Soft Law in Space Activities Marco FERRAZZANI ESA Legal Counsel Head of Legal Department European Space Agency Vienna, 2 April 2011 Conference on “Soft Law” in Outer Space Universität Wien / ECSL – NPOC Austria

Summary 1. Defining the issue 2. International institutional environment for Space Activities 3. The increased volume of International Cooperation 4. Cases of Soft Law 5. Towards a “Soft Law est servanda” concept within Space Activities? 6. Does it work? YES 7. Conclusions

2. International institutional environment for Space Activities Constellation of Multilateral Treaties: -The 5 UN Space Treaties; -Treaties establishing international governmental organisations through which several States implement their Space Activities: INTELSAT, INTERSPUTNIK, ESA, ARABSAT, INTERCOSMOS, INMARSAT, EUTELSAT, EUMETSAT, … ; -Treaties establishing other Organisations or Institutions playing a substantial role in the definition or interpretation of space law: International Telecommunication Constitution and Convention, Final Acts of the World Administrative Radio Conference for Frequencies, ICAO, WMO, …. + some bilateral relations formalised by Treaties = Actors & “Creators” of International Space Law: lawmaking situation favourable for the development of Soft Law.

3. The increased volume of International Cooperation Space Activities imply by definition International Cooperation: the context of International Relations is adapted to produce relevant practices and standards for the Space Community in a World Arena. Examples: - construction and use of international space stations; - new launching systems, based on an international market demand; - manned bases on other planets; -space missions (EO, …): from the project to the sharing of results; -space applications and services are global: remote sensing, telecom, positioning.

4. Cases of Soft Law Development of various forms to develop International Cooperation in Space Activities, on a regional or worldwide level. New Space Institutions have emerged to fulfil international functions and comply with the obligations contained in Space Law. Historical Examples: SFCG - Space Frequency Coordination Group: common policy towards frequency allocation, procedural obligations. IACG - Inter Agency Consultative Group for Space Science: maximisation of the coordination, common planning of scientific missions. CEOS - Committee on Earth Observation Satellites: definitions and principles, recommendations on remote sensing programmes, exchange of information network, standard procedures and practices concerning the data. Today large proliferation of cases.

5. Towards a “Soft Law est servanda” concept within Space Activities? Cooperation and Coordination are carried out in Space Activities by Space Institutions, with substantial authority delegated with regard to decision-making powers. Charters or Guidelines do not contain executive functions or sanctions, but such concepts related to a “legal” system is not considered as necessary for conducting Space Activities : the Space Community seems more sensitive to and compliant with quasi ethical values. Soft Law is often created bilaterally or on a regional scale, but with regard to Space Activities, it is universal in scope.

6. Does it work? YES Technical and scientific standards and practices lead to soft law as diuturnitas and opinio juris ac necessitates lead to the formation of custom in International Law. No formal recognition under Treaty Law, but acceptance and respect by the Space Community as if it was mandatory. Pressure to comply to be part of the group, soft power.

7. Conclusions Space Activities and the Institutional Relations they imply constitute a typical case of customary practice delivering Soft Law. Next step would be the crystallisation of soft law into Customary International Law and into International Law instruments, formalising rights and obligations defined “softly” in a previous Institutional Relation: role of COPUOS? For the time being, traditional methods of creation of law do not comply with the needs of the Space Activities and their actors. Soft Law in Space Activities has filled the gap, exists and thrives: it is seen as essential and necessary for Space International Relations. As far as Space Activities and the Space Community are concerned, Soft Law servanda est?