The United Nations and Space Law

For this new Space Law article on Space Legal Issues, let’s have a look at the United Nations and Space Law. Within the U.N. system, various agencies deal with space as part of their responsibilities. Fully to enumerate these would be otiose, but the International Telecommunication Union (ITU) (radio) and the World Meteorological Organisation (WMO) (remote sensing) are obvious examples. Others, such as the International Civil Aviation Organisation (ICAO), the International Maritime Organisation (IMO), the World Intellectual Property Organisation (WIPO), and the United Nations Education, Scientific and Cultural Organisation (UNESCO), all have “space interest”.

The United Nations Programme on Space Applications assists nations in using space technology for economic, social and cultural development. There is also a U.N. interagency co-ordination group, the Interagency Meeting on Outer Space Affairs, that is part of the responsibilities of the Office of Outer Space Affairs (UNOOSA). Major matters may also be referred to the U.N. Administrative Committee on Coordination, which, for example, accepted the ITU suggestion of the holding of the World Summit on the Information Society (WSIS).

So far, the U.N. has held three World Conferences on the Exploration and Peaceful Uses of Outer Space (all in Vienna, Austria) together with their technical fora and associated preliminary workshops. These were directed to the development of space activities, encouraging the spread of space technology, and the benefits of space applications particularly for the developing countries.

UNISPACE I was held in 1968, UNISPACE II in 1982, and UNISPACE III in 1999. These have had significant effects and influence, the Vienna Declaration and associated Reports of UNISPACE III being a major statement of priorities and ambitions. In 2018, the U.N. organised UNISPACE+50.

The United Nations Office for Outer Space Affairs

On the United Nations and Space Law, the most obvious forum for developing space law within the operational structures of the United Nations itself is the Committee on the Peaceful Uses of Outer Space, COPUOS. First, however, mention should be made of the Office for Outer Space Affairs (UNOOSA) formerly at UN Headquarters, New York, and now at Vienna.

When COPUOS was established in 1958, it was first serviced by the central U.N. Secretariat as part of the responsibility of the Department of Political and Security Council Affairs. With increasing business and COPUOS becoming permanent, this service group became the Outer Space Affairs Division of that Department in 1968, transmuting into the Office for Outer Space Affairs within the Department for Political Affairs in 1992. Relocating to Vienna in 1993, the Office expanded, inter alia taking over from the Legal Secretariat in New York, secretariat services for the COPUOS Legal Sub-Committee.

Headed by a Director, UNOOSA is now the main node for space affairs within the United Nations. It has two sections, “Space Applications” and “Committee Services and Research”. UNOOSA co-operates with other elements within the U.N. system that have responsibilities for space. It maintains the Register of Space Objects on behalf of the Secretary General and other compilations of space data and documentation. Its databases provide information on space matters (factual and theoretical, including law which is both) to the U.N. system, to U.N. member states, to space-active entities, to academe and to individual researchers.

UNOOSA materials are available on the Internet. It has been very active in disseminating knowledge of the benefits of space and its regulation. UNOOSA maintains a directory of educational opportunities in space law and can provide fellowships for individuals attending seminars. From the later 1990s, and particularly after UNISPACE III, UNOOSA itself and in partnership with other agencies, governments and academic institutions, has organised conferences and training programmes to spread expertise and knowledge as to space law as well as to space applications. Correlatively, in 2014, following consultation with educators and space law experts, UNOOSA published a suggested Education Curriculum on Space Law to encourage teaching.

The Committee on the Peaceful Uses of Outer Space

Continuing on the United Nations and Space Law, the Committee on the Peaceful Uses of Outer Space (COPUOS) was first established as an Ad Hoc Committee of the General Assembly by UNGA Res. 1348 (XIII) on December 13, 1958. One year later, it was made permanent and its membership increased by the similarly titled UNGA Res. 1472 (XIV) of December 12, 1959. That the Assembly saw fit to entrust such matters to a specially denominated committee, recognised the peculiar problems involved, and also that here was a new area of activity – a tabula rasa – calling for new thinking and new procedures.

Certainly as a result, COPUOS has been able significantly to develop space law. Ad Hoc COPUOS began with eighteen members. Membership has increased ever since. This is supposed to equitably represent the interests of the developed and the developing countries, and to provide geographic world coverage.

It is arguable that the tendency to enlargement does represent a democratisation of the development of international law in that more states take part in that development and participate in the discussions and decisions through which progress is made. This allows them to articulate their interests during the process. However, the result may be a lowering of the standard of the eventual text as the urge to reflect all the voices and interests represented may reduce the eventual product to the lowest common denominator, which may be a fudge.

COPUOS works through the main Committee and two sub-committees, the Scientific and Technical Sub-Committee and the Legal Sub-Committee, the latter normally being responsible for the initial drafts in legal matters. Each sub-committee reports to the main Committee, which reports annually to the U.N. General Assembly and every year the Assembly adopts a corresponding resolution. Particular resolutions as to “principles” which states may/should/ought to obey are therefore determined by, and have weight related to, the care with which they have been formulated.

COPUOS and its sub-committees normally proceed by consensus. The one instance in which it did not do so produced UNGA Res. 37/92, the “Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting” of 1982. This Resolution was approved by majority vote both in COPUOS and in the General Assembly. Since almost all the states whose practice it might affect abstained or voted against, it is generally reckoned that this resolution is without significant effect.

The resultant realisation (or confirmation) that a GA resolution is not legislation, and that, though adopted by a majority, it can be rendered ineffective by contrary voting, seems to have strengthened the practice of consensus within COPUOS. However, what does consensus mean, and what is its effect? Consensus is a form of agreement reached without a vote, but does not imply unanimity among the parties.

Absence of dissent is not the same as assent. Abstention from the discussion of a point is not taken to imply dissent, and an individualistic or idiosyncratic interpretation of particular language may therefore be passed over un-noticed by, or even concealed from, other parties. That said, within COPUOS a proposed text, whether it be of a draft treaty, resolution or other formal statement, is negotiated and revised until all are willing to accept it and allow it to go forward. The advantages of consensus are that it facilitates compromise, and, in the case of treaties, parties may be more likely to ratify provisions in whose drafting they have participated.

While the space-competent nations obviously tend greatly to influence matters in COPUOS, other states play a part in the process. Indeed, some are influential through acting as mediators between divergent positions. More importantly, consensus means that the space-competent nations will not get what they want from COPUOS without the consent of the space-incompetent, while the latter will not get their interests represented and articulated without the consent of the space-competent. On the other hand, consensus may result in ambiguity, permitting or masking divergent views as to the exact meaning of a phrase, a provision or even a text.

COPUOS has been valuable in the development of space law. It has developed principles and the treaties establishing many of the ground rules for the exploration and use of space. However, as space law matures and as what is required tends more and more to be private and domestic law solutions for particular problems, it may be that COPUOS will take a back seat, and substantial developments will be found elsewhere. That is what can be said about the United Nations and Space Law.