than placing a
prohibition on the development of such systems avoids many problems. In practice it is
difficult to distinguish between military and non-military uses and states would be reluctant
to sign a treaty that bans the development of technologies that have other uses as well.610
For these three prohibitions to come about it would first be needed to introduce transparency
and confidence building measures (TCBMs). This can create a more stable environment for
the negotiations to take place in.611 Unlike the existing rules that can be deduced from the
OST and other international instrument they must be codified as clear legal limitations so
that all space actors are fully aware of their rights and obligations. 612 Finally there is need for
a verification mechanism. This poses some problems in outer space. It should however be
kept in mind that this is always the case for arms control.613 Still arms control exists and has
sometimes been very successful. To allow for verification improved worldwide SSA would be
an important first step.
609
See UNITED NATIONS INSTITUTE FOR DISARMAMENT RESEARCH, supra, note 256, p. 43
610
B. CHENG, supra, note 51, p. 515-516 and B. SHIXIU, supra, note 479, 2-5
611
See also B. W. MACDONALD, supra, note 395, p. 29
612
J. N. MAOGOTO, supra, note 444, 488
B. CHENG, supra, note 51, p. 537 and I. H. PH. DIEDERIKS-VERSCHOOR and V. KOPAL, supra, note 8,
p. 138
613
70
CHAPTER 3: SUSTAINABILITY
3.1
SUSTAINABILITY AND THE CONCEPT OF SUSTAINABLE DEVELOPMENT
Although it has become a central concept in environmental protection no universally
accepted definition of sustainability exists. One author has identified over 300 different
definitions of sustainability in the academic literature. 614 In its most common literal meaning
sustainability is ―[t]he degree to which a process or enterprise is able to be maintained or
continued while avoiding the long-term depletion of natural resources‖,615 ―causing little or
no damage to the environment and therefore able to continue for a long time‖616 or simply
―[t]he quality of being sustainable at a certain rate or level‖.617 Sustainability has in modern
times been closely linked to the concept of sustainable development. To understand the
relationship between the two it can be useful to see sustainability as the goal and sustainable
development as the means to get there.618 It should be kept in mind however that other
means to achieve sustainability may also be possible. Sustainable development calls for
further social and economic development or at least considers it inevitable. As such it leaves
out the possibility that the best way of achieving sustainability may be no development at all
or economic and social regression. From this perspective sustainability poses the question
whether to develop or not whereas sustainable development looks to mitigate the negative
consequences to the environment from development.619
Sustainable development is by its own right a notoriously vague term. 620 Both
anthropocentric and ecocentric approaches have been used when defining is content. Within
international law justifications are however predominantly anthropocentric. 621 Although
A. DOBSON, ―Drei Konzepte ökologischer Nachhaltigkeit‖, Natur und Kultur - Transdisziplinäre
Zeitschrift für ökologischer Nachhaltigkeit 2000, 62
614
X, The Oxford English Dictionary, Oxford, Oxford University Press, 2013, <www.oed.com>
(accessed 17 January 2013)
615
X, Cambridge Dictionaries Online, Cambridge, Cambridge
<http://dictionary.cambridge.org/>. (accessed 17 January 2013)
616
617
University
Press,
2013,
X, supra, note 615
S. SCHALTEGGER, R. L. BURRITT and H. PETERSEN, An Introduction to Corporate Environmental
Management, Sheffield, Greenleaf Publishing, 2003, p. 22
618
B. CARROLL and T. TURPIN, Environmental Impact Assessment Handbook: A Practical Guide for
Planners, London, Thomas Telford Publishing, 2002, p. 101
619
P. BIRNIE and A. BOYLE, International Law & the Environment, Oxford, Oxford University Press,
2002, p. 3
620
A. GILLESPIE, International Environmental Law, Policy and Ethics, Oxford, Clarendon Press, 1997,
p. 15-18 and P. BIRNIE and A. BOYLE, supra, note 620, p. 5-6
621
71
there is no universally accepted definition, there is one that is far more used than others; the
Brundtland definition.622 According to the report of the Brundtland Commission in 1987
“[s]ustainable development is development that meets the needs of the present
without compromising the ability of future generations to meet their own needs. It
contains within it two key concepts: the concept of 'needs', in particular the essential
needs of the world's poor, to which overriding priority should be given; and the idea
of limitations imposed by the state of technology and social organization on the
environment's ability to meet present and future needs.”623
From this definition the three pillars of sustainable development have been distilled:
economic development, social development and environmental protection. 624 Humankind
faces global challenges in all three of these pillars. To address them properly an integrated
approach is needed. Otherwise the progress achieved within one pillar may at the same time
be detrimental within another pillar. A common example is economic growth that is based on
the destruction of the environment. Sustainable development is a process that allows for such
an integrated approach. 625 Thus whereas sustainability deals with the ―continuing
survivability and persistence of a system,‖626 sustainable development offers a framework to
take into account not only ecological criteria but social and economic criteria as well.
This framework must not be seen as a well-defined concept with wide acceptance of its core
principles. Rather it is an eclectic concept, serving as an umbrella for many different
approaches and ideas. However, some recurring elements can be identified in various
international agreements and some are reflected in important environmental instruments
such as the Rio Declaration.627 Such recurring elements and approaches include the principle
of intergenerational equity, the principle of sustainable use, the principle of equitable use and
the principle of integration.628 The principle of intergenerational equity refers to the need to
preserve natural resources for the benefit of future generations.629 Each generation should
M. C. SEGGER, ―Sustainable Development in International Law‖ in BUGGE, H. C. and VOIGT, C.
(Eds.), Sustainable Development in International and National Law, Groningen, Europa Law
Publishing, 2008, p. 95
622
Report of the World Commission on Environment and Development: Our Common Future, 4
August 1987 (UN Doc. A/42/427, annex)
623
M. C. SEGGER and A. KHALFAN, Sustainable Development Law, Oxford, Oxford University Press,
2004, p. 1-2
624
625
See also J. H. MEY, supra, note 250, 255
626
ibid., p. 255
Rio Declaration on Environment and Development (1992) in Report of the United Nations
Conference on Environment and Development (UN Doc. A/CONF.151/26 (Vol. I)), Annex 1
627
P. SANDS, Principles of International Environmental Law, Cambridge, Cambridge University
Press, 2003, p. 253
628
See also P. BIRNIE and A. BOYLE, supra, note 620, p. 86,
629
P. SANDS, supra, note 628, p. 253
72
ensure that the environment is in an equal or better state when handed over to the next
generation, compared to how it was when they received it. 630 The principle of
intragenerational equity, also known as the principle of equitable use, on the other hand
stresses the need to take into account the present needs of other states and peoples when
exploiting natural resources.631 In doing so it turns the exploitation of resources under a
state‘s sovereignty which is essentially a domestic affair, into an international matter. 632
Other international documents contain a principle of sustainable use. This more down-toearth approach is focused on limiting the extraction of resources to a level that can be
sustained by the natural growth of the resource. 633 Finally, the principle of integration
requires responsible actors to integrate environmental considerations in their economic
decision-making.634
3.2
THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT AS A BINDING NORM
UNDER C USTOMARY INTERNATIONAL L AW
That conflicting definitions of, and approaches to sustainable development exist should not
mean its consequences must remain uncertain in international law as well. 635 The concept of
sustainable development has been included in many treaties and UN General Assembly
resolutions. Neither is a reference to the need for sustainable use new within the realm of
international law. One of the earliest modern examples can be found in the 1894 Pacific Fur
Seals Arbitration.636 In municipal law too, illustrations such as the Forstordnungen637 from
the beginning of the 18th century are known. Because of this some have argued that
sustainable development has become a principle of customary international law, 638 a norm of
law that all states must adhere to. For a principle of sustainable development to have a role as
international custom it must not only be shown to have sufficient state practice and opinio
630
P. BIRNIE and A. BOYLE, supra, note 620, p. 89
P. SANDS, ―Environmental Protection in the Twenty-first Century‖ in N. J. VIG and R. S. AXELROD
(eds.), The Global Environment: Institutions, Law, and Policy, London, Earthscan Publications, 1999,
p. 129
631
632
P. BIRNIE and A. BOYLE, supra, note 620, p. 85
633
P. SANDS, supra, note 628, p. 257-258
634
P. SANDS, supra, note 631, p. 129
635
M. C. SEGGER, supra, note 622, p. 116
Arbitral Tribunal, the rights of jurisdiction of United States in the Bering‟s sea and the
preservation of fur seals (United States v. United Kingdom), Award of the Tribunal of 15 Augusts
1893, Moore‟s International Arbitration Awards 1, p. 755
636
In this case the USA claimed the right to ensure ―the proper use of seals and to protect them, for the
benefit of mankind, from wantom destruction.‖ See P. SANDS, supra, note 628, p. 253
These were laws decreeing that the logging industry was only permitted to cut down the amount of
trees that a forest could be able to replenish each year. See M. C. SEGGER, supra, note 622, p. 92
637
638
ibid., p. 117
73
juris.639 ―It would in the first place be necessary that the provision concerned should, at all
events potentially, be of a fundamental norm creating character such as could be regarded as
forming the basis of a general rule of law.‖ 640 For a principle of sustainable development to be
international custom we thus need to identify what the exact legal norm is that it entails.
A first suggestion could be that the principle of sustainable development prohibits states
from developing unsustainably. However, the existence of such a prohibitive norm seems
highly unlikely as there is insufficient state practice indicating such customary norm. 641
Alternatively, the principle of sustainable development could be seen as a permissive norm
granting states the right to sustainable development. This view finds support in the Separate
Opinion of Judge WEERAMANTRY in the Gabčíkovo-Nagymaros case:
“The Court must hold the balance even between the environmental considerations
and the developmental considerations raised by the respective Parties. The principle
that enables the Court to do so is the principle of sustainable development.” 642
After noting the considerations of both parties concerning the advantages of a development
project and the threat it posed to the environment, Judge WEERAMANTRY continued as
follows:
“It is clear that a principle must be followed which pays due regard to both
considerations. Is there such a principle, and does it command recognition in
international law? I believe the answer to both questions is in the affirmative. The
principle is the principle of sustainable development and, in my view, it is an
integral part of modern international law. It is clearly of the utmost importance,
both in this case and more generally.”643
Because sustainable development is necessarily a type of development, such a permissive
norm does not expand the scope of the right to development, as proclaimed by the
Declaration on the Right to Development.644 Instead it forms the symbiosis between the right
to development, and the need for environmental protection. Not all authors have been
convinced by the existence of such a norm, named the principle of sustainable development.
They take the view that sustainable development is a policy purpose. 645 Such a policy purpose
639
See supra., p. 9
ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands), Judgment, ICJ Reports 1969, p. 41-42
640
641
M. C. SEGGER, supra, note 622, p. 123
ICJ, Gabčíkovo-Nagymaros Project
WEERAMANTRY, ICJ Reports 1997, p. 88
642
(Hungary v. Slovakia), Separate Opinion Judge
ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Separate Opinion Judge WEERAMANTRY,
ICJ Reports 1997, p. 89
643
Declaration on the Right to Development, adopted on 4 December 1986 (UN Doc. A/RES/41/128),
annex
644
645
M. C. SEGGER, supra, note 622, p. 117
74
of individual states or the international community at large can be taken into account by
judges but it is not a rule of law.646 The ICJ too has been reluctant to recognize the principle
of sustainable development as a rule of international law. In the 2010 Pulp Mills case647 the
Court showed great reluctance to recognize any principle of sustainable development. 648
Instead the Court described it as an objective.649 This indicates that at present sustainable
development is indeed rather a policy purpose than a principle with normative value under
international law.
3.3
SUSTAINABILITY IN INTERNATIONAL SPACE LAW
The traditional international legal order is essentially a laissez-faire system.650 Behaviour that
is not prohibited by a norm of international law is allowed.651 Although the lotus principle 652
has lost some of its sharp edges653 it would be overenthusiastic to proclaim that in this day
and age international law has created a community of states that have extensive obligations
to each other‘s well-being and a common legal responsibility over the resources and
environment of this planet. Some international law to this effect exists but it has largely
come about in an ad-hoc fashion.654 No general norm seems to exist under international law.
The refusal of the ICJ to recognize a principle of sustainable development illustrates this. The
body of international space law is however interesting in this respect. At its very core stand
principles such as the use and exploration for the benefit of all principle.655 It has already
been covered how international cooperation is of exceptional importance for outer space
activities. More importantly, as has been shown, cooperation is not just a necessity it is an
646
ibid., p. 117-118
647
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14
D. TLADI, Principles of Sustainable Development in the Case Concerning Pulp Mills on the River
Uruguay, 2012, p. 9-10, <www.idlo.int/Documents/Rio/01.%20Pulp%20Mills%20on%20the%20
River%20Uruguay.pdf> (accesed 3 August 2013)
648
649
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 177
See also D. TLADI, supra, note 648, p. 12
650
P. BIRNIE and A. BOYLE, supra, note 620, p. 1
651
J.N. MAOGOTO and S. FREELAND supra, note 65, 1103 and B. A. HURWITZ, supra, note 224, p. 2
―International law governs relations between independent States. The rules of law binding upon
States therefore emanate from their own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order to regulate the relations between
these CO-existing independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed.‖ PCIJ, Case of the S.S.
Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Reports A, No. 10, p. 18
652
653
D. J. HARRIS, supra, note 143, p. 4
654
See also P. BIRNIE and A. BOYLE, supra, note 620, p. 1
655
See supra, p. 14
75
obligation under international space law. 656 It is the author‘s view that because of this
international space law is a much more fertile ground for a legal principle of sustainable
development to exist.
The threats in outer space have combined to endanger the sustainability of our activities in
outer space. Space sustainability as a concept can be defined as ―ensuring that all humanity
can continue to use outer space for peaceful purposes and socioeconomic benefit‖657 and has
gained some popularity in recent years. In 2010 the STSC set up the Working Group on the
Long-Term Sustainability of Outer Space Activities (LTSSA). 658 Furthermore some space
actors such as the US have identified space sustainability as vital to their own national
interest. 659 The LTSSA examines space sustainability within the context of terrestrial
sustainable development.660 Its goal is to identify areas of concern and propose measures to
counter the threats causing this concern. A final report from the committee is expected in
2014.661 It must be stressed that like the space debris mitigation guidelines this report will be
written as a technical document, not a legal one.
Space activities contribute in various ways to sustainable development on earth.662 Given how
human activities have become an important element of the outer space environment663 it is
now our task to ensure the sustainability of outer space activities as well.
656
See supra, p. 26
657
SECURE WORLD FOUNDATION, , supra, note 223, p. 2
T. CHOW, UNCOPUOS Long-term Sustainability of Space Activities Working Group Fact Sheet,
2013, p. 1, <www.swfound.org/media/109514/SWF_UNCOPUOS_LTSSA_Fact_Sheet_June_2013
.pdf> (accessed 6 August 2013)
658
“The United States considers the sustainability, stability, and free access to, and use of, space vital
to its national interests.” See US National Space Policy 2010, p. 3
659
See also US Department of Defense Directive 3100.10, 18 October 201 1, p. 1
660
T. CHOW, supra, note 658, p. 1
661
ibid., p. 2
See EUROPEAN SPACE AGENCY, Sustainable Development Report 2009-2010, Noordwijk, January
2011, p. 20-29
662
D. S. F. PORTREE and J. P. LOFTUS (FOR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, STI
PROGRAM), supra, note 255, p. 1
663
76
CHAPTER 4: PRELIMINARY CONCLUSION
The outer space environment is at the same time a highly valuable environment and a very
fragile one. Because of the natural characteristics of outer space it requires strong
international cooperation to protect this environment and the activities that take place there.
On various occasions this dissertation has pointed weaknesses in the current legal regime.
Many of these tie in with the observation that while the UN space treaties have given space
law a distinct set of basic principles, these have not been worked out into specific provisions
that are useable in practice. There is a strong need for international instruments that
introduce such provisions. This is especially true for the problem of space debris. The
international rules governing harmful interference are insufficient to dissuade states from
irresponsible behaviour. The UN Space Debris Mitigation Guidelines have helped to create a
better understanding but given their technical nature it remains unsure whether this will be
sufficient.
As was evident in the second chapter, threats to outer space activities are predominantly
approached from two different angles. The first approach is from a national security
perspective. This has been named space security. The national security perspective is a very
dominant one in the literature and is a testimony of the great importance given by states to
their space capabilities. It is also closely connected to the militarization of outer space.
Characteristic of this approach is that it lays its focus on the individual security interests of
states. Regulatory attempts within this approach aim to balance those national interests and
place great weight on those space actors that possess important military capacities. The
second approach, named space safety, is aimed at the direct safety of space objects. This
includes the risk of accidents such as collisions and all sorts of harmful interference. It is a
dominant approach in discussions about space debris and orbital crowding.
The division in approaches is not only present in the literature; it is also embedded within the
framework of the UN. Military aspects of the outer space regime, and thus space security, are
discussed within the CD. Space safety on the other hand, belongs to the domain of COPUOS.
In the past multiple delegations have objected to military topics discussed within the
COPUOS.664 The same situation goes for the regulation of GEO. The ITU is only engaged in
civil coordination of international communication and military uses are excluded from its
regulations. This division between military and non-military uses is however not present in
the UN space treaties and principles, and for good reason. Military and non-military uses of
outer space are deeply entangled. Therefore an approach that focuses only on space security
or space safety is unsatisfactory.
All this is not to say that an approach of space security cannot take elements of space safety
into account, and vice versa. However, a specific approach to a problem may predetermine
the outcome. Authors writing from the space security perspective give much more attention
to the balance of power between important military powers than to the common threats
present in outer space, and states focusing on national security tend to become paranoid of
664
F. TRONCHETTI, supra, note 455, 83-84
77
international cooperation. 665 The space safety approach on the other hand is often
fragmented, focusing on certain individual issues without taking the whole of the space
environment and the political situation into account.
The author therefore feels that it is better to approach the issues at hand from a sustainability
point of view. This allows for a more integrated approach. Moreover it is not hard to convince
space actors for the need to ensure the sustainability of outer space activities. It is in their
common interest to do so. Such a well-defined point of common interest might also help to
overcome the reluctance of states to engage in legally binding obligations. For this however,
the time is not yet right and alternative instruments are needed.
P. WON-HWA, ‗Space Code of Conduct: Right Step Forward Although not Perfect‘ in LELE, A.,
Decoding the International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security
International, 2012), p. 101
665
78
PART II: EUROPEAN UNION PROPOSAL FOR AN
INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE
ACTIVITIES
CHAPTER 5: DRAFTING HISTORY OF THE EU PROPOSAL
5.1
INTRODUCTION TO THE PROPOSAL FOR A CODE OF CONDUCT
As has been covered by the previous part of this dissertation many gaps remain in the
existing regulatory framework for outer space, while at the same time multiple practical and
political challenges lay ahead. However, awareness over issues of space security and space
safety grew and the idea took hold that a code of conduct would be a possible way to deal with
them. The main reason for the attraction of a code of conduct, or another soft law instrument,
is that it may be concluded in the near future whereas successfully negotiating a treaty seems
unlikely at present.666 The EU proposal is not the first proposal for a Code of Conduct. In
2004 the Stimson Center published a Model Code of Conduct for Responsible Space-Faring
Nations. A second version was published in 2007.667 Its central objective is ―[t]o preserve and
advance the peaceful exploration and use of outer space.‖ 668 At the time this initiative was
unique by creating a comprehensive framework for all outer space activities. 669 While the
concept of a code of conduct for outer space activities received various endorsements670 the
proposal itself got barely any international attention.671
The goal of the EU proposal for a Code of Conduct is to ensure the security, safety and
sustainability of outer space activities by strengthening the existing regulatory regime and by
providing a complementary mechanism of best practices to the existing regulatory framework
666
M. KREPON, supra, note 224, p. 31
STIMSON CENTER, Model Code Of Conduct, 2013, <www.stimson.org/research-pages/model-codeof-conduct/> (accessed 12 July 2013)
667
668
ibid.
X, A Brief Overview of Norms, Geneva, United Nations Institute for Disarmament Research, 2013,
p. 7
669
Albeit in very general terms.
See STIMSON CENTER, Endorsements Of A Code Of Conduct, 2013, <www.stimson.org/researchpages/endorsements-of-a-code-of-conduct/> (accessed 2 August 2013)
670
671
A. LELE, supra, note 381358, p. 14
See also R. P. RAJAGOPALAN, supra, note 238358, p. 137
Given the attention it received in US policy circles it may however have contributed to willingness of
the US to engage in negotiations over the EU proposals for a Code of Conduct.
79
for outer space activities. 672 It is an attempt to determine best practices and reasonable
behaviour673 and places strong emphasis on TCBMs.674 Whereas the code was always aimed
at covering all outer space activities it emerged against the background of a deadlock in the
Conference on Disarmament (CD).675 Given that the initiative is to some extend a reaction to
this deadlock it is often perceived as dealing with space security alone or predominantly
rather than with both space security and space safety on an equal footing.676 At present the
document is promoted by the EEAS as an instrument for the sustainability of outer space
activities.677 This may help to some extend in avoiding the sensitivity of some states towards
any form of arms regulation in outer space. As such the chances of the code to gain
acceptance have been improved.
A question that can, and should, be asked is why the proposal was not pursued within the
COPUOS or CD. In relation to the CD this is easily answered given that it was the frustration
with the deadlock in the CD that formed an important reason for this proposal. 678 The
COPUOS too has not been without problems in recent years679 and the LSC seems to have lost
its ability to further the development of space law.680 Furthermore the consensus rule that is
followed may result in ambiguity at a time when a document is needed to clear up ambiguity
from the past. The main reason however is that the proposed Code of Conduct deals with
W. RATHGEBER, N. REMUSS and K. SCHROGL, supra, note 6, 36; A. LELE, supra, note 594, p. 5 and V.
SAMSON, ―ICoC: Need of the Hour‖ in LELE, A., Decoding the International Code of Conduct for Outer
Space Activities, New Delhi, Pentagon Security International, 2012), p. 136
672
673
C. LEHNERT (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 214, p. 2
674
A. LELE, supra, note 594, p. 6
675
See also A. LELE, supra, note 381358, p. 14
E.g. A. LELE, supra, note 594, p. 7-8; F. TRONCHETTI, supra, note 455, 86 and P. J. BLOUNT,
―Targeting in Outer Space: Legal Aspects of Operational Military Actions in Space‖, Harvard National
Security Journal 2012, <harvardnsj.org>, 1-2
676
See also R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 32-33 and J. ROBINSON,
―Europe‘s Space Diplomacy Initiative: The International Code of Conduct‖ in LELE, A., Decoding the
International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security International,
2012, p. 29
The Council of the European Union too only mentioned the ―security of activities in outer space‖ when
it adopted the original draft. See Conclusions of the Council of the European Union no. 17175/08, 17
December 2008 on the draft Code of Conduct for outer space activities
677
Based on interactions with experts
678
See infra, p. 88
LYALL and LARSEN give a rather grim depiction: ―Not all members of COPUOS attend. Some send
representatives who lack expertise and standing, often being lower rank diplomats in the local
embassy (usually Vienna), for whom space questions are not a priority. Some read prepared
statements sent from home, do not otherwise participate usefully in discussion and debate, and
cannot assent to text without further 'instructions from home' and 'home' may not be that well
informed on the matter at issue in any case.‖ See F. LYALL and P. B. LARSEN, supra, note 1, p. 22
679
680
ibid., p. 37
80
both military and civilian aspects of outer space. This makes the existing UN structure with
arms control discussed in the CD and topics such as space debris mitigation in COPUOS
inadequate.681 While there has been no real interaction with the CD and COPUOS on the
proposed Code of Conduct the EEAS has made efforts to keep the contact with the UN
open.682 Another aspect is that the EU is keen to present itself as a normative power in
international relations. The proposal for a Code of Conduct is an attempt to show that it can
play such a normative role within the topic of the sustainability of outer space activities. 683
On this last note it has been suggested that the EU has the credibility to be ―the principle
middle diplomat of the global space community.‖684
5.2
EUROPEAN UNION INITIATIVE
The proposal for a Code of Conduct on Outer Space Activities has dominated the European
agenda on outer space for the past five years.685 It is the most important EU diplomatic
enterprise in the field of space policy to date. 686 This is noteworthy given that before 2007
space security was not an important part of EU policy. Political awareness over the issue grew
in the aftermath of the adoption of the first European Space Policy.687 Several events have
triggered this. First there was the frustration with the stalemate in the CD which at that point
in time already lasted for over a decade.688 This frustration, combined with the troubling
Chinese ASAT test in 2007 led to the issue being put on the agenda.689
681
Based on interactions with experts
See E. BERNHARDSDOTTER, supra, note 247, p. 85
An illustration is the work of the UN Group of Governmental Experts on Transparency and
Confidence-Building Measures in Outer Space Activities. See infra, p.
682
683
See also E. BERNHARDSDOTTER, supra, note 247, p. 83 and J. ROBINSON, supra, note 676, p. 29
684
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 61
J. ROBINSON (FOR
Response, 2013, p. 27
685
686
THE
EUROPEAN SPACE POLICY INSTITUTE), Space Crisis Management: Europe‘s
J. ROBINSON, supra, note 676, p. 27
The European Space Policy was first presented through a joint Communication from the European
Commission to the Council of the European Union and the European Parliament and a proposal from
the ESA Director General to the ESA Council. The resolution on the European Space policy was
adopted on 22 May 2007 by the EU and ESA ministers of the 4 th Space Council. See K. SCHROGL, C.
MATHIEU and N. PETER (Eds.), supra, note 432, p. 23
687
688
K. SCHROGL, C. MATHIEU and N. PETER (Eds.), supra, note 432, p. 152
Bernhardsdotter, ‗The EU and Star Wars: The Space Code of Conduct as a Tool for Security Policy‘
(n __), p. 81-82
689
In the words of Italian ambassador CARLO TREZZA: “It is no secret that a real negotiation on a legally
binding PAROS Treaty is not around the corner and that some impediments still remain. We cannot
ignore that in the updated version of the US national space policy it is said, inter-alia, that “the
United States will oppose the development of new legal regimes or other restrictions that seek to
prohibit or limit U.S. access to or use of space”. Furthermore, the anti-satellite test made by China at
81
In the aftermath of the Chinese ASAT test Italy offered a document titled ―Food For Thought
on a Possible Comprehensive Code of Conduct for Space Objects‖ in the CD. 690 This
document highlighted some of the gaps in the existing TCBM‘s regarding space security and
suggested new measures.691 The initiative was later endorsed by the EU.692 In June 2007
Germany organised a workshop on ―Security and Arms Control in Space and the Role of the
EU‖ as part of its EU presidency in order to put the topics of arms control and space security
firmly on the EU agenda. 693 It succeeded in doing so and drafting began shortly afterwards in
the autumn of 2007.694 To this end a special working group was set up, the Disarmament and
Space Experts Working Group (CODUN SPACE), as a subgroup of the existing Global
Disarmament and Arms Control Working Group (CODUN).695
Initial drafting occurred in the working group under the Portuguese and Slovenian EU
presidencies.696 By the summer of 2008 consultations were being held with a small group of
countries including Brazil, China, India, Russia and the US.697 When France took over the EU
presidency in July 2008 it made the proposal for a code of conduct a priority. 698 Following
this the first draft was finished by the CODUN SPACE and endorsed by the important
Political and Security Committee. Finally, on 3 December 2008 the Draft Code of Conduct for
Outer Space Activities was adopted by the Council of the European Union.699 With the draft
the beginning of this year, which interrupted a testing moratorium de facto that had lasted for 20
years, does not contribute to the establishment of a climate conducive to negotiations.” CARLO
TREZZA, ―A Possible Comprehensive Code of Conduct for Space Objects in an EU Perspective‖,
presentation made to the EU workshop on ―Security and Arms Control in Space and the Role of the
EU‖ held in Berlin, 21–22 June 2007, at <sedi.esteri.it/rapparm/2007.06.21.22-trezzaInterventoConferenzaUEBerlinospazio.rtf> accessed 17 February 2012
690
Jana Robinson, ‗Advancing International Space Code of Conduct‘ [2012] e-International Relations
691
ibid.
W. RATHGEBER, N. REMUSS and K. SCHROGL, supra, note 6, 35-36 and J. ROBINSON, supra, note 676,
p. 27
692
W. RATHGEBER, N. REMUSS and K. SCHROGL, supra, note 6, 35 and J. ROBINSON, supra, note 676, p.
27-28
693
694
ibid., p. 28
695
E. BERNHARDSDOTTER, supra, note 247, p. 82
W. RATHGEBER, N. REMUSS and K. SCHROGL, supra, note 6, p. 36 and J. ROBINSON, supra, note 676,
p. 28
696
697
ibid., p. 28
See also W. RATHGEBER, N. REMUSS and K. SCHROGL, supra, note 6, p. 36
698
ibid., p. 36
Conclusions of the Council of the European Union no. 17175/08, 17 December 2008 on the draft
Code of Conduct for outer space activities, Annex
699
82
code released it was now also promoted towards other countries and within different
international organisations.700
One of the curious features of the 2008 draft is the language used. Phrases such as ―in
codifying new best practices‖701 and ―The Subscribing States will establish and implement‖702
are rather strong for a document that is intended to be a soft law document. In addition,
whereas provision 1.4 now states that code is not legally binding upon states, the original
draft used the more vague formulation ―[a]dherence to this code and the measures contained
in it is voluntary.‖ Although said to be a code of conduct, a soft law instrument, the 2008
draft has the feel of a treaty to it and was in fact written with that idea in mind.703
5.3
REVISED DRAFT
A major criticism that came forth was that the consultations with third states prior to the first
draft had not been transparent and wide enough. 704 In response the EU engaged in extensive
consultations during the run-up to the revised 2010 draft.705 Important too was that since the
2008 draft a new US administration had come to power. The different take of the Obama
Administration on space policy is apparent from the US National Space Policy document
published in 2010. 706 This new version indicated a willingness to engage in initiatives to
promote the responsible use of outer space.707 This constitutes a noticeable shift from the US
position during the Bush Administrations which had essentially meant a rejection of
diplomacy to ensure space sustainability.708
The 2010 revised draft was adopted by the council of the European Union on 27 September
2010.709 It incorporated various remarks made during the bilateral consultations with other
states. The most obvious difference with the 2008 version is a change in tone. The phrasing
of many provisions changed to counter the concern of some states that this code of conduct
700
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 28
701
Provision 1.3 CoC 2008
702
Provision 4.1 CoC 2008
703
Based on interactions with experts.
704
C. JARAMILLO (Ed.), supra, note 232, p. 65 and J. ROBINSON, supra, note 676, p. 28
705
C. JARAMILLO (Ed.), supra, note 232, p. 65
These bilateral consultations included talks with Brazil, Canada, China, India, Indonesia, Israel,
Russia, South Africa, South Korea, Ukraine and the US. J. ROBINSON, supra, note 676, p. 28
706
US EXECUTIVE OFFICE OF THE PRESIDENT, National Space Policy, 28 June 2010, 14 p.
707
C. JARAMILLO (Ed.), supra, note 232, p. 66
708
M. KREPON, supra, note 224, p. 32
Conclusions of the Council of the European Union no. 14455/10, on the revised draft Code of
Conduct for outer space activities, 11 October 2010
709
83
was in fact a treaty in disguise. The changes to individual provisions will be discussed in the
next chapter.
The introduction of the 2010 revised draft occurred in the midst of an important reform of
the EU. On 1 December 2009 the Treaty of Lisbon710 had come into effect. One of the many
aims of this treaty was to allow for a more unified European foreign policy. Most visual in this
respect was the introduction of an EU diplomatic service, the European External Action
Service (EEAS). The EEAS was however only formally formed one year after the Treaty of
Lisbon had come into effect. This meant that when the code was introduced the organisation
of the foreign policy of the EU was still in a transitional phase. An important change with the
Treaty of Lisbon is that the Chair of CODUN no longer rotates every six months with the
presidency of the EU Council. This opened up new opportunities for a more stable foreign
policy.711
Against this background the EU continued to promote the proposal for a voluntary code of
conduct. It cannot be said that the states rolled out the red carpet for the code at this point.712
Multiple states made various reservations of all sorts.713 Distinction should be made between
reservations concerning the content of the code and unease over the method of drafting.
Despite the increased consultations since the 2008 draft the criticism that the process had
not been transparent enough persisted. The lack of a clear road map was another point of
frustration for some states.714 India in particular felt strongly about this. 715 Another concern
voiced by India refers to the code of conduct‘s status as a soft law instrument. India would
have preferred a legally binding instrument. 716 It shared this preference with Russia for who
the issue was not unrelated to the existence of its PPWT proposal.717 Concern was raised by
some that the drafting of a non-binding code may prevent the conclusion of a binding treaty
on arms prevention in outer space.718 Russia was also of the opinion that it would be better to
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, Official Journal of the European Union 2007/C 306, signed on 13 December 2007,
entered into force on 1 December 2009
710
N. HELWIG, P. IVAN and H. KOSTANYAN, The New EU Foreign Policy Architecture: Reviewing the
first two years of the EEAS, Brussels, Centre for European Policy Studies, 2013, p. 11
711
712
E. BERNHARDSDOTTER, supra, note 247, p. 84
713
R. P. RAJAGOPALAN, supra, note 238358, p. 173
714
E. BERNHARDSDOTTER, supra, note 247, p. 85
India in particular felt unhappy with what it perceived as a lack of consultation.
LISTNER, M., EU Code of Conduct: commentary on Indian concerns and their effects, the Space
Review, 2011, <www.thespacereview.com/article/1977/1> (accessed 6 June 2013)
715
716
ibid.
717
See also A. LELE, supra, note 381358, p. 16
718
E. BERNHARDSDOTTER, supra, note 247, p. 84
84
move the drafting to a UN body.719 Other states such as Australia and Japan focussed on the
need to ban ASAT weapon tests but were at the same time more open to the idea of a soft law
instrument. They considered it more important, or even essential, that all major space faring
states would sign up to it.720
The position of the US has been mildly positive from the start. This is probably due to the
intensive consultations that the EU organised with the US. Whereas this had the side effect of
making other states feel that they had been left out it may have ensured the survivability
prospects of the code.721 The history of the PAROS initiative shows that it is impossible to get
anything done related to space security without the support of the most prominent space
faring state. The existence of institutes such as the Stimson Center and the Secure World
Foundation who had been actively promoting the idea of ensuring space sustainability
through a soft law instrument may also have contributed to the favourable view of a code of
conduct. In addition the US military turned out to be in favour given the dangers posed by
space debris.722 This does however bring us to an important red line for the US. No document
should endanger its national security. Whereas this would be an acceptable demand from any
state it may cause serious problems depending on how strong the doctrine of space
dominance is still being followed. On 17 January 2012, it was announced that the US would
―join with the European Union and other nations to develop an International Code of
Conduct for Outer Space Activities.‖ 723 This endorsement was a milestone as it was a
requirement for some close allies of the US to show public support as well.724
Although consultations with the US were mostly productive the talks with the People‘s
Republic of China were reportedly ‗very difficult‘.725 China fundamentally disagreed on the
basic philosophy of the code.726 Some of its criticism was the same as that shown by Russia.
As such China would also prefer to work on the PPWT proposal.727 However the disagreement
goes a lot further. China did not want the problem of space debris included in the text and
719
ibid., p. 85
See also K. SUZUKI, ―Japan, Space Security and Code of Conduct‖ in LELE, A., Decoding the
International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security International,
2012), p. 95
720
721
See also V. SAMSON, supra, note 672, p. 136 and P. WON-HWA, supra, note 665, p. 103
722
A. LELE, supra, note 381358, p. 15
H. CLINTON, International Code of Conduct for Outer Space Activities (Press Release US
Department of State), 2012, <www.state.gov/secretary/rm/2012/01/180969.htm> (accessed 18 July
2013)
723
724
See also K. SUZUKI, supra, note 720, p. 96
J. HALE, EU Urges Nations To Join Space Code of Conduct, Virginia, 2011,
<www.defensenews.com/article/20110913/DEFSECT04/109130310/EU-Urges-Nations-To-JoinSpace-Code-of-Conduct> (accessed 5 August 2013)
725
726
Based on interactions with experts.
727
M. KREPON, supra, note 224, p. 34
85
opposed provisions aimed at transparency of policy objectives and national security
initiatives.728 Although China‘s space program goes back a long way it behaves much like a
new space actor and its position on the diplomatic efforts can be described as hesitant at
best.729
5.4
MULTILATERAL NEGOTIATIONS
On 30 March 2012 the EEAS organised a preparatory meeting with all the major space-faring
nations. During this meeting an agreement was reached to start multilateral negotiations. It
was planned to have up to three expert meetings within a two year timeframe. Depending on
how fast the talks would progress, the code of conduct would have been opened for signature
at a diplomatic conference convened as early as mid-2013.
A first expert meeting was set up in Vienna on 5 July 2012, a day before the start of the 55 th
session of COPUOS. Before the start of the meeting a third draft was released incorporating
some more remarks made during the bilateral consultations and featuring improved wording
of some provisions. The content remained mostly identical to the 2010 version. The meeting
was held at the United Nations Institute for Disarmament Research (UNIDIR) and experts
from all 71 members of the UN Committee on the Peaceful Uses of Outer Space were invited.
There were 110 participants from over 40 different states and the meeting was chaired by the
Deputy Secretary General of the EEAS to signify the importance given to the code of conduct
by the EU.730 Although almost all of the space faring nations supported the basic principles of
the code731 the EEAS received a lot of criticism. It was said that the consultation process had
favoured some states over others. Like in the past this criticism came predominantly from
Asian countries. 732 Furthermore new and soon to be space faring states were not always
convinced of the need for a code of conduct.733 This first meeting did not achieve any real
breakthroughs as no substantial negotiation took place.734
The substantial negotiations were planned to start at a second expert meeting in October
2012 in New York. The meeting was however cancelled. The reason for this was not a
substantial problem with the negotiations but rather one of a more practical nature. The
EEAS found it impossible to bring together all the necessary delegations and find an
appropriate venue. It must be kept in mind that the EEAS is still a very young organisation
728
C. JARAMILLO (Ed.), supra, note 225, p. 62
729
M. KREPON, supra, note 224, p. 34
See also M. LISTNER, Code of Conduct: corrections, updates, and thoughts going forward, the
Space Review, 2012, <www.thespacereview.com/article/2101/1> (accessed 6 June 2013)
730
731
A. LELE, supra, note 381358, p. 15
Cf. ―Now, the question that India needs ask is: ―Is the EU proposing a mechanism to suit the US
interests or for the purposes of achieving space security?‖‖ See ibid., p. 19
732
733
Based on interactions with experts.
734
M. LISTNER, supra, note 730358
86
with many start-up problems.735 The challenges in building an effective diplomatic service
from scratch while having to deal with global issues from the very start are substantial.
Nevertheless, it has rightly been noted a cancellation as occurred in October 2012 is not good
for the reputation of both the EEAS and the code.736
After the failure of the October 2012 expert meeting the EEAS revaluated the negotiation
process. The expert meetings were renamed to ―Open-ended consultations on the proposal
for an international Code of Conduct.‖ This name was deemed to cover better the intent of
such meetings. The matters of disagreement between states are not technical in nature, but
rather political. Such an open-ended consultation was organised for the first time in Kiev
between 12 and 17 May in cooperation with the State Space Agency of Ukraine. At this
meeting about 140 delegates from 61 states were present. The EEAS made a particular effort
to engage developing countries by covering the travel expenses of their delegations. Because
of past experiences where not everyone was fully up-to-date on the issues at hand, the
consultations were split up in clusters. Each cluster covered a certain topic and followed a
fixed pattern. First, a presentation was made on a certain threat to the sustainability of outer
space activities by an expert on the issue. Second, the EEAS presented the provisions of the
proposed code that were related to the issue and explained how these are intended to counter
the threat. In a third and final phase an open discussion was held over the issue and the
relevant provisions of the code. The text that formed the basis for the consultations remained
the 2012 draft proposal.737 The Kiev session is held to be productive and a next open-ended
consultation is planned for November or December 2013.
Parallel to the negotiations on the proposed international Code of Conduct organised by the
EEAS a UN Group of Governmental Experts 738 (GGE) has been working on developing
TCBM‘s for outer space activities. The GGE was established by UN General Assembly
resolution in 2010 and is composed of 15 experts from different states. 739 The focus of the
GGE is on space security. Given the overlap the EEAS has kept the GGE up to date on the
progress of the code.740 The GGE convened in three session in July 2012, April 2013 and July
2013. During this last session a major breakthrough was achieved. It was reported that
See also A. RETTMAN, Staff leaving EU diplomatic service amid bad working conditions, 2011,
<euobserver.com/institutional/113777> (accessed 7 August 2013)
735
736
E. BERNHARDSDOTTER, supra, note 247, p. 85
737
Based on interactions with experts.
UN Group of Governmental Experts on transparency and confidence-building measures in outer
space
738
Transparency and confidence-building measures in outer space activities, adopted on 8 December
2010 (UN Doc. A/RES/65/68), 2
739
Its members come from Brazil, Chile, China, France, Italy, Kazakhstan, Nigeria, Republic of Korea,
Romania, Russian Federation, South Africa, Sri Lanka, Ukraine, the UK and the US.
It should be noted that as the GGE has a UN mandate, unlike the EEAS, this contact has been
mostly one-way from the EEAS to the GGE.
740
87
consensus was achieved on the need for more transparency on space policy.741 Whereas this is
nothing new for a majority of the space faring states it constitutes a major policy shift for
China. The final report of the GGE is expected to be published later this year and will
recommend the conclusion of an international Code of Conduct. This will constitute a major
improvement for the prospects of the proposed Code of Conduct, as one of the problems that
the EEAS faces to date is the lack of a UN mandate.742
Marie Harf, ‗Statement on Consensus Achieved by the UN Group of Governmental Experts on
Transparency and Confidence-Building Measures for Outer Space Activities‘ (Press Release US
Department of State, 2013) <http://www.state.gov/r/pa/prs/ps/2013/07/212095.htm> accessed 20
July 2013
741
742
Based on interactions with experts.
88
CHAPTER 6: COMMENTARY ON THE INDIVIDUAL PROVISIONS
6.1
PRELIMINARY REMARKS
In this chapter a provision-by-provision commentary on the 2012 draft of the code of conduct
will be provided. Given the status of the document as a working document the meaning and
implications of every word are not examined in equal detail. The author rather wishes to
explore the intention of every provision without focusing on phrasing that is likely to undergo
changes before the final draft. Where it is felt that the current wording is of great importance
this will of course be evaluated. The full text of the 2012 draft of the proposed international
code of conduct for outer space activities can be found in annex. 743
6.2
PREAMBLE
The code of conduct starts with a classic preamble. In it, the importance of sustainable use
and the dependency of modern society on outer space activities are acknowledged. The
preamble identifies space debris as a threat to these activities. To counter the threat the need
for international cooperation is recognised and some initiatives are shown to have particular
importance. These are initiatives that promote peaceful use of outer space, TCBMs and best
practices to complement existing international space law. Reference is also made to the work
done in the CD and the COPUOS. The preamble of the code states that a comprehensive
approach to both space safety and space security should be guided by three guiding
principles: freedom of access for peaceful purposes, preservation of the security and integrity
of space objects and due consideration for the legitimate defence interests of states. This
limitation of the freedom of access for peaceful purposes will return in provision 2. It is
questionable why exactly these three principles were taken as many others are imaginable.
What these three guiding principles show is the importance of space security considerations
in the negotiations.
The preamble has remained largely the same since the 2008 draft. Apart from some minor
rephrasing only three elements are new. The 2010 draft added the reference to best practices
and to the work done in the COPUOS and the CD. The 2012 draft added the paragraph
referring to the importance of sustainable use of outer space.
6.2
PURPOSES AND SCOPE (PROVISION 1)
Provision 1 states the purpose and scope of the code. This purpose is to ―enhance the security,
safety and sustainability of all outer space activities.‖744 It is significant that all outer space
activities are included, both civilian and military, and it indicates the comprehensive
approach the code has taken. It is further clarified that ―all outer space activities‖ include
those conducted in cooperation with other states or through non-governmental
organisations. The provision states that through the endorsement of best practices the code
743
See infra, p. 114
744
Provision 1.1 of the CoC
89
aims to contribute to TCBM‘s and that it is complementary to the normative legal framework
for outer space activities. Finally, it is expressly stated that the code is not legally binding.
The phrasing of the article went through some evolution. In the 2008 draft the word
predictability was used instead of ―sustainability‖. It is one of the indications of how the code
evolved from a primarily space security orientated document to the sustainability approach
that has been taken now. It has been mentioned earlier that the original wording of many
provisions reminded of a binding treaty.745 This is especially true for provision 1. The 2008
draft spoke of ―codifying‖ instead of ―endorsing‖ best practices and the phrase affirming that
the code was not legally binding was only included in 2010.
6.3
GENERAL PRINCIPLES (PROVISION 2)
In provision 2 a set of general principles is included that subscribing states decide to abide
by. The first principle is the freedom of exploration and use of outer space without
interference and bears great resemblance to the same principles known from the OST. Yet the
devil is in the details. Unlike the OST the Code only mentions the freedom of use, access and
exploration for peaceful purposes. We must assume that the interpretation given to peaceful
purposes within the code is that of non-aggressive purposes. It seems wholly unlikely that
subscribing states would find it a general principle that states have no right to access to outer
space for military purposes. Yet the use of peaceful purposes in its diluted form must be
regretted as it further undermines a correct interpretation of the OST. 746 Subscribing states
are also expected to respect the security, safety and integrity of space objects. Furthermore
their use and exploration of outer space should be consistent with long-term sustainability of
outer space activities. This is also significant as ensuring the sustainability of activities goes
much further than the existing obligation to act with due care to the activities of other actors.
The second general principle is the right to individual or collective self-defence. The inclusion
of this principle was essential for some states, including the US. A third general principle is
that states should take appropriate measures and cooperate ―in good faith‖ to prevent
harmful interference. Finally subscribing states submit to the responsibility to adopt
measures aimed at the prevention of an armed conflict in outer space and to promote the
peaceful exploration of outer space.
There has been some evolution in the general principles of provision 2 throughout the
different drafts. Whereas the 2008 draft was predominantly focussed on existing
international law, the 2010 and 2012 each put more importance on internationally accepted
practices. Because of this the code has become less a restatement of existing law and more a
recommendation to follow certain guidelines.
745
See supra, p. 831
746
E.g. R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 33
90
6.4 COMPLIANCE WITH AND PROMOTION OF TREATIES, CONVENTIONS AND
OTHER COMMITMENTS RELATING TO OUTER SPACE ACTIVITIES (PROVISION 3)
Provision 3 lists a number of treaties and other international instruments that are considered
essential for the sustainability of outer space activities. Subscribing states should reaffirm
commitment their commitment to the existing legal framework and ssupport the universal
adoption, and implementation of and adherence to those instruments they are party to.
However, there is no direct call upon subscribing states to become party to those listed
instruments they are not yet party to.
The treaties listed are the OST, the Rescue Agreement, the Liability Convention, the
Registration Convention, the Constitution and Convention of the ITU, the Nuclear Test Ban
Treaty and the Comprehensive Nuclear Test Ban Treaty. The inclusion of this last treaty is
interesting given that it has not yet come into force and has not been ratified by important
space faring nations such as, inter alia China, India and the US.747 It is suggested that the
reference to the nuclear test ban treaty serves no purpose because all it adds to the outer
space regime is already covered by the OST. 748 This opinion can however not be followed. As
shown above the OST bans the stationing of nuclear weapons in outer space. It is the Nuclear
Test Ban Treaty that bans their detonation in outer space.
Secondly, a number of declarations, principles and recommendations are listed namely the
Resolution on International co-operation in the peaceful uses of outer space (1961), the
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use
of Outer Space (1963), the Nuclear Power Principles (1992), the Declaration on Space
Benefits (1996), the International Code of Conduct against Ballistic Missile Proliferation 749
(2002), the Recommendations on enhancing the practice of States and international
intergovernmental organizations in registering space objects (2007) and the UN Space Debris
Mitigation Guidelines.
The provision in the current draft is identical to the one from 2008. Strangely the 2010
version did not include a reference to the UN Space Debris Mitigation Guidelines. This
omission was reversed in the 2012 draft.
6.5
MEASURES ON SPACE OPERATIONS AND MITIGATION OF SPACE DEBRIS
(PROVISION 4)
From a substantive point of view provision 4 is the most important provision in the code. Yet
it bears importance to remember that the Code of Conduct is not legally binding. Its value lies
in the fact that it may strengthen the existing normative rules of international space law
through interpretation and clarification. The commitments subscribing states make can be
Comprehensive Nuclear Test Ban Treaty, UN Doc. A/50/1027, adopted on 10 September 1996,
opened for signature on 24 September 1996, not in force
747
748
A. LELE, supra, note 381358, p. 16
749
International Code of Conduct against Ballistic Missile Proliferation (UN Doc. A/57/724, Annex)
91
used to determine inter alia the obligation for states to act with due care750 or whether their
behaviour constitutes a fault according to the liability convention. Even more important is
that it can prevent irresponsible behaviour through the political commitment made.
Subscribing states must commit to various measures to prevent accidents and various forms
of harmful interference. A first commitment is to introduce procedures and policies to
minimize the risk of accidents including collisions and harmful interference ―with another
State‘s peaceful exploration, and use, of outer space.‖ This would mean that, a contrario it is
acceptable to create interference with non-peaceful activities in outer space. Unlike the use of
peaceful purposes in the provision on general principles this is nothing new, as the same
limitation is included in article IX of the OST on harmful interference.
What is new compared to the UN treaties is the second commitment. This commitment
requires states to refrain from ―any action which brings about, directly or indirectly, damage,
or destruction, of space objects.‖ The wording of this commitment is also stronger than the
relevant guideline in the UN Space Debris Mitigation Guidelines which advises states to
―avoid‖ intentional destruction.751 The code allows for three exceptions to the general rule
that space objects should not be intentionally destroyed. The first is destruction for the
purpose of reducing space debris. This seems only logical and is in fact an important element
for Japan. JAXA is considering the development of space debris remediation methods and it
was rightly observed that a total ban on the destruction of space objects would also affect
these efforts.752 The second exception is related to the first and deals with imperative safety
considerations. This exception too is reasonable and would cover examples such as the
downing of USA-193 to prevent pollution on earth. The third and final exception is more
problematic in the eyes of the author. According to the 2012 draft a state should not refrain
from the destruction of space objects when it ―is justified by the inherent right of individual
or collective self-defence as recognised in the United Nations Charter.‖ The inclusion of this
reference is a fundamental requirement for the US to accept the code.753
At first glance it might seem logical that the right to self-defence should not be infringed. It
must however be kept in mind that the right to self-defence, as recognised by the UN Charter,
is a norm of the jus ad bello, not a norm of the jus in bello. The question as to whether it is
acceptable to target and destroy a satellite in case of an armed conflict is a question of the
latter, not the former. Provision 4 seems to mix two different sets of rules. Both custom and
treaty law have limited the methods that are open to states when exercising their right to selfdefence without infringing it. There is simply no right to self-defence ―enshrined‖ in the UN
Charter that states should have all means available to defend themselves. Hence, the
reference to the charter is out of place. Moreover, no protection is offered by the notion that
750
Art. IX of the OST
751
Guideline 4 of the UN Space Debris Mitigation Guidelines
752
See K. SUZUKI, supra, note 720, p. 96
S. A. KAISER, ―Why States should Sign the Code of Conduct for Outer Space Activities?‖ in A. LELE,
Decoding the International Code of Conduct for Outer Space Activities, New Delhi, Pentagon Security
International, 2012), p. 92
753
92
the destruction of space objects should only be in self-defence. It is most likely that both sides
in a future conflict will claim to act in self-defence and that the adversary is the aggressor.
Hence the real-world consequences of this provision are to allow for the unlimited targeting
of satellites (under the limitations of existing humanitarian law) as soon as hostilities break
out. What would be far more meaningful is to include a justification for targeting satellites
based firmly within the jus in bello. Such a right could include an exception for targeting
space based weapons. In the opinion of the author it would however be even better to ban
those weapons all together thus negating the need to destroy them. 754 It must also be
observed that ASAT tests are not excluded by the reference to the right to self-defence. The
code thus effectively requires states to refrain from conducting such tests if they would result
in the destruction of a space object. All three exceptions still require the state to conduct the
destruction in a manner that minimizes the creation of space debris.
A third commitment under provision 4 is to take appropriate measures to minimize the risk
of collision, and a forth calls upon the accepting states to adhere to the regulations of the ITU
on frequency spectrum management and orbital slot allocations. Provision 4 continues by
stating in more general terms the overall need to minimise the creation of space debris. In
this respect the code calls upon states to implement national procedures. Some have
criticised the code for focussing on the implementation of national procedures whereas there
is also a need for a global strategy.755 The code does however refer to the UN Space Debris
Mitigation Guidelines in this respect.
As with many provisions, the language become less strong and demanding of states since the
2008 version.756 Another change that occurred is the place of intent. In 2010 the provisions
stated that states should refrain from each action ―which intends to‖ whereas the 2012
version changed this into ―which brings about‖. A more objective approach is thus taken. The
reference to self-defence was added in 2010, and in 2012 the phrase was added stating that
even in the case that intentional destruction is justified it should be done in a manner that
limits the creation of space debris. The commitment to avoid the creation of space debris was
in the previous drafts a separate provision.
6.6
PROMOTION OF RELEVANT MEASURES IN OTHER FORA (PROVISION 5)
Provision 5 contains a commitment to work on the development of guidelines promoting
space security, space safety and the sustainability of outer space activities in international
fora. In the previous drafts it had not been a separate provision but a subsection of provision
4. This subsection only spoke of enhancing space security, not space safety and sustainability.
In the present draft explicit reference is made to the CD and the COPUOS, the two main UN
bodies on outer space activities. The inclusion of references to the UN, both in this provision
754
See supra, p. 69
755
A. LELE, supra, note 381358, p. 17
E.g., ―The Subscribing States will establish‖ in 2008 became ―are committed to establish‖ in 2010
and ―commit to establish‖ in the 2012 draft.
756
93
and others, may help to satisfy the concern that the proposed code is placed too much outside
of the UN framework.
6.7
NOTIFICATION OF OUTER SPACE ACTIVITIES (PROVISION 6)
The provisions 6 to 9 deal with cooperation mechanisms and may be the most innovative part
of the code. Provision 6 includes the commitment to notify all other subscribing states that
may be ―potentially affected‖ by outer space activities. The provision then gives some
examples of activities that must be notified. For some examples advance notification is
required. These are launches, manoeuvres resulting in dangerous proximity, and predicted
re-entries that risk causing ‗significant damage of radioactive contamination‘. Other
examples deal with notification after an event took place, such as the destruction of space
objects that has created orbital debris or the malfunctioning of space objects that may cause
collision or a risky re-entry. The notification should occur through diplomatic channels, any
other way agreed or the central point of contact. There is thus no obligation to notify the
central point of contact. When states do contact the central point of contact they should
identify the states that could be affected.
In the 2008 draft the text also included a reference to the Nuclear Power Principles. This
reference seemed a bit out of place even though principle 5 of the Nuclear Power Principles is
a provision on notification of re-entry. The reference was removed in the 2010 draft. Some
other changes occurred as well, the most important of which being that notification of all
destruction of space objects is now required, including those that are intentional. The
reference to the central point of contact was included in 2012 and may give it some extra
value.757
6.8
REGISTRATION OF SPACE OBJECTS (PROVISION 7)
Provision 7 is a call upon states to register their space objects in accordance with the
Registration Convention. Special reference is made to the model registration form introduced
by UN resolution.758 The inclusion of a reference to the Registration Convention is useful
given the lower number of states that have ratified the convention and its important role in
SSA. As opposed to the previous drafts the 2012 draft states that registration should happen
―in a timely manner‖.
757
See also provision 11 of the CoC, infra, p. 109
Recommendations on enhancing the practice of States and international intergovernmental
organizations in registering space objects, adopted on 10 January 2008 (UN Doc. A/62/101)
758
94
6.9
INFORMATION ON OUTER SPACE ACTIVITIES (PROVISION 8)
Whereas provision 6 dealt with notification on individual space activities provision 8 requires
states to share information on their space policy and strategy. Subscribing states commit to
share this information on an annual basis ―where available and appropriate‖. This
information should include how they minimize accidents and interference, and which efforts
have been made to promote the adoption of and adherence to the regulatory instruments
dealing with outer space activities. Secondly states ―may also consider‖ providing information
on the space weather. This indicates a cautious attempt to pool the SSA capabilities of the
world.
The limitation that information should only be shared ―where appropriate‖ was added in the
2010 draft. In 2012 an explicit reference confirming that this includes the basic objectives of
security and defence related initiatives, was dropped. This is to be regretted as such a
measure can be an important element in strengthening the trust and confidence between
states.759
6.10 CONSULTATION MECHANISM (PROVISION 9)
If the code gets accepted it will create a new consultation mechanism to work in parallel with
those provided by article IX of the OST and article 56 of the ITU Constitution. For this
consultation mechanism to be triggered, a state must be directly affected by the outer space
activities of another state and have reason to believe that those activities go against the
commitments made in the code. The consultation should be conducted through diplomatic
channels (or any other method they agree upon) and both states are obliged to ―work jointly
and cooperatively‖ within an appropriate timeframe. The goal is to seek mutually acceptable
solutions in accordance with international law. The second part of provision 9 suggests the
creation of ad hoc fact finding missions. Establishing such missions is an effective way of
dealing with disputes as those are much easier to resolve when the facts of the case are
known.760 The fact finding missions will be established by the meeting of subscribing states
conducted by international experts and should utilise information voluntary provided by
states. Its conclusions are non-binding.
In the original 2008 draft proposal there was no need to be directly affected when making
use of the consultation mechanism. This changed in the 2010 draft. Another change that
occurred at the same time was a change in the goal of the consultations. In the 2008 draft
this was a solution based ―on an equitable balance of interests‖ without reference to the need
to be in accordance with international law.
759
See infra, p. 115
760
P. WON-HWA, supra, note 665, p. 102
95
6.11 MEETING OF SUBSCRIBING STATES (PROVISION 10)
Provisions 10 to 13 deal with organisational aspects of the code. They show how the code,
unlike the UN Space Debris Mitigation Guidelines, is intended to create a new international
forum that works in parallel with the CD and COPUOS. In provision 10 the decision is made
to hold biennially meetings of the subscribing states. The goal of these meetings is to
continue the development of the code and ensure its implementation. Provision 10 suggests
the following topics to be discussed at the meetings of subscribing states: ―(i) review of the
implementation of the code; (ii) evolution of the code, (iii) discussion of additional measures
which may be necessary, including those due to advances in the development of space
technology and their application.‖ It is confirmed that the consensus rule applies to these
meetings. This is essential to keep the major space faring states on board. The conclusions of
each meeting will be brought to the attention of the COPUOS and the CD or other relevant
international fora. At least one author has criticized the meeting of subscribing states for
offering a simplistic approach.761 Yet given the lack of trust between the major space faring
states the creation of this forum may allow for the mending of space relations.
Like in many other provisions the reference to the COPUOS and the CD was not included in
the 2008 draft. This was changed in 2010. In 2012 a clarification was added that not only
substantive decisions but procedural ones as well should be taken by consensus. The fact that
this had to be added may indicate some fear for EU dominance over the meeting of
subscribing states. That the code can be modified during these meetings is also an innovation
from the 2012 draft.
6.12 CENTRAL POINT OF CONTACT (PROVISION 11)
The code provides in the establishment of a central point of contact. This office would serve
as the secretariat at the meetings of subscribing states and receive and announce the
subscription of new states. More importantly it would maintain the electronic database and
communications system established in the next provision. The subscribing states can choose
to give extra tasks to the point of contact. It has been suggested by some authors that it would
be best to incorporate the central point of contact within the COPUOS.762
Whereas the 2008 and 2010 drafts spoke of a central point of contact that would be
nominated the present draft states that it will be established. The shift from nomination to
establishment indicates an increased independent nature. Before the 2012 draft it was also
not stated that maintenance of the outer space activities database belonged to its tasks.
LELE argues that with challenges such as the legal regime for the exploitation of natural resources in
space lurking in the medium-term a more permanent structure is required. Whereas this is true,
natural resource management is a wholly different issue then the sustainability of outer space
activities. Other fora, such as COPUOS exist for these matters. One could envision a code of conduct to
include every challenge in space ahead. Far more difficult is to envision such a code to gain acceptance
in the timeframe required to deal with the present issues. See A. LELE, supra, note 381358, p. 18
761
762
E.g. P. WON-HWA, supra, note 665, p. 102
96
6.13 OUTER SPACE ACTIVITIES DATABASE (PROVISION 12)
Provision 12 provides in the creation of an outer space activities database and
communications system. It is to be used exclusively for the benefit of the subscribing states.
This system will collect and pass on the notifications and information provided under
provisions 6 and 8 of the code. It will also serve to channel the requests for consultations. The
funding necessary to set up and maintain the database will be agreed by the meeting of
subscribing states. Provision 12 is the carrot aimed at convincing states to subscribe to the
code.763 It will stop short of pooling all SSA data possessed by the subscribed states but will
ease the voluntary exchange of information. The provision has changed little since the
original draft. In 2010 the phrase was added that it should be used exclusively for the benefit
of the subscribing states.
6.14 PARTICIPATION BY REGIONAL INTEGRATION ORGANISATIONS
INTERNATIONAL INTERGOVERNMENTAL ORGANISATIONS (PROVISION 13)
AND
Provision 13 allows other entities than states to subscribe to the code. The provision makes a
distinction between two types of organisations. The first type covers regional organisations
that have competence over the matters dealt with by the code. The second type includes
intergovernmental organisations who conduct space activities and of which a majority of the
member states are subscribing states. They are however excluded from the provisions on
organisational matters (10 to 12).
The first part of this final provision is obviously included to allow the EU to subscribe to the
code. It is interesting that given that this is an EU proposal, the 2008 draft did not contain a
method for the EU to play a role in the code when its drafting was concluded. This was
corrected in 2010 but in a slightly clumsy way. According to the 2010 draft the EU could
subscribe fully to the code while other international organisation could only do so with
exception of provisions 10 to 12. This could hardly have done any good to the impression of
some that this was a proposal for an EU code, rather than an international one. The provision
was thus changed in 2012 to allow for all regional integration organisations that have
competence to subscribe to the entire code.
763
Based on interactions with experts.
97
CHAPTER 7: GENERAL COMMENTARY
7.1
STRENGTHENING THE NORMATIVE FRAMEWORK
Given that the 2012 draft is a working document many elements may still change. Yet certain
trends are clear. The code sets out to ensure the safety, security and sustainability of outer
space activities in two ways. These are the strengthening of the normative framework and
improving international cooperation. In doing so it covers both military and non-military
uses.
Where deemed necessary the code reaffirms existing principles of international space law. To
repeat these basic principles is useful in ensuring that all subscribing states, including new
space actors are on the same page. Yet the code is somewhat selective in which principles it
reaffirms. The focus is clearly on the freedom of states to use and explore space as well as the
right of states to defend themselves. We have already covered this use of the right to selfdefence above.764
The code also endorses best practices. As such it makes explicit reference to the UN Space
Debris Mitigation Guidelines. This is important given that the guidelines are more detailed
on the prevention of space debris than the code is. In addition the code could reinforce the
authority of the guidelines.765 A point of criticism may be that the code does not offer many
new definitions allowing for conflicting interpretations.766
7.2
IMPROVING INTERNATIONAL COOPERATION
While the substantive part of the code is not without use, the introduction of a new
cooperation mechanism may be more important in the long run. 767 The code introduces
international cooperative governance of outer space.768 It requires states to actively promote
the development of new guidelines within the appropriate fora but also encourages
information sharing and introduces a new consultation mechanism. Given that better SSA is
desperately needed and the notification on space activities requirement and the sharing of
other relevant data may help in this effort.769
With provision 8 on information sharing the code introduces an important transparency and
confidence-building measure (TCBM). TCBMs are a classic instrument of international
diplomacy and have been used for decades in the field of arms control.770 Almost all space
764
See supra, p. 92
765
M. KREPON, supra, note 606, p. 10-11
766
F. TRONCHETTI, supra, note 455, 85
767
A. LELE, supra, note 381358, p. 17
768
See also R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 33
769
A. LELE, supra, note 381358, p. 17-18
770
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 4
98
faring nations recognise the need for them in the field of space policy.771 They allow for a
balancing of national and international interests and reinforcement of the ‗community of
states‘. 772 This in turn may lead to a greater support for non-proliferation and binding
obligations. Without transparency distrust and uncertainty is created which undermines
international cooperation. 773 A state‘s level of transparency is a policy choice that and comes
with great differences between states. China for instance has traditionally opposed the
sharing of information over the purposes of its space programs, especially when they may
have a military use. This secrecy undermines in turn the willingness of the US to limit its own
military space activities. That China has a tradition of secrecy must not be surprising as it is a
classic element of a theory of deterrence.774
A final element through which the code promotes international cooperation is its
consultation mechanism. Although the code is predominantly of a ―preventive nature‖775 this
also offers a way to resolve conflicts that may arise. As with other dispute resolution
mechanisms in outer space it is non-binding but this should not mean it is meaningless.
7.4
A COMPREHENSIVE APPROACH – OR NOT?
The code has been hailed for its comprehensive approach to outer space activities,
encompassing both military and civil uses. 776 The contemporary challenges do indeed require
such an approach, as the issues with both uses of outer space are closely connected.777 Yet,
space security remains very much the dominant consideration within the provisions of the
code.778 While the level of trust between states may not be high enough to allow for it to be
otherwise, this is still to be regretted. The dominance of the space security approach is
especially clear within the preamble where it is stated that a comprehensive approach to both
space security and space safety must be guided by the ―freedom of access to space for
peaceful purposes‖, ―preservation of the security and integrity of space objects in orbit‖ and
―due consideration for the legitimate defence interests of States‖ is illustrative of this. 779 All
three of these principles are closely related to space security and not so much to space safety.
Furthermore, while references to the importance of space sustainability were added to the
771
ibid., p. 12
772
ibid., p. 51
773
M. MINEIRO, supra, note 187, p. 170
774
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 238153, p. 23
775
J. ROBINSON (FOR THE EUROPEAN SPACE POLICY INSTITUTE), supra, note 685, p. 28
F. TRONCHETTI, supra, note 455, 85 and R. KAUL and V. SIDDHARTHA, ―International Code of
Conduct for Outer Space Activities‖ in LELE, A., Decoding the International Code of Conduct for Outer
Space Activities, New Delhi, Pentagon Security International, 2012), p. 149
776
777
E. BERNHARDSDOTTER, supra, note 247, p. 82
778
R. S. JAKHU, T. SGOBBA and P. S. DEMPSEY, supra, note 224, p. 33
779
See preamble of the CoC
99
code in 2010 and 2012 none of the legal principles that the terrestrial concept of sustainable
development has to offer were included.780 It would for instance have been useful to refer to
the principle of integration as this is directly connected to the adoption of measures aimed at
the mitigation of space debris. Likewise the principle of sustainable development, as
described by Judge WEERAMANTRY,781 could have been included to underline the need to
balance the right of free access to outer space with the obligation to protect the outer space
environment.
7.4
THE CODE OF CONDUCT AS A SOFT LAW INSTRUMENT
The proposed code of conduct is considered to be a typical soft law instrument. 782 The
traditional view is that soft law isn‘t law.783 It consists of a wide range of written instruments
that are not intended to be legally binding. As such they are not subject to the law of treaties.,
nor do they generate opinion juris.784 Some authors have stated that soft law is a misleading
and dangerous concept.785 Yet soft law is increasingly being used and has allowed for action
when the agreement upon binding norms proved impossible.786
Scholars have used a multitude of criteria to define the boundary between soft law and hard
law. Some authors have suggested a criterion of enforceability as some authors do787 would
mean that much of public international law is soft law.788 Such a criterion focuses on the
effectiveness of a rule which is distinct from its validity. 789 Neither is the formal naming of
the instrument a conclusive factor. In truth whether a document is of a soft law or hard law
nature depends solemnly on the intention of the parties to it.790 Given that it is clearly stated
The preamble does consider the importance of sustainable use for the future generations but it is
not formulated as principle according to which states should act.
780
781
See infra, p. 75
782
F. TRONCHETTI, supra, note 455, 85
783
M. N. SHAW, International Law, Cambridge, Cambridge University Press, 2008, p. 117
784
D. J. HARRIS, supra, note 143, p. 57
E.g. ―The term soft law is misleading, there are no two kinds of law. Something is law, or it is not.
The concept is dangerous as it creates the illusionary expectation of compliance when no one is obliged
to comply. Furthermore the risk of erosion of international law exists. It is important to keep a clear
threshold between what is legally binding and what is not‖ SZUTCKI quoted from D. J. HARRIS, supra,
note 143, p. 57
785
J. J. KIRTON and M. J. TREBILCOCK, Hard Choices, Soft Law: Voluntary Standards in Global Trade,
Environment, and Social Governance, Farnham, Ashgate Publishing, 2004, p. 5
786
E.g. A. D‘AMATO, ―Softness in International Law: A Self-Serving Quest for New Legal Materials: A
Reply to Jean d‘Aspremont‖, European Journal of International Law 2009, 906
787
See J. ELLIS, ―Shades of Grey: Soft Law and the Validity of Public International Law‖, Leiden
Journal of International Law 2012, 316
788
789
ibid., p.317
790
M. N. SHAW, supra, note 783, p. 119
100
in the text of the code that it is not legally binding little doubt can exist over the intention of
the parties.
Because of its soft law status some have suggested the code has extremely limited
relevance.791 However this seems based on the misconception that international law requires
an enforcement mechanism, or even punishments for misbehaviour, to be effective. 792
Punishment is extremely rare under international law and many rules exist without the
presence of an enforcement mechanism. Still states will nonetheless comply with those
norms in a majority of cases. 793 A majority of authors seems to agree that a soft law
instrument, such as the code can have an important influence in international relations and
the protection of outer space. 794 Furthermore, the process of negotiations within a large
group of space faring states during the past 5 years has already increased awareness for the
issue of space sustainability and enhanced the stability of the outer space environment.795
While a legally binding treaty would be preferable this seems unachievable at this point in
time.796 This may change when agreement is found on what the goal and methods are and
sufficient trust between the major space faring states is created.797 As such the code may
bring a binding treaty to be agreed upon on a later date closer. Furthermore, the existence of
rules, even when they are non-binding, allows the international community to identify states
who engage in irresponsible behaviour.798 This may in many cases be sufficient to change that
behaviour. The attentive reader will remember that the author doubted this with regard to
the UN Space Debris Mitigation Guidelines. The difference between the code and the
guidelines is that the code is very much a political instrument. If it not were for provision 1.4
it would be legally binding. The guidelines are more of a technical nature, which gives them
less political authority even though they are more precise in examining the mitigation of
space debris. The references to the guidelines within the code may help to counter this. 799
Like with the guidelines the non-binding nature of the code does not prevent the code from
creating legal consequences through the reinterpretation of existing international law.800
791
A. LELE, supra, note 594, p. 6
792
ibid., p. 7 and A. LELE, supra, note 381358, p. 20
793
D. J. HARRIS, supra, note 143, p. 5
See inter alia M. KREPON, supra, note 606, p. 11; M. N. SHAW, supra, note 783, p. 117-118; V.
SAMSON, supra, note 672, p. 139; E. BERNHARDSDOTTER, supra, note 247, p. 82 and P. WON-HWA,
supra, note 665, p. 103
794
795
V. SAMSON, supra, note 672, p. 136 and E. BERNHARDSDOTTER, supra, note 247, p. 82
796
V. SAMSON, supra, note 672, p. 138
797
ibid., p. 139
798
See M. KREPON, supra, note 606, p. 11
799
ibid., p. 10-11
800
A. KERREST, supra, note 199, p. 87
101
Finally it must be noted that the code does not only contain commitments or
recommendations. Some provisions include decisions. These are the decisions to abide by the
principles of provision 2, to create of consultation mechanism, to hold biennial meetings and
to establish of a central point of contact.
7.5
FUTURE PROSPECTS OF THE CODE
With the upcoming endorsement of the EU initiative in the final report of the UN Group of
Governmental Experts on transparency and confidence-building measures in outer space and
the Chinese policy change over the need for transparency, the prospects for the code are
looking better than ever before.801 For the code to be successful it is required that all major
space faring states sign up for it. 802 Consequently, some uncertainty will remain as domestic
problems in one of these states may yet emerge. Particular attention could be given to the
potential for trouble coming from a deeply divided US.803 Yet if such problems can be avoided
and agreement can be found on those elements that still stir some controversy the
international code of conduct may serve as a benchmark for how outer space activities must
be conducted in future.804
See supra, p. 41
801
See supra, p. 89
802
S. A. KAISER, supra, note 753, p. 90
Contra P. WON-HWA, supra, note 665, p. 103
803
M. KREPON, supra, note 224, p. 34
804
R. KAUL and V. SIDDHARTHA, supra, note 776, p. 149
102
‗FINAL‘ CONCLUSION ON A PROVISIONAL DOCUMENT
In the pages above the author has attempted to explain the threats to the sustainability of
outer space activities. The focus has been on space debris, orbital crowding and the
militarization of outer space. It has also been shown how existing international space law is
predominantly a set of basic principles requiring extensive interpretation to explain their
meaning for contemporary space activities. This creates much uncertainty, as interpretations
may differ between space actors. It must be without doubt that there is an urgent need to
improve the framework for outer space activities so that states are aware of their rights and
obligations.
The main threat to the future use of outer space comes from the increasing amount of space
debris. It is the most urgent issue and has forced states to engage in new negotiations over
the regulatory framework. Still, other threats should not be underestimated. These include
the threat posed by disputes over limited resources such as frequency bands or orbital
positions. It is likely that these will become even more important in future. Likewise, the
militarization of outer space is not only a problem in the context of debris creating ASAT
tests. The distrust it causes between states prevents the conclusion of new space treaties. In
case of a future armed conflict space may become a theatre of war and there is no general
legal obligation against the targeting of satellites. Moreover, it may be in the interest of some
states to do so during a conflict situation. Because many of the world‘s satellites have a dual
use the consequences may be catastrophic.
Multiple attempts have been made to remediate these problems and to further the
development of international space law. Yet, the hesitation of states to engage in binding
treaties limits the available options. At present there is no other possibility than to utilise soft
law. One recent soft law instrument stands out; the UN Space Debris Mitigation Guidelines.
Because of the increased technical understanding it offers, a new insight is given into the OST
obligation to act with due care and what constitutes a fault for the purposes of the Liability
Convention. Yet, its technical nature also undermines its authority. As the Chinese ASAT test
showed it takes only one state to undo all the efforts made by the international community.
The proposed international code of conduct has gone through some challenging negotiations
outside the framework of the UN. A brand new diplomatic service had to convince the world
that a code of conduct could be a useful instrument for achieving space security and space
safety. It also had to overcome many misunderstandings over the scope and purpose of the
code during the course of the negotiations. While not everything went as smooth as planned
the prospects for the code of conduct are looking good now. This should be applauded as the
author feels that the proposed international code of conduct could make an invaluable
contributing to the outer space regime. The code contains within its provisions many of the
elements that have been identified as necessary to ensure the sustainability of outer space
activities. The most important elements included are the prospect of increased space
situational awareness through notification and the creation of a new database. A second
element is the introduction of measures to create trust between states through transparency
over policy goals and a new cooperation mechanism. Thirdly, the substantive part of the code
offers extra authority to the principles enshrined in the UN Space Debris Mitigation
Guidelines. It also includes a strong commitment not to undertake ASAT tests or target the
103
satellites of other states. As consensus develops over these principles a binding treaty may
follow or custom could develop.
Yet, an important weakness in the substantive part is the reference to the right to selfdefence. While the code will do much good to ensure the space safety, space security and
space sustainability, it will lose much of its value in case of an armed conflict. Not only does
the code confirm that it is legal to target satellites with ASAT weapons, by doing so it may
encourage an arms race in outer space. This will be an arms race without disruptive ASAT
tests, but an arms race none-the-less, with all the negative consequences for international
peace and stability. It also means that the sustainability of outer space activities will only be
guaranteed for as long as those states with the necessary technological capabilities refrain
from humankind‘s long-standing habit to wage war upon each other. This underlines the
need for a separate treaty, possibly based on the PPWT proposal, which bans the placement
of weapons in outer space and the targeting of satellites.
Although the code has been promoted for taking a sustainability approach encompassing
both space safety and space security this is not always evident from the text. In many
provisions, especially the preamble, space security stands out as the main consideration. If
the code is to have a long term benefit it should focus even more on the comprehensive
approach for which the code has been hailed. This will also be important to determine the
usefulness of the meeting of subscribing states. Only if this meeting offers an advantage over
the CD and the COPUOS may it have a use in the long term. All-in-all the EU proposal for an
international code of conduct for outer space activities is a valuable instrument that, despite
some shortcomings, may succeed in its goal of enhancing space sustainability, space safety
and space security.
In the past half-century we have seen startling innovations in space capabilities, and all
indications are that we have only seen the beginning of it. But, to quote JOHN F. KENNEDY
from his historic Rice University moon speech, ―space science, like nuclear science and all
technology, has no conscience of its own. Whether it will become a force for good or ill
depends on man.‖ Thus, as I would like to add, it depends on law, space law.
105
ANNEX 1: MONTHLY NUMBER OF SPACE OBJECT IN EARTH
ORBIT BY OBJECT TYPE805
X, ―Monthly Number of Objects in Earth Orbit by Object Type‖, Orbital Debris Quarterly News
2013, 8
805
107
ANNEX 2: TEXT OF THE 2012 REVISED DRAFT OF THE
INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE
ACTIVITIES
WORKING DOCUMENT
REVISED DRAFT
INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES
Preamble
The Subscribing States
Considering that the activities of exploration and use of outer space for peaceful purposes
play a growing role in the economic, social, and cultural development of nations, in the
management of global issues such as the preservation of the environment, disaster
management, the strengthening of national security, and in sustaining international peace;
Noting that all States should actively contribute to the promotion and strengthening of
international cooperation relating to these activities;
Recognising the need for the widest possible adherence to relevant existing international
instruments that promote the peaceful uses of outer space, in order to meet existing and
emerging new challenges;
Further recognising that space capabilities - including associated ground and space segments
and supporting links - are vital to national security and to the maintenance of international
peace and security;
Recalling the initiatives aiming at promoting a peaceful, safe, and secure outer space
environment, through international cooperation;
Recalling the importance of developing transparency and confidence-building measures for
activities in outer space;
Considering the importance of the sustainable use of outer space for future generations;
Taking into account that space debris affects the sustainable use of outer space, constitutes a
hazard to outer space activities and potentially limits the effective deployment and utilisation
of associated outer space capabilities;
Stressing that the growing use of outer space increases the need for greater transparency and
better information exchange among all actors conducting outer space activities;
Convinced that the formation of a set of best practices aimed at ensuring security in outer
space could become a useful complement to international law as it applies to outer space;
108
Reaffirming their commitment to resolve any dispute concerning another State's actions in
outer space by peaceful means;
Recognising that a comprehensive approach to safety and security in outer space should be
guided by the following principles: (i) freedom of access to space for peaceful purposes; (ii)
preservation of the security and integrity of space objects in orbit; and (iii) due consideration
for the legitimate defence interests of States;
Conscious that a comprehensive code, including transparency and confidence-building
measures could contribute to promoting mutual understandings;
Without prejudice to future work in other appropriate international fora such as the
Conference on Disarmament and the United Nations Committee on the Peaceful Uses of
Outer Space;
Adhere to the following Code of Conduct for Outer Space Activities (hereinafter referred to as
the "Code").
I. Purpose, Scope and General Principles
1. Purpose and Scope
1.1. The purpose of this Code is to enhance the security, safety and sustainability of all outer
space activities.
1.2. This Code addresses all outer space activities conducted by a Subscribing State or jointly
with other States or by non-governmental entities under the jurisdiction of a Subscribing
State, including those activities conducted within the framework of international
intergovernmental organisations.
1.3. This Code, in endorsing best practices, contributes to transparency and confidencebuilding measures and is complementary to the normative framework regulating outer space
activities.
1.4. This Code is not legally binding. Adherence to this Code and to the measures contained in
it is voluntary and open to all States.
109
2. General Principles
The Subscribing States decide to abide by the following principles:




the freedom for all States, in accordance with international law, to access, to explore,
and to use outer space for peaceful purposes without interference, fully respecting the
security, safety and integrity of space objects and consistent with internationally
accepted practices, operating procedures, technical standards and policies associated
with the long-term sustainability of outer space activities, including, inter alia, the
safe conduct of outer space activities;
the inherent right of individual or collective self-defence as recognised in the United
Nations Charter;
the responsibility of States to take all appropriate measures and cooperate in good
faith to prevent harmful interference in outer space activities; and
the responsibility of States, in the conduct of scientific, civil, commercial and military
activities, to promote the peaceful exploration and use of outer space and to take all
appropriate measures to prevent outer space from becoming an arena of conflict.
3. Compliance with and Promotion of Treaties, Conventions and Other
Commitments Relating to Outer Space Activities
The Subscribing States reaffirm their commitment to the existing legal framework relating to
outer space activities. They reiterate their support to encouraging efforts in order to promote
universal adoption, implementation, and full adherence to the instruments to which they are
parties or subscribe to:
(a) existing international legal instruments regulating outer space activities,
including:






the Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies
(1967);
the Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space (1968);
the Convention on International Liability for Damage Caused by Space Objects
(1972);
the Convention on Registration of Objects Launched into Outer Space (1975);
the Constitution and Convention of the International Telecommunication
Union and its Radio Regulations, as amended;
the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space
and under Water (1963) and the Comprehensive Nuclear Test Ban Treaty
(1996).
110
(b) declarations, principles and recommendations, including:







International Co-operation in the Peaceful Uses of Outer Space adopted by the
United Nations General Assembly's (UNGA) Resolution 1721 (December 1961);
the Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space as adopted in UNGA Resolution 1962
(XVIII) (1963);
the Principles Relevant to the Use of Nuclear Power Sources in Outer Space as
adopted by UNGA Resolution 47/68 (1992);
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 as adopted by UNGA
Resolution 51/122 (1996);
the International Code of Conduct against Ballistic Missile Proliferation
(2002), as endorsed in UNGA Resolutions 59/91 (2004), 60/62 (2005), 63/64
(2008), and 65/73 (2010);
the Recommendations on Enhancing the Practice of States and International
Intergovernmental Organisations in Registering Space Objects as endorsed in
UNGA Resolution 62/101 (2007);
the Space Debris Mitigation Guidelines of the United Nations Committee for
the Peaceful Uses of Outer Space, as endorsed in UNGA Resolution 62/217
(2007).
II. Safety, Security and Sustainability of Outer Space Activities
4. Measures on Space Operations and Mitigation of Space Debris
4.1. The Subscribing States commit to establish and implement policies and procedures to
minimise the possibility of accidents in space, collisions between space objects or any form of
harmful interference with another State‘s peaceful exploration, and use, of outer space.
4.2. The Subscribing States commit, in conducting outer space activities, to:



refrain from any action which brings about, directly or indirectly, damage, or
destruction, of space objects unless such action is conducted to reduce the creation of
outer space debris or is justified by the inherent right of individual or collective
selfdefence as recognised in the United Nations Charter or by imperative safety
considerations, and where such exceptional action is necessary, that it be undertaken
in a manner so as to minimise, to the greatest extent possible, the creation of space
debris and, in particular, the creation of long-lived space debris;
take appropriate measures to minimize the risk of collision; and
make progress towards adherence to, and implementation of International
Telecommunication Union regulations on allocation of radio spectra and orbital
assignments.
111
4.3 In order to minimise the creation of outer space debris and to mitigate its impact in outer
space, the Subscribing States commit to avoid, to the greatest extent possible, any activities
which may generate long-lived space debris. To that purpose, they commit to adopt and
implement, in accordance with their own internal processes, the appropriate policies and
procedures or other effective measures in order to implement the Space Debris Mitigation
Guidelines of the United Nations Committee for the Peaceful Uses of Outer Space as
endorsed by UNGA Resolution 62/217 (2007).
4.4. When executing manoeuvres of space objects, for example, to supply space stations,
repair space objects, mitigate debris, or reposition space objects, the Subscribing States
commit to take all reasonable measures to minimise the risks of collision.
5. Promotion of Relevant Measures in other Fora
The Subscribing States commit to promote the development of guidelines for outer space
operations within the appropriate international fora, such as the Conference on disarmament
and the United Nations Committee on the Peaceful Uses of Outer Space, for the purpose of
protecting the safety and security of outer space operations and the long-term sustainability
of outer space activities.
III. Cooperation Mechanisms
6. Notification of Outer Space Activities
6.1. The Subscribing States commit to notify, in a timely manner, to the greatest extent
possible and practicable, all potentially affected Subscribing States on the outer space
activities conducted which are relevant for the purposes of this Code, including:





scheduled manoeuvres which may result in dangerous proximity to the space objects
of both Subscribing and non-Subscribing States;
pre-notification of launch of space objects;
collisions, break-ups in orbit, and any other destruction of a space object(s) which
have taken place generating measurable orbital debris;
predicted high-risk re-entry events in which the re-entering space object or residual
material from the re-entering space object would likely cause potential significant
damage or radioactive contamination;
malfunctioning of space objects which could result in a significantly increased
probability of a high risk re-entry event or a collision between space objects.
6.2. The Subscribing States commit to provide the notifications described above to all
potentially affected States, including non-Subscribing States where appropriate, through
diplomatic channels, or by any other method as may be mutually agreed, or through the
Central Point of Contact to be established under section 11. In notifying the Central Point of
Contact, the Subscribing States should identify, if applicable, the potentially affected States.
The Central Point of Contact should ensure the timely distribution of the notifications to all
Subscribing States.
112
7. Registration of Space Objects
The Subscribing States commit to register, in a timely manner, space objects in accordance
with the Convention on Registration of Objects Launched into Outer Space and to provide the
United Nations Secretary-General with the relevant data as set forth in this Convention and
in the Recommendations on Enhancing the Practice of States and International
Intergovernmental Organisations in Registering Space Objects, as endorsed by UNGA
Resolution 62/101 (2007).
8. Information on Outer Space Activities
8.1. The Subscribing States commit to share, on an annual basis, where available and
appropriate, information on:



their space policies and strategies;
their space policies and procedures to prevent and minimise the possibility of
accidents, collisions or other forms of harmful interference and the creation of space
debris; and
efforts taken in order to promote universal adoption and adherence to legal and
political regulatory instruments concerning outer space activities.
8.2. The Subscribing States may also consider providing timely information on outer space
environmental conditions and forecasts to the governmental agencies and the relevant
nongovernmental entities of all space faring nations, collected through their space situational
awareness capabilities.
9. Consultation Mechanism
9.1. Without prejudice to existing consultation mechanisms provided for in Article IX of the
Outer Space Treaty of 1967 and in Article 56 of the ITU Constitution, the Subscribing States
have decided on the creation of the following consultation mechanism:


A Subscribing State or States that may be directly affected by certain outer space
activities conducted by a Subscribing State or States and has reason to believe that
those activities are, or may be contrary to the commitments made under this Code
may request consultations with a view to achieving mutually acceptable solutions
regarding measures to be adopted in order to prevent or minimise the potential risks
of damage to persons or property, or of potentially harmful interference to a
Subscribing State‘s outer space activities.
The Subscribing States involved in a consultation process commit to:
o consult through diplomatic channels or by other methods as may be mutually
determined; and
o work jointly and cooperatively in a timeframe sufficiently urgent to mitigate or
eliminate the identified risk initially triggering the consultations.
113


Any other Subscribing State or States which has reason to believe that its outer space
activities would be directly affected by the identified risk may take part in the
consultations if it requests so, with the consent of the Subscribing State or States
which requested consultations and the Subscribing State or States which received the
request.
The Subscribing States participating in the consultations will seek mutually
acceptable solutions in accordance with international law.
9.2. In addition, the Subscribing States may propose to create, on a case-by-case basis,
independent, ad hoc fact-finding missions to investigate specific incidents affecting space
objects and to collect reliable and objective information facilitating their assessment. These
fact-finding missions, to be established by the Meeting of the Subscribing States, should
utilise information provided on a voluntary basis by the Subscribing States, subject to
national laws and regulations, and a roster of internationally recognised experts to undertake
an investigation. The findings and any recommendations of these experts will be advisory,
and will not be binding upon the Subscribing States involved in the incident that is the
subject of the investigation.
IV. Organisational Aspects
10. Meeting of Subscribing States
10.1. The Subscribing States decide to hold meetings biennially or as otherwise decided by the
Subscribing States, to define, review and further develop this Code and ensure its effective
implementation. The agenda for such meetings could include: (i) review of the
implementation of the Code, (ii) evolution of the Code, and (iii) discussion of additional
measures which may be necessary, including those due to advances in the development of
space technologies and their application.
10.2. The decisions at such meetings, both substantive and procedural, are to be taken by
consensus of the Subscribing States present.
10.3. Any Subscribing State may propose modifications to this Code. Modifications apply to
Subscribing States upon acceptance by all Subscribing States.
10.4. The results of the Meeting of Subscribing States are to be brought in an appropriate
manner to the attention of relevant international fora including the United Nations
Committee on Peaceful Uses of Outer Space (COPUOS) and the Conference on Disarmament
(CD).
11. Central Point of Contact
A Central Point of Contact to be established by Subscribing States will:




receive and announce the subscription of additional States;
maintain an electronic database and communications system;
serve as secretariat at the Meetings of Subscribing States; and
carry out other tasks as determined by the Subscribing States.
114
12. Outer Space Activities Database
12.1. The Subscribing States commit to creating an electronic database and communications
system, which should be used exclusively for their benefit in order to:


collect and disseminate notifications and information submitted in accordance
with the provisions of this Code; and
serve as a mechanism to channel requests for consultations.
12.2. Funding the development and maintenance of the Outer Space Activities Database will
be agreed by the Meeting of Subscribing States.
13. Participation by Regional Integration Organisations and International
Intergovernmental Organisations
In this Code, references to Subscribing States are intended to apply, upon their acceptance:


To any regional integration organisation which has competences over matters covered
by this Code, without prejudice to the competences of its member States.
With the exception of sections 10 to 12 inclusive: To any international
intergovernmental organisation which conducts outer space activities if a majority of
the States members of the organisation are Subscribing States to this Code.
115
BIBLIOGRAPHY
LEGAL INSTRUMENTS
TREATIES
Charter of the United Nations (UN Charter), opened for signature on 26 June 1945, entered
into force on 24 October 1945
The Antarctic Treaty, UNTS Vol. 402, p. 71, opened for signature on 1 December 1959,
entered into force on 23 June 1961
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water
(Nuclear Test Ban Treaty), UNTS Vol. 480, p. 44, opened for signature on 5 August
1963, entered into force on 10 October 1963
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), General
Assembly resolution 2222 (XXI), adopted on 19 December 1966, opened for signature on
27 January 1967, entered into force on 10 October 1967
Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (Rescue Agreement), General Assembly resolution 2345
(XXII), adopted on 19 December 1967, opened for signature on 22 April 1968, entered into
force on 3 December 1968
Convention on International Liability for Damage Caused by Space Objects (Liability
Convention), General Assembly resolution 2777 (XXVI), adopted on 29 November 1971,
opened for signature on 29 March 1972, entered into force on 1 September 1972
Treaty on the limitation of anti-ballistic missile systems (ABM Treaty),UNTS Vol. 944, p.
13, signed on 26 May 1972, entered into force on 3 October 1972 (no longer in force)
Convention on Registration of Objects Launched into Outer Space (Registration
Convention), General Assembly resolution 3235 (XXIX), adopted on 12 November 1974,
opened for signature on 14 January 1975, entered into force on 15 September 1976
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (Environmental Modification Convention), UN Doc.
A/RES/31/72, adopted on 10 December 1976, opened for signature on 18 May 1977,
entered into force on 5 October 1978
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon
Agreement), UN Doc. A/RES/34/68, adopted on 5 December 1979, opened for signature
on 18 December 1979, entered into force on 11 July 1984
Comprehensive Nuclear Test Ban Treaty, UN Doc. A/50/1027, adopted on 10 September
1996, opened for signature on 24 September 1996, not in force
116
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community (Treaty of Lisbon), Official Journal of the European Union
2007/C 306, signed on 13 December 2007, entered into force on 1 December 2009
OTHER INTERNATIONAL INSTRUMENTS
International co-operation in the peaceful uses of outer space, adopted on 20 December 1961
(General Assembly resolution 1721 (XVI))
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use
of Outer Space, adopted on 13 December 1963 (General Assembly resolution 1962 (XVIII))
Definition of Aggression, adopted on 14 December 1974 (General Assembly Resolution 3314
(XXIX))
Prevention of an arms race in outer space, adopted on 9 December 1981 (UN Doc.
A/RES/36/97, part c)
Principles Governing the Use by States of Artificial Earth Satellites for International Direct
Television Broadcasting, adopted on 10 December 1982 (UN Doc. A/RES/37/92)
Principles Relating to Remote Sensing of the Earth from Outer Space, adopted on 3
December 1986 (UN Doc. A/RES/41/65)
Declaration on the Right to Development, adopted on 4 December 1986 (UN Doc.
A/RES/41/128)
Report of the World Commission on Environment and Development: Our Common Future, 4
August 1987 (UN Doc. A/42/427, annex)
Rio Declaration on Environment and Development (1992) in Report of the United Nations
Conference on Environment and Development (UN Doc. A/CONF.151/26 (Vol. I)), Annex
1
Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted on 14
December 1992 (UN Doc. A/RES/47/68)
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 (Declaration on Space Benefits), adopted on 13 December 1996 (UN
Doc. A/RES/51/122)
Technical Report on Space Debris, 1999 (UN Doc. A/AC.105/720), adopted by the STSC of
COPUOS (UN Doc. A/AC.105/719)
Report of the Scientific and Technical Subcommittee on the work of its thirty-sixth session,
22-26 February 1999 (UN Doc. A/AC.105/719)
International Law Commission‘s Draft Articles on Responsibility of States for Internationally
Wrongful Acts, 2001 (UN Doc. A/56/10, p. 43-59)
International Code of Conduct against Ballistic Missile Proliferation, 2002 (UN Doc.
A/57/724, Annex)
117
Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space
(UN Doc. A/62/20, Annex), endorsed on 22 December 2007 (UN Doc. A/RES/62/217)
Recommendations on enhancing the practice of States and international intergovernmental
organizations in registering space objects, adopted on 10 January 2008 (UN Doc.
A/62/101)
Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat
or Use of Force against Outer Space Objects (PPWT), 29 February 2008 (Doc. CD/1839)
Transparency and confidence-building measures in outer space activities, adopted on 8
December 2010 (UN Doc. A/RES/65/68)
EUROPEAN UNION INSTRUMENTS
Resolution of the Council of the European Union no. 13569/08, Taking forward the European
Space Policy, adopted on 16 September 2008
Conclusions of the Council of the European Union no. 17175/08, on the draft Code of
Conduct for outer space activities, 17 December 2008
Conclusions of the Council of the European Union no. 14455/10, on the revised draft Code of
Conduct for outer space activities, 11 October 2010
Communication From the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the Regions No. 152/11,
Towards a Space Strategy for the European Union that Benefits Its Citizens, 4 April 2011
Revised Draft of the International Code of Conduct for Outer Space Activities (Working
Document), 5 June 2012
NATIONAL INSTRUMENTS
US National Aeronautics and Space Act of 1958, Pub. L. 85–568
Australian Space Activities Act of 1998 (as amended), <www.comlaw.gov.au>
US Department of Defense Directive 3100.10, October 18, 2012
118
CASE LAW AND OTHER COURT INSTRUMENTS
Arbitral Tribunal, the rights of jurisdiction of United States in the Bering‟s sea and the
preservation of fur seals (United States v. United Kingdom), Award of the Tribunal of 15
Augusts 1893, Moore‟s International Arbitration Awards 1, p. 755
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A, No. 10
ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal
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ICJ, Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America), Judgment, ICJ Reports 1986, p. 14
ICJ, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports 1997, p.
7
ICJ, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion,
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PCA, Arbitration Regarding the Iron Rhine Railway (Belgium v. Netherlands), Award of the
Tribunal of 24 May 2005, available at <www.pca-cpa.org>
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010,
p. 14
119
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