1 The Function of ‘ Soft Law ’ in the Development of International Space Law Setsuko Aoki Professor, Keio University Japan April 2, 2011

2 Table of Contents I. Introduction: why soft law matters in international space law II. Characteristics of Space Activities III. Functions of soft law in the various types of space activities VI. Conclusion

3 I. Introduction: why soft law matters in international space law No new treaty more than 3 decades 1 Why no new treaty has been negotiated? 2 Why so-called ‘soft law’ rules have been able to sufficiently maintain the order of space activities?

4 Definition of ‘Space Activity’ (i) to launch a space object in outer space; (ii) to operate a space object in outer space including the Moon and other celestial bodies; (iii) to support the launching and operating a space object on the ground; and (iv) to sell, transfer, purchase, and receive in any other manner the results of the operation of space objects.

5 II. Characteristics of Space Activities 1 international, but exclusive (only 8 nations have independent capability to launch a space object) 2 military implications (dual-use nature) 3 space application brings more benefits to the developing countries than to OECD countries 4 the concept of ‘province of all mankind’ strongly embedded

6 (continued) 1 exclusive club→ coordination among members would suffice 2 military implications → national security concerns The obstacles to make a treaty 3 benefits to developing countries + ‘mankind’ concept + environmental problem have united global society to tackle the common challenge international cooperation in sharing space benefits in the form of soft law instruments

7 III. Functions of soft law in the various types of space activities function 1 the substitute of a treaty: it may become a treaty or a rule of customary international law in the future 1963 GA Resolution 1962 (XVIII)→1967 OST 1986 Principles relating to remote sensing (Res.41/65) 2004 Application of the concept of the ‘launching State’ (Res.59/115) 2007 Recommendations on enhancing the practice on registering space objects (Res.62/101) 2010 (EU) revised draft Code of Conduct for Outer Space Activities

8 Function 1 is divided into 2 Function1(1) soft law developed into a regime Unexpected development of 1986 remote sensing principles as an emerging regime of international cooperation on space application, especially on the data + information sharing on the Earth’s natural environment and natural disasters to the states likely to be affected.

9 Definition of “international regime” by Stephen D. Krasner “A set of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations. ” (1983)

principles relating to remote sensing Principle X the obligation of sensing state to disclose information on critical natural environment to States concerned. Principle XI the obligation of a possessing state of data and information on natural disasters to transmit to States affected or likely to be affected. Principle XII All data: sensed state shall have access on a non-discriminatory basis and on reasonable cost terms. Information: sensed state shall have access on a non-discriminatory basis and on reasonable cost terms when a sensing state have it (=information made by a private entity may not to be available to the sensed state).

11 organizations to distribute remote sensing data 1 Global Earth Observation System of Systems (GEOSS) [Group on Earth Observation (GEO)] ICSU/CODATA data sharing principles Disaster Charter since Committee on Earth Observation Satellites (CEOS) 2 data principles in 1991 and Integrated Global Observation Strategy Partnerships (IGOS-P) data principle 2000, 2003

12 UNISPACE III to be a future regime of space application 1999 Vienna Declaration →33 action plans →UNISPACE III + 5 →implementation of the recommendations of UNISPACE III→ report to the UN annually →flexible regime of space application ； 2006 UNSPIDER in collaboration with GEOSS, Disaster Charter, IGOS-P, Sentinel Asia (a project of APRSAF)

13 Revised draft Code of Conduct for Outer Space Activities Council of the EU Adopted in Dec. 2008, revised in Oct Future possibility: (i) to be adopted universally→(a) either customary international law or (b) an international regime of safe use of space (ii) failed to be adopted universally →based on states practices, core provisions of the Code may be developed into an international regime, corroborated by the future GA resolution/guidelines of long-term sustainability of space activities.

14 Function1 (2) substitute a treaty, but soft law suffices for the goal for the time being 2004 concept of ‘launching State’ 2007 registration recommendation standard making to: (i) adopt special agreements among like- minded countries (ii) secure national implementation (harmonization)

15 Function 2 soft law as a choice and preference 1992 Principles relevant to the Use of NPS (2009 safety framework for NPS application in outer space ST Subcommittee + IAEA) 2007 Space Debris Mitigation Guidelines pivotal role in the actual operation is played by IADC which helps UN, ISO and national space agencies by its expertise.

16 (continued) soft law is intentionally chosen as a policy * reasons to avoid treaty-making: (i) time-consuming negotiation→vague about the lex lata during negotiation; (ii) time-consuming for entering into force, amendment, etc.; (iii) political compromise. *reasons to prefer soft law: (i) highly-technical agreements to be implemented by small number of active actors → detailed technical rules needed; (ii) timely updating needed.

17 Function 3 Soft law as lex ferenda to avoid north-south confrontation typical of soft law function in 1970’s (i) 1972 UNESCO declaration of guiding principles on the use of satellite broadcasting for free flow of information (ii)1982 Principles on the international direct television broadcasting

18 variation of the 3rd category ex Space Benefit Declaration 2000 some aspects concerning the use of geostationary orbit in the omnibus resolution of the international cooperation in the peaceful uses of outer space ( A/AC.105/738, Annex III)

19 (continued) soft law to mitigate north-south problems, but it is not for changing the current international law, but for coordinating the interests of all countries taking note of: (i) the special needs of the developing countries, i.e., appropriate assistance; (ii) the equality of the opportunity rather than the equality of the result; (iii) the respect of the free market principles

20 Future candidates Function1 (1) as the substitute of a treaty→ future possibility of becoming an international regime 2013? Guidelines/Resolution on Long-Term Sustainability for Outer Space Activities Space Situational Awareness (SSA) Space Traffic Management (STM) Function 1(2) 2007 Global Exploration Strategy (GES) Function 2 soft law as a choice due to the highly-technical nature * International Committee on GNSS (ICG)

21 IV Conclusion soft law rules really suffice? 1 soft law plays a critical role in the international space law in comparison with other fields of the public international law. 2 It is partly a result of the efforts to strike a good balance between the ‘province of all mankind’ concept and market economy principles.

22 (continued) 3 Soft law plays an important role in the fields where: (i) privatization and commercialization are concerned; (ii) the subject is not directly concerned with national security. (3 decades failure of the CD) (iii) national interests is not of significant importance (iv) limited number of nations are active players; (v) public interests (‘mankind’) and private economic interests can be compatible;

23 (continued) 4 In other words, soft law rules have been effective because: (i) commercialization and privatization have been progressing for these 3 decades; (ii) not a big confrontation have occurred between spacefaring nations; and (iii) since 1979 only 3 countries became the new members that have an independent launch capability.

24 (continued) 5. When such conditions are lost, what will happen? It is not guaranteed that the International society will be able to adopt treaties to maintain space safety, security and commercialization. * arms race in outer space? * disregard for the public interest in the name of legal void? *confrontation between space powers and rest of the countries? power matters and insecurity looms

25 6 summing up *Formal sources of law will always be critical as far as the international society (=Westphalian system) continues. *Sources of international law changes as time goes by (e.g. “Vereinbarung” in the 19th century) Soft law →international regime ≒ customary international law may be deemed as legally-binding in the future. * However, for the time being, order made by soft law may bring legal void that has to be avoided to accomplish space activities for the benefits of all mankind. A treaty matters.