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History, the Treaties, the Resolutions

Sergio MARCHISIO

Sapienza University of Rome, Italy

1.1. Notion and evolution of international space law

International space law can be described as the special branch of international law that governs human activities in outer space, including the Moon and other celestial bodies (Kerrest 2007). It comprises, much like international law at large, a variety of international agreements, treaties, conventions and United Nations (UN) General Assembly (GA) resolutions, as well as rules of customary international law. The term "international space law" is most often associated with the rules and principles contained in the five international treaties and five sets of declarations of principles on space matters, which have been developed since the 1960s under the auspices of the UN.

Moreover, the notion of space law also encompasses the rules of other international organizations of universal or regional character, which carry on space-related activities, such as the International Telecommunication Union (ITU), the European Space Agency (ESA) and the European Union (EU). According to Article 2.1 (j) of the Convention on the Law of Treaties between States and International Organizations or between International Organizations of March 21, 1986, not yet in force, these rules mean "the constituent instruments, decisions and resolutions adopted in accordance with them, and the established practice of the organizations" (Marchisio 1986).

In addition to these international instruments, many States have adopted national legislation governing space activities, mainly to implement their international obligations. A well-established rule of general international law, codified in Articles 26 and 27 of the Vienna Convention on the Law of Treaties of 23 May 1969, entered into force on 27 January 1980 (VCLT), establishes that States must perform in good faith treaties in force binding upon them and that they may not invoke the provisions of their internal law as justification for their failure to perform them. Although the way in which international law applies within a State is a matter regulated by the law of that State, the outcome affects the State's position in international law. International law requires that States fulfill their obligations and they will be held responsible if they do not. Furthermore, often international treaties are not fully self-executing and they may require implementing national legislation.

Thus, in a broader sense, the notion of "space law" means a specialized body of law, both of international and national nature, which is aimed at maintaining order and co-ordinating relations among the subjects involved in space activities, States and private persons. Every entity carrying out activities in outer space must generally behave in a fashion that does not breach legal rules or hamper the rights of other subjects. Transgressions of legal rules would provoke social disruption, reactions and disputes to be solved in accordance with applicable legal norms.

Space law is a relatively new branch of international law. This body of law has grown from the necessity of creating norms to govern the expanding uses of outer space science and technology in improving functions and providing new services on the Earth. When the space age began in 1957 with the Soviet launch of Sputnik 1, the first man-made satellite, the international community immediately realized that it was essential to formulate international norms for the conduct of human activities in outer space. Then, space law has developed over time and will continue to develop as new challenges arise.

At the beginning, it was natural that the responsibility to regulate the activities of States in outer space would fall upon the UN that had been established after the Second World War to maintain international peace and security and charged with the task of encouraging the codification of international law and its progressive development.

The process began in 1958, in a climate of intense rivalry between the United States and the Soviet Union (USSR) within the Cold War. Shortly after the launching of the first artificial satellite, the Permanent Representative of the United States to the UN requested the Secretary General (SG) that an item called "Programme for International Cooperation in the Field of Outer Space" be placed on the agenda of the GA. This letter called for the Assembly to establish an ad hoc committee "to make the necessary detailed studies and recommendations as to what specific steps the Assembly might take to further man's progress" in outer space and "to assure that outer space (would) be used solely for the benefit of all mankind".

At the beginning, in the context of the Cold War, the concern of the UN was in preventing an extension of the arms race into outer space. Between 1959 and 1962, the major space faring nations made a series of proposals for banning the weaponization of outer space. An important step was reached with the conclusion in Moscow of the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of August 5, 1963, entered into force on October 10, 1963, by the United States, United Kingdom and the USSR.

By an imaginative effort at international legislation within the UN, and through the arduous work painstakingly carried out over a relatively short period of time, the UNGA elaborated a set of multilateral treaties and legal principles, which provide the framework of international law that governs space activities (Kopal 2011). The UN become the focal point for international cooperation in outer space and for the development of international space law. The UNGA resolution 1348 (XIII) of 1958 established the Committee on the Peaceful Uses of Outer Space (COPUOS), first as an ad hoc body with 18 Member States; one year later, on December 12, 1959, UNGA resolution 1472 (XIV) gave it the status of permanent body and reaffirmed its mandate. From the legal point of view, the COPUOS was established as a subsidiary organ of the GA, based on Articles 7, paragraph 2, and 22 of the UN Charter, following which "the General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions". Thus, the Committee was not established as an independent intergovernmental organization founded on a multilateral treaty.

According to the founding resolutions, the main task of the Committee was to facilitate international cooperation in the field of outer space within the framework of the UN. Moreover, letter (d) of UNGA resolution 1472 (XIV) of 1959 opened also the way for consideration of the "legal problems which might arise in programs to explore outer space". In 1961, UNGA resolution 1721(XVI) mandated the COPUOS to assist in the study of measures for the promotion of international cooperation in outer space activities and requested the SG to maintain a public registry based on information supplied by States launching objects into orbit or beyond. It called also upon launching States to "furnish information promptly" to the COPUOS, through the SG, for the registration of launchings. This recommendation has not been superseded by the subsequent Convention on Registration of Objects Launched into Outer Space of January 14, 1975, entered into force on September 15, 1976 (Registration Convention) and is still utilized by some States that have not yet ratified the Convention for registering on a voluntary basis their objects launched in outer space.

Like many other subsidiary organs of the UN, the COPUOS has its own internal structure, composed by two Subcommittees: the Scientific and Technical Subcommittee (STSC) and the Legal Subcommittee (LSC), created at the second session of COPUOS in 1962. Each subcommittee is composed of the same member States that comprise the parent body and is mandated to assist the COPUOS in the study of the specific proposals concerning, on the one hand, the scientific and technical aspects of space activities, and, on the other hand, the legal matters raised by member States for the development of international cooperation in space exploration for peaceful purposes. The STSC held its first session from May 28 to June 13, 1962, and the LSC first convened in Geneva on May 28, 1962. This latter date may be considered as the starting point of the evolutionary stages of the COPUOS.

1.2. Space law as a fruit of the United Nations

By examining the accomplishments of the COPUOS and its LSC in the field of international space law, it is possible to identify three main evolutionary phases (Marchisio 2005). The first corresponds to the law-making phase, when the five UN Space Treaties were concluded, which began just after LSC's creation, and ended in the 1980s. The second phase was the soft law phase, characterized by the adoption of four sets of non-legally binding principles until the middle half of the 1990s. During the third and current phase, efforts have been made in order to broaden the acceptance of the UN Space Treaties and improve their application through the adoption of UNGA resolutions, technical norms and international standard called "guidelines". Each of these stages presents its specific features and results.

Right in the beginning of COPUOS deliberations, an important decision was made which since then has defined the working methods of this part: the conclusions to be adopted by the Committee and both its subcommittees should be subject to agreement without...