Congressional Aerospace Policy
Retreat
March 18, 2011
International Treaties and Obligations
Dr. Scott Pace
George Washington University
Elliott School of International Affairs
space1@gwu.edu
(202) 994-5278
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Sources of International Law
• U.S. interpretation of “treaty”:
– International (bilateral, multilateral) agreement made by President and
with advice and consent of Senate (U.S. Constitution)
• “Customary international law”:
– States’ customs and practices which have evolved through time;
considered as binding as treaties
• United Nations resolutions
– Not binding but represent broad consensus among members
– Could become foundation for future treaties and international law
• U.N. Committee on Peaceful Uses of Outer Space
(COPUOS)
– Until mid-1970s, most important single source of international
space law
Legal Boundaries Between Air and Space
• No specific definition agreed to in international law – important for
determining liability
• National airspace considered inviolate, but space not subject to
national appropriation
• Possible definitions:
– Space begins beyond point where aerodynamic flight becomes impossible and
extends upward without limit
– National sovereignty should extend as far as nation’s capabilities to defend its
airspace
– Space should begin 15-18 miles above earth because 97% of atmosphere lies
within those parameters
– Upper limit of national sovereignty should extend only as high as airplane
deriving its support from atmosphere can fly
– Sovereignty should extend to point where sun’s gravitational pull exceeds
earth’s
– Inner limit of space should begin at outer limit of earth’s atmosphere (estimated
between 150-50,000 miles)
– National sovereignty should extend approximately 53 miles because
aerodynamic lift must be replaced by some other force at that point
– National sovereignty should extend to height at which satellite may be put in
orbit (about 90 miles)
United Nations
• UN Office for Outer Space Affairs (UNOOSA) (Vienna, Austria)
– Responsible for promoting international cooperation in peaceful uses of
outer space
– Serves as secretariat for General Assembly’s Committee on the Peaceful
Uses of Outer Space (UNCOPUOS)
• Relocated to Vienna from New York in 1993
• 25 staff members (2009)
– Implements UN Programme on Space Applications (PSA): use of space
science and technology for economic and social development of all
nations, especially developing ones
– Maintains Register of Space Objects Launched into Outer Space
– Provided secretariat for 3 UN Conferences on the Exploration and
Peaceful Uses of Outer Space (UNISPACE) held in 1968, 1982, 1999
• UNCOPUOS
– Post-Sputnik, established as ad hoc committee of 18 Member States by
UNGA in 1958, and permanently in 1959 with 24 Member States
– Now 69 Member States (2009)
– Two standing Subcommittees: the Scientific and Technical
Subcommittee, and the Legal Subcommittee
Five UN Treaties on Outer Space
• Outer Space Treaty, 1967 (98 ratifications, 27 signatures)
– Peaceful Uses of Outer Space
– Freedom of Exploration
– Non-Appropriation of Outer Space
– Responsibility of State Parties for national space
activities
• Rescue Agreement, 1968 (90 ratifications, 24 signatures)
– Assistance in search and rescue
– Return of astronauts and equipment
• Liability Convention, 1972 (86 ratifications, 24 signatures)
– Liability for damage caused by objects launched into
outer space
• Registration Convention, 1975 (51 ratifications, 4
signatures)
– Establishment of UN register on space objects
• Moon Agreement, 1979 (13 ratifications, 4 signatures)
– The Moon and its natural resources are common
heritage of mankind
Status as of 1 January 2008
IAC-09-E3.2.2
Outer Space Treaty
• Foundation treaty for subsequent space treaties
– Signed in January 1967; entered into force October 1967
– Based on principles in Antarctic Treaty (1959) and the Outer Space
Principles adopted by the General Assembly in 1963
• Key elements
– Peaceful uses of outer space
– Ban on asserting new claims of national sovereignty over celestial bodies
– Prohibition of military bases, weapons testing, and military maneuvers in
outer space
– Bans placement in orbit or installation on celestial bodies, of weapons of
mass destruction (WMD) – does not ban nuclear propulsion or
conventional weapons in space
– Parties agree to conduct scientific and exploration activities so as to avoid
harmful contamination of/adverse change to earth’s environment
– Astronauts are envoys of mankind – states shall render them assistance
– Responsibility and liability by States Parties for objects launched into
space
– Principle of international cooperation – reciprocity of visits to stations,
installations, equipment and space vehicles
Five UN Principles on Outer Space
• Declaration of Legal Principles Governing the Activities of States
in the Exploration and Uses of Outer Space (UNGA 1962 (XVIII) of
13 December 1963)
– Defined principles later reflected in the Outer Space Treaty
• Principles Governing the Use by States of Artificial Earth
Satellites for International Direct Television Broadcasting (UNGA
37/92 of 10 December 1982)
• Principles Relating to Remote Sensing of the Earth from Outer
Space (UNGA 41/65 of 3 December 1986)
• Principles Relevant to the Use of Nuclear Power Sources in Outer
Space (UNGA 47/68 of 14 December 1992)
– Ongoing work in a Working Group of the Committee
• Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interests of All
States, Taking into Particular Account the Needs of Developing
Countries (UNGA 51/122 of 13 December 1996)
IAC-09-E3.2.2
Recent Developments in UNCOPUOS
• In the UNCOPUOS Main Committee:
– Space and Climate Change*
– Use of space technology in the United Nations system*
– Use of space-derived geospatial data for sustainable development
• In the UNCOPUOS Scientific and Technical Subcommittee:
– Long-term sustainability of outer space activities*
– International Space Weather Initiative*
– Space Debris
– Use of Nuclear Power Sources (NPS) in Outer Space
– Near-Earth Objects
– Space-system based disaster management support
– Global Navigation Satellite Systems
• In the UNCOPUOS Legal Subcommittee:
– Status and application of the five United Nations Treaties on Outer
Space
– Capacity-building in space law
– National space legislation
* Marks new items since the 2009 sessions
IAC-09-E3.2.2
Some Developing Issues for Space Law
• Space and information technologies
– Frequency management: public vs. private interests
in exploiting spectrum
– Space and cybersecurity
• Space-related international trade issues
– Export controls and non-proliferation
• Private commercial activities in space
– Intellectual property rights
– Remote sensing and data access
• Governance of space societies?
– In-situ property rights
– The U.S. has not ratified the 1979 Moon Treaty (a good
thing) so what next?
2008 Chinese/Russia Treaty Proposal
• Draft Treaty on Prevention of the Placement of Weapons in
Outer Space and of the Threat or Use of Force against
Outer Space Objects (PPWT)
– jointly introduced to the Conference on Disarmament by Russia and
China in 2008
– PPWT seeks to ban two different yet interrelated conducts: 1. the
placement of weapons in outer space and 2. the threat or use of force
against outer space objects.
• U.S. opposition in line with long-standing arms control
positions
– Bush 1989: “The United States will consider and, as appropriate,
formulate policy positions on arms control measures governing
activities in space, and will conclude agreements on such measures
only if they are equitable, effectively verifiable, and enhance the
security of the United States and our allies.”
– Obama 2010: “The United States will consider proposals and concepts
for arms control measures if they are equitable, effectively verifiable,
and enhance the national security of the United States and its allies.”
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EU Space Code of Conduct (October 2010)
• refrain from any action which intends to bring about, directly or
indirectly, damage, or destruction, of outer space objects unless
such action is conducted to reduce the creation of outer space
debris and/or is justified by the inherent right of individual or
collective self-defence …..or imperative safety considerations;
• abide by and implement all International Telecommunications Union
recommendations and regulations on allocation of radio spectra and
orbital assignments.
• promote further security guarantees within the appropriate fora…;
• refrain from the intentional destruction of any on-orbit space object
or other activities which may generate long-lived space debris;
• 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...
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Space Code of Conduct
• European Union Proposal
– Positive U.S. reception to Sept 2010 proposal
– Some problems, e.g., “security guarantees”
• Voluntary, non-binding agreement to improve
space security via transparency and confidence
building measures as mentioned in the national
space policy
• Key Challenges
– Outreach to newer space and non-space states outside
of the CD and COPUOS
– Domestic concern with creating expectations of a
binding treaty in the future
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The Rules of the Road Debate
• Pro
– Space is becoming more dangerous, especially with new players, and
rules are needed to avoid accidents and improve situational
awareness
– Stronger international norms would benefit space-reliant States like
the United States while preserving the space environment for future
uses
– New rules are necessary step toward banning weapons and armed
conflict in space
– More verifiable than a ban on space weapons per se
• Con
– Existing international laws are sufficient and it is unwise for the U.S.
to accept limits on what it can do in space
– The very concept of “rules” implies the U.S. is subordinate to some
other transnational structure and thus is ceding sovereignty.
– U.S. norms are already defined in its national space policy
– Improving situational awareness is one thing, but new practices
should be driven by technical discussions, not legal ones.
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Need for Common Vocabulary and
Definitions
• “Transparency and confidence building
measures”
• “Norms”
• “Norms of behavior”
• “Code of Conduct”
• “Rules of the Road”
• “Common Heritage of Mankind”
• “Global Commons”
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• Backup
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The United Nations and Outer Space
• General Assembly resolution
1348(XIII) of 13 December 1958
– Recognizes that outer space
should be used for peaceful
purposes only
– Outer space should be explored
and exploited to the fullest extent
for the benefit of mankind
– Establishes an ad-hoc Committee
on the Peaceful Uses of Outer
Space (COPUOS) as an
appropriate body for international
cooperation
– Requests the Secretary General to
render appropriate assistance
IAC-09-E3.2.2
Article 11 of the 1979 Moon Treaty
1. The moon and its natural resources are the 5. States Parties to this Agreement hereby undertake to
common heritage of mankind, which finds its establish an international regime, including appropriate
expression in the provisions of this Agreement and in procedures, to govern the exploitation of the natural
particular in paragraph 5 or this article. resources of the moon as such exploitation is about to
become feasible. This provision shall be implemented in
2. The moon is not subject to national appropriation accordance with article 18 of this Agreement.
by any claim of sovereignty, by means of use or
occupation, or by any other means. 6. In order to facilitate the establishment of the
international regime referred to in paragraph 5 of this
3. Neither the surface nor the subsurface of the moon, article, States Parties shall inform the Secretary-General of
nor any part thereof or natural resources in place, the United Nations as well as the public and the
shall become property of any State, international international scientific community, to the greatest extent
intergovernmental or non-governmental organization, feasible and practicable, of any natural resources they may
national organization or non-governmental entity or of discover on the moon.
any natural person. The placement of personnel,
space vehicles, equipment, facilities, stations and 7. The main purposes of the international regime to be
installations on or below the surface of the moon, established shall include:
including structures connected with its surface or (a) The orderly and safe development of the natural
subsurface, shall not create a right of ownership over resources of the moon;
the surface or the subsurface of the moon or any
areas thereof. The foregoing provisions are without (b) The rational management of those resources;
prejudice to the international regime referred to in (c) The expansion of opportunities in the use of those
paragraph 5 of this article. resources;
(d) An equitable sharing by all States Parties in the
4. States Parties have the right to exploration and use benefits derived from those resources, whereby the
of the moon without discrimination of any kind, on a interests and needs of the developing countries, as well as
basis of equality and in accordance with international the efforts of those countries which have contributed
law and the terms of this Agreement. either directly or indirectly to the exploration of the moon,
shall be given special consideration.
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Some Non-Interference Precedents
• 1972 Agreement Between The United States of America and The Union
of Soviet Socialist Republics on the Limitation of Strategic Offensive
Arms (SALT I):
– “Each Party undertakes not to interfere with the national technical
means of verification of the other Party operating in accordance
with paragraph 1 of this Article.” Article V.2
• 1972 Agreement Between the Government of The United States of
America and the Government of The Union of Soviet Socialist
Republics on the Prevention of Incidents On and Over the High Seas:
– “Ships meeting or operating in the vicinity of a formation of the
other Party shall, while conforming to the Rules of the Road, avoid
maneuvering in a manner which would hinder the evolutions of
the formation.” Article III.2 “Ships of the Parties shall not simulate
attacks by aiming guns, missile launchers, torpedo tubes, and
other weapons in the direction of a passing ship of the other
Party, not launch any object in the direction of passing ships of
the other Party, and not use searchlights or other powerful
illumination devices to illuminate the navigation bridges of
passing ships of the other Party.” Article III.6
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Creating New Space Law?
• EU Code of Conduct includes exceptions for
space debris minimization and safety purposes.
(as in the case of USA-193)
– Some argue that this exception is unnecessary
with technical safeguards
• Another approach “State parties should not test
or use a weapon against any satellite so as to
damage or destroy it.”
– Seeking to bar armed conflict in outer space
– Seeking to go beyond the Outer Space Treaty
(free passage) and the UN Charter (self-
defense)
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National Space Policy Goals and Themes Across
Administrations
2006 National Space Policy (Bush Administration)
• U.S. commitment to exploration and use of space for peaceful purposes
– “Peaceful purposes” allow U.S. defense and intelligence-related
activities in pursuit of national interests
• Space systems have right of passage through and operations in space
without interference
• U.S. space capabilities – including ground and space segments and
supporting links – are vital to national interests. Therefore, U.S. will
preserve its rights, capabilities, and freedom of action in space, dissuade
or deter others from either impeding those rights or developing
capabilities 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
• U.S. opposes development of new legal regimes or other restrictions
seeking 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…”
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07-21-08
National Space Policy Goals and Themes
Across Administrations
• 2010 National Space Policy (Obama Administration):
– The United States will employ a variety of measures to help assure the use
of space for all responsible parties, and, consistent with the inherent right
of self-defense, deter others from interference and attack, defend our
space systems and contribute to the defense of allied space systems, and,
if deterrence fails, defeat efforts to attack them.
– The United States recognizes the need for stability in the space
environment. The United States will pursue bilateral and multilateral
transparency and confidence building measures to encourage responsible
actions in space, and will consider proposals and concepts for arms
control measures if they are equitable, effectively verifiable, and enhance
the national security of the United States and its allies. In addition, the
United States will enhance its space situational awareness capabilities and
will cooperate with foreign nations and industry to augment our shared
awareness in space.
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October 19, 2009 Statement by the
U.S. Mission to the United Nations
• In consultation with allies, the Obama Administration is
currently in the process of assessing U.S. space policy,
programs, and options for international cooperation in
space as a part of a comprehensive review of space policy.
• This review of space cooperation options includes a “blank
slate” analysis of the feasibility and desirability of options
for effectively verifiable arms control measures that
enhance the national security interests of the United States
and its allies.
• The United States looks forward to discussing insights
gained from this Presidential review next year at the
Conference on Disarmament during substantive
discussions on the Prevention of an Arms Race in Outer
Space agenda item as a part of a consensus program of
work.
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