1. T HE T REATY ON P RINCIPLES G OVERNING THE A CTIVITIES OF S TATES IN THE E XPLORATION AND U SE OF O UTER S PACE, INCLUDING THE M OON AND O THER C ELESTIAL B ODIES T HE T REATY ON P RINCIPLES G OVERNING THE A CTIVITIES OF S TATES IN THE E XPLORATION AND U SE OF O UTER S PACE, INCLUDING THE M OON AND O THER C ELESTIAL B ODIES Sergio Marchisio C HAIRMAN -E UROPEAN C ENTER FOR S PACE L AW P ROFESSOR -U NIVERSITY S APIENZA OF R OME

2. U NITED N ATIONS T REATIES AND P RINCIPLES ON S PACE L AW The 5 treaties and agreements are:  The 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"), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967;  The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement"), adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968;

3.  The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972;  The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976;  The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement"), adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio 3

4. F UNDAMENTAL D ATES ABOUT OST The "Outer Space Treaty", was adopted by the General Assembly in its resolution 2222 (XXI)); the Treaty was opened for signature on 27 January 1967 by the three depository Governments (the Russian federation, the United Kingdom and the United States) and entered into force on 10 October 1967; 101101 States have ratified the Outer SpaceTreaty; 2626 additional States have signed the Outer Space Treaty (as of 1 January 2009). For further information: http://www.oosa.unvienna.org/http://www.oosa.unvienna.org/ 4 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio OST  1966  1966:adoption by the General Assembly of the resolution 222 (XXI)  1967  1967: opened for signature in London, Moscow and Washington  1967  1967: entry into force  2009  2009: 100 States Parties

5. T HE M OST I MPORTANT P RINCIPLES OF THE O UTER S PACE T REATY The OST is one of the outstanding law-making treaties of contemporary international law as a whole. It significantly contributed to the progressive development and codification in the meaning of Article 13 of the UN Charter. The Outer Space Treaty establishes significant principles such as:  freedom in the exploration and use of outer space;  freedom of scientific investigation in outer space;  international cooperation in scientific investigation;  principle of non-appropriation;  principle of the denuclearization;  It also codified the principle of using the Moon and other celestial bodies exclusively for peaceful purposes. 5 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

6. T HE P REAMBLE P REVIOUS UNGA R ESOLUTIONS MENTIONED  RESOLUTION 1962 (XVIII), setting forth the relevant principles governing the activities of States in the exploration and use of outer space, adopted unanimously by the UNGA,13 December 1963;  RESOLUTION 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, adopted unanimously by the UNGA, 17 October 1963;  RESOLUTION 110 (II), which condemned propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace or act of aggression, and considering that the aforementioned resolution is applicable to outer space, adopted unanimously by the UNGA, 3 November 1947. R EFERENCE TO THE UN C HARTER  a Treaty on Outer Space will further the purposes and principles of the Charter of the United Nations. 6 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

7. C ORE P RINCIPLES (A RTICLE I)  PRINCIPLES OF THE BENEFIT AND INTERESTS OF ALL COUNTRIES;  PRINCIPLE OF THE EXPLORATION AND USE OF OUTER SPACE AS THE PROVINCE OF ALL MANKIND different concept from Common Heritage of Humankind (Moon Treaty, 1979, art. 11);  PRINCIPLE OF THE FREEDOM OF EXPLORATION AND USE WITHOUT DISCRIMINATION, IN EQUALITY AND IN ACCORDANCE WITH INTERNATIONAL LAW;  PRINCIPLE OF FREE ACCESS TO ALL PARTS OF THE CELESTIAL BODIES North Korea Launch (4 April 2009) - Statement by the President of the UN SC (13 April 2009);Statement by the President of the UN SC (13 April 2009)  PRINCIPLE OF FREEDOM OF SCIENTIFIC INVESTIGATION AND ENCOURAGEMENT OF INTERNATIONAL COOPERATION. The principles are rules that need to be implemented in concrete norms, they imply a reference to the other 4 UN treaties, but they are autonomous. 7 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

8. T HE PRINCIPLE OF NON - APPROPRIATION (A RTICLE II)  The PRINCIPLE OF NON-APPROPRIATION relates to outer space as a whole, no exception being admitted, and therefore no part of outer space, including the Moon or any other celestial body, can be exempted from the impact of this principle.  Space belongs to the category of RES COMMUNES OMNIUM, free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law.  Case of US law on the use of national flag on the Moon (1969); Case of US law on the use of national flag on the Moon (1969  Bogotà Declaration on the geostationary orbit (1976); Bogotà Declaration on the geostationary orbit (1976);  Agreement “Some aspects concerning the use of the geostationary orbit” (2000); Agreement “Some aspects concerning the use of the geostationary orbit” (2000)  ITU Constitution, art. 44, par. 2: radio frequencies and associated orbits as natural resources, equitable access to orbits and frequencies, due regard to the special needs of the developing countries;  TongaSat Case (1990). 8 The Treaty on Principles Governing the’ Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

9. 9 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio T HE NON - APPROPRIATION OF THE MOON  In 2001, Gregory Nemitz claimed parking fees from NASA for the placing of its research spacecraft on asteroid 433 (Eros). The Asteroid had been claimed as a private property by Nemitz. The US States Department of States expressed the view that ‘private ownership of am asteroid is precluded by Article II of the OST’.  Statement by the Board of Directors of the International Institute of Space Law (IISL) on Claims to Property Rights Regarding The Moon and Other Celestial Bodies (2004): ‘The prohibition of national appropriation by Article II thus includes appropriation by non- governmental entities (i.e. private entities whether individuals or corporations) since that would be a national activity. The prohibition of national appropriation also precludes the application of any national legislation on a territorial basis to validate a ‘private claim’.

10. T HE USE OF OUTER SPACE AND THE INTERNATIONAL LAW (A RTICLE III)  International space law as a part of international law (lex specialis, but subject to the same general principles and rules of customary law, derogations allowed as in article VI);  Importance of the reference to the Charter of the United Nations, mainly for the prohibition of the threat and the use of force, unless authorized by the same Charter;  ART. 51 OF THE CHARTER OF THE UN concerns the self-defence: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”. 10 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

11. T HE PEACEFUL PURPOSES (A RTICLE IV)  Denuclearisation of OUTER SPACE no nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies;  Demilitarization MOON AND CELESTIAL BODIES no arms experiments; prohibition of military bases and military manoeuvres; use for “peaceful purposes”: to be interpreted as including scientific, civil and/or commercial, as well as military uses. Pitfalls in Article IV: -sub-orbital flights, such as ballistic with nuclear warheads; -deployment of convention weapons in orbit; -placement in orbit of space based devices with aggressive purposes. 11 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

12.  11 January 2007:  China conducted the first successful test of its anti-satellite (ASAT) system by using a ground-based ballistic missile to destroy an old Chinese weather satellite.  US lodged a formal diplomatic claim that the test violated the intent and spirit of the OST.  20 February 2008:  US engaged a non-functioning National Reconnaissance Office satellite using a Standard Missile-3 (SM-3). Statement by M. Simonoff, US Representative to the 46 th Session of the COPUOS LSCStatement by M. Simonoff, US Representative to the 46 th Session of the COPUOS LSC, claiming that the action was consistent with the OST. 12 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio  Anti-missile Defence Issues

13.  International Legal initiatives  Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (2008) Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (2008)  territorial delimitation of outer space at 100 km above ocean level of the Earth;  No prohibition of the development of ASAT weapons;  Controversial definitions.  Draft International Code of Conduct for Outer Space Activities (2010) Draft International Code of Conduct for Outer Space Activities (2010)  the Code is voluntary and open to all States. It has a non-legally binding instruments;  it adopts a systematic approach to embrace all dimensions of space operations;  Commitments in Point 4.2: refrain from any action intended to bring damage or destruction to outer space objects and take appropriate measures to minimize the risk of collision. 13 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

14. T HE A STRONAUTS (A RTICLE V) The article V enucleates some principles regarding ASTRONAUTS:  mankind in outer space;  obligation of assistance;  Obligation of immediately information. Outstanding issues: Extention of the notion of “astronaut” A right of priority? Relation between the OST and the 1968 Astronaut Agreement 14 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio UNGA Resolution A/RES/65/271 declared April 12, 2011 as the International Day of Space Flight

15. T HE I NTERNATIONAL R ESPONSIBILITY (A RTICLE VI) International responsibility encompasses all the consequences of national activities in outer space.International responsibility encompasses all the consequences of national activities in outer space. The obligation of reparation in case of wrongful acts or omission by public or private entities (causing or not damage).The obligation of reparation in case of wrongful acts or omission by public or private entities (causing or not damage). States have to take legislative action at the national level to answer for private space activities covered by their international resposibility and to legal consequeces thereof.States have to take legislative action at the national level to answer for private space activities covered by their international resposibility and to legal consequeces thereof. N EW S KY S ATELLITES C ASE – Note Verbale to the UN (29 July 2003). N EW S KY S ATELLITES C ASE – Note Verbale to the UN (29 July 2003).Note Verbale to the UN (29 July 2003).Note Verbale to the UN (29 July 2003). The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

16. T HE I NTERNATIONAL ORGANIZATIONS The international organizations that “carry out” activities in outer space (the EU/EC does not carries out activities in outer space) are: European Organization for the Exploitation of Meteorological satellites; European Space Agency; European Telecommunications Satellite Organization. Reference to article XIII: the OST shall apply to the activities carried on by a single State Party to the Treaty or jointly with other States, including within the framework of international intergovernmental organizations. Any practical questions arising in connection with activities carried on by international intergovernmental organizations shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty. 16 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

17. T HE SPACE OBJECTS (A RTICLE VII)  Definition of LAUNCHING STATE (reference to the 1972 and 1975 Conventions and to the UNGA resolution on the Application of the Concept of the “Launching State”, G.A. Res. 59/155 (Dec. 10, 2004).  Case of San Marco - Malindi Station (Kenya).  SPACE OBJECT (or its component parts) is the object launched into outer space (space debris are space objects).  INTERNATIONAL LIABILITY as distinct form of international responsibility; the general notion of “damages” is spelled out by the 1972 Convention. Damages on the Earth or in Air Space: absolute liability. Damages in outer space: liability by fault. 17 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

18. J URISDICTION AND CONTROL (A RTICLE VIII) Article VIII indicates two prerogatives of the ‘launching State(s)’: O EXERCISE “JURISDICTION AND CONTROL”;  TO EXERCISE “JURISDICTION AND CONTROL”; the “Jurisdiction” means the legislation and enforcement of laws and rules in relation to persons and objects. the “control” is the right of the State of registry to adopt technical rules to achieve the space object mission and, if necessary, to direct, stop, modify and correct the elements of the space object and its mission.  TO REGISTER THE SPACE OBJECT; all space objects are to be registered at the national level; space objects are under the jurisdiction and control of the State of registry; stray space objects shall be returned to the State of registry. 18 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

19. 19 Schematic overview of national regulatory frameworks for space activities: http://www.oosa.unvienna.org/pdf/limited/c2/AC105_C 2_2011_CRP09E.pdf The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio COMPLIANCE WITH ARTICLES VI, VII, VIII States parties shall implement Articles VI, VII and VII in their domestic legal order by enacting, when necessary, specific legislation. National space legislation has normally the dual objective: implementing the state’s obligations and clarifying the legal framework vis-à-vis private entities. Three main building blocks of national space legislation have been identified, namely:  the authorizations and supervision of space activities and the registration of space objects;  the indemnification regulation, and  other relevant issues.

20. 20 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio T HE USE OF OUTER SPACE AND THE GUIDE PRINCIPLES (A RTICLE IX)  PRINCIPLES OF ‘COOPERATION’ AND ‘MUTUAL ASSISTANCE’; ‘DUE REGARD’; ‘CORRESPONDING INTERESTS’.  THE PROTECTION OF OUTER SPACE ENVIRONMENT  No Harmful contamination  Inter-relation with International Environmental Law  International Efforts to Protect the Outer Space Environment  Relevant National Legislation  The Consultation Mechanism Example of Best Practice: on 29 April 2003 the Italian BeppoSax minisatellite crashed harmlessly into the Pacific Ocean, following a procedure of impact assessment and voluntary notification to potentially affected States.

21. A RTICLES X-XI-XII promotion of international cooperation in the exploration and use of outer space; the States Parties 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 (by agreement); information to the UN Secretary-General as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities; dissemination by the UNSG immediately and effectively (OOSA); the States Parties to the Treaty have access to all stations, installations, equipment and space vehicles on the Moon and other celestial bodies on a basis of reciprocity; reasonable advance notice for appropriate consultations. 21 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

22. B ENEFITS OF BECOMING PARTY TO S PACE T REATY  Apart the OST, which really reflects the common understanding of he spacefaring nations, the other 4 UN treaties remain far from general acceptance within the international community of States. Many non space faring States have not yet accepted the key treaties, including some members of COPUOS.  This is the reason why by now one of the main functions of the LSC is broadening the universal acceptance of the core space law treaties, inviting States to consider the reasons why their ratification and implementation should be considered highly beneficial. In particular, there are three great benefits: establishment and consolidation of the international rule of law; predictability and trasparency in Outer Space Activities; pursuing of International Legal Order. At the same time, the LSC should also encourage States that have accepted these conventions to look at the sufficiency of their national laws to implement them. 22 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio

23. For further information: http://www.oosa.unvienna.org/ http://www.esa.int/SPECIALS/ECSL/ http://www.iislweb.org/ 23 The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space -Sergio Marchisio