Outer Space as International Space, lessons from Antarctica Armel Kerrest Institute of Law of International Spaces and Telecommunications University of Western Brittany ANTARCTIC TREATY SUMMIT: SCIENCE-POLICY INTERACTIONS IN INTERNATIONAL Washington DC December 2009

2 Introduction International Spaces The legal status of Antarctica: from a legal nightmare to an example of international governance. Hypothesis for this presentation: Outer Space: a good legal framework but a poor international governance.

3 Part I The legal framework: principles of Outer Space Law. The establishment of space law by treaties and UN General Assembly resolutions during the cold war.

4 Responsibility of States for activities in outer space The compromise OST article VI : “Non governmental entities” activities are not prohibited in Outer space but… they are assimilated with States activities within the notion of “national activities” The activities of non governmental entities must be authorised and supervised by a State.

5 Liability of Launching States in case of damage The 1972 Liability Convention If damage on Earth: absolute liability If damage in orbit: fault liability linked with the freedom of use of Outer Space The liability of a State: the Launching State No ceiling either in amount or in time No exoneration No canalisation of the liability

6 Liability of Launching States in case of damage (2) The victim may choose an other procedure to get compensation. The settlement of dispute mechanism: the Claims Commission Problem of damage to the international environment.

7 Non appropriation of international spaces. Article II of the OST clearly prohibit any appropriation: “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.”

8 Military activities in Outer Space General obligation of “Peaceful use”, as “non aggressive use”. On the orbit around the Earth: no Weapons of Mass Destruction. On the Moon and other celestial bodies: “exclusively peaceful use”

9 The protection of space environment. A text of the sixties: Article IX of the Outer Space Treaty Protection from “harmful contamination of Outer Space” Protection from adverse changes of the environment of the Earth.

10 Part II The need for international cooperation, lessons from Antarctica Regulating activities and protecting space environment. Military activities in Outer space. The Moon and other celestial bodies.

11 Regulating activities and protecting space environment. “Space traffic management” Mitigation of space debris Environment impact assessments. A Protocol to the Outer Space Treaty for Outer Space environment. Role of scientists and independent experts

12 Military activities in Outer space. Militarisation and Weaponisation. The need of an agreement The need of a strong control mechanism

13 The Moon and other celestial bodies. Res communis For the use of common space For the use goods destroyed by first use –The Common heritage of Mankind principle –The only way to have such goods in common and to be allowed to use/abuse them. –The 1979 Moon Agreement.

14 the Moon and other celestial bodies. (2) If mining the Moon is decided The interest of the Convention on the Regulation of Antarctic Mineral Resources activities (CRAMRA) as an example. –Discussion of a legal regime before it becomes a necessity –Taking into consideration the protection of the environment

15 Conclusions A major problem for our children and grand children: Govern the planet, the little home of humanity with tools which have been created to govern States. The Antarctic Treaty System shows that even from a difficult legal situation, –good will, –intervention of scientists and independent experts –a real pragmatism limiting “national egoisms” may ease a solution

16