The Law of Outer Space Activities

Esame
SPACE LAW
THE LAW OF OUTER SPACE ACTIVITIES

Sergio Marchisio
A.a. 23/24
CHAPTER I – SOURCES OF SPACE LAW: HISTORY, THE TREATIES, THE
RESOLUTIONS
1.1 No on of interna onal space law
Interna onal space law = special branch of interna onal law which governs human ac vi es in outer space,
including the Moon and other celes al bodies.
It comprises a variety of interna onal agreements, trea es, conven ons, and UNGA resolu ons, as well as
rules of customary interna onal law.
 associated with the rules and principles contained in the ve interna onal trea es and sets of
declara ons of principles on outer space ma ers.
 encompasses the rules of other interna onal intergovernmental organisa ons (IGOs) of universal or
regional character, which carry on space-related ac vi es, such as the Interna onal Telecommunica on
Union ITU, the European Space Agency ESA, the European Union EU.
More than 40 States have adopted na onal legisla on governing outer space ac vi es, mainly to
implement their interna onal obliga ons  States must perform in good faith trea es in force binding
upon them and they may not invoke the provisions of their internal law as jus ca on for their failure to
perform them.
Space law is a new branch of interna onal law  grown from the necessity of crea ng norms to governing
the expanding uses of outer space science and technology in improving func ons and providing new
services on the Earth.
When the space age began in 1957 with the Soviet launch of Sputnik-1 (the rst man-made satellite), the
interna onal community immediately realized that it was essen al to formulate interna onal norms for the
conduct of human ac vi es in outer space.
 it was natural that the responsibility to regulate the ac vi es of States in outer space would fall upon the
UN which had been established a er the WW2 to maintain interna onal peace and security.
The process began in 1958 (Cold War)  shortly a er the launching of the rst ar cial satellite, the
Permanent Representa ve of the US to the UN requested the Secretary-General (SG) that an item called
Programme for Interna onal Coopera on in the Field of Outer Space be placed on the agenda of the UNGA
= called for the Assembly to establish an ad hoc commi ee to make the necessary detailed studies and
recommenda ons as to what speci c steps the Assembly might take to further man’s progress in outer
space and to assure that outer space would be used solely for the bene t of all mankind.
Between 1959 and 1962 the major spacefaring na ons made a series of proposals for banning the
weaponiza on of outer space  conclusion in Moscow of the Treaty Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space and Under Water on 5 august 1963 by the US, the UK and the Soviet Union.
The GA elaborated a set of mul lateral trea es and legal principles, which provide the framework of
interna onal law governing outer space ac vi es  the UN become the focal point for interna onal
coopera on in outer space and for development of interna onal space law.
The GA Resolu on 1348 (XIII) of 13 December 1958 established the Commi ee on the Peaceful Uses of
Outer Space (COPUOS), rst as an ad hoc body with 18 Member States; one year later (12 December 1959)
resolu on 1472 (XIV) gave it the status of permanent body and rea rmed its mandate.
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 the COPUOS was established as a subsidiary organ of GA, based on Ar cles 7, para. 2, and 22 of the UN
Charter, following which the General Assembly may establish such subsidiary organs as it deems necessary
for the performance of its func ons.
The main task of the Commi ee was to facilitate interna onal coopera on in the eld of outer space within
the framework of the UN.
 literal d of resolu on 1472 (XIV) of 1959 also opened the way for considera on of the legal problems
which might arise in programs to explore outer space. In 1961, GA Resolu on 1721 (XVI) mandated the
COPUOS to assist in the study of measures for the promo on of interna onal coopera on in outer space
ac vi es and requested the SG to maintain a public registry based on informa on supplied by States
launching objects into orbit or beyond.
The COPUOS has its own internal structure, composed by two Subcommi ees:
1. Scien c and Technical Subcommi ee STSC
2. Legal Subcommi ee LSC
—> Each Subcommi ee is composed of the same Member States that comprise the parent body and is
mandated to assist the COPUOS in the study of the speci c proposals concerning, on the one hand, the
scien c and technical aspects of outer space ac vi es, and, on the other hand, the legal ma ers raised by
Member States for the development of interna onal coopera on in space explora on for peaceful
purposes.
1.2 Space law as a fruit of the UN

The conclusions to be adopted by the Commi ee and both its Subcommi ees should be subject to
agreement without need for vo ng = the COPUOS became the rst UN body that started applying in its
proceedings a decision-making principle later known as the rule of consensus and expanded in the prac ce
of the UN and other interna onal organisa ons.
Consensus involves the adop on of a delibera on without vote and in absence of manifest opposi on  is
noted by the President of the mee ng, who declares the act approved without pu ng it to a vote, with the
formula Is there any objec on? If not, it is so approved.
The current Rules of Procedures of the GA state that the adop on of decisions and resolu ons by consensus
is desirable when it contributes to an e ec ve and las ng composi on of opposite views, therefore
strengthening the authority of the Organisa on.
This procedure gives each member of the delibera ng organ a veto power.
 Consensus is a procedure for adop ng a delibera on, whatever its legal nature: it can be binding or not,
depending on its legal basis.
The rule of law in outer space was established step-by-step by several legal instruments dealing with the
most urgent problems related to outer space ac vi es.
- in the rst stage, the GA felt it necessary to give some guidance to Member States conduc ng outer space
ac vi es to avoid the development of prac ces dictated exclusively by na onal interests.
 the basis for space ac vi es should be conceived rather in principles than in detailed norms, to reach the
necessary agreement soon = declara on of principles, belonging to the genus of Assembly
recommenda ons, which are endowed with a merely hortatory value, as the GA does not have a legisla ve
func on.
The GA’s declara on of principles or principles are considered important tools in the process of evolving
interna onal law.
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 the adop on of a corpus of general principles was the best way to dictate the rules of the road for the
emerging outer space ac vi es of the spacefaring na ons.
Resolu on 1962 (XVIII) of 13 December 1963, containing the Declara on of Legal Principles Governing the
Ac vi es of States in the Explora on and Use of Outer Space, had only a recommendatory value, but
a erwards some of these Principles acquired binding legal nature when they were restated in the Treaty on
Principles Governing the Ac vi es of States in Explora on and Use of Outer Space, including the Moon and
Other Celes al Bodies of 1967 (OST)
 the universal acceptance of several of these principles has consolidated their customary value, which can
hardly be ques oned even by the stricter test of legal e ec veness.
The prac ce of States has consolidated the customary value of several Principles contained in the
Declara on, such as the freedom of explora on and use of outer space and celes al bodies by all States
on a basis of equality and in accordance with interna onal law; the prohibi on of na onal appropria on of
outer space and celes al bodies; the applicability of interna onal law, including the Charter of the UN, to
the explora on and use of outer space; the principles of coopera on and mutual assistance, as well as of
due regard to for the corresponding interests of other States; the avoidance of harmful interference; the
protec on of the astronauts as envoys of mankind.
1.3 The Outer Space Treaty of 1967

The COPUOS LST become the most appropriate forum for reaching consensus on the major issues involved
and transforming the principles in mandatory norms of interna onal law.
On 16 June 1966, both the US and the Soviet Union submi ed dra trea es:
- American Dra  dealt only with celes al bodies
- Soviet Dra  covered the whole outer space environment.
 The US accepted the Soviet posi on on the scope of the Treaty, and by September agreement was
reached on most Treaty provisions.
= the origins of the 1967 Treaty on Principles Governing the Ac vi es of States in the Explora on and Use of
Outer Space, including the Moon and Other Celes al Bodies (known as the Outer Space Treaty OST).
—> It contributed to the progressive development and codi ca on of interna onal law in the meaning of
Ar cle 13 of the UN Charter:
1. The General Assembly shall ini ate studies and make recommenda ons for the purpose of:
a. promo ng interna onal co-opera on in the poli cal eld and encouraging the progressive development of
interna onal law and its codi ca on;
b. promo ng interna onal co-opera on in the economic, social, cultural, educa onal, and health elds, an assis ng in
the realisa on of human rights and fundamental freedoms for all without dis nc on as to race, sex, language, or
religion.
2. The further responsibili es, func ons and powers of the General with respect to ma ers men oned in paragraph)
above are set forth in Chapters IX and X.
Ar cle I of the OST  the explora on and use of outer space, including the Moon and other celes al bodies,
shall be carried out for the bene t and in the interests of all countries, irrespec ve of their degree of
economic or scien c development, and shall be the province of all mankind.
The Treaty codi es:
- the freedom in the explora on and use of outer space for all;
- the freedom of scien c inves ga on in outer space through interna onal coopera on;
- the prohibi on of appropria on of outer space, no excep on being admi ed.
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Space and celes al bodies are equated to the category of res communes omnium, free for explora on and
use by all without discrimina on of any kind, on a basis of equality and in accordance with interna onal
law.
The OST is a law-making Treaty of universal character. The Treaty is also one of the most signi cant law-
making trea es concluded with the intent of establishing a set of rules universally valid, represen ng the
only interna onal regime applicable to a certain situa on  the OST sets a legal regime of permanent
character that makes rules applicable to space ac vi es relevant not only for the States par es, but also
for States that are not par es to it.
The OST has enjoyed the widest acceptance by the interna onal community among all the UN space
trea es  the fact that its status has reached more than one hundred States par es demonstrates that it
belongs to a category of interna onal instruments that have been endorsed by the great majority of the
interna onal community.
The main achievement of the OST has been the transla on into treaty language of a series of legal
principles governing the ac vi es of States in the explora on and use of outer space.
The very nature of the OST was to establish a legal regime to maintain peace and security in outer space.
While freedom of access, explora on and use of outer space are recognized only for peaceful purposes,
Ar cle IV of the Treaty con rms the undertaking not to place in orbit around the Earth any objects carrying
nuclear weapons or any other kinds of weapons of mass destruc on, install such weapons on celes al
bodies, or sta on them in outer space in any other manners.
The use of the Moon and the other celes al bodies is allowed exclusively for peaceful purposes, while the
establishment of military bases, installa ons, or for ca ons, and the test of weapons of any kind or the
conduct of military manoeuvres are prohibited.
The Treaty also sets out restraints on States:

1. by requiring compliance with its provisions and imposing condi ons on their outer space
ac vi es
2. the conducts of States and private en es in outer space are ruled by law, by a level of
norma vity certain and predictable.
1.4 OST and private actors

Principle that States par es shall bear interna onal responsibility for na onal ac vi es in outer space
whether such ac vi es are carried on by governmental agencies or by non-governmental en es, and for
assuring that na onal ac vi es are carried out in conformity with the provisions of the Treaty.
Ar cle VI of the OST: States Par es to the Treaty shall bear interna onal responsibility for na onal ac vi es in outer
space, including the Moon and other celes al bodies, whether such ac vi es are carried on by governmental agencies
or by non-governmental en es, and for assuring that na onal ac vi es are carried out in conformity with the
provisions set forth in the present Treaty.
The ac vi es of non-governmental en es in outer space, including the Moon and other celes al bodies, shall require
authorisa on and con nuing supervision by the appropriate State Party to the Treaty. When ac vi es are carried on in
outer space, including the Moon and other celes al bodies, by an interna onal organisa on, responsibility for
compliance with this Treaty shall be borne both by the interna onal organisa on and by the States Par es to the
Treaty par cipa ng in such organisa on.
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Normally, a government is not responsible for purely private conduct in the absence of a strong link such as
the government exercising direc on or e ec ve control over the private ac vi es  it was a part of the
trade-o in the nego a on of the OST in which the original Soviet proposal was to ban private actors from
space altogether.
The last part of the rst sentence of OST Ar cle VI also provides that States par es must assure that
na onal ac vi es (including those by its commercial actors) are carried out in conformity with the OST.
The second sentence then requires the appropriate State to undertake authorisa on and give o cial
permission and con nuing supervision to NGOs ac vi es.
 Ar cle VI preserves law and order in space by requiring countries to take steps to ensure that their
na onals act in accordance with interna onal law.
The Treaty is an open-ended instrument  the lack of some speci c provisions can be lled referring to
interna onal law at large.
It is a living instrument thanks to its Ar cle III: States Par es to the Treaty shall carry on ac vi es in the
explora on and use of outer space, including the Moon and other celes al bodies, in accordance with interna onal
law, including the Charter of the United Na ons, in the interest of maintaining interna onal peace and security and
promo ng interna onal coopera on and understanding.
An increased and easier access to outer space has a ip side = the Earth’s orbital space environment
cons tutes a nite resource, and there are growing concerns rela ng to emerging challenges, such as
- the handling of space debris,
- the possible e ects of large constella ons deployments on the current and future orbital debris
environment,
- the possible risks imposed on space missions by the new space applica ons,
- the emerging threats to the security and resiliency of orbital infrastructures.
The interna onal community is trying to face these challenges mainly through the adop on of non-legally
binding instruments.
1.5 ARRA
Other four trea es:
1. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
launched into Outer Space (ARRA), 22 April 1968
2. Conven on on Interna onal Liability for Damage Caused by Space Objects (LIAB), 29 March 1972
3. Conven on on Registra on of Objects Launched into Outer Space (REG), 14 January 1975
4. Agreement Governing the Ac vi es of States on the Moon and Other Celes al Bodies (MOON),
18 December 1979.
Building upon Ar cle V of the OST, which quali es astronauts as envoys of mankind the 1968 Agreement
was the rst in the series of UN space trea es that followed the 1967 Treaty.
On 18 December 1967, the GA adopted unanimously its resolu on 2345 (XXII) commending the
Agreement, which entered into force on 3 December 1968, a er the deposit of the h instrument of
ra ca on.
The ARRA contains on the one side provisions, based on

➢ humanitarian considera ons
➢ the assistance to astronauts in distress and their return in case of emergency or unintended landing
On the other side contains provisions based on recovery and return of space objects.
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States should render to astronauts all possible assistance in the event of accident, distress, or emergency
landing on the territory of another State party or on the high seas.
In the event of landing, astronauts should be safely and promptly returned to the State of registry of their
Space vehicles.
The ARRA included a provision concerning the return of objects launched into outer space or their
components parts found beyond the limits of the party on whose registry they would be carried on  the
duty was a consequence of the principle inserted in Ar cle VIII of the OST = A State Party to the Treaty on
whose registry an object launched into outer space is carried shall retain jurisdic on and control over such object, and
over any personnel thereof, while in outer space or on a celes al body. Ownership of objects launched into outer space,
including objects landed or constructed on a celes al body, and of their component parts, is not a ected by their
presence in outer space or on a celes al body or by their return to the Earth. Such objects or component parts found
beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State
Party, which shall, upon request, furnish iden fying data prior to their return.
The legal framework of the ARRA has been complemented by other interna onal agreements, regula ng
more speci c aspects through a detailed discipline.
 Among the interna onal instruments, men on should be made of the Intergovernmental Agreement
IGA between Canada, the States Members of the ESA, Japan, the Russian Federa on, and the US concerning
coopera on on the civil Interna onal Space Sta on ISS, and the Memorandum of Understanding between
ESA and NASA MOU, signed in Washington on 29 January 1998.
A Code of Conduct for the ISS crew has been approved on 15 September 2000 by the Mul lateral
Coordina on Board MCB  it de nes the crew as one integrated team with one Commander, responsible
for the mission program implementa on and crew safety guarantee aboard the Space Sta on.
ISS Crew-member means any person approved for ight to the ISS, including both ISS expedi on crew and
visi ng crew, beginning upon assignment to the crew for a speci c and ending upon comple on of the post
ight ac vi es related to the mission.
It is s ll an open issue whether the expression “astronauts” remains appropriate to cover new categories of
individuals ying in outer space, such as
- ight par cipants
- scien sts members of mul na onal crews
- temporary visitors
- tourists
Other legal texts have o ered a clearer dis nc on between:

- professional astronauts
- space- ight par cipants
- visi ng crew members
- space tourists
 On 23 December 2004, the Commercial Space Launch Amendments Act (CSLAA) was signed as law in the
US = it established an experimental permit regime to allow reusable suborbital launch vehicle developers to
build and test their vehicles without undue regulatory constraints.
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1.6 Liability Conven on
The Conven on was dra ed with a view to achieving a vic m oriented and unlimited system of liability 
the preamble re ects the overriding objec ve to establish a uniform rule of liability and a simple and
expedi ous procedure governing nancial compensa on for damage.
The Conven on builds upon Ar cle VII of the OST, which establishes that a State that launches or procures
the launching of an object into outer space, including the Moon and other celes al bodies, and from whose
territory or facility an object is launched, is interna onally liable for damage to another State or to its
natural or juridical persons by such object or its component parts on the Earth, in air space or in outer
space, including the Moon and other celes al bodies.
The requirements for interna onal liability are damage, launching State and space object  the type of
damage for which a launching State can become liable to provide compensa on are:
➢ Loss of life
➢ Personal injury or other impairment of health
➢ Loss of or damage to property of States or of persons (natural or juridical), or property of IGOs.
 it includes environmental damage.
Two di erent regimes of liability depending on the place where the damage occurs:
1. A launching State shall be absolutely liable to pay compensa on for damage caused by its space
object on the surface of the Earth or to aircra in ight. This non-fault based, objec ve liability
system providing compensa on for vic ms was chosen because it be er corresponds to the ultra-
hazardous nature of outer space ac vi es and to the great risk posed by space technology.
2. Liability for collisions in outer space is to remain with the launching State, but only on proof of fault.
In the event of damage being caused elsewhere on the surface of the Earth to space object of one
launching State or to persons or property onboard such a space object by a space object of another
launching State, the la er shall be liable only if the damage is due to its fault or the fault of persons
for whom it is responsible.
A State which su ers damage may present to launching State a claim for compensa on for such damage 
the Conven on does not impose an obliga on, but a discre onary faculty and if the State of na onality has
not presented a claim, another State may, in respect of damage sustained in its territory by any natural or
juridical person, present a claim to a lunching State.
The compensa on which the launching State shall be liable to pay for damage under the Conven on shall
be determined in accordance with interna onal law and the principles of jus ce and equity, to provide such
a repara on in respect of the damage as will restore the person, natural or juridical, State, or Interna onal
organisa on on whose behalf the claim is presented to the condi on which would have existed if the
damage had not occurred.
If no se lement of a claim is arrived at through diploma c nego a ons, the par es concerned shall
establish a Claims Commission at the request of either party.
 The decision of the Commission shall be nal and binding if the par es have so agreed; otherwise, the
Commission shall render a nal and recommendatory award, which the par es should consider in good
faith.
1.7 Registra on Conven on

The Conven on on Registra on of Objects Launched into Outer Space was annexed to resolu on 3235
(XXIX), adopted by the GA on 12 November 1974 and opened for signature on 14 January 1975.
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In 1967, Ar cle VIII of the OST codi ed the principle that a State of registry shall retain jurisdic on and
control over such object.
A er the 1975 REG Conven on, GA resolu on 62/101 of 2007 recommended means for States and IGOs to
improve and harmonise registra on prac ces.
There are at the UN level, two complementary registers of objects launched into outer space maintained by
SG:
1. a Resolu on Register
2. a Conven on Register
 States began providing informa on on space objects under the Conven on instead of Resolu on 1721B
(XVI).
The REG aims at providing a mandatory system of registering objects launched into outer space and
addi onal means and procedures to assist States par es in the iden ca on of space objects. When a
space object is launched into Earth orbit or beyond, the launching State shall register the space object by
means of an entry in an appropriate registry which it shall maintain.
Where there are two or more launching States in respect of any such space object, they shall jointly
determine which one of them shall register the object.
The Conven on establishes the types of informa on to be provided, including:

- the date of launch
- the territory or loca on of launch
- the basic orbital parameters
- the general func on
States par es may submit any addi onal informa on, such as
- the re-entry of a space objects
- the no ca on when a space object is no longer in Earth orbit
- the no ca on when a space object is marked with the designator or registra on number prior to launch.
With the adop on of GA resolu on 62/101 Recommenda ons on Enhancing the Prac ce of States and
Interna onal Intergovernmental Organisa ons in Registering Space Objects, there have been substan al
changes to registra on prac ces of States of registry  States have begun using the model registra on
form developed in accordance with the resolu on.
More States are providing informa on on
- transfer of ownership/supervision,
- mission termina on
- in-orbit disposal
- re-entry of space objects
1.8 Moon Agreement

The 1979 Moon Treaty has been accepted by 18 States, failing to collect support. It was adopted in the GA
by consensus.
 contradic on between the legal quali ca on of the Moon and other celes al bodies as res communes
omnium under the OST, and the legal regime of the Moon and its resources provided for by the 1979 Treaty.
The la er u lises in Ar cle 11 the concept of common heritage of humankind, which excludes any other
type of exploita on but collec ve through an interna onal authority.
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The no on of the common heritage of humankind has been adopted by the 1982 Montego Bay Conven on
on the Law of the Sea for qualifying the seabed and ocean oor and subsoil thereof beyond na onal
jurisdic on (the Area) and for se ng up the Interna onal Seabed Authority ISA.
 the Moon Agreement also requires the exploita on of the natural resources of the Moon to be governed
by a future “interna onal legal regime”.
There is a no ceable variable geometry among the UN ve space trea es in terms of ra ca ons. Each one
is indeed an independent mul lateral treaty, with di erent content and a variable sphere of applica on.
Range of States par es in 2021:
- OST: 111
- ARRA: 98
- LIAB: 98
- REG: 70
- MOON: 18
The situa on leads to a great degree of divergence, rstly depending on the fact that each State is bound
only by those trea es that has accepted and that a treaty does not create either obliga ons or rights for a
third State without its consent.
Secondly, the rights, and obliga ons of States par es to trea es successive in me rela ng to the same
subject ma er are normally governed by the principle lex posterior derogat priori, unless the earlier treaty
contains peremptory rules or unless the treaty itself speci es that it is subject to (or that it is not to be
considered as incompa ble with) an earlier or later treaty.
 Among the UN trea es, only the LIAB coordinates its scope of applica on with the previous ones. Ar cle
XXIII establishes that the provisions of the LIAB shall not a ect other interna onal agreements in force
insofar as rela ons between the States par es to such agreements are concerned.
1.9 The declara ons of principles

Instruments of so law, while non-legally binding, can be considered as subsequent prac ce to trea es
developed to addressing new issues and challenges without recurring to legally binding instruments.
The ve main UN trea es exhausted the basic issues on which States would consent to undertake
interna onal legal obliga ons  during the following period, sets of UN principles adopted by the GA
became a suitable form for regula ng speci c categories of outer space ac vi es for which the
interna onal community was not yet prepared to nego ate legally binding instruments.
Adop on of Declara on of Principles  four sets of principles were nego ated by the LSC and then
approved, through the min Commi ee, by the GA:
1. the Principles Governing the Use by States of Ar cial Earth Satellites for Interna onal Direct
Television Broadcas ng, annexed to the GA resolu on 37/92 of 10 December 1982
2. the Principles Rela ng to Remote Sensing of the Earth from Outer Space, annexed to the GA
resolu on 41/65 of 3 December 1986
3. the Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted by the GA in
its resolu on 47/68 of 14 December 1992 and completed by the Safety Framework for Nuclear
Power Source Applica ons in Outer Space, as endorsed by GA resolu on 64/86 (2010)
4. the Declara on on Interna onal Coopera on in the Explora on and Use of Outer Space for the
Bene t and in the Interests of All States, Taking into Par cular Account the Needs of Developing
Countries, annexed to the GA resolu on 51/122 (1996).
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These instruments, although being merely recommenda on, have played a role in the consolida on of
customary rules of interna onal law  some of them contain principles more rmly established in law, like
the freedom of Earth’s observa on from outer space, while others seem to be less consolidated.
The Principles Rela ng to Remote Sensing of the Earth from Outer Space were a successful achievement in
which a fair compromise was found between the interests of the sensing States and the needs of the
sensed States.
 the principles did not prohibit ac vi es that had been going on for a long me; they accepted the fact
that sensing States were commi ed to the view that their ac vity required no consent.
Some of the most prominent issues connected to ongoing developments in the eld of remote sensing,
mainly societal demands, and technological developments, are not fully regulated by the UN Declara on 
the Principles do not provide clear and speci c regula ons for new issues, such as:
➢ the global systems
➢ the access to data by the sensing States and the legal protec on of data, which increasingly
necessary to promote the costly investments required by remote sensing ac vi es and the
expansion of the related market.
The set of Principles Relevant to the Use of Nuclear Power Sources in Outer Space was a limited
achievement in outer space law  some innovatory elements:
- the storing of NPS objects in su ciently high orbits a er the opera onal part of their missions
- the safety assessment and no ca on of re-entry
The NPS principles apply only to nuclear power sources devoted to the genera on of electric power
onboard space objects for non-propulsive purposes.
The Principles are not applicable to the NPS serving other purposes, including nuclear propulsion for long
distance ights into interplanetary space and to the celes al bodies of our solar system.
1.10 Other UN resolu ons

In the absence of a conference of states par es COP to the OST, the COPUOS and its Subcommi ees have
o en carried out a vicarious role, interpre ng the trea es through resolu ons then adopted by the General
Assembly.
While not cons tu ng authorita ve interpreta ons of the trea es, these resolu ons are nonetheless
important tools to assist States in be er abiding by their interna onal obliga ons.
The LSC has moved toward the assessment of several topic of relevance, star ng with the concept of the
launching State  clarify all aspects of this concept as contained in the LIAB and REG, and as applied by
States and interna onal organisa ons, in the light of new and expected prac ces in outer space ac vi es.
A text on the Applica on of the Concept of the Launching States was approved by the GA resolu on
59/115 (10 December 2004). The resolu on recommends inter alia that States consider enac ng na onal
legisla on on authorisa on and supervision of space ac vi es by private en es and the conclusion of
agreements with respect to joint launches.
The Subcommi ee considered the prac ce of States and IGOs in registering space objects as an issue
characterised by new aspects not covered by the 1975 Conven on.
It showed that several space objects were not registered or even registered by more than one States 
these points were considered by GA resolu on 62/101 (17 December 2007), tled Recommenda ons on
Enhancing the Prac ce of States and IGOs in Registering Space Objects.
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GA resolu on 68/74 of 11 December 2013 adopted Recommenda ons on Na onal Legisla on Relevant to
the Peaceful Explora on and Use of Outer Space.
Specialised agencies have contributed to the norma ve evolu on in specialised elds by means of
regulatory standard and recommended prac ces. Some of them have binding e ec veness, some others
must be implemented by States through domes c acts.
The COPUOS has started since the 2000s to be involved in the elabora on of guidelines related to the
sustainability, safety, and security of space ac vi es  Threats in outer space are already a reality:
- space debris
- fragmenta ons in space
- frequencies overlapping
- collisions among space objects
- inten onal and uninten onal harmful interference
- deliberate destruc on of satellites
The Space Debris Mi ga on Guidelines approved by the COPUOS in 2007 and endorsed by GA resolu on
62/217 (21 December 2007) have de ned the no on of space debris as all man-made objects, including
fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-func onal.
A compendium of space debris mi ga on standards adopted by States and Interna onal Organisa ons has
been published, in reference to the agenda item of COPUOS LSC on General exchange of informa on and
views on legal mechanisms rela ng to the space debris mi ga on measures, taking into account the work
of the STSC, as a contribu on to the COPUOS of
- Canada
- The Czech Republic
- Germany
In 2010, the STSC began considering as an agenda item the long-term sustainability of outer space ac vi es.
Core thema c areas:
- The sustainable space u liza on suppor ng sustainable development on Earth.
- Space debris mi ga on, safety of space opera ons, tools to support space situa onal awareness.
- Space weather: regulatory regimes and guidance for actors in the space arena
Group of Governmental Experts on Transparency and Con dence-building Measures in Outer Space
Ac vi es (GGE on TCBMs)  released in 2013 a report containing several recommenda ons in ma ers
related to the predictability and security of space ac vi es.
In June 2019, the COPUOS adopted the preamble and 21 Guidelines for the Long-Term Sustainability of
Outer Space Ac vi es LTS and deciding to establish a 5-year working group under the agenda item on LTS
of its STSC for con nued ins tu onalized dialogue on issues related to the implementa on and review of
the Guidelines.
Space sustainability is about ensuring that all humanity can con nue to use space for peaceful purposes
and for socioeconomic bene ts.
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CHAPTER II – THE EVOLUTIONARY STAGES OF THE COPUOS LEGAL
SUBCOMMITTEE
2.1 The three evolu onary stages
Interna onal space law has undergone a deep evolu on:
- new path and inputs
- the evolu on of space ac vi es in a number of elds emerging from scien c and technological
development
- partnership between and among States, IGOs and private operators
- consolida on of new sectors, where space ac vi es have an impact: the protec on of the environment
and the management of natural resources; the mi ga on of natural and human-induced disasters; global
communica ons; space industry development in a drive towards growth.
COPUOS  from a juridical perspec ve, the Commi ee was quali ed as a standing subsidiary organ of the
General Assembly, in accordance with Ar cles 7, para. 2, and 22 of the Charter of the United Na ons.
In considering the legal nature of the COPUOS, two elements are to be underlined:
1. the Commi ee was not established as an independent intergovernmental organisa on founded on
an interna onal legally binding treaty, but as an auxiliary organ of the GA.
2. The legal instrument which governs the COPUOS composi on and func ons is simply a GA
resolu on. This instrument could be modi ed by an act of the same nature, easy to be adopted,
without amending the UN Charter.
The crea on of an interna onal space organisa on, based on an ad hoc treaty, was not considered as an
adequate op on. UNCOPUOS was intended to be more a poli cal organ devoted to strengthening
interna onal coopera on among spacefaring na ons with their na onal space programs, rather than as a
technical organisa on en tled too carry-on opera onal ac vi es in outer space.
It was originally established as an organ with a restricted membership of 18 members  the membership
has been expanded in me to achieving a more balanced representa on among UN Member States = quota
100 States.
The Commi ee also allowed the par cipa on of other en es as observers.
The main tasks of the Commi ee were not legal  it was established to consider the ac vi es and
resources of the UN, the specialised agencies and other interna onal bodies rela ng to the peaceful uses of
outer space, interna onal coopera on and space programs.
The rst GA resolu on also opened the way for considering legal problems which may arise in the carrying
out of programs to explore outer space.
1961  the GA requested the Commi ee in resolu on 1721 B (XVI) of 1961 to maintain close contract with
governmental and non-governmental organisa ons concerned with outer space ma ers; to provide for
exchange of such informa on rela ng to outer space ac vi es as Governments may supply on a voluntary
basis; to assist in the study of measures for the promo on of interna onal coopera on in outer space
ac vi es.
Internal structure of COPUOS  endowed with 2 Subcommi ees:
1. Scien c and Technical Subcommi ee
2. Legal Subcommi ee
 They were created in 1962 and each of them is composed of the same Member States that are members
of the main body.
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These organs are the expression of the inherent power of self-organisa on of the COPUOS and were
created to assist it in the study of the many speci c proposals and sugges ons concerning the scien c and
technical aspects of space ac vi es, and the legal ma ers raised by Members for the development of
interna onal coopera on in space explora on and use for peaceful purposes.
The STSC held its rst session from 28 May to 13 June 1962, while the LSC rst convened in Geneva on 28
May 1962.
The UNCOPUOS and its two Subcommi ees meet annually in Vienna, each Subcommi ee for two-week
periods, the main Commi ee for ten days.
 they debate issues put before them by the GA, reports submi ed to them, and ques ons raised by the
Member States.
The UNCOPUOS and its Subcommi ees adopt by consensus conclusions and reports and other dra
norma ve instruments, including trea es, declara ons of principles and resolu ons containing
recommenda ons, to be nally adopted by the GA.
The General Assembly debates the outcome of the UNCOPUOS sessions and delibera ons and adopts
annually a speci c resolu on on interna onal coopera on in the peaceful uses of outer space (omnibus
resolu on), giving general guidance for the work of the Commi ee, its agenda and the items to be included
in it.
2.2 The law-making phase

UNCOPUOS has di erent kind of ac vi es:
- study and documenta on
- recommendatory ac on to direct the behaviours of Member States  covers the assessment of legal
problems that arise from the explora on and use of outer space, the development of interna onal
coopera on in the legal eld and the promo on of interna onal space law.
Three evolu onary phases:

1. Law-making era of the LSC: from the crea on of LSC to the 1980s.
2. So Law phase, signed by the adop on of sets of principles. It ended in the middle half of the
1990s.
3. Characterised by e ort to broaden the acceptance of the UN space trea es and to assess their
applica on.
In the rst stage no binding instrument was in force within the interna onal community for regula ng the
explora on and use of outer space.
The GA felt it necessary to give some guidance to Member States conduc ng space ac vi es and to ensure
this consolida on of the rule of law in outer space  realised thanks to a declara on on principles.
A legal founda on for outer space ac vi es was needed as a ma er of urgency to avoid the development of
unilateral prac ces dictated exclusively by na onal interests  a corpus of general principles, to be
translated later into a binding treaty, was the best way for coping with the emerging outer space ac vi es
of the two Superpowers. The GA adopted a resolu on containing the Declara on of Legal Principles
Governing the Ac vi es of States in the Explora on and Use of Outer Space.
The e ect of crea ng a customary norm, modifying its content or even repealing it, is linked to the
combina on of two elements of customary law, diuturnitas and opinio iuris.
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The no on of custom arising out the decisions of interna onal courts and tribunals is also based on the
binary concep on of two cons tuent elements:
a) the prac ce of States
b) the convic on of legal obligatoriness of the rela ve conducts
The LSC became the most appropriate forum for reaching consensus on the major issues involved and
transforming such consensus in mandatory norms of interna onal law.
 these were the origins of the 1967 Treaty on Principles of Outer Space, including the Moon and Other
Celes al Bodies.
By the OST, an a empt was made at nding a balanced compromise between the common interests of all
na ons, the aims of humankind, and the interests of individual States as tradi onal subjects of interna onal
law.
It was agreed that the explora on and use of outer space, including the Moon and other celes al bodies,
should be carried out for the bene t and in the interests of all countries, irrespec ve of their degree of
economic and scien c development, and should be the province of all mankind.
The OST establishes signi cant principles of universal value, such as:
- freedom in the explora on and use of outer space
- freedom of scien c inves ga on in outer space
- interna onal coopera on in such inves ga on
- principle of non-appropria on related to outer space, the Moon, and other celes al bodies
- principle of denuclearisa on of outer space, requiring State Par es not to place in orbit around the Earth
any objects carrying nuclear weapons or any other kind of weapons of mass destruc on, install such
weapons on celes al bodies
- principle of using the Moon and other celes al bodies exclusively for peaceful purposes
- principle that State Par es shall bear interna onal responsibility for na onal ac vi es in outer space.
2.3 The so law instruments

Sets of UN principles adopted by the GA became a suitable form for regula ng some special categories of
space ac vi es for which the interna onal community was not yet prepared to nego ate legally binding
instruments.
Declara ons  they are formally recommenda ons deprived of legally binding value. In certain cases, they
have paved the way for the consolida on of customary rules of interna onal space law.
2.4 Further possible developments

A er the UNISPACE III, some objec ves for further development of legal ma ers to be ini ated through the
LSC were agreed upon.
 it was rea rmed that the structure did not allow the LSC to elaborate any proposals for the revision of
exis ng legal norms or to provide authorita ve interpreta on to the space trea es.
The new input for the LSC was limited to carry out the analysis of problems and shortcomings with respect
to the applica on of exis ng rules of interna onal space law.
The LSC has moved toward the assessment of several regular items of relevance, beginning with the status
and applica on of the ve UN trea es on outer space. The review of the implementa on of the trea es has
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con rmed that several obstacles hamper their universal acceptance especially by non-spacefaring States
and has certainly contributed to the further increase of ra ca ons.
Under the scope of de ni on and delimita on of outer space, the LSC has also been occupied for years by
debates on the legal status of the Geosta onary Satellite Orbit GSO.
 Agreement reached in 2000 within the LSC on some aspects concerning the use of the geosta onary
orbit and referring to the ITU rules; evidenced the abandonment by the equatorial States of their previous
claims of sovereignty over the parts of the GSO above their respec ve territories.
Dra UNIDROIT Protocol on Space Assets to the 2001 Cape Town Conven on on Interna onal Interests in
Mobile Equipment.
 the commercialisa on of outer space ac vi es has progressively led to a new dimension characterised
by the emergence of private law regimes applicable to the rela ons among State actors and private en es
or private en es inter se.
The involvement of private law regula ons has also had consequences from the perspec ve of private
interna onal law.
Interna onal prac ce shows a tendency toward the harmonisa on or uni ca on of civil law regimes among
States to facilitate private rela ons in outer space ac vi es.
The Protocol aims to redress the situa on under which the legal regimes of many countries do not provide
enforceable and protec ve systems for the crea on, perfec on, priori sa on and enforcement of security
interests, mortgages, and hypothecs over space equipment, such as satellites, and their component parts,
such as transponders.
The Protocol intends to ll the gap originated by the lack of such clear rules that makes satellite nancing
more di cult and more expensive to secure for satellite operators.
The Protocol provides uniform rules to cover the period right through from the start of manufacturing to
launch and therea er.
The underlying principles of this interna onal instrument are indeed:
- the agreements covered by the Protocol
- the requirements for crea ng an interna onal interest
- the connec ng factors
- the priori es of registered interests and the basic remedies provided for
- the procedures established by the applicable law for the ins tu on of proceedings before the courts to
exercise remedies
The LSC has been involved with the Protocol dealing with:
1. the rela on between the Protocol and the UN space trea es
2. the possibility for the UN to act as the supervisory authority of the Protocol registra on system
 it opened for discussion on the most cri cal issues, such as the de ni on of
- space assets
- liability
- jurisdic on
- limita ons on transfers of controlled space assets
- public law regula ons regarding opera ng space objects
The LSC considered the issue of the supervisory authority from an ins tu onal point of view.
No consensus could be reached among Member States on the appropriateness of the UN, through
UNOOSA, to act as the supervisory authority of the Protocol.
The Diploma c Conference to adopt the Protocol to the Conven on on Interna onal Interests in Mobile
Equipment on Ma ers speci c to Space Assets was held in Berlin from February to March 2012.
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 Pursuant to resolu on 1 of the Diploma c Conference, a Preparatory Commission was set up to act as
Provisional Supervisory Authority for the establishment of the Interna onal Registry for Space Assets under
the guidance of the UNIDROIT GA.
The Protocol has not yet entered in force.
Applica on of the Concept of the Launching State  clarify all aspects of the launching State no on as
contained in the LIAB and REG Conven ons, and as applied by States and IGOs, in the light of new and
expected prac ces in outer space ac vi es.
In 2004, a resolu on was adopted by the LSC and nally approved by the GA  recommends that States
consider enac ng na onal legisla on on authorisa on and supervision of space ac vi es by private en es
and the conclusion of agreements with respect to joint launches.
Prac ce of States and interna onal organisa ons in registering space objects  existence of certain
lacunae iuris in the REG Conven on, mainly due to the commercial uses of outer space by private
operators-
Adop on of Resolu on 62/101 (17 December 2007) tled Recommenda ons on Enhancing the Prac ce of
States and Interna onal Intergovernmental Organisa ons in Registering Space Objects.
The LSC was also mandated to elaborate recommenda ons on na onal legisla on relevant to the peaceful
explora on and use of outer space  the GA adopted the Resolu on 68/74 (11 December 2013).
There are new challenges to face adequately also from the legal point of view:
- sustainability of outer space ac vi es
- space tra c management STM
- the protec on of space environment
- the mi ga on and removal of orbital debris
- space tourism
- the increasing role of private actors in the commercializa on of space ac vi es
- the explora on and recovery of natural resources of the Moon and other celes al bodies and their
u lisa on in situ
- intellectual property rights in space
The indica ons regarding outer space contained in the 2001 Report of the Secretary-General under the tle
Our Common Agenda, could be implemented at the level of the UN through a mul -stakeholder dialogue as
part of a Summit of the Future bringing together governments and other leading space actors.
What is needed is a clear mandate to entrust both COPUOS Subcommi ees, on an ordinary basis, the
func on of elabora ng interna onal technical recommenda ons and standards.
 require some changes from the ins tu onal point of view.
CHAPTER III – THE 1967 OUTER SPACE TREATY: PAST, PRESENT AND
FUTURE
Treaty on the Principle Governing the Ac vi es of States in the Explora on and Use of Outer Space,
including the Moon and Celes al Bodies (opened for signature in London, Moscow and Washington on 27
January 1967 and entered into force on 10 October 1967).
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The crea on of a speci c legal regime for outer space, the Moon and celes al bodies at the interna onal
level was considered necessary from the beginning of the space era to ensure that the explora on and use
of outer space conducted by States would take place in accordance with the rule of law.
 with the OST those principles have assumed the nature of legally binding rules subject to the pacta sunt
servanda norm.
The main space powers have adopted na onal legisla on aimed at implemen ng those general principles
and, above all, the principle according to which States are directly responsible for their na onal ac vi es in
space, whether carried out by public bodies or private operators, and assume all their legal consequences.
At the domes c law level, the legal regime of outer space ac vi es has always been characterized by its
predominantly public nature.
Rules to which the private law instruments on outer space ac vi es are required to comply, concern the
safeguarding of the essen al interests of States in the eld of:
- defence
- na onal and military security
- protec on of strategic produc ons and control over the transfer of sensi ve technologies
 at the dawn of the space age and for many decades, States and IGOs in the sector were the only space
operators. But in the 1980s, the liberaliza on of the telecommunica ons markets (fostered by the adop on
in the US of the Open Market Reorganiza on for the Be erment of Interna onal Communica on Act of 17
March 2000) promoted a global market for fully compe ve satellite communica ons services, to the
bene t of consumers and service providers.
The exis ng intergovernmental satellite organiza ons (INTELSAT, INMARSAT, EUTELSAT) were priva zed.
In addi on to satellite communica ons, new applica ons with a high socio-economic impact have been
consolidated in the elds of Earth observa on EO, satellite naviga on and the gradual transi on to the
informa on society.
United States, 2006-2013  following the closure of the Shu le space program, the NASA funded the
Commercial Orbital Transporta on Services COTS program, to coordinate the transfer of astronauts and
payloads to the interna onal space sta on by private companies.
New entrepreneurships have emerged, with plans aimed at facilita ng access to space through cost
reduc on and accelera on of produc on (mega constella ons of small satellites to o er a ordable Internet
services globally and solve the internet access gap; provision of on-orbit services to satellites; design of
missions to the Moon, Mars and beyond; collec on of water from asteroids; extrac on of natural resources
from celes al bodies, suborbital ights, and space tourism).
The problem of the management of orbital debris raises many concerns:

 their quan ty is expected to increase exponen ally soon, pu ng at risk the security of space cri cal
infrastructures.
Interna onal legal framework  the founda ons are s ll rooted in interna onal law (in the 5 trea es
adopted between 1967 and 1979 by UNGA and its COPUOS. Developments rela ng to the commercial uses
of space have taken place in a legal context of which the 1967 Treaty is a fundamental component,
accompanied by other UN conven ons and na onal legisla on adopted by the major space powers to
implement their interna onal obliga ons.
The OST is a treaty on principles, aimed at laying the founda ons of the ma er and complemented by
subsequent more detailed conven onal regimes.
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 it has contributed signi cantly to the codi ca on and progressive development of interna onal law, and
to the development of na onal space legisla on.
 it is a mul lateral instrument that aims to establish a set of rules that cons tute the only regime
applicable to outer space (relevant not only for States par es to the treaty, but also for the States which did
not ra fy it yet).
The degree of adapta on of States and IGOs that carry out space ac vi es to the principles set out by the
OST has so far been almost total  some principles have acquired a status that goes beyond the
conven onal nature of the instrument in which they are contained:
- freedom of explora on and use of space and access to every area of celes al bodies
- freedom of scien c research associated with interna onal coopera on
- prohibi on of na onal appropria on of space, the Moon and celes al bodies  the behaviour of States
has con rmed their legal convic on about the mandatory nature of this prohibi on, star ng with the US
law adopted on 4 November 1969, in rela on to the Apollo 11 Moon landing. The placement of the US ag
on lunar soil was to be understood as symbolic gesture of na onal pride in achievement and not to be
construed as a declara on of na onal appropria on by claim of sovereignty.
The Treaty has made an essen al contribu on to the objec ve of preserving peace and security in outer
space. The explora on and use of outer space are recognized for peaceful purposes, and the placement of
any object carrying nuclear weapons or other weapons of mass destruc on in orbit around the Earth,
installing such weapons on celes al bodies or sta oning them in space in any other way, is prohibited; for
the Moon and celes al bodies the Treaty establishes an even stricter regime of total demilitariza on, with
the prohibi on of military bases or for ca ons, tes ng of weapons and conduc ng military maneuvers.
The principles of freedom contained in the Treaty are rela vely exible and make applicable the maxim
quod lege non prohibitum, licitum est.
 the Treaty does not contain rules applicable to all aspects of space ac vi es:
- placement of conven onal armaments in outer space
- protec on of the cosmic environment
- orbital debris management
Only one of the 4 trea es subsequent to the OST, namely the 1972 Conven on on Liability for Damage
Caused by Space Objects, contains a priority clause that quali es the legal regime set out by the Conven on
without prejudice to the discipline of previous trea es.
The principle lex posterior derogat priori applies to the rela ons among the OST and the other three UN
trea es.
The OST is not a self-contained legal instrument, but open and living (Ar cle III, whereby States par es
must carry out their ac vi es in the explora on and use of outer space in accordance with interna onal
law, including the Charter of the UN, in the interest of maintaining interna onal peace and security and
promo ng interna onal coopera on and understanding.
Interna onal space law has developed mainly through non-legally binding instruments (as evidenced by the
Guidelines adopted in 2007 by the UNGA on the mi ga on of orbital debris and the 2019 Guidelines on the
Long-Term-Sustainability of Outer Space Ac vi es.
Other legal instruments to assist in the interpreta on of the OST are the resolu ons which the UNGA has
adopted to clarify certain concepts related to the applica on of the 1967 Treaty.
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 the COPUOS s ll remains an anchor ins tu on for the ins tu onal governance of outer space at the
mul lateral level.
During the nego a ons of the 1963 Declara on of Principles, the US succeeded in guaranteeing the right of
the private sector to par cipate in outer space ac vi es, in front of the Soviet posi on aimed instead at
excluding any private ac vity related to the explora on and use of outer space.
 the compromise o ered by the US opened the outer space to the ac vi es of private actors, but on the
condi on that they should be authorized and con nuously supervised by the State concerned.
The USSR accepted the compromise, and this provision was set out in Principle 5 of the Declara on. The
condi on of the States authoriza on was established in Ar cle VI of the OST, but with a modi ca on:
instead of the State “concerned” the term nally used was the appropriate State = under the OST, the State
is fully accountable for the ac vi es of private individuals, in the same way as it is responsible for the
ac vi es of public bodies.
Adop on of na onal laws unilaterally interpre ng the scope of certain obliga ons contained in the OST 
Case of the Commercial Space Launch Compe veness Act, adopted by the US Congress in March 2015,
which gives private operators rights over space resources, establishing that A US ci zen engaged in
commercial recovery of an asteroid resource or a space resource shall be en tled to any asteroid resource or
space resource obtained, including to possess, own, transport, use, sell the asteroid resource or space
resource obtained in accordance with applicable law, including the interna onal obliga ons of the US.
Such ac vi es shall be carried out in accordance with the interna onal obliga ons of the US, while the
clause contained in Sec on 403 speci es that the Congress’ interpreta on did not intend to assert the
sovereignty of the US, or sovereign or exclusive rights or jurisdic on over any celes al body.
These laws raise a problem of compa bility with Ar cle II of the OST, which states that outer space
(including the Moon and other celes al bodies) is not subject to na onal appropria on or claim to
sovereignty, through use or occupa on (or in any other way).
There is an ongoing debate on the interpreta on of Ar cle II of the OST as prohibi ng not only claims of
sovereignty over outer space and celes al bodies by States, as subjects of interna onal law, but also claims
of property rights by private individuals authorized by States to carry out the extrac on of space natural
resources.
A rst impetus nega ve judgment has come from the Russian Federa on, which severely cri cized the
adop on of US law.
 the recogni on of property rights over space assets extracted by US ci zens in an area beyond the
na onal jurisdic on quali ed as res communis omnium necessarily entails the risk of compe ng claims.
This law implies a certain change of posi on compared to the previous prac ce of the United States itself,
which could undermine the certainty of the interna onal law norms applicable to the outer space ac vi es
of private individuals.
Ini a ve taken by the US Senate, whose Subcommi ee on Space, Science and Compe veness of the
Commi ee on Trade, Science and Transport organized an expert earing on the OST on 23 May 2017 asking 3
ques ons:
1. to what extend does the OST discourage private sector investment
2. what are the advantages and disadvantages of a possible withdrawal from the Treaty
3. whether it is appropriate to propose amendments to the OST to remove obstacles to the commercial
uses of outer space.
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 the outcome was favorable to maintaining the OST as it is.
At the UN level, the discourse on the future of the interna onal space regime is rather concentrated on the
two objec ves of security and sustainability of space ac vi es, which, from a legal point of view, will have a
major impact in the future.
In its judgement of 20 April 2010 in the Pulp Mills on the River Uruguay case, the ICJ also made some
considera ons on the legal implica ons of sustainable development, qualifying it as an objec ve with
which State behavior must be consistent with.
 concrete measures to achieve this goal must aim to integra ng environmental considera ons into
economic development processes, preven ng environmental damage, and strengthening interna onal
coopera on.
 use of natural resources in such a way as to maintain their poten al to meet the needs of present and
future genera ons and thus ensure that humanity can con nue to use them for purposes of economic and
social, scien c, and technological development.
Interpreted in the light of the sustainable development principles, the OST con nues to indicate that
interna onal coopera on is the most suitable instrument to ensuring the future of space ac vi es within a
framework of legal certainty and bene t for the whole of humankind.
CHAPTER IV – RES COMMUNIS OMNIUM, COMMON HERITAGE OF

HUMANKIND, GLOBAL COMMONS IN SPACE LAW
Interna onal law, two categories of areas:
1. those submi ed to the na onal jurisdic on of States
2. those that are outside that jurisdic on  status of res communis omnium (like the high seas) or can be
part of the common heritage of humankind (such as the soils and subsoils of the ocean beyond the limits of
na onal jurisdic on) = they consist of what remains once having considered all the spaces that lie under the
jurisdic on of States.
The spaces and resources included in these two categories of areas are subject to a speci c legal regime
which presents some common elements:
a. the prohibi on of claims of sovereignty and of na onal appropria on
b. the des na on for peaceful purposes, entailing, as a special feature, the prohibi on of hos ng nuclear
weapons and other weapons of mass destruc on.
Common heritage of humankind  characterized by its use for the bene t of the en re humanity; crea on
of an interna onal organiza on for administering it on behalf of the interna onal community as a whole.
This no on originated from the revindica ons advanced by developing countries during the comple on of
the decoloniza on process.
a. could not be subject to any form of na onal appropria on by States
b. should be used exclusively for peaceful purposes
c. whose resources should be managed and used for the interest of individual States.
 Codi ed in Part XI of the 1982 Montego Bay UN Conven on on the Law of the Sea UNCLOS concerning
the so-called Area, which iden es the seabed and its subsoils beyond the limits of na onal jurisdic on.
In accordance with Ar cle 136, the Area and its resources cons tute the common heritage of mankind.
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States are forbidden to claim or exercise their sovereignty or sovereign rights over any part of the Area or its
resources.
The ban also extends to individuals and legal en es.
An Interna onal Seabed Authority created by the 1982 Conven on is the organiza on that manages and
controls the explora on and exploita on ac vi es of the resources of the Area.
Res communis omnium  realm of freedoms, such as the freedom of explora on and use, scien c
inves ga on, naviga on, over ight, access for all States and other subjects.
Recognizes the right of the States to explore and use such common areas and their natural resources in a
context of responsible behavior and due diligence.
Includes the high seas, beyond the limits of na onal jurisdic on, and outer space.
The 1967 OST accords the same legal status of res communis omnium to outer space, including the Moon
and other celes al bodies, and therefore these areas cannot be subject to any claim of sovereignty by
States and must be used for peaceful purposes under a regime of denucleariza on.
There is no interna onal mechanism for their management.
 province of all mankind used in Ar cle I of the OST does not refer to outer space, but to its explora on
and use, and corresponds to the freedoms which States are en tled to enjoy therein.
The concept of common heritage of humankind is also taken up in the 1979 Moon Agreement  Ar cle 11
= the Moon and its natural resources cons tute the common heritage of mankind. States agree to establish
an interna onal regime for the exploita on of those natural resources, as it is about to become feasible.
The interna onal mechanism for the exploita on of the Moon resources has not been created yet.
 the 1967 OST a ributes to the Moon and other celes al bodies the legal quali ca on of res communis
omnium, which seems to correspond be er to the interests of spacefaring na ons in using the Moon as a
basis for deep space explora on ac vi es, and welcoming private involvement in lunar ac vi es for
commercial purposes.
 Evident inconsistency between the two provisions: succession over me of trea es dealing with the
same subject ma er.
In the absence of an express coordina on clause in one of two instruments, the principles governing such
succession is that the la er prevails over the former in the rela ons between States that have accepted
both, while in the rela ons between States par es to the two trea es and States par es only to the 1967
Treaty, it will be the la er to apply (Ar cle 30 of the 1969 Vienna Conven on on the Law of the Trea es).
 The condi ons to implement the status of the Moon as the common heritage of humankind foreseen by
the 1979 Agreement s ll remain unful lled = Ar cle 11, para. 5, requires States par es to undertake to
establish an interna onal regime to govern the exploita on of the natural resources of the Moon.
They shall inform the Secretary-General to the greatest extent feasible and prac cable, of natural resources
they might discover on the Moon.
The States par es have not requested un l now the inclusion in the provisional agenda of the UNGA of an
item regarding the review of the Agreement, in order to consider whether it requires revision.
The only relevant legal regime of the Moon and its natural resources is that of res communes omnium
provided by the 1967 OST.
 quali ca on of outer space, the Moon and other celes al bodies as global commons. This term does not
coincide with a legal no on or concept; it has been u lized in the Report of the UN Secretary-General tled
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Our Common Agenda released in 2021 as an agenda of ac on designed to accelerate the implementa on of
exis ng agreements, including the Sustainable Development Goals (SDGs).
Key proposals  protec ng the global commons and delivering global public goods = the global commons
usually refer to natural or cultural resources that are shared by and bene t us all. They include the four
conven onally understood commons that are beyond na onal jurisdic on – the high seas, the atmosphere,
Antarc ca and outer space.
The term is used to iden fy what we de ne as areas beyond the limits of the jurisdic on of any one State.
They include not only the res communes omnium but also the areas lying under the legal regime of
common heritage of humankind in accordance with Montego Bay Conven on on the Law of the Sea.
Antarc ca
Does not belong (legally speaking) to the category of the res communes omnium nor to the common
heritage of humankind. The set of interna onal trea es and other legal instruments regarding Antarc ca
(star ng from the Treaty of Washington of 1 December 1959) has:
- interna onalized the con nent
- banned all ac vi es of military character
- a rmed the freedom of scien c research
The subsequent Madrid Protocol of 4 October 1991 has declared Antarc ca a natural reserve dedicated to
peace and science, in accordance with the principle of sustainable development, and established a 50-years
moratorium on all mining ac vi es.
The Treaty of Washington has only frozen the original sovereignty claims put forward by a group of States:
- Argen na
- Australia
- Chile
- France
- New Zealand
- Norway
- UK
- Peru
- Russia
- the US
 these claims have been reinvigorated by the rights that the Conven on on the Law of the Sea recognized
to coastal States to having exclusive economic zones of 200 nau cal miles and to ling claims on their
con nental pla orms even beyond the 200-miles limit.
CHAPTER V – THE EXPLOITATION OF MINERAL RESOURCES OF CELESTIAL

BODIES
Na onal laws on the exploita on of seabed mineral resources adopted by various countries in the early
1980s, pending the entry into force of the UN Conven on on the Law of the Sea (10 December 1982).
 a rst bill related to this ma er was presented to the US Congress in 2014, under the tle Asteroids Act.
It established that any asteroid resources obtained in outer space are the property of the en ty that
obtained them, which shall be en tled to all property rights to them, consistent with applicable federal law
and exis ng interna onal obliga ons. The Act was adopted in 2015; it is a complex legal instrument that
regulates various issues related to human ac vi es in outer space and celes al bodies.
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Title IV, subject of explora on and commercial use of space resources by US ci zens  para. 51303
a ributes to private operators rights of various content on outer space and asteroid resources.
Such ac vi es must be carried out in accordance with the interna onal obliga ons of the US but does not
specify which obliga ons are referred to.
Sec on 403  Disclaimer of Extraterritorial Sovereignty. The US does not thereby assert sovereignty or
sovereign or exclusive rights or jurisdic on over, or the ownership of, any celes al body.
 Italian Law n. 41 of 20 February 1985 = rules on the exploita on and explora on of mineral resources of
the seabed by Italians na onals. It was an openly transi onal measure, later repealed by Law n. 689 of 9
December 199, at the me when Italy ra ed UNCLOS and the Agreement for the applica on of its Part XI,
concluded in NY on 29 July 1994.
 The New York Agreement made the legal regime for exploi ng the Area’s mineral resources acceptable
to a large majority of countries at the me.
The Area means the seabed and ocean oor and subsoil thereof beyond the limits of na onal jurisdic on.
It has con rmed the quali ca on of marine soils and subsoils beyond the limits of na onal jurisdic on as a
common heritage of humanity (according to Ar cle 136 of UNCLOS).
It has recognised the a ribu on to economic operators of an exclusive right to explore and exploit mineral
resources in an area covered by a work program approved by the Interna onal Seabed Authority.
It established no less important guarantee of non-interference.
The ISA has prepared a mining code = a set of rules, regula ons and procedures to govern the ac vi es in
ques on in accordance with relevant interna onal standards.
There are no other interna onal instruments in force regula ng mining ac vi es of such kind, since the
Wellington Conven on of 2 June 1988, concerning the ac vi es on mineral resources in Antarc ca, did not
enter into force, and the subsequent Madrid Protocol on Environmental Protec on of 4 October 1991
established that mining ac vi es in Antarc ca are prohibited.
Since the US Deep Seabed Hard Mineral Resources Act of 1980 DSHMRA is s ll in force and the US, which
has not ra ed UNCLOS, believes having the right to authorise American ci zens to explore and exploit the
resources of marine soils and subsoils, provided that it does not require the acquisi on of sovereign rights
over such areas and that the extrac on of resources is conducted with reasonable regard to the rights of
other States to carry out ac vi es of the same nature.
Unilateral na onal laws on the exploita on of the seabed resources  to assess whether they could be
considered compa ble with the principle of the common heritage of humankind.
Even the developed countries did not seem to ignore this principle:
1. in almost all na onal legisla on there were provisions intended to reserve in favor of the established
interna onal organisa on, or of the developing countries, a part of the revenues of the exploita on
ac vi es.
2. it was believed that the exploita on of mineral resources should over me take place within the exclusive
framework of the Conven on and its ins tu onal mechanism, in order to give integral and e ec ve
implementa on to the principle of the common heritage of humankind.
 the Moon and celes al bodies fall into the category of areas beyond the limits of na onal jurisdic on.
Some similari es, but also some relevant di erences  reference should be made to the interna onal
trea es that the UNGA has drawn up to regulate human ac vi es in outer space.
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The only one that accepts the quali ca on of the Moon as the common heritage is the 1979 Agreement. Its
ar cle 11, para. 1, quali es the Moon and its natural resources the common heritage of humankind.
Para. 5 commits the States par es to the Agreement to establish an interna onal regime to regulate the
exploita on of the natural resources of the Moon.
Para. 7 = the orderly and secure development of the natural resources of the Moon; their ra onal
management; the expansion of opportuni es for use; the equitable sharing between States par es of the
bene ts deriving from these resources.
The 1979 Moon Agreement binds only the small group of States that have accepted it.
The evidence obtained from interna onal prac ce does not allow to a rm that the 1979 Agreement
introduced changes to the di erent legal regime that for the Moon and celes al bodies is established by the
1967 Treaty, except for the States that have acceded to it  it is to be excluded that the regime of the
Moon has assumed customary value and is therefore enforceable erga omnes.
The analogy between the mineral resources of the seabed and the mineral resources of celes al bodies (res
communes omnium) meets an obvious limit  the OST proposes for celes al bodies the classic regime of
freedom, which reproduces that of the high seas and its resources.
The regime of freedom favors countries possessing the technological and economic means necessary to
make e ec ve use of it.
Analogy  regarding the principle of non-appropria on, which applies both to the common heritage as
well as to the res communes.
Art. 138 of the UNCLOS not only prohibits the appropria ons of the Area and its resources by States but
speci es that this prohibi on also extends to natural and legal persons and that no State or natural or
juridical person shall claim, acquire, or exercise rights with respect to the minerals recovered from the Area
except in accordance with this Part. Otherwise, no such claim, acquisi on or exercise of such rights shall be
recognised.
Ar cle II of the OST  outer space, including the Moon and other celes al bodies, is not subject to na onal
appropria on or claim to sovereignty.
An express prohibi on is provided by the Agreement on the Moon, on whose limited legal value as an
expression of shared opinio iuris of States.
 Case raised in 2001 concerning a private individual’s claim to obtain from NASA the payment of a fee for
the parking of a probe on asteroid 433 (Eros), of which he claimed to be the owner, the State Department
expressed the opinion that private ownership of an asteroid is precluded by Ar cle II of the OST.
In 2004, the Statement adopted by the Interna onal Ins tute for Space Law on claims rela ng to the
property rights in the Moon and other celes al bodies stated that the prohibi on of na onal appropria on
by Ar cle II thus includes appropria on by non-governmental en es since that would be a na onal ac vity.
Ar cle VI of the OST  all space ac vi es (even private ones) must be authorised by a State, which
recognises them as na onal ac vi es and assumes interna onal responsibility. This State is the launching
State, which also registers the objects launched into outer space in a na onal register, and informs the UN
Secretary-General, who in turn maintains the interna onal register that can be consulted online.
 the ac vi es of recovery of mineral resources from asteroids must also be authorised by the appropriate
State and that that State assumes responsibility for them from all points of view.
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The US Commercial Space Launch Compe veness Act provided in this regard that the President should
have submi ed to Congress a report on commercial explora on for and commercial recovery of space
resources by US ci zens specifying:
1. the authori es necessary to meet the interna onal obliga ons of the US, including authorisa on and
con nuing supervision by the Federal Government
2. recommenda ons for the alloca on of responsibili es among Federal agencies for the ac vi es
described.
 a private race to hoard space resources seems undesirable, given the danger of outer space ac vi es,
the risks associated with them, which requires mastery of technologies and high safety standards.
Private property rights over the resources of celes al bodies are not expressly provided nor prohibited.
 the fundamental principles contained in the OST have been so consolidated over me that they are
certainly the subject of corresponding customary rules.
The recogni on of private property can certainly not be deduced from the fact that Ar cle I of OST
recognises the freedom of States to explore and use outer space, the Moon, and celes al bodies. The
concept of use is linked to the na onal ac vi es that individual States carry out in space, on the Moon and
celes al bodies.
The use must be responsible, preserving the right of others to engage in similar ac vi es; also implies the
commercial exploita on of space ac vi es = does not mean automa c recogni on of property rights in the
natural resources recovered through those ac vi es.
Pressures exerted by private operators whose plans include projects designed to profoundly change
economic ac vi es in outer space.
 case of the law on the explora on and use of space resources drawn up by Luxembourg, which, without
conferring property rights on operators wishing to venture into such ac vi es, focuses on the procedure for
obtaining the Grand Ducal permit necessary to explore and exploit the resources.
Posi on paper on space resource mining adopted on 20 December 2015 by the IISL  in view of absence of
a clear prohibi on of the taking of resources in the OST one can conclude that the use of space resources is
permi ed. The new US Act is a possible interpreta on of the OST.
Reac ons of other States:
- Russian Federa on  severe judgement expressed in a document submi ed to the a en on of COPUOS
on 16 February 2016, in rela on to the role of that Commi ee in the governance of space.
- Other States have expressed reserva ons about the US Act at the UN and raised doubts about its
compliance with the trea es.
 the recogni on of property rights to private ci zens of the US for ac vi es carried out in an extra-
territorial environment such as outer space, necessarily entails the risk of overlaps, if not con icts, with
similar ac vi es authorised by other States.
It would be fu le to deny that space trea es fall into the category of ageing trea es  the di erent
posi ons will be mediated at the UN, also on the basis of preparatory ac ons carried out by informal
bodies.
 a Working Group was set up in the Hague in December 2014, composed of individual experts,
representa ves of private ins tu ons and commercial companies, with governments as observers, to
iden fy the basic elements of a shared interna onal legal framework.
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The Building Blocks for the Development of an Interna onal Framework for the Governance of Space
Resource Ac vi es were nally accorded in their nal form and accepted for publica on and distribu on in
2019.
The LSC COPUOS included, in 2016, the subject ma er as a topic of discussion en tled General Exchange of
views on Poten al Legal Models for Ac vi es in Explora on, Exploita ons, and U liza on of Space
Resources.
In 2021 the COPUOS has agreed to establish a Working Group under the agenda item of the Legal
Subcommi ee.
CHAPTER VI – REVIEWING THE ASTRONAUTS AGREEMENT

6.1 General overview
Since 1964, the item of a Dra Agreement on Assistance to and Return of Astronauts and Space Vehicles
was on the agenda of the LS of the UNCOPUOS.
 in 1967, a er three years of nego a ons and the conclusion of the Treaty on Principles, the dra s were
much closer in content. The two Superpowers were able to agree upon a text and jointly submi ed it to the
LS on 13 December 1967.
Principle 9 of the Declara on of Legal Principles Governing the Ac vi es of States in the Explora on and
Use of Outer Space, contained in resolu on 1962 (XVIII) adopted by the UNGA on 13 December 1963 
announced the du es of States regarding assistance to astronauts as envoys of mankind in outer space, in
the event of:
- accident
- distress
- emergency landing on the territory of a foreign State of registry of their space vehicle
Ar cle V OST con rmed astronauts as envoys of mankind and added that in carrying out ac vi es in outer
space and on celes al bodies, the astronauts of one State party should render all possible assistance to the
astronauts of other Par es.
 States had to inform the other Par es or the UN Secretary-General of any phenomena they discovered in
outer space.
The Astronauts Agreement is of an humanitarian character  the Agreement has been represented as the
interface between the principle of humanity and the principle of interna onal coopera on, as evidenced by
the main obliga ons of the Par es, contained in Ar cle 1 (no ca on of informa on regarding an accident,
condi ons of distress, the emergency of an un-intended landing of the personnel of a spacecra ), and
Ar cles 2-4 (dealing with the du es of rescue and assistance).
 there have been no cases where the applica on of the du es of assistance, search and return of
astronauts was required.
Soyuz 18a  its ight was the only case of a manned booster accident at high al tude. It was a spacecra
launched by the USSR in 1975, intended as the second mission to take cosmonauts to the Salyut 4 space
sta on for a 60-day mission, which failed to achieve orbit due to a serious malfunc on during launch. The
capsule landed 829 km north of the Chinese border, and the crew were successfully recovered. There was
no Chinese or Mongolian involvement in the rescue opera on, which was carried out in territory under
Russian sovereignty.
There is a prac ce concerning the applica on of Ar cle 5 of the Agreement, which regards the return of
space objects or their component parts. This prac ce is shown by the notes verbales addressed to the UN
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Secretary-General not only by the States par es to the ARRA, but also by States non-par es to the
Agreement. The duty of the launching authority to refund the expenses incurred in any eventual research,
recovery and return by other states par es to the Agreement (stated in Ar cle 5, para. 5) does not cover
the costs incurred for opera ons directed toward the search and rescue of astronauts.
6.2 Is there a need to update the 1968 Agreement?

The interna onal context concerning space manned ights has changed in recent years  it was in uenced
by the Vision for Space Explora on, announced by POTUS Bush on 14 January 2004, which predicted a new
era for human space ight. The NASA Authoriza on Act of 2005 and the Global Explora on Strategy GES
(2006) focused on human and robo c return to the Moon and were joined by 14 par cipa ng agencies to
develop plans for a lunar se lement.
NASA’s proposed 2011 budget rea rmed the US focus on making maximum use of ISS as a technology test
bed and scien c laboratory, and the NASA’s role in assis ng US commercial companies in developing space
vehicles that could be used to ferry astronauts and cargoes to the ISS as early as 2015.
To build a sustainable presence on the Moon, a strong collabora on has started to establish the ini al
infrastructure, together with the crea on of incen ves and opportuni es for the private sector to gain early
entry into the lunar market.
 Artemis Program, which has been presented by NASA as the tool for landing the rst woman and next
man on the Moon in 2024, using innova ve technologies to explore more of the lunar surface than ever
before.
NASA’s goal is to conduct a campaign of repeated visits to the lunar surface leading to a permanent
sustainable human presence in cislunar space, and to prepare for eventual manned missions to Mars.
The program is divided into two phases:
1. the rst focuses on the 2024 target
2. the focuses on a sustainable human presence in cislunar space and on the lunar surface
In October 2020, the Artemis Accords were signed among eight co-opera ng countries, among them Italy.
They establish a prac cal set of non-binding principles to guide coopera on in space explora on among
na ons par cipa ng in the agency’s 21 century lunar explora on plans.
Sec on 6, dealing with emergency assistance, commits the Signatories to taking all reasonable e orts to
render necessary assistance to personnel in outer space who are in distress, and acknowledge their
obliga ons under the Rescue and Return Agreement.
China has made relentless e orts in manned space explora on: the Shenzhou program laid the founda on
for China’s rst manned space ight in 2003 and 2005. In 2020, the Long March 5B launch vehicle made its
rst ight.
 era of the Chinese Space Sta on CSS that includes a central module, two experiment modules, to work
in orbit for 10 years with 3 nominal passengers and can reach up to 6 people when the crew takes turns.
The project of a new Russian space sta on is also in a high degree of development:
1. in the rst stage (2025-2030), Russia has planned to deploy in orbit the scien c and energy module, the
node, base and gateway modules.
2. in the second stage (2030-2035), the pla orm for the maintenance of eternal spacecra , as well as the
produc on and des na on modules will be docked to the sta on.
Cosmonauts will visit the sta on once or twice a year.
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The Astronauts Agreement concurs in laying down the founda on of space law  suggest revision or
recommend the harmoniza on of the prac ces that have developed to re ect those new exigencies
incurred since its s pula on.
The 69 Conference of the Interna onal Law Associa on ILA, held in London on 25-29 July 2000, adopted
resolu on n. 13/2000 on the Review of the UN Space Law Instruments in view of Commercial Space
Ac vi es, which requested the ILA Space Law Commi ee to elaborate concrete proposals regarding
possible amendments of the UN space law instruments.
 the Space Law Commi ee considered that the ARRA should not be the object of revision.
 the need to update and revise the Astronauts Agreement derives mainly from the prospect of
programmes which include:
- long-term stays for interna onal missions with mul na onal crews
- human se lement in space, on the Moon or Mars
- the poten al for the increased use of outer space for such commercial purposes involving human being as
space tourism
A dra Conven on on Manned Space Flights was submi ed in 1990 to the Directors of the Interna onal
Ins tute for Space Law IISL.
 in 2004, a Symposium co-organized by the European Centre for Space Law ECSL, ESA, IDEST and UNESCO
on the Legal and Ethical Framework for Astronauts in Space Sojourns provided a valuable contribu on to
the topic.
6.3 Proposals put forward in the COPUOS

During the 1986 session of the COPUOS certain sugges ons were made about possible new items for the
agenda of the Legal Subcommi ee:
One sugges on concerned enhanced coopera on between States in the event of an accident or emergency
onboard a manned space object which endangers the lives or health of the crew.
 Working Paper submi ed by the UK on 27 March 1987: the idea was that the established risks of
manned space ights would not only con nue but also increase in frequency with the advent of space
sta ons.
According to the UK, permanently manned space sta ons would give rise too regular manned ights for the
purpose of crew changes and supply; the more the ights, the greater the risks of accidents and
emergencies endangering the health or life of astronauts.
Another issue was the mul na onal character of the crews  the UK stressed that the humanitarian need
to ensure the rescue of these envoys of mankind was a concern of all States.
There were two principal ways in which interna onal coopera on in this eld could be improved:
1. by clarifying and elabora ng the provisions of exis ng space trea es.
2. by exploi ng ways and means of enhancing such coopera on.
It was suggested that there would have been scope for examining the following ma ers:
➢ the priority to be given to rescue opera ons, par cularly in outer space
➢ sharing of rescue tasks and their costs
➢ facilita ng communica ons between manned space objects in distress and launching State, and
between the launching State and other State in a posi on to furnish assistance
➢ tracking of manned space objects in distress
➢ exchange of informa on
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➢ provision and prepara on of emergency landing sites and assistance in the rescue and return of a
manned space object and its crew
➢ emergency procedures
➢ preven ve measures
The UK suggested that these subjects could be studied by the Legal Subcommi ee over a three-year period.
1. The rst year could be devoted to an analysis of the provisions of the exis ng trea es.
2. The second year might involve a comparison of the exis ng provisions with current and an cipated
future needs.
3. In the third year, the results of the previous two-year studies could be evaluated with a view to
recommending what further ac on might be taken.
The Legal Subcommi ee did not react to these proposals and no decision was taken.
4. The role of the Par es to the ARRA

The COPUOS has no power to revise directly the UN space trea es  only State Par es to an agreement
can interpret or modify it in conformity with its own provisions and the 1969 Vienna Conven on on the Law
of the Trea es.
Ar cle 8 of the Astronauts Agreement provides that any States party may propose amendments. A treaty
may be amended by agreement between all the par es must be no ed to all the contrac ng States, each
one of which shall have the right to take part in:
➢ the decision as to the ac on to be taken in regard to such a proposal
➢ the nego a on and conclusion of any agreement for the amendment of the treaty
Following Ar cle 8 of the Astronauts Agreement, any amendment shall enter into force for each State party
accep ng it upon its acceptance by a majority of the States par es to the Agreement and therea er for
each remaining State party to the Agreement on the date of acceptance by it.
The process of revision or amendment of the ARRA should be ini ated by the States par es, each one of
them having the right to propose modi ca ons to the text in force.
There is no ins tu onalized body created by the Agreement itself that can ini ate such a process. The UN
space trea es do not provide an ins tu onal framework to manage their applica on and discuss proposed
amendments or any other relevant issues.
5. Subsequent na onal and interna onal prac ce

New issues, such as the status of space tourists, have started to be addressed by na onal legal texts  case
of the US domes c legal system, which was endowed of a speci c piece of legisla on covering this ma er.
The Commercial Space Launch Amendments Act of 2004 was designed to promote the development of the
emerging commercial human space ight industry, pu ng in place a clear regulatory regime to promote the
industry while ensuring public safety.
In 2006, the Federal Avia on Administra on FAA issued regula ons establishing requirements for crew and
space ight par cipants involved in private human space ight.
 they require launch vehicle operators to provide certain safety-related informa on and iden fy what an
operator must do to conduct a licensed launch with a human onboard. These regula ons also include
training and general security requirements for space ights par cipants.
The 1968 general legal framework has been complemented by other interna onal agreements, with a
limited sphere of applica on, regula ng relevant aspects through a more detailed discipline.
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Agreement between Canada, the States Members of the ESA, Japan, the Russian Federa on, and the USA
concerning coopera on on the civil ISS (IGA on ISS), and of the Memorandum of Understanding between
ESA and NASA (MOU), signed in Washington on 29 January 1998.
—> Ar cle 11, para. 2, of the IGA established that a code of conduct for the Space Sta on crew would be
developed by the Partners and would apply to astronauts working within the framework of the space
sta on coopera on.
—> The MOU’s ar cle 5, para. 2, stated that, pursuant to Ar cle VIII of the OST and Ar cle II of the REG,
each Partner shall retain jurisdic on and control over personnel in or on the Space Sta on who are its
na onals, while Ar cle 11, para. 2, con rmed that the Code of Conduct for the Space Sta on crew will be
developed and approved by all the Partners in accordance with the individual Partner’s internal procedures.
A Partner must have approved the Code of Conduct before it provides Space Sta on crew. Each Partner, in
exercising its right to provide crew, shall ensure that its crew members observe the Code of Conduct.
—> Ar cle 11, para. 6, described the Space Sta on crew as one integrated team with one Commander,
responsible for the mission program implementa on and crew safety guarantee aboard the Space Sta on.
Code of Conduct for the ISS Crew —> approved on 15 September 2000.
It speci es that ISS crew members means any person approved for ight to the ISS, including both ISS
expedi on crew and visi ng crew, beginning upon assignment to the crew for a speci c and ending upon
comple on of the post ight ac vi es related to the mission.
The ESA’s Council adopted, on 25 March 1998, a resolu on on the development of a single European
astronaut corps.
Ar cle 22 of the ISS 1998 Agreement which regulates the issue of criminal jurisdic on to be exercised by
each Partner over personnel in or on any ight element who were their respec ve na onals.
In a case involving misconduct on orbit that:
a. A ects the life or safety of a na onal of another Partner State, or
b. Occurs in or on or causes damage to the ight element of another partner State, the partner State
whose na onal is the alleged perpetrator shall, at the request of any a ected Partner State, consult with
such State concerning their respec ve prosecutorial interests.
—> an a ected Partner State may exercise criminal jurisdic on over the alleged perpetrator provided that,
within 90 days of the date of such consulta on or within such other period as may be mutually agreed, the
Partner State whose na onal is the alleged perpetrator either:
1. Concurs in such exercise of criminal jurisdic on, or
2. Fails to provide assurances that it will submit the case to its competent authori es for the purpose of
prosecu on.
Even the possibility of reques ng the extradi on is contemplated.
= this Agreement as the legal basis for the extradi on in respect of the alleged misconduct in orbit.
The provisions concerning extradi on must be interpreted in line with the European Arrest Warrant EAW
introduced by the Framework Decision in force since 1 January 2004 in all Member States of the EU. It is a
simpli ed cross border judicial surrender procedure.
Ar cle 22 u lises the criterion of the na onal State for iden fying the State competent to exercise criminal
jurisdic on, while in accordance with Ar cle VIII of the OST is the State of Registry of a space object that
maintains jurisdic on and control over such object, and over any personnel thereof, while in outer space or
on a celes al body.
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6. Outstanding issues
An astronaut is understood to be a person trained by a human space ight program to command, pilot, or
serve as a crew member of a spacecra , generally reserved for professional space travellers.
Un l 2003, astronauts were sponsored and trained exclusively by governments, either by the military, or by
civilian space agencies.
With the sub-orbital space ight of the privately funded SpaceShipOne in 2004, a new category of
astronauts emerged: the commercial astronaut.
The term “Astronaut” only appears in the Preamble of the 1968 Agreement, while other provisions refer to
“the personnel of the Spacecra ” (Ar cles 1-4).
The concept of Astronaut seems o en indeed to be used as a generic term which refers to a human being
travelling in outer space, irrespec ve of his/her status on Earth, task onboard or in space, the nature of the
spacecra , or length of the mission.
—> the quali ca on of the astronaut as an envoy of mankind seems to be an a ribu on without speci c
legal consequences.
In accordance with the trea es, humans in space remain subordinate to a na onal or interna onal agency
or to a private company, under the umbrella of the appropriate State.
The rst topic that should be assessed is whether the exis ng no ons, the classi ca on of astronauts and
the di erent categories of human in space, require di erent legal regimes.
Another ques on which has been posed is whether the quali ca on of “astronaut” might entail, in case of
assistance and rescue, a right of priority over other ight par cipants or space tourists.
A. Non-professional “astronauts” should be treated according to the basic rules of humanitarian character
and the speci c needs arising from the concrete situa on, as they normally are in analogous situa ons
(such as expedi ons and explora on in adverse environments)
B. Rela on between the 1967 OST and the 1968 Agreement = they are independent legal instruments, with
di erent scopes and spheres of applica on. Ar cle V, para. 2, of the OST provides that in case of
emergency landing or distress astronauts shall be safely and promptly returned to the “State of registry”,
while Ar cle 4 of the ARRA men ons the “launching authority”. A “disharmony” is seen in that the la er
no on was be er elaborated as “launching State” by the LIAB and REG Conven ons.
The State of registry, men oned by the OST, is the launching State (or one the launching States). But the fact
remains that the State of the registry was supposed to coincide with the launching State = nowadays,
prac ce shows that the State of registry does non necessarily correspond to the launching State, not only in
case of joint launches, but also in other hypotheses.
—> Ar cle 4 of the ARRA s pulates the return of the personnel of a spacecra landed in a territory of a
State party to the launching authority.
The answer will depend on the concrete situa on, to exclude an absolute obliga on of return, in, for
example, cases of crimes commi ed a er landing or a request for refugee status —> this obliga on should
be applied in coordina on with other per nent norms of interna onal law.
There are no other apparent con icts between the ARRA and the OST.
Another issue regards to the applicability of the 1968 Agreement to assistance inter astronauts, as
s pulated by Ar cle V of the OST: in carrying on ac vi es in outer space and on celes al bodies, the
astronauts of one State party shall render all possible assistance to the astronauts of another State party.
The ARRA does not limit the applicability of the duty of assistance to astronauts in distress on the surface of
the Earth or on the high seas but includes all the areas beyond the limits of na onal jurisdic on. Ar cle 4 of
the Agreement refers to the assistance to personnel in distress on the high seas or in territory not under the
jurisdic on of a Contrac ng Party, which includes outer space, the Moon and other celes al bodies.
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—> a coherent interpreta on leads to the conclusion that the launching State could not intervene in such
opera ons without the consent of the territorial State = this is a consequence of the right of territorial
sovereignty, which is not derogated by the 1968 Agreement.
Case of the re-entry of the Soyuz TMA-1, launched from the Baikonur Cosmodrome in Kazakhstan on 30
October 2002.
- It remained at the ISS as the “life-boat” for six months, therea er, execu ng its return to Earth on 4
May 2003.
- Crew: Russian Cosmonaut Nikolai Budarin; American Astronauts Kenneth Bowersox and Donald
Pe t.
- The Soyuz TMA-1 had to perform an unplanned re-entry in ballis c mode and land 150 km north of
Baikonur (400 km short of the intended landing site) due to a failure in the guidance system which
is necessary in order to carry out a controlled re-entry.
- NASA was denied access to the inquiry carried out by the o cial Soviet authori es —> the inquiry
Chief (Nikolai Zelenshikov) told the Itar Tass news agency that no US experts were invited to take
part in the inquiry as they will create di cul es in the work.
- The ndings of the inquiry commission’s inves ga on were presented by Zelenshikov on 23 May at
an o cial brie ng, who also addressed some ques ons concerning the length of me it took to
locate the Soyuz TMA-1 capsule and crew a er re-entry as it was longer than expected but within
the regula on recovery period of three hours —> the territorial State retains the right to decide on
the necessity of its consent to assistance by experts of other States, even when they are the State of
na onality of astronauts.
—> there is no mandatory obliga on to par cipate in rescue opera ons = Ar cle 3 extends assistance to
those personnel landed in territory outside the jurisdic on of a State Party or alighted on the high seas or in
any other place not under the jurisdic on of any State.
—> only if the launching authority in unable to act or is not in condi on to do so shall other contrac ng
Par es, without any request, provide assistance in search and rescue opera on.
7. Future perspec ves

Holding a new law-making phase of the Legal Subcommi ee for the Astronauts Agreement seems
inappropriate —> it risks re-opening se led issues instead of solving outstanding ones.
The content and the scope of new programs involving humans in outer space are not yet su ciently
de ned to legi mise an ini a ve aimed at revising the exis ng legal regime.
—> A careful assessment of prac ce seems be er suited to accommoda ng the on-going evolu on. A
suitable op on would be that States again make these issues at the center of their a en on.
A plan for the involvement of the COPUOS Legal Subcommi ee could take the form of a proposal for a new
item on its agenda and elaborate a three-year work plan:
1. The rst year could be devoted to an analysis of the provision of the exis ng legal instruments
concerning advanced in manned space ights and the legal regime of humans in space (including the
relevant prac ce).
2. The second year might involve an assessment of problems with the exis ng legal regimes and a
comparison of the exis ng provisions with an cipated future needs.
3. In the third year the results could be evaluated with a view to recommending to Member States what
further ac on might be taken , including the adop on of norma ve instruments of universal character.
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Chapter VII - Interna onal Responsibility for Outer Space Ac vi es and
Liability for Damages Caused by Space Objects
1. Introduc on
The relevant norms on responsibility, liability and jurisdic on are those contained in the OST, the LIAB and
the REG —> these trea es do not exhaust the law on outer space ac vi es covering the 3 topics.
Other interna onal trea es and conven ons contain rules on responsibility, liability, and jurisdic on, in line
with those of the UN trea es. In addi on to interna onal agreements on speci c programmes and EU, ESA
and ITU applicable norms, the more than 40 na onal legisla ons enacted by States to fully implement their
treaty obliga ons or to regulate new space ac vi es and applica ons come into play —> these instruments
also set out rules on responsibility, liability and jurisdic on implemen ng, integra ng, or even deroga ng
from those laid down by the UN trea es.
2. Responsibility and liability under interna onal space law

Key principle = dis nc on between two types of interna onal responsibility:
1. The interna onal responsibility for na onal ac vi es in outer space —> the interna onal responsibility
correspond to the State accountability for all legal consequences deriving from its na onal ac vi es in
outer space.
2. The nancial liability for damage caused by space objects —> interna onal liability corresponds to the
obliga on of the launching State to pay compensa on in the event of damages caused by a space object
launched in outer space.
Ar cle VI OST: establishes that each State is interna onally responsible for its na onal ac vi es in space,
whether they are carried out by government agencies or by private en es.
In case of private ac vi es, the State has an obliga on of authorisa on and con nuous supervision, to
ensure that they are carried out in compliance with the interna onal obliga ons.
Na onal ac vi es in outer space are to be quali ed as those which interna onal law a ributes to a State.
States as subjects of interna onal law express their will and act at the interna onal level trough individuals
having the quality of organs —> some State organs are specialised in the management of interna onal
rela ons and therefore qualify as organs of external ac vi es (such as diploma c agents and legi mate
combatants), while others are organs of internal ac vity whose conducts can be relevant also at
interna onal law level (legisla ve, execu ve, and judicial organs).
The a ribu on to the State of the will and conducts of its organs is a consequence of the material
rela onship that certain individuals have with the State for being part of its structure of government.
Interna onal law a ributes in some cases to the State also the will and ac vi es of its individuals having the
quality of o cial organs even if they act ultra vires or in contraven on with the competences assigned to
them by domes c law.
—> the State does not respond at the interna onal level for ac ons or omissions of private persons, unless
there is a strong link with such conducts and the State itself.
—> conducts of mere individuals ac ng in their private capacity are not normally a ributed to the State,
unless there is a certain degree of control by the State.
Outer Space —> the ac vi es carried out by State agencies and State organs are by de ni on na onal
ac vi es. They are all a ributed to the State concerned as its na onal ac vi es in outer space.
Considering now ac vi es carried on by mere individuals, there are situa on where also the acts of
individuals or groups of individuals ac ng in their personal capacity can be a ributed to the State, if the
individuals or groups of individuals act under instruc ons, direc on, or control of a State.
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What type of control is needed for producing such a legal consequence?
The judgments of the ICJ of 27 June 1986 on the Nicaragua case, and on the Genocide case of 11 July 1996,
adopted the criterion of e ec ve control by the State over the individuals or group of individuals.
The Appeal Chamber of the Interna onal Criminal Tribunal for the former Yugoslavia (ICTY) on the 1999
Tadic case, referred instead to the criterion of overall control.
What interests us is the full assimila on between the State organs and the mere individuals not having such
a quality for the a ribu on of conducts related to na onal ac vi es in outer space —> the main di erence
between general interna onal law and the special rule of Ar cle VI of the OST on interna onal
responsibility for na onal ac vi es in outer space is that in the rst case the a ribu on to the State of acts
of mere individuals depends on a certain degree of control from the State over such individuals or groups,
while, in the second case, the a ribu on is automa c.
Ar cle VI of the OST —> the interna onal responsibility that States bear for na onal ac vi es in outer
space encompasses all the legal consequences of such ac vi es, from the obliga on of repara on in case of
viola ons of interna onal obliga ons, to the obliga on of compensa ng damage caused by space object
according to the special regime set by trea es.
—> recourse by a State to take, if necessary, legisla ve ac on at the na onal level to answer for private
space ac vi es and their legal consequences for which the State remains the only subject interna onally
responsible.
What are the ac vi es in outer space which are quali able as na onal ac vi es of one given State?
- the ac vi es of public bodies, organs and agencies of the State in accordance with the norms of
na onal and interna onal sources applicable to the case = Personal Criterion.
- At the domes c level, also ac vi es carried out by natural or legal persons of other na onali es are
considered as na onal ac vi es in outer space because there is an interest of the State in exercising
jurisdic on and control over them.
—> Italian Law n. 153/2005 on registra on of space objects: it applies to any object launched into outer
space not only by natural or legal persons of Italian na onality or commissioned by them, but also from a
launch base located in na onal territory or under Italian control by natural or legal persons of other
na onali es.
= the State of registry of a space object must be the launching State, and the territorial State is always the
or one of the launching State/s.
3. Primary and secondary norms in the law of interna onal responsibility

Dis nc on, in interna onal law, between primary and secondary norms on States’ responsibility:
1. Primary: impose substan ve obliga ons
2. Secondary: concerned with determining the legal consequences of the failure to ful l obliga ons
established by the primary norms.
—> this dis nc on was introduced by the Interna onal Law Commission ILC in 1973, when a new phase of
the codi ca on of the primary rules on the State responsibility for injuries caused in its territory to the
person or property of aliens.
The methodology followed by the ILC was aimed at codifying the secondary norms of interna onal law on
State responsibility for interna onally wrongful acts, applicable when a breach of interna onal obliga ons
of all kind and content entails the State responsibility.
Need to dis nguish between responsibility under interna onal law for interna onal wrongful acts and
interna onal responsibility under interna onal space law.
—> the interna onal responsibility of the State pursuant to Ar cle VI seems to correspond more to a
general concept of State accountability for all na onal ac vi es in outer space rather than only to the
responsibility for wrongful acts. The la er is generated any me that a State violates an interna onal
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obliga ons in force in the outer space eld. But such kind of responsibility/accountability includes not only
the obliga on of full repara on in case of wrongful acts according to the Ar cles on the Responsibility of
States for Interna onally Wrongful Acts adopted by the Commission in 2001, and submi ed to the UNGA as
a part of the Commission’s report covering the work of that session.
—> Legal consequences are the product of ac ons and omissions of a State also in case of licit behaviours
producing damage to other operators in outer space.
Ar cle VI also contains primary norms of interna onal law, such as the obliga on of the appropriate State
to authorising and supervising the ac vi es of private actors.
The authorisa on mechanism allows the State to de ne the criteria that the private en ty must comply
with in order to conduct space ac vi es in accordance with the exis ng interna onal obliga ons.
—> an important element of this authorisa on process is the iden ca on of updated criteria, inn line with
technological development and safety standards, for gran ng the permit.
The adop on of norms governing the gran ng of the authorisa on to private operators for carrying out
space ac vi es is intended to protect the public interest of the State and to prevent the State from having
to respond interna onally to the consequences of unauthorised na onal private ac vi es.
The entrance of start-ups in the new space economy has brought to some cases of unauthorised private
ac vi es in outer space —> in 2018, the US Federal Communica ons Commission FCC revealed the US
start-up company Swarm Technologies launched four mini satellites into orbit a er the agency speci cally
prohibited the take-o :
- according to the FCC, the Swarm satellites were too small to be tracked in space, making them a
threat to other objects and satellites.
- Instead to cancelling the deployment of their small probes, the start-up company pushed through
with the launch aboard an Indian Polar Satellite Launch Vehicle PSLV rocket, which deployed a total
of 31 satellites on 12 January 2018.
- The Indian space agency ISRO quali ed these devices as two-way satellite communica ons and
data relay from USA.
No on of Interna onal wrongful act in Ar cle 2 of the ARSIWA = it includes two consta ve elements:
1. The conduct of an interna onal subject = subjec ve element
2. The wrongfulness of such conduct = objec ve element
Ar cle VI of the OST does not depart from the common law of State responsibility about the objec ve
element, nor introduces any di erence in rela on to the conduct cons tu ng a breach of an interna onal
obliga on of the State. It is the subjec ve element that cons tutes the core of the di erence.
The two systems of secondary norms di er in the a ributability of conducts, behaviours, and acts, and, of
wrongful acts, to a State as subject of interna onal law.
—> The two regimes are not alterna ve, but complementary and can coexist. The space law trea es do not
a ect the right of States to invoke State responsibility according to general interna onal law and vice versa.
The general responsibility of the State for its na onal ac vi es exists even if the individual ac vity has not
been authorised or has been authorised irregularly.
Even a State which has not authorised the ac vity, when it should have done it in its quality of na onal
State, may be jointly and severally included among the launching States on the basis of the na onality of
the operator or on the basis of the territorial criterion.
The State of na onal ac vi es holds general responsibility/accountability, the launching State is responsible
for any damage and is required to register the object, in that way also cumula ng the quality of State of
registry.
In case there are mul ple launching States, only one must register the object in agreement with the others.
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The na onality of operators is not the only criterion for classifying a private ac vity as a na onal ac vity —>
it is up to each domes c legisla on on outer space ac vi es to clarify, in general, what ac vi es fall within
its scope, using the personal criterion of na onality or other criteria, such as the territorial criterion for
ac vi es carried out from the territory of a State, or from infrastructures, bases, ships, aircra or pla orms
under the jurisdic on of the same, whatever the na onality of the operators concerned, and even from
areas beyond the na onal jurisdic on.
The “appropriate” State that authorises and supervises private ac vi es according to Ar cle VI is the
launching State, which should also register the space object.
4. Liability for damage caused by space objects

Ar cle VI and VII dis nguish interna onal responsibility rela ng to the a ribu on of conducts of States,
from interna onal liability for damage caused by space objects.
—> example of special law = Commentary of the ARSIWA prepared by the ILC: this is clearly a lex specialis,
and it concerns liability for lawful conduct rather than responsibility in the sense of the present ar cles.
The obliga on to compensate fro damage is detailed in Ar cle VII of the OST, following which each State
party to the Treaty that launches or procures the launching of an object into outer space, including the
Moon and other celes al bodies, and each State Party from whose territory or facility an object is launched,
is interna onally liable for damage to another State party of the Treaty or to its natural or juridical
persons by such object or its component parts on the Earth, in air or in outer space, including the Moon
and other celes al bodies.
Ar cle VIII establishes that a State party to the Treaty on whose registry an object launched into outer space
is carried shall retain jurisdic on and control over such object, and over any personnel thereof, while in
outer space or on a celes al body.
Concept of launching State: includes, according to Ar cle VII of the OST and Ar cle I of the LIAB, four
cumula ve hypotheses, for which there might be several launching States in rela on to the same launch:
1. The State that launches or
2. Procures the launch of an object into outer space, and
3. The State from whose territory or
4. Facility the object is launched.
The a ribu on of nancial responsibility to the launching State is a consequence of the occurrence of
damage caused by space objects in the presence of the causal link between the damage and the space
object.
—> the concept of “space object” includes its component parts.
Example: the ITU Radio Regula ons refers to
- spacecra as “a man-made vehicle which is intended to go beyond the major por on of the Earth’s
atmosphere”.
- satellite as “a body which revolves around another body of preponderant mass and which has a
mo on primarily and permanently determined by the force of a rac on of that other body”.
The policy issued in 2014 by the ESA DG for the registra on of ESA contains working de ni ons, including of
the term ESA space object as
a. ESA assets embarked on an ESA or non-ESA launch, entering an orbit around Earth
b. Launcher stages for launches under an ESA development programme, entering an orbit around Earth
c. Adaptors, fairings and other elements associated to a or b.
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Ar cle I of the 2012 UNIDROIT Protocol to the Conven on on Interna onal Interests in Mobile Assets on
Ma ers speci c to Space Assets (Berlin Protocol) —> de ne space asset as meaning any man-made
uniquely iden able asset in space or designed to be launched into space, and comprising
I. A spacecra , such as a satellite, space sta on, space module, space capsule, space vehicle or reusable
launch vehicle
II. A payload in respect of which a separate registra on may be e ected in accordance with regula on
III. A part of a spacecra or payload such as a transponder, in respect of which a separate registra on may
be e ected in accordance with the regula ons.
The synthe c de ni on of space objects contained in the UN space trea es is speci ed in detailed way in
other legal instruments for the purposes of their applica on.
The correct interpreta on is that, because of the assimila on between ac vi es of States and those of non-
governmental en es, the launching State referred to in Ar cle VII is to be understood as a State which
launches or procures the launch of a space object on its own behalf or on behalf of its private operators.
—> the interpreta on is wholly minority, according to which private ac vi es should be excluded from the
scope of the concept of the launching State, which is liable only for the damage caused by its ac vi es and
not for those resul ng from the ac vi es of private operators having its na onality or commissioning the
launch from its territory or installa ons.
5. Di erent liability regimes under the 1972 Conven on

The general legal framework set up by the OST has been complemented by the 1972 LIAB.
The preamble to the LIAB re ects the aims to establish a uniform rule of liability and a simple and
expedi ous procedures governing nancial compensa on for damage.
—> giving the maximum assurance that a launching State will pay a just compensa on, and encourages
space na ons to deal equitably with jus ed damage claims from claimant States.
= States’ responsibility an liability are a counterpart for the freedom of explora on and use of outer space.
The LIAB’s fundamental aim is to regulate liability for damage to “innocent” vic ms not taking part in outer
space ac vi es.
1. The Conven on applies to damage caused by a space object: loss of life, personal injury or other
impairment od health, loss of or damage to property of States or of persons (natural or juridical), or
property of IGO, damage to the environment. The Liability Conven on applies when the damage was
caused by a space object (space debris are to be considered as space objects).
2. Ar cle I of the LIAB introduces the concept of launching State (a State which launches or procures the
launching of a space object or a State from whose territory or facility a space object is launched).
3. According to Ar cle II, the launching State is absolutely liable to pay compensa on in case of damage
caused by its space object on the Earth’s surface or to an aircra in ight —> Ar cle VI provides that only
gross negligence or an act or omission done by the claimant State or the natural or juridical persons it
represents, with intent to cause damage may be exonera ng; however, no exonera on whatever shall be
granted in cases where the damage has resulted from ac vi es conducted by a launching State which are
not in conformity with interna onal law, including the UN Charter and the OST.
Liability for damage is also objec ve because it depends only on the damage produced by a space object,
without considera on of the licit or illicit nature of the conduct of the launching State.
—> the launching State liability applies to the whole outer space ac vity.
6. Liability by fault in the event of collisions in orbit

The Conven on regulates di erently the liability when the damage is caused by a space object of a
launching State to other space objects in outer space —> the launching State will be liable, but only if its
fault may be proven.
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If the fault has not been commi ed by a launching State but by another State, the LIAB does not apply.
In the case of damage caused elsewhere than the Earth’s surface or in airspace to a space object of a
launching State, or to persons or proper es onboard that space object of a launching State, or to persons or
proper es onboard that space object, by a space object of another launching State, the la er State is liable
only if the damage is a ributable to its fault or to the fault of the persons for whom it is responsible.
—> the persons for whom a launching State is responsible are its organs, agencies and other public bodies,
as well as private operators under its jurisdic on or control.
The no on of fault used in Ar cle III is not common in interna onal law —> fault is a single term that can
mean:
a. Fault stricto sensu, the psychological a tude of the agent against the damage, in the sense that the
agent, uninten onally, has had a conduct di erent from what is should have kept for avoiding the
occurrence of the event.
b. Fraud, when the event is inten onally and consciously wanted by the agent.
The State is responsible for the fact that its organs did not employ the required degree of due diligence or
carried out a voluntary act, or omission, evidencing the fault. There should also be a causa on between the
agent’s behaviour and the damage, so that there is no liability or fault if the agent was not actually the sole
cause of the act.
In outer space law, fault regards the state of mind of the persons ac ng on behalf of the launching State.
There is a liability for fault when the behaviour of the launching State and of the persons for which it is
responsible caused the damage through negligence and failure to take the necessary measures to avoid it.
—> fault can be proven with reference to the noncompliance with technical norms that impose due
diligence and standards of care, the adop on of adequate preven ve measures and so on.
In case of joint launches or coopera on programmes, the LIAB regulates the hypotheses of joint and several
liability and recommends the conclusion of agreements for the sharing of nancial responsibility among the
launching States —> these norms mean that the State of the vic m can ask for the whole compensa on
from any one of the launching States.
A launching State, which has paid compensa on for damage, is en tled to present a claim for
indemni ca on to the other par cipants in the joint launch.
In the event of damage being caused elsewhere than on the surface of the Earth to a space object of one
launching State or to persons or property onboard such a space object by a space object of another
launching State or to its natural or juridical persons (third-party liability), the rst two States shall be jointly
and severally liable to the third State.
Two par cular cases:

a. If the damage has been caused to the third State on the surface of the Earth or to aircra in ight, their
liability to the third State shall be absolute.
b. If the damage has been caused to a space object of the third State or to persons or property onboard
that space object elsewhere than on the surface of the Earth, their liability to the third State shall be
based on the fault of either of the rst two States or on the fault of persons for whom either is
responsible.
—> the burden of compensa on for the damage is indeed to be appor oned between the States concerned
in accordance with the extent to which the were at fault; if the extent of the fault of each of these States
cannot be established, the burden of compensa on is to be appor oned equally between them.
Ar cle V —> whenever two or more States jointly launch a space object, they are jointly and severally liable
for any damage caused.
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A launching State which has paid compensa on for damage has the right to present a claim for
indemni ca on to other par cipants in the joint launching.
A State from whose territory or facility a space object is launched shall be regarded as a par cipant in a
joint launching.
Special agreements among the launching States for the appor onment of their nancial obliga ons are
those concerning the legal regime of the launchers from the Kourou Space Facility (French Guiana),
involving France, ESA, and the States having accepted the Ariane Declara on, which has the legal value of
an interna onal agreement in force between the par es that accepted it.
Declara on by Certain European Governments on the Opera onal Phase of the Ariane, Vega and Soyuz
Launchers at the Guiana Space Centre = France shall be responsible for the payment of any damages that
may be awarded.
7. Con nuing on liability

The LIAB does not apply to damage caused to the launching State’s na onals taking part in the launch,
neither to foreign na onals involved in the launching opera ons (Ar cle VII).
Examples:
Disintegra on of the space shu le Columbia (1 February 2003), as it re-entered the atmosphere, killing all
the 7 astronauts onboard. This kind of damage are to be dealt with through the enactment of domes c
legisla on —> it is the nancial liability of the launching State which is engaged. The trea es are not
concerned with whether the launching State can claim compensa on from the private operator for
damage caused by the ac vity and object in ques on.
The na onal legisla on on outer space ac vi es of many countries o en requires the operator to obtain
insurance for the coverage of damages, up to a certai amount, beyond which the State intervenes —> case
of Austria = the limit on compensa on is applicable only when the damage is not a ributable to the fault
of the operator and provided that the legal obliga ons and condi ons set out in the act of authorisa on
are complied with.
French Law n. 2008-518 of 3 June 2008 on space opera ons = the operator is solely responsible for
damage on Earth or in airspace caused to third par es as a result of space opera ons; in the event of
damage caused elsewhere, liability can only be a ributed by fault.
The amount for which France may exercise the right of recourse against the operator is limited and
determined separately in the licence for the launch phase and the control phase of the space opera on.
The French State does not exercise the right of recourse where the damage is caused by a space object in
the course of an ac vity authorised int he interest of the State.
Air Law —> contrary to Space Law, interna onal air transport law aims to regulate (through conven ons of
uniform law to be implemented in the legal system of the contrac ng States) harmful events involving the
liability of individuals.
The Conven on of Rome (7 October 1952) on damage caused to the surface by foreign aircra imposes
the obliga on to pay compensa on on the operator of the aircra and in any case, on private subjects,
against whom the injured par es have recourse to judicial protec on.
—> the principles of space law and air law are not so divergent if we look at the extent of the protec on
granted to third par es.
The Rome Conven on establishes on the operator of the airship a strict liability, like that provided for
damage caused by the space object not the Earth’s surface or to an airship in ight.
8. Claims Commission and disputes concerning damages

The second part of the LIAB deals with the procedures for obtaining compensa on —> Ar cle VIII, para. 1.
Gives to a State which su ers damage, or whose na onal or juridical persons su er damage, the faculty to
present to the liable State a claim for compensa on for such damage.
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The LIAB sets out, as a guarantee for the vic ms, that if the State of na onality has not presented a claim,
another State may, in respect of damage sustained in its territory by any natural or juridical person, present
a claim to a launching State.
—> Ar cle IX establishes that a claim for compensa on for damage must be presented to a launching State
through diploma c channels.
The 1972 Conven on is at least par ally inspired by the same ra onale as the diploma c protec on under
general interna onal law (secure protec on of an injured person and obtain repara on from the State
author of the interna onally wrongful act in icted to the foreigner).
In the case of the LIAB, it is an issue of absolute/objec ve liability arising from the mere fact that a damage
caused by a space object has occurred, irrespec ve of its unlawfulness.
—> in both cases, diploma c protec on and 1972 Conven on, a State has the right to protect the en tled
individuals, but is under no obliga on to do so. The vic ms concerned have no right to be protected under
the interna onal law of diploma c protec on or the 1972 Conven on.
Nothing can prevent the internal legisla on of a State to convert the faculty given by Ar cle VIII, para. 1, of
the LIAB into an obliga on held by the State whose natural or juridical persons su er damage.
—> the compensa on which the launching State shall be liable to pay for damage under the Conven on is
to be determined in accordance with interna onal law and the principles of jus ce and equity, to provide
such repara on in respect of the damage as will restore the person (natural or juridical), State, or IGO on
whose behalf the claim is presented to condi on which would have existed if the damage had not
occurred.
The Conven on provides for a claims commission mechanism, set out by Ar cle XIV, which prescribe the
following if no se lement of a claim is arrived at through diploma c nego a ons, within one year from the
date on which the claimant State no es the launching State that it has submi ed the documenta on of its
claim, the par es concerned shall establish a Claims Commission at the request of either party.
Three members:
1. One appointed by the claimant State
2. One appointed by the launching State
3. Chairman, to be chosen by both par es jointly
The Claims Commission decides the merits of the claim and determines the amount of compensa on
payable; its decision is nal and binding if the par es have so agreed; otherwise, the Commission renders a
nal and recommendatory award, which the par es shall consider in good faith.
UNGA, Resolu on 2777 (XXVI), 29 November 1971 —> any State may, on becoming a party to the
Conven on, declare that it will recognise as binding, in rela on to any other State accep ng the same
obliga on, the decision of the Claims Commission concerning any dispute to which it may become a party.
Ar cle XI, para. 1, does not impose the exhaus on of the local remedies which may be available to a
claimant State or to natural and juridical persons, it represents as a previous requirement for presen ng a
claim via diploma c channels to the liable State.
Ar cle XI, para. 2, endorses the principle elect una via non dat recursus ad alteram, to avoid the ins tu on
of parallel proceeding under the Conven on and under na onal, or other interna onal binding procedures.
Apart the mechanism provided by the LIAB, States are free to use the methods they consider most
appropriate for the se lement of their disputes concerning the compensa on to be paid for damage caused
by space objects.
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Chapter VIII - Registra on of Space Objects
1. Introduc on
Ar cle VIII, OST —> It contains three principles:
A State party on whose registry an object launched into outer space is carried out shall retain jurisdic on
and control over such object, and over any personnel thereof, while in outer space or on a celes al body.
2008 French Space Opera ons Act: space opera on is de ned as any ac vity consis ng in launching or
a emp ng to launch an object during its journey in outer space, as well as during its return on Earth.
Ownership of objects launched into outer space, including objects landed or constructed on a celes al
body, and of their component parts, is not a ected by their presence in outer space or on a celes al body
or by their return to the Earth.
Some mes the owner is also the operator of the space object; it can be a State, an IGO, a private person,
physical or legal. In other cases the owner of the satellite does not coincide with the operator.
This principle contained in Ar cle VIII refers to objects landed or constructed on a celes al body.
Stray space objects shall be returned to the State of the registry. Such objects or their component parts
found beyond the limits of the State party to the Treaty on whose registry they are carried shall be
returned to that State party, which shall furnish iden fying data prior to their return.
Ar cle I, literal c —> the meaning of the term State of registry corresponds to a launching State on whose
registry a space object is carried in accordance with Ar cle II.
The State of registry coincides with a launching State, with the State held liable in case of damage caused by
its space object.
2. 1975 REG Conven on

The OST contains the main principles on registra on and assumes that space objects will be registered but
makes no speci c provision for their registra on.
—> Before the entry into force of the REG, the UNSG already maintained the Resolu on Register in
accordance with UNGA resolu on 1721 B (XVI).
In 1975, the REG was opened for signature, a er some years of preparatory works.
The French project was combined with the Canadian one into one which called for informa on including
the general func on and expected opera onal pa ern of the space object, trajectory characteris cs,
including transit and orbit descrip on, and expected re-entry trajectory.
The US found unacceptable some of the speci c provisions contained in the Canadian-French text, such as
the obligatoriness of the provision on marking of space objects. The objec on was based on economic and
technical ground because it would have required signi cant expenditures and would have been imprac cal
from a technical point of view.
More relevant were the US objec ons based on security grounds: certain military space ac vi es could
have been compromised by revealing such things as physical characteris cs of the satellites, or descrip ons
including iden able features of components likely to withstand re-entry.
A uni ed dra text was agreed upon by the end of the LSC’s 1974 session to cope with the US concerns —>
the Conven on was adopted by the UNGA, and annexed to Res. 3235 (XXIX) on 12 November 1974, opened
for signature on 14 January 1975 in NY.
—> the REG, which entered into force on 15 September 1976, has collected 70 States ra ca ons, while
four IGOs have declared their acceptance of the rights and obliga ons set by the REG:
- ESA
- EUMETSAT (European Organisa on for the Exploita on of Meteorological Satellites)
- EUTELSAT (European Telecommunica ons Satellites Organisa on)
- Intersputnik (Interna onal Organiza on of Space Communica ons)
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3. Na onal registry
Ar cle II, para. 1, of the Conven on establishes the main commitment of State par es regarding the
ins tu on of a na onal register.
When a space object is launched into Earth orbit or beyond, the launching State shall register the space
object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall
inform the UNSG of the establishment of such a registry in the form of a note verbale.
The Index of No ca ons by Member States and Organisa ons on the Establishment of Na onal
Registries of Objects Launched into Outer Space prepared by UNOOSA tells us that the number of States
that have no ed the SG the establishment of na onal registers in accordance with the Conven on is
rela vely lower than the number of States that have ra ed the REG.
The fact that the de ni on of launching State is the same as the one used in the LIAB creates a comparable
situa on in case two or more States are involved in the launch —> because the de ni on makes them all
launching States, under para. 2 of Ar cle II, the two or more launching States shall jointly determine which
one of them shall register the object in its na onal registry.
4. Jurisdic on and control

In accordance with the most recent developments in interna onal law, the power of a launching State/State
of Registry to exercise jurisdic on on a space object depends on there being between such object and the
State exercising authority a su ciently close connec on to jus fy that State in regula ng the ma er.
—> the close connec on depends on the element of registra on which tes es not only that the registering
State is a launching State, but also that the ac vity carried out by that space object is a na onal ac vity in
outer space of the registering State under Ar cle VI of the OST.
The registra on of ships and aircra s presents similari es, but also di erences with the registra on of
space objects.
Law of the sea:
- the high seas do have certain rights of jurisdic on over persons and assets when they navigate on
the high seas —> the legal order is based primarily on the rule of interna onal law that requires
every vessel sailing the high seas to possess the na onality of, and and to y the ag of, one State =
a vessel, and persons and things aboard, are subjected to the law of the State of the ag.
- The situa on is di erent if we take in considera on the jurisdic on of a coastal State within its
ports, territorial waters, or exclusive economic zones.
—> 1982 Montego Bay Conven on on the Law of the Sea.
Airspace:
- that part of the airspace which is above the high seas is not within the territorial jurisdic on of any
State
- that part which is above a State’s territory falls on the contrary within its territorial sovereignty
—> in a long distance ight, an aircra may pass through the territorial jurisdic on of several States as well
as being for a me outside the territorial jurisdic on of any State. Interna onal law of air naviga on within
the framework of ICAO allows this kind of naviga on for commercial aircra s, while State aircra s must
always require permission before over ying the territory of one foreign State.
—> under the 1944 Chicago Conven on and related agreements, the enjoyment of privileges secured by
them covers aircra s of the contrac ng States.
—> Aircra s have a na onality, with its connota ons of rights of jurisdic on and protec on. Ar cle 17 of
the Chicago Conven on establishes that aircra s have the na onality of the State in which they are
registered.
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The REG shows that there are clear di erences between the registra on of space objects and the
registra on of ships and aircra s, since the registra on of space objects does not confer to the space object
the na onality of the registering State.
—> the registra on of a space object implies that the registered object is carrying out an ac vity which can
be iden ed as a na onal ac vity of the registering State in outer space within the meaning of Ar cle VI of
the OST.
Na onal space legisla on is relevant in precising what is meant by control: as the France Space Opera on
Act FSOA says in Ar cle 1, paragraphs 3 and 5 respec vely, Space opera on means any ac vity consis ng in
launching or a emp ng to launch an object into outer space or to control a space object during its travel in
outer space, including the Moon and other celes al bodies, as well as, if applicable, upon its return to Earth
and Control phase means the period star ng, as part of a space opera on, when the launcher and the
object intended to be put into outer space separate and ending upon the occurrence of the rst of the
following events:
- when the last de-orbi ng opera ons and passiva on ac vi es have been completed
- When the operator loses control of the space object
- The return to Earth or the full disintegra on of the space object into the atmosphere
—> control refers to the power of the State of registry to enact all the necessary rules to command, direct
and operate the mission that the space object is called to carry out.
Ar cle VIII of the OST concerning the State of registry as the State that maintains jurisdic on and control
over an object in outer space and the personnel theory is not of peremptory nature, and can be derogated
by speci c interna onal agreements rela ng to speci c space missions.
—> Ar cle 5 of the 1998 mul lateral Agreement on the ISS = in accordance with Ar cle II of the REG, each
Partner shall register as space objects the ight elements listed in the Annex which it provides, the
European Partner having delegated this responsibility to ESA, ac ng in its name and on its behalf.
For the personnel indeed, the main criteria for establishing the jurisdic onal link with the State having
jurisdic on is the personal criteria of na onality.
—> Ar cle 22 deals speci cally with criminal jurisdic on, providing that Canada, EU partner States, Japan,
Russia, and the US may exercise criminal jurisdic on over personnel in or any ight element who are their
respec ve na onals.
In a case involving misconduct on orbit that a ects the life or safety of a na onal of another Partner State
or occurs in or on or causes damage to the ight element of another Partner State, the Partner State whose
na onal is the alleged perpetrator shall consult with such State concerning their respec ve prosecutorial
interests.
If a partner State which makes extradi on condi ons on the existence of a treaty receives a request for
extradi on from another partner State with which it has no extradi on treaty, it may at its op on consider
the ISS Agreement as the legal basis for extradi on in respect of the alleged misconduct on orbit.
—> a request of extradi on is admissible from a State vic m of the misconduct on orbit even if between the
reques ng and the requested States there is no extradi on treaty in force, because the ISS Agreement can
qualify itself as the legal basis for such a request.
In case the reques ng and requested States are members of EU, the references to extradi on trea es shall
be considered as superseded by the discipline of the European Arrest Warrant valid throughout all member
States of the Union.
5. The UN Conven on Register

Ar cle III REG: gives to the UNSG the mandate to maintain a register in which the informa on furnished by
States registering space objects shall be recorded.
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States par es to the Conven on are obligated to furnish the informa on required under Ar cle IV, para. 2:
a. Name of launching State or States: only one State of registry can exists for a space object, but more
than one launching State can exist. In case of a mul plicity of launching States, they should jointly
determine which State should register the space object.
b. An appropriate designator of the space object or its registra on number: space objects normally have
common names used to iden fy them; it su ces to browse the launching States prac ce. The
designator is the alphanumeric interna onal designator established by the Commi ee on Space
Research COSPAR for space objects that successfully reach Earth orbit or beyond. Finally, it should be
added the na onal designator/registra on number assigned to a space object by the State of registry.
c. Date and territory or loca on of launch
d. Basic orbital parameters: basic data on the space object’s orbit around the Earth or a celes al body (if
the object is orbi ng a body other that the Earth, it should speci ed).
- Nodal period = as the me taken by the space object to complete one revolu on around the body it
is orbi ng
- Inclina on = angle rela ve to the equator of the Earth or celes al body the space object is orbi ng,
measured counter-clockwise from the equator
- Apogee = furthest distance in the space object’s orbit from the surface of the body it is orbi ng
- Perigee = as the closest distance in the space object’s orbit from the surface of the body it is
orbi ng
e. General func on of the space object: general informa on on the space object, and consists in an
explana on of the purpose of the object.
Ar cle IV, para. 3 —> each State of registry shall no fy the SG of space objects concerning which it has
previously transmi ed informa on, and which have been but no longer are in Earth orbit = informa on on
change of status of the space object.
No dis nc on is made between civil and military space objects —> Ar cle II, para. 3 (the content of each
registry and the condi ons under which it is maintained hall be determined by the State of registry
concerned) could be interpreted int he sense that States feel free not to register satellites with highly
sensi ve na onal security tasks/func ons.
= this interpreta on does not correspond to the current prac ce.
6. Harmonisa on of prac ces on registra on

Ar cle IV, para. 2, REG: each State of registry may provide the UNSG with addi onal informa on concerning
a space object carried on its registry.
Best prac ces were inaugurated at the me of the prepara on for the rst Italian LEO satellite BeppoSAX
re-entry on Earth —> the assessment made demonstrated a certain risk on the equatorial countries despite
the large band covered by the oceans. The satellite mo on was uncontrollable. Member States of COPUOS
appreciated the Italian e ort in the setup of a systema c process of informa on toward the interna onal
organism of naval and air tra c control and towards the countries poten ally a ected by the re-entry. Risk
no ca ons were addressed through diploma c channel to all concerned local governmental authori es
submi ng them a wri en informa on no ce about the re-entry of BeppoSAX.
Such experience was considered as an input for the standardisa on, on a voluntary basis, of the re-entry
procedure to be followed, in a frame of maximum transparency and opera ons, by the launching State, to
allow a fast and e cient adop on, in the countries under risk of re-entry, of all the counterac ons
necessary for civil protec on purposes.
To obtain a more uniform applica on of the REG, the GA adopted RES. 62/101 of 17 December 2007,
containing recommenda ons on enhancing the prac ce of States and IGOs in registering space objects.
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—> considera on should be given to achieving uniformity on the type of informa on provided to the UNSG
on the registra on of space objects, and that such informa on could include:
- the Commi ee on Space Research interna onal designator
- Coordinated Universal Time as the me reference for the date of launch
- Kilometres, minutes and degrees as the standard units for basic orbital parameters
- Any useful informa on rela ng to the func on of the space object
—> it recommends to consider the furnishing of addi onal appropriate informa on to the UNSG on the
following areas:
- the geosta onary orbit loca on
- Any change of status in opera ons
- The approximate date of decay or re-entry
- The date and physical condi ons of moving a space object to a disposal orbit
- Web links to o cial informa on on space object
Missing from the REG is the obliga on found for other modes of transport, such as aircra s or ships,
concerning a registra on mark on the body of the vehicle.
The Resolu on also recommend that the State from whose territory or facility a spade object has been
launched should, in the absence of prior agreement, contact States or IGOs that could qualify as launching
States to jointly determine which State or en ty should register the space object; that in cases of joint
launches of space objects, each space object should be registered separately and should be included in the
appropriate registry of the State responsible for the opera on of the space object under Ar cle VI of the
OST.
The recommenda on asking States, in cases where a launched space object contains other space objects
panned for future separa on and independent orbital ight, and when entering these objects in their
registry and when furnishing registra on informa on to the UNSG, indicate the number and names of space
objects that may separate from the main space object.
7. Large constella ons of small satellites

The UNOOSA and the ITU have jointly produced a document, presented in 2015 to the COPUOS, to assist
small satellite developers and operators with space object registra on and frequency management.
= small satellites must follow the same rules and legal requirements that are applicable to the other
satellites without any exonera on or excep on.
Case of the Dutch space legisla on:

- in 2013, the Ministry of Economic A airs received requests to issue a declara on for the launch of
Dutch nano-satellites by the Russian provider ISC Kosmotras that The Netherlands would register
the launch of the nano-satellites.
- According to the 2007 Dutch Space Ac vi es Act, there was no need to issue a declara on for nano-
satellites and therefore no need to register the launch of such space objects.
- By Decree of 19 January 2015, the scope of the Act has been expended to include unguided
satellites, and has entered into force in July 2015.
8. Clauses in launch contracts

Another recommenda on asks States to encourage launch service providers under their jurisdic on to
advise the owner and/or operator of the space object to address the appropriate States on the registra on
of that space object.
—> contracts related to the launch of objects into outer space, including satellites.
—> there is a network of companies that o er launch services or launchers of reduced dimensions and
related costs.
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The purpose of the contracts that bind launch companies to their customers is the provision of a service:
the satellite launch service.
The launch company is commi ed to pu ng into orbit a satellite provided by its customer. Launch is
contractually de ned as the event from which launch opera ons become irreversible.
The customer in turn has the obliga on to pay the price according to a precise payment schedule and to
deliver the satellite to the launch company in accordance with the contractually agreed date.
The typical clauses of space contracts are several:

- the best e orts clause
- The cross-waiver of liability clause
- The guarantee clause against the ac ons of third par es
- The coopera on clause
- The clause on the registra on of the satellite launched into space
In launch contracts there is a clause rela ng to licenses, authorisa ons and registra on, according to which:
- The contractor (the launching company) will be responsible for obtaining and maintaining the
necessary governmental licenses and authorisa ons for the launch from the territorial State or the
State of the installa ons;
- The customer will be responsible for the registra on of the satellite and for obtaining the required
licences for radio telecommunica ons with the satellite a er the separa on of the launcher.
9. Na onal legisla on
The REG Conven on is not self-execu ng in all its parts, and it needs to be implemented at na onal level
with adequate domes c legisla on covering at least the issues related to the ins tu on of the na onal
registry in accordance with Ar cle II, paragraphs 1 and 3.
United States:
- established the na onal registry in 1977
- Un l 2009 it was managed by the State Department’s O ce of Space and Advanced Technology and
updated quarterly on the basis of informa on provided by the US Strategic Command.
- Were registered all func oning satellites owned or operated by the US government or by private
individuals of US na onality, launched from US territory or from a foreign State; some stages of
vectors and before their re rement, the launches of the Space Shu les.
- The American registry generally include all space objects that are owned or operated by US private
or governmental en es and launched from inside or outside US territory.
- The US does not include on its registry non-US payloads that are launched from US territory or
facili es.
- The US does not register foreign space object launched from its territory or American installa ons
—> the fact that a foreign satellite is not entered in the American register does not diminish the
responsibili es of the US as a launching State under the 1967 OST and the 1972 LIAB.
France:
- Ar cle 12 of the 2008 FSOA requires space objects for which France is the launching State to be
registered in the na onal register
- The na onal register is kept by the CNES in the name and on behalf of the government
- The operator is required to provide the CNES, at least sixty days a er the launch date, with a series
of informa on
- The informa on on the objects registered in the na onal register is then transmi ed to the Minister
of Foreign A airs, which in turn is responsible for communica ng it to the UNSG for inclusion in the
interna onal register
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- France is the launching State for every launch from the Kourou-Guyana Spaceport.
Russian Federa on:

- the Administra ve Regula on of the Federal Space Agency on the implementa on of the State
func on of maintaining the registry of space objects launched into outer space entered into force in
2010.
- The Regula on sets out in detail the sequence and type of all relevant administra ve ac ons, which
start with the receipt, veri ca on, gathering and use of informa on on space objects that have
been launched and the incorpora on of clari ca ons in records upon the results of the interac ons
between the federal execu ve bodies concerned.
- Roscosmos, when deciding to carry out a launch, takes into account whether or not there are legal
or other grounds for the registra on of such space objects.
- In communica ons concerning the launch of a foreign space object, in accordance with interagency
coordina on procedures, a dra direc ve on the launching of such a space object is submi ed to
the Government of the Russian Federa on
- Speci c provision is made for cases in which there are two or more launching States (including the
Russian Federa on) in respect of a space object —> Roscosmos or another federal execu ve body,
in order to ensure that the Government of the Russian Federa on adopts a direc ve on the
launching of such a space object, ini ates the procedures required to obtain from the organisa on
that has signed a contract for the launch of that space object the assurances of the State under
whose legisla on property rights over the space object are registered.
10. Transfer of ownership of space objects in orbit

Issue that regards the change of space operators (na onality, control, sub-contrac ng, transfer to o shore
subsidiaries) and the regime of transfer of satellites in orbit.
In the case of a transfer of a space object from one owner/operator to another, almost all domes c space
legisla on require the prior approval of the transfer, subject to veri ca on of the condi ons present at the
me when the original authorisa on was issued.
What are the e ects of a change in ownership of the space object, which has been launched and registered.
—> the most frequent is the transfer in orbit of the ownership of a space object which can also involve the
transfer of the object from the jurisdic on and control of one State to the jurisdic on and control of
another State, and consequently the dele on of the entry regarding the registra on of that object from the
registry of the rst State and the inclusion in the registry of the other.
The transfer of ownership of one space object from one owner and/or operator to another, does nor per se
imply also the changing of the State exercising jurisdic on and control over it.
= Transfer: passing on from the jurisdic on of State A to the jurisdic on of State B.
In case of such transfers, while jurisdic on and control can pass from one State to another, the launching
State of the object remains the original one and does not change in consequence of the change in
jurisdic on and control over the space object.
—> there is an element of unfairness in the rule that the launching State con nues to be held liable for
damage caused by a space object which in no more under its jurisdic on and control.
The exis ng interna onal space law does not solve the problem automa cally: if a State registers a space
object in consequence of a transfer in orbit of its ownership to a subject under its jurisdic on and control, it
implicitly also earns the quality of launching State liable for any damage.
= the best solu on is that the two States involved by the transfer in orbit of the ownership of a satellite
conclude an agreement to also transfer the liability from the original/historical launching State to the State
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that currently maintains jurisdic on and control over the space object or that a new informa on is
provided.
In 1998, the UNSG was informed that four communica ons satellites owned by Hong Kong interests and
registered by the UK had, with e ect from 1 July 1997, been transferred to the na onal registry of Hong
Kong Special Administra ve Region (SAR) of China.
The original launching State (UK) having transferred Hong Kong back to China, thus also transferred the
status of State of registry to Hong Kong, a status one can only earn as a launching State.
—> Hong Kong had not been an original launching State but the People’s Republic of China of which SAR
Hong Kong forms part, did qualify as such because all four satellites had been launched from Chinese
territory.
Case of New Sky Satellites —> teaches that a State could invoke the legal basis provided for by Ar cle VIII of
the OST:
- by note verbale dated 29 July 2003, The Netherlands draw the a en on of the UNSG to two entries
in the UN Online Index of Objects Launched into Outer Space, rela ng to the launch of two space
objects s ll in orbit, named NSS7 and NSS6
- The Netherlands declared of being neither the Launching State, nor the State of Registra on, nor
the Launching Authority for the purposes of the LIAB, the REG and the ARRA and prayed the UNSG
to men on this fact in rela on to the entries concerned.
- NSS7 and NSS6 had been made available to New Skies Satellites, a Dutch company, in orbit, a er
being launched and placed in orbit by persons who were not under the jurisdic on and control of
The Netherlands (INTELSAT)
- The Netherlands a rmed not to be required to provide the UNSG with informa on in accordance
with Ar cle IV of the REG
11. Registra on of space objects by IGOs

As for ESA, the Director General issued a policy for the registra on of ESA space objects based on the best
prac ce of the Agency and developing it further to meet the goals of guaranteeing, at any me, up-to-date,
centralised informa on about all ESA space objects.
ESA records all ESA satellites, launched with Agency or non-ESA carriers; the stages of launchers within the
framework of development programs/qualifying ight carried out under his responsibility, which remain to
orbit the Earth, and other ight elements associated with the rst two.
The Registry is connected to the DISCOS database managed by the ESA Space Debris O ce where all the
informa on on launches, orbits, details on the missions of more than 40.000 objects are collected.
The exercise of jurisdic on and control over space objects carrying out ESA missions depends on the legal
nature of each program = ESA exercises a coordina on role on behalf od the par cipa ng States in a given
program, through a form of delega on given by the ESA Conven on, the legal instrument governing the
programs or explicitly in interna onal agreements.
Ar cle 4, ISS Intergovernmental Agreement: mandates ESA to act on behalf of the European Partners for all
purposes connected with the implementa on of that Partner’s rights and obliga ons under the ISS
Coopera on agreements.
—> the European partner States remain individually competent for ma ers falling under the States powers,
such as criminal jurisdic on.
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Chapter IX - The ITU Regulatory System: A Self-Contained Regime or a
Part of Interna onal Law
1. Introduc on
The compe on for radio frequency spectrum and orbital resources raises in space law two main categories
of issues:
1. Nature of the orbital slots as natural limited resources, whose availability should be open to all States in
an equitable manner
2. Harmful interference, whose preven on is one of the statutory objec ves of the Interna onal
Telecommunica ons Union (ITU) —> there is a problem of coordina on, both at the universal as well as
the regional levels; there is a lack of e cient interna onal monitoring systems.
2. The ITU legal system

1932, Radio and Telegraph Conference in Madrid: ITU, which is now the leading UN specialised agency for
Informa on and Communica on Technologies (ICTs).
The current basic legal instruments are

- Cons tu on (CS)
- Conven on (CV)
- Annexes
Ar cle I, CS:
1 The purposes of the Union are:
a) to maintain and extend interna onal coopera on among all its Member States for the
improvement and ra onal use of telecommunica ons of all kinds;
b) to promote and enhance par cipa on of en es and organiza ons in the ac vi es of the Union
and foster frui ul coopera on and partnership between them and Member States for the ful lment
of the overall objec ves as embodied in the purposes of the Union;
c) to promote and to o er technical assistance to developing countries in the eld of
telecommunica ons, and also to promote the mobilisa on of the material, human and nancial
resources needed for its implementa on, as well as access to informa on;
d) to promote the development of technical facili es and their most e cient opera on with a view to
improving the e ciency of telecommunica on services, increasing their usefulness and making
them, so far as possible, generally available to the public;
e) to promote the extension of the bene ts of the new telecommunica on technologies to all the
world’s inhabitants;
f) to promote the use of telecommunica on services with the objec ve of facilita ng peaceful
rela ons;
g) to harmonise the ac ons of Member States and promote frui ul and construc ve coopera on and
partnership between Member States and Sector Members in the a ainment of those ends;
h) to promote, at the interna onal level, the adop on of a broader approach to the issues of
telecommunica ons in the global informa on economy and society, by coopera ng with other
world and regional intergovernmental organisa ons and those non-governmental organisa ons
concerned with telecommunica ons.
2 To this end, the Union shall in par cular:

- e ect alloca on of bands of the radio-frequency spectrum, the allotment of radio frequencies and
the registra on of radio-frequency assignments and, for space services, of any associated orbital
posi on in the geosta onary-satellite orbit or of any associated characteris cs of satellites in other
orbits, in order to avoid harmful interference between radio sta ons of di erent countries;
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- coordinate e orts to eliminate harmful interference between radio sta ons of di erent countries
and to improve the use made of the radio-frequency spectrum for radiocommunica on services
and of the geosta onary-satellite and other satellite orbits;
- facilitate the worldwide standardiza on of telecommunica ons, with a sa sfactory quality of
service;
- foster interna onal coopera on and solidarity in the delivery of technical assistance to the
developing countries and the crea on, development and improvement of telecommunica on
equipment and networks in developing countries by every means at its disposal, including through
its par cipa on in the relevant programmes of the United Na ons and the use of its own resources,
as appropriate;
- coordinate e orts to harmonize the development of telecommunica on facili es, notably those
using space techniques, with a view to full advantage being taken of their possibili es;
- foster collabora on among Member States and Sector Members with a view to the establishment
of rates at levels as low as possible consistent with an e cient service and taking into account the
necessity for maintaining independent nancial administra on of telecommunica ons on a sound
basis;
- promote the adop on of measures for ensuring the safety of life through the coopera on of
telecommunica on services;
- undertake studies, make regula ons, adopt resolu ons, formulate recommenda ons and opinions,
and collect and publish informa on concerning telecommunica on ma ers;
- promote, with interna onal nancial and development organiza ons, the establishment of
preferen al and favourable lines of credit to be used for the development of social projects aimed,
inter alia, at extending telecommunica on services to the most isolated areas in countries;
- promote par cipa on of concerned en es in the ac vi es of the Union and coopera on with
regional and other organiza ons for the ful lment of the purposes of the Union.
Ar cle 44, CS:

1. Member States shall endeavour to limit the number of frequencies and the spectrum used to the
minimum essen al to provide in a sa sfactory manner the necessary services. To that end, they shall
endeavour to apply the latest technical advances as soon as possible.
2. In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and
any associated orbits, including the geosta onary-satellite orbit, are limited natural resources and that
they must be used ra onally, e ciently and economically, in conformity with the provisions of the Radio
Regula ons, so that countries or groups of countries may have equitable access to those orbits and
frequencies, taking into account the special needs of the developing countries and the geographical
situa on of par cular countries.
8 December 2000, UNGA RES. 55/122, para. 4 —> took note of the agreement reached by the COPUOS
Legal Subcommi ee.
This agreement corresponds to the norms of general interna onal law regarding the character and
u lisa on of the geosta onary orbit, norms which have the same content and are binding erga ones. The
2000 Agreement se led the dispute concerning the legal status of the geosta onary orbit raised by the
Bogotà Declara on of 3 December 1976 —> the States traversed by the Equator claimed the right to
exercise their na onal sovereignty over the segments of geosta onary synchronous orbit corresponding to
their territories.
Where coordina on was required between countries with a view to the u lisa on of satellite orbits the
countries concerned should take into account the fact that access to that orbit must take place in an
equitable manner and according to the ITU Radio Regula ons RR.
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Countries wishing to use frequencies and satellite orbits should le such requests according to the relevant
provisions of the ITU Radio Regula ons RR.
RR = interna onal treaty included in the ITU CV and legally-binding on all Member States, for governing the
use of spectrum/orbit resources by na onal administra ons. They de ne the rights and obliga ons of
Member States in respect of the use of these resources and set the principles of use of orbit/spectrum,
deciding the alloca on of frequency bands and services according to certain procedures and plans.
According to the principle of the a priori planning, some posi ons are reserved now to guarantee access to
all countries, while the principle rst come rst served has assumed a residual role for the posi ons that are
outside the planning.
—> RR are updated every 3-4 years by the World Radiocommunica on Conference WRC.
ITU Satellite coordina on is mandatory for ITU Member States and the inclusion in ITU’s Master
Interna onal Frequency Register MIFR confers the Interna onal rights and obliga ons to na onal
administra ons, in par cular the interna onal recogni on and protec on of individual satellite systems
from harmful interference.
The ITU legal order is o en presented as a self-contained and self-su cient order.
This way of thinking confuses the specialty of the ITU rules within interna onal law with their self-
su ciency.
—> the ITU legal framework does not work in isola on from the overall system of interna onal law, and
does not present the character of a self contained regime.
—> legal system that cons tutes a special part of interna onal law and func ons in conjunc on with the
other parts of the same legal order in a cohesive mode.
Within the ITU basic legal instruments, Ar cle 44 CS is a key norm on the use of the radio-frequency
spectrum and of the geosta onary-satellite and other satellite orbits.
—> the legal concepts enshrined in Ar cle 44 ITU CS, which are in line with the provisions of the 1967 OST
(freedom of explora on and use, bene t of all countries, province of humankind, non-appropria on), are
also re ected in and form part of general interna onal law.
A key role within this process is played by na onal administra ons, to whom pertains the task to assign
frequencies and orbital posi ons, to apply the appropriate procedures for the space segment and Earth
sta ons of their networks and to assure con nuing responsibility for the networks.
3. Protec on from harmful interference

The main ITU provision on harmful interference is Ar cle 45 CS:
1. All sta ons, whatever their purpose, must be established and operated in such a manner as not to cause
harmful interference to the radio services or communica ons of other Member States or of recognized
opera ng agencies, or of other duly authorized opera ng agencies which carry on a radio service, and
which operate in accordance with the provisions of the Radio Regula ons.
2. Each Member State undertakes to require the opera ng agencies which it recognizes and the other
opera ng agencies duly authorized for this purpose to observe the provisions of No. 197 above.
3. Further, the Member States recognize the necessity of taking all prac cable steps to prevent the
opera on of electrical apparatus and installa ons of all kinds from causing harmful interference to the
radio services or communica ons men oned in No. 197 above.
The ITU RR have as objec ve to ensure the availability and protec on from harmful interference of the
frequencies, and to assist in the preven on and resolu on of cases of harmful interference between the
radio services of di erent administra ons.
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When a dispute among the par es arose for harmful interferences in the region, the role of the ITU was
central in solving the ma er and no recourse to other methods based on interna onal law was considered.
—> the procedures available under the ITU legal instruments in case of harmful interference are more
adequate and, whenever a case of interference occurs, ITU works with all par es involved to try and nd a
mutually acceptable solu on.
In case of illicit interference into an assignment recorder in the ITU MIFR, the rst obliga on of the State
under whose jurisdic on is located the sta on which is causing the problem is to take immediate steps to
cease and not to repeat it.
= principle of general interna onal law concerning the consequences of responsibility raising from wrongful
acts.
The ITU system contains a sort of non-compliance procedure, but lacks speci c enforcement means.
—> non-compliance depends on the behaviours of the States par es to a treaty, when a State, for instance,
consciously decides not to respect a conven onal obliga on.
—> non-compliance is due to the nancial or technological incapacity of States to meet the obliga ons
established by a treaty (as in the case of developing countries).
The ITU procedures in case of harmful interference are not properly working as a classical non-compliance
mechanism but can nevertheless be included in this category = if the interference is not ceased, the ITU
intervenes mainly as a mediator.
The Radio-communica on Bureau (RB) help in iden fying the source of the interference and seek the
coopera on of the responsible administra on to resolve the ma er, together with a request for prompt
ac on.
The procedure ends with a non-legally binding report for considera on by the ITU Board.
The key principle is that the enforcement of the obliga ons assumed by Member States, such as the
obliga on to avoid harmful interference, rests fundamentally with the na onal regulatory authori es of
each individual Member State.
= the ITU has in fact no coercive powers to enforce the report of the Bureau.
The ITU special regime has evolved as a response to insu ciencies of the general interna onal law system;
the very same regime remains dependent on interna onal law in a number of ways, including (as a measure
of last resort) the enforcement of substan ve obliga ons.
Chapter X - Aerospace Objects and Interna onal Responsibility

Uncertainty about the legal de ni on of an aerospace object, as a hybrid vehicle that has characteris cs of
structure and opera on typical of both an aircra and a spacecra .
—> the aerospace object can be con gured as a vehicle that ies partly in outer space and partly in
airspace, takes o and lands horizontally and is used for commercial transport. The structural and func onal
characteris cs of this category of vehicles, which includes a rather diverse typology, are not clearly de ned
yet.
—> correla on between the liability regime linked to the use of aerospace objects and the unresolved
ques on of the delimita on of outer space.
There are some rm points concerning the sovereignty of the State over its airspace under interna onal
law. The power of the State over its territory is quali ed as ius excludendi alios, since general interna onal
law requires each State to refrain from exercising its jurisdic on in the territory of others, unless a
permissive rule allows that exercise.
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—> the territory of the State includes the territory in the strict sense, the part of the Earth’s surface
emerging from the sea, with its subsoil up to the achievable depth, as delimited by the border trea es with
the surrounding States.
—> Sovereignty over land generates rights of the State over adjacent coastal waters, which cannot be
extended beyond 12 nau cal miles star ng from the internal limit.
The same applies to airspace which is also part of the territory of the State and enjoys the same protec on
under interna onal law.
1944, Chicago Conven on —> the contrac ng State recognise that every State has complete and exclusive
sovereignty over the airspace above its territory (Ar cle I).
Each State has complete and exclusive sovereignty over the airspace above its territory, including territorial
waters; each State has full discre on as to whether or not to admit any aircra to the airspace under its
sovereignty; airspace over the high seas and in other parts of the Earth’s surface not under the jurisdic on
of any State are free for aircra of all States.
There is no precise delimita on enshrined in interna onal law between atmospheric and outer space: the
passage between the two areas is physically coinciding with a belt located approximately between 80 and
100 km from the Earth’s surface.
—> from a physical point of view, the most widely accepted border is the Karman line, 80/100 km above
sea level, but from legal point of view COPUOS has debated the issue con nuously since 1966 without
conclusion.
The speci c indica on of an al tude is provided by the Australian Space Ac vi es Act of 21 December 1998,
according to which to launch a space object is to launch the object into an area beyond the distance of 100
km above the average sea level.
Under Ar cle VI of the OST, States are accountable for all the legal consequences of their na onal ac vi es
in outer space, notwithstanding the public or private nature of their operators.
—> in case of viola on of interna onal obliga ons the “na onal” State of the ac vity carried out by
governmental or non-governmental en es is interna onally responsible.
—> possible viola ons of interna onal customary norms: passage of space objects through the
atmospheric space of other States during the launch phase.
= general rule of interna onal law which prescribes the authoriza on/consent by the sovereign territorial
State to over y its territory, is not applicable to a space object passing through the airspace of other States
during the launch phase.
A customary rule of interna onal space law allows the free passage of space objects in their way to outer
space, as a consequence of the principles of freedom access to outer space and celes al bodies.
Ar cle VII of the OST a ributes to the launching State the responsibility for damage caused by space objects
to other States or to natural and legal persons on the Earth’s surface, in airspace and in outer space.
The 1972 LIAB sets out in detail a dual regime of liability:
- for damage caused by the space object on the Earth’s surface or to airships in ight, the
responsibility of the launching State is absolute (ar cle II)
- For damage caused elsewhere than the Earth’s surface to another space object or to persons and
property onboard such an object, the launching State is liable only if the damage is a ributable to
its fault or to the fault of the persons for whom it must respond.
The regime of interna onal responsibility/liability related to space ac vi es entailing the referability to the
States of all ac vi es, including the private ones, and the absolute obliga on to compensate damage
caused by space object applies also to the space ac vi es carried on by aerospace objects.
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The principles of space law on liability do not apply to the State partners in space ac vi es and their
na onals, as well as na onals of the launching State itself and foreign na onals during such me as they are
par cipa ng in the opera on of a space object from the me of its launching or at any stage therea er un l
its descent, or during such me as they are in the immediate vicinity of a planned launching or recovery
area as the result of an invita on by that launching State (ar cle VII LIAB).
—> this kind of damage can only be covered by the domes c legisla on of the launching State.
The principles governing liability in rela on to air naviga on are called into play —> interna onal air law is
essen ally aimed at regula ng damaging events involving the liability of individuals.
Reference to the Warsaw Conven on on Interna onal Carriage by Air (12 October 1929) and to the Rome
Conven on on Damage Caused by Foreign Aircra to Third Par es on the Surface (7 October 1952).
- Warsaw Conven on: in rela on to harmful events, it sets the maximum limits of the carrier’s
liability and solves problems concerning the determina on of the competent tribunals. —> the
obliga on to pay compensa on is held by the carrier.
- Rome Conven on: deals with liability for damage caused to third par es to the surface by a foreign
aircra . —> the obliga on to pay compensa on is held by operator of the aircra and by the
private subjects, against whom the injured par es have the means of judicial protec on provided
by na onal law in the implementa on of the interna onal norms.
Neither the principles of space law nor those of air law, considered separately, can govern all possible
hypotheses.
Collision between two aerospace vehicles in outer space: the applicable rule would be Ar cle III of the
LIAB, on the condi on that, for the purposes of compensa on, the fault of the launching States or of the
persons it is responsible for, is proved.
The applica on of the LIAB would have di erent consequences, depending on whether there was a collision
between and aerospace object:
1. First case: absolute liability of the launching State of the aerospace object (Ar cle II LIAB)
2. Second case: fault-based responsibility of the launching State according to Ar cle III.
Damage caused to the surface of the Earth: there is a situa on of par al overlap between the Rome
Conven on and the LIAB.
—> the applica on of established principles of air law seems more appropriate for ensuring the protec on
of third par es, who would thus have those remedies which are absent in space law.
The interna onal system presents a series of limits related to the immuni es of States and the impossibility
for individuals to act directly for the reinstatement of injured rights.
—> Air Law: an aerospace vehicle used by a State for non-commercial purposes is comparable to a State
aircra and as such envoys, in accordance with the general principles, sovereign immunity. Only the
interna onal liability resul ng from the viola on of the applicable interna onal rules could therefore be
referred to the user State.
—> Space Law: ensures be er protec on to third par es
Damage occurred onboard the aerospace object: there is no “shared competence” of space and air law,
since the 1972 LIAB provides only for the liability of the launching State for damage caused by a space
object to things or persons onboard another space object.
—> the vacuum of space law regarding this category of damage could be lled by the Warsaw Conven on.
Air transport law seems capable of regula ng the situa on where the aerospace vehicle is used for
commercial transport, but not when it is used on scien c missions.
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The current regime of space law should be complemented —> it ensures a broad protec on of third par es,
but it also presents several limita ons, especially in rela on to the place where the damaging event occurs,
and the legal nature of the vic ms.
= the solu on of the legal problems that will arise in rela on to the use of aerospace objects will require not
a mechanically alterna ve applica on of the two systems, but rather an integra on between them.
—> regime with a contractual basis, based on the characteris cs of the aerospace vehicle and its possible
uses (commercial or others).
From Space Law:
- absolute liability in predetermined cases
- Insurance coverage of risks
From Air Law:
- possibility of imposing the obliga on of compensa on also on individuals
The func onality of the regime will have to be evaluated in rela on to its ability to reconcile the principle of
freedom of outer space ac vi es and the protec on of third par es, whether they are States or individuals.
Chapter XI - The interna onal Responsibility of States for Planetary

Defence Ac vi es
1. Introduc on
Since 1995, the UN have adopted several recommenda ons warning the interna onal community on the
poten al threat from Near-Earth Objects NEOs.
—> the 1999 Vienna Declara on on Space and Human Development declared the need to improve
interna onal coordina on of ac vi es related to NEOs and to develop a common strategy to dace such
threats.
Space agencies have increased their e orts in the detec on and appraisal of hazardous NEOs and the
development of strategies to prevent and mi gate poten al impacts.
—> The Interna onal Asteroid Warning Network IAWN and the Space Mission Planning Advisory Group
SMPAG were established to maintain an interna onal clearing house for the receipt, acknowledgment and
processing of NEO observa ons. IAWN and SMPAG were created in 2014 and a SMPAG Ad-Hoc Working
Group on Legal Issues was established in 2016 for the iden ca on and assessment of legal issues related
to NEO response ac ons.
2. Primary norms of interna onal law on planetary defence ac vi es

This kind of “responsibility” for wrongful conducts is regulated by norms of interna onal law quali ed as
secondary, inasmuch as they are concerned with determining the legal consequences of the failure to ful l
obliga ons established by the substan ve rules, which impose speci c obliga ons on States, and may be
termed as primary.
—> interna onal law does not contain speci c norms on planetary defence opera ons yet.
There are principles and norms of interna onal law and space law which are applicable to these ac vi es.
However, due to the di erent dimensions of possible threats posed by NEOs, the applicable norms and the
legal implica ons can vary substan ally.
The preliminary assump on is that planetary defence opera ons are outer space ac vi es as all other
human ac vi es in outer space, on the Moon and on other celes al bodies carried on by States and IGOs or
by private under the jurisdic on of the State that authorised the ac vity.
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= the main UN space trea es apply also to planetary defence opera ons. Mi ga on is used as including
measures to prevent, predict, prepare for, respond to, monitor and/or mi gate the impact of disasters.
1967 OST, Opera ons of planetary defence shall be in conformity with:

- Ar cle I: explora on and use of outer space shall be carried out for the bene t and in the interests
of all countries
- Ar cle II: prohibi on of any claim of sovereignty over outer space and celes al bodies
- Ar cle III: interna onal law applies to State ac vi es in the explora on and use of outer space in
the interest of maintaining interna onal peace and security and promo ng interna onal
coopera on.
- Ar cle IV: prohibits the placement of objects carrying nuclear weapons or any other kinds of
weapons of mass destruc on in Earth orbit, the installa on of such weapons on celes al bodies and
their sta oning in outer space
- Ar cle IX: the principle of coopera on and mutual assistance shall guide States in their ac vi es in
outer space, with due regard to the corresponding interests of all other States.
- Ar cle XI: comes into play when considering the sharing of informa on dealing with threats posed
by NEOs as well as other interna onal instruments of a non-legally binding nature.
Interna onal disaster law is another area of interna onal law which has given a certain contribu on to the
development of early warning systems which could also be relevant in the context of planetary defence
opera ons.
3. Secondary norms of interna onal law on State responsibility

The Interna onal Law Commission ILC Ar cles on State Responsibility (2001) re ect customary interna onal
law.
—> the general rules on the interna onal responsibility of States for interna onally wrongful acts govern all
the new legal rela onships.
There are two main groups of secondary norms:
1. Determines on the basis of which facts and in which circumstances there exists on the part of a State an
interna onally wrongful act which is the source of interna onal responsibility.
2. Determines the consequences a ached by interna onal law to an interna onally wrongful act in the
various cases, in order to derive therefrom a de ni on of the content, form and degree of the
interna onal responsibility.
According to Ar cle 2 of the ILC Ar cles on State Responsibility, an interna onally unlawful act of a State
occurs when conduct consis ng of an ac on or omission is a ributable to the State in terms of interna onal
law and is a breach of an interna onal obliga on of the State.
The no on of interna onal wrongful act was used by the ICJ in the decision in the Teheran Hostage Case,
where it asserted the presence of both elements and a ributed to Iran the responsibility for breaching
mul ple obliga ons of interna onal law.
—> since the State, as a legal en ty, is not physically capable of conduct, it is obvious that all that can be
imputed to a State is the act or omission of an individual or of a group of individuals. This is where the
general principles of interna onal law apply in terms of a ribu ng to the State the conduct of individuals
with the quality of organs.
A ribu on to the State of behaviours of individuals who do no have the quality of organs = Ar cles 5-7 of
the ILC Ar cles on State Responsibility take into account the imputa on to the State of the conduct of
persons or en es that are not organs of the State under internal law, but exercise elements of government
authority.
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—> the reference is to the actual organisa on of the State, to which, therefore, such behaviours are
a ributed. The competence of the organs is not relevant for the a ribu on of wrongful acts.
According to Ar cle 8 of the ILC Ar cles on State Responsibility, the conduct of individuals or groups ac ng
according to instruc ons and under the direc on and control of the State must be a ributed to the la er.
—> the conduct of mere individuals who have acted as such is not a ributable to the State under general
interna onal law. There could be circumstances in which the existence of an interna onally wrongful act by
the State can nevertheless be contemplated in connec on with certain conducts of private individuals.
= the State is responsible for having failed to take appropriate measures to prevent or punish the
individual’s act.
4. The special regime of interna onal space law

Planetary defence ac vi es fall also under the scope of the Outer Space Treaty, including in par cular its
Ar cle VI.
—> this norm encompasses under the tle of interna onal responsibility all the legal consequences of
na onal ac vi es of a State in outer space, such as:
- The obliga on of repara on in case of wrongful acts or omissions by public or private en es
- The obliga on of the appropriate State to authorise and con nuously supervise the ac vi es of
non-governmental en es in outer space, including the Moon and other celes al bodies
- The obliga on of supervision and control, for assuring that na onal ac vi es in outer space are
carried out in conformity with the provisions of the OST
- The obliga on to compensate damage in case of liability under Ar cle VII of the Treaty
Interna onal responsibility under Ar cle VI means general accountability and involves not only a general
duty of diligence by the appropriate State, but also the direct a ribu on of the conducts of private en es
to that State.
This is of signi cance in case of private en es involved in planetary defence ac vi es and means that a
breach of interna onal law commi ed by private actors in outer space shall be directly a ributed to the
appropriate State (it should be the State which has jurisdic on over the space ac vity = launching State/
State of Registry).
In case the mission is conducted by an interna onal organisa on, responsibility for compliance with OST is
borne both by the interna onal organisa on and by the States par es to the Outer Space Treaty
par cipa ng in such organisa on.
5. The consequences of interna onal responsibility for planetary defence ac vi es

In case of interna onal responsibility deriving from breaches of interna onal obliga ons a ributable to a
State in the context of planetary defence opera ons, the legal consequences are the same as in case of
responsibility for viola ons of obliga ons in force in other sectors of interna onal law.
1. The responsible State must cease the wrongful conduct and pledge not to repeat it
2. It is requested to make repara on, which can assume di erent forms depending on the content of the
violated obliga on (sa sfac on, res tu on, compensa on).
A State could be required to pay compensa on even if there is no issue of a viola on of interna onal
obliga ons, in cases where its liability as launching State is at stake because the planetary defence ac vi es
produced damage according to Ar cle VII OST and the 1972 LIAB.
—> liability under this conven on focuses exclusively on compensa on of damage under two di erent legal
regimes:
1. Absolute liability for damage caused on the surface of the Earth or to aircra in ight;
2. Fault-based liability for damage caused elsewhere.
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While the general principles on responsibility under current interna onal law and space law trea es are
applicable to missions and their wrongful consequences, it would be be er for the subjects concerned to
frame them through speci c agreements/contracts.
Other possible solu ons include an interna onal mandate for a planetary defence mission given through a
resolu on adopted by the UN Security Council under Chapter VII of the Charter.
6. Circumstances precluding wrongfulness

Interna onal law recognise the existence in given cases of a circumstance precluding the wrongfulness of
an otherwise prohibited ac on.
—> in the case of planetary defence ac vi es, the circumstances self-defence, consent, distress and
necessity could be relevant to jus fy ac ons that are not in compliance with interna onal obliga ons.
Ar cle 21 of the ILC Ar cles: the wrongfulness of an act of a State is precluded if the act cons tutes a lawful
measure of self-defence taken in conformity with the Charter of the UN.
The ques on of self-defence could be relevant in determining whether nuclear explosions for deple ng or
destroying an asteroid which is seriously threatening the Earth could be admi ed in view of safeguarding
the survival of humanity or of a large part of it.
Planetary defence opera ons do not involve the use of force in the sense of the Ar cle 2(4) of the UN
Charter, because the use of force by one or more States against the independence and the territorial
integrity of another State is not at stake.
—> referring to self-defence would not serve the purpose of jus fying planetary defence ac vi es.
Consent precludes the wrongfulness of an act of a State, when a State validly give its consent to the
commission by another State of a speci c act not in conformity with an obliga on of the la er State
towards the former State.
It precludes the wrongfulness of the act in rela on to that State to the extent that the act remains within
the limits of the consent.
—> if the mission is necessary for the sake of a vital interest of the totality of the other subjects or of the
interna onal community as a whole, the consent of all States would be more easily collected within the
framework of an exis ng interna onal ins tu on like the UN.
—> the threat to humanity posed by the poten al impact of an asteroid could be considered equivalent to a
threat to peace and security in terms of the UN Charter Chapter VII.
It would be highly desirable the adop on within the UN of a code of conduct for planetary defence.
—> the best solu on would be to set up a collec ve system providing for the condi ons, modali es and
nancing of de ec on missions in case of emergency, through a mul lateral treaty, in analogy with models
in force in the eld of the preven on of some major environmental emergencies.
Distress is when the author of the act has no other reasonable way, in a situa on of distress, of saving the
author’s life or the lives of other persons entrusted to the author’s care.
The most appropriate circumstance seems to be necessity. In determining whether the wrongfulness is
precluded by necessity, there is no need to ascertain whether the State in ques on had consented to an
interna onally wrongful act.
—> a feature common to necessity and distress is that the State must have been induced by an external
factor to adopt a conduct that is not in conformity with an interna onal obliga on.
—> Ar cle 25 of the ILC Ar cles: necessity may not be invoked by a State as a ground for precluding the
wrongfulness of an act not in conformity with an interna onal obliga on of that State unless the act is the
only way for the State to safeguard an essen al interest against a grave and imminent peril, and does not
seriously impair an essen al interest of the State or States towards which the obliga on exists, or of the
interna onal community as a whole.
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—> the concept of necessity accepted in interna onal legal rela ons is very restric ve. It is restric ve as
regards the determina on of the essen al importance of the interest of the State which must be in
jeopardy in order for the plea to be e ec ve; it is also restric ve as regards the requirement that the
conduct not in conformity with an interna onal obliga on of the State must really be, in the case in
ques on, the only means of safeguarding the essen al interest which is threatened.
—> the peril must be imminent in the sense of proximate.
Considering that the peril must be objec vely established, the involvement of an interna onal mechanism
seems to be appropriate in order to avoid any concern and abuse.
—> in case of decisions rela ng to planetary defence involving nuclear explosions, the risk of arbitrariness,
inconsistencies and con ict involved in deciding on the existence of a serious threat and in subsequently
implemen ng the consequences will be par cularly high.
When a de ec on mission carried on by a State a ected by a situa on of extreme peril is only par ally
successful and the impact of a NEO on Earth is not completely avoided, but only shi ed, it would be di cult
to jus fy the ac on under necessity.
—> according to the Ar cle 25(1)(b), the plea of necessity would be e ec ve only as long as the conduct
does not seriously impair an essen al interest of the State or States towards which the obliga on exists, or
of the interna onal community as a whole. = involvement of the State(s) whose territory would be hit in the
decision concerning the de ec on mission, the acquisi on of its (their) consent(s) and possibly the
conclusion of an agreement dealing with all relevant issues.
The intrusion of a de ected NEO into the territory of one State would cons tute an illegi mate viola on of
its sovereignty if the ac on to shi the hit from one State or group of States to another State or group of
States was inten onal.
The assessment of the legality of the case is di erent when the shi ing would be the result of an
unintended ac on, occurred even though all precau onary measures were adopted.
—> the most adequate course of ac on for the ac ng State(s) would be to comply with the standard of
absolute liability for space ac vi es, considering the damage caused by an asteroid de ected by a planetary
defence mission equivalent to that caused by the space object(s) used for the mission.
Ar cle 27 of the ILC Ar cles establishes that the invoca on of such a circumstance does not a ect the
ques on of compensa on for any material loss caused by the ac on.
A State relying on a circumstance precluding wrongfulness should nonetheless be expected at least to
contribute to repair the damage su ered by any State directly a ected.
7. Conclusions
There is a need for an interna onal mandate, a waiver from non-launching States, an exonera on from or
sharing of responsibility and liability.
Without an authorisa on of the UN Security Council, the breach of these obliga ons can therefore be
invoked by each of the par es against the perpetrator of the wrongful conduct.
No provision on the circumstances excluding wrongfulness precludes the illegality of an act of a State that
does not comply with an obliga on arising from a peremptory norm of interna onal law.
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Chapter XII - Na onal Space Legisla on, Interna onal Obliga ons, and
the Italian Case
1. Implementa on of interna onal trea es via domes c legisla on
A rule of general interna onal law, codi ed in Ar cles 26 and 27 of the 1969 Vienna Conven on on the Law
of Trea es, provides that States must perform in good faith trea es in force binding upon them and that
they may not invoke the provisions of their internal law as jus ca on for their failure to perform them.
—> interna onal law requires that States ful l their obliga ons, and will be held responsible if they do not.
States are generally free as to the manner in which, domes cally, they put themselves in the posi on to
meet their interna onal obliga ons.
—> every State can choose di erent legal techniques for implemen ng its treaty obliga ons in the internal
order, and that o en interna onal trea es are not fully self-execu ng and may require implemen ng and
complemen ng na onal legisla on.
= case for the UN trea es on outer space (mainly the 1967 OST, the 1972 LIAB and the 1975 REG). A key
provision is Ar cle VI of the OST on States Interna onal Responsibility for they na onal ac vi es in outer
space, whether such ac vi es are carried out by governmental agencies or by non-governmental en es,
and for assuring that such ac vi es are carried out in conformity with the provisions of the Treaty.
The adop on of a na onal legisla on on outer space ac vi es could indeed bene t the country concerned
in mul ple ways —> the resolu ons of the GA regarding works made by the COPUOS LSC recommend
States conduc ng space ac vi es, in ful lling their interna onal obliga ons under UN trea es on outer
space, to consider enac ng and implemen ng na onal laws authorising and providing con nuing
supervision of the ac vi es of non-governmental en es under their jurisdic on.
In 2007 an item on General Exchange of informa on on na onal legisla on relevant to the peaceful
explora on and use of outer space was included in the agenda of the COPUOS LSC, in the context of a mul
annual work program providing for the establishment of an ad hoc working group (2008-2012).
—> the issues discussed were related to the main topics to be covered trough a domes c space legisla on
aimed at implemen ng interna onal space obliga ons:
- scope of applica on
- Ascertainment of na onal jurisdic on over space ac vi es
- Authorisa on by a competent na onal authority
- Condi ons for authorisa ons
- Ways and means of supervision of space ac vi es
- Establishment of a na onal registry of objects launched into outer space
- Possible recourse mechanism and insurance requirements
- Transfer of ownership or control of a space object in orbit
RES. 68/74 of 11 December 2013 Recommenda ons on Na onal Legisla on Relevant to the Peaceful
Explora on and Use of Outer Space —> the scope of space ac vi es targeted by na onal regulatory
frameworks may include the launch of objects into and their return from outer space, the opera on of a
launch or re-entry site and the opera on and control of space objects in orbit; other issues for
considera on may include the design and manufacture of spacecra , the applica on of space science and
technology, and explora on ac vi es and research.
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2. Models of na onal space legisla on
The minimum content of such na onal legisla on comprises the authorisa on and supervision of space
ac vi es, in accordance with the provisions of the OST; the se ng up of a na onal registry for space
objects and an indemni ca on regula on.
—> speci c sugges on for building blocks of which all na onal space laws should be composed and for
harmonisa on of na onal legisla on and prac ces were presented by various scien c instances, such as
the Interna onal Law Associa on, which adopted in So a 2012 the Guidelines for a Model Law on Na onal
Space Legisla on.
The State:
- should ascertain na onal jurisdic on over space ac vi es carried out from territory under its
jurisdic on and/or control;
- should issue authorisa ons for and ensure supervision over space ac vi es carried out elsewhere
by its ci zens and/or legal persons established, registered or seated in territory under its
jurisdic on and/or control, provided, however, that if another State is exercising jurisdic on with
respect to such ac vi es, the State should consider forbearing from duplica ve requirements and
avoid unnecessary burdens.
—> space ac vi es should require authorisa on by a competent na onal authority; such authority should
be set out clearly within the regulatory framework; States might employ speci c procedures for the
licensing and/or for the authorisa on of di erent kinds of space ac vi es.
The condi ons for authorisa on should be consistent with the interna onal obliga ons of States, and may
re ect the na onal security and foreign policy interests of States.
A na onal registry of objects launched into outer space should be maintained by an appropriate na onal
authority.
Operators or owners of space objects for which the State is considered to be the launching State or the
State responsible for na onal ac vi es in outer space under the UN trea es on outer space should be
requested to submit informa on to the authority to enable the State on whose registry such objects are
carried to submit the relevant informa on to the UNSG in accordance with applicable interna onal
instruments, including the Conven on on Registra on of Objects Launched into Outer Space, and in
considera on of General Assembly resolu ons 1721 B (XVI) of 20 December 1961 and 62/101 of 17
December 2007.
Con nuing supervision of the space ac vi es of non-governmental en es should be ensured in the event
of the transfer of ownership or control of a space object in orbit; na onal regula ons may provide for
authorisa on requirements with regard to the transfer of ownership or obliga ons for the submission of
informa on on the change in status of the opera on of a space object in orbit.
Two main categories:
1. States that have adopted sectoral legisla on
2. States that have adopted a unitary law, the scope of which covers all sectors of space ac vi es.
3. The US na onal space legisla on

The rst na onal legisla on on the subject was adopted by the USA.
1958 = the Na onal Aeronau cs and Space Act was adopted, which established the NASA (Na onal
Aeronau cs and Space Administra on) with the goal of execu ng the US civilian space program.
1984 = the Commercial Space Launch Act established a permit regime for privately operated launches, with
the aim of encouraging, incen vising and promo ng the commercial use of the space.
1992 = the Land Remote Sensing Policy Act regulates the authorisa on procedure for private remote
sensing ac vi es and the circula on of such data.
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In the US, several agencies are involved in authorisa on procedures to carry out space ac vi es:
- the Federal Avia on Administra on authorises commercial vehicle launch and re-entry ac vi es, as
well as commercial ac vi es of spaceports.
- The Department of Commerce’s Na onal Oceanic and Atmospheric Administra on NOAA
authorises the commercial ac vi es of Earth observa on satellites.
- The Federal Communica ons Commission authorises commercial satellite communica ons
ac vi es and issues rights to use frequencies.
To reorder, systema se and harmonise the legisla on as a whole, in 2010, a new tle was introduced in the
US Code, on Title 51 named Na onal and Commercial Space Program, which systema cally collects all the
discipline applicable to space ac vi es.
The Commercial Space Launch Compe veness Act (2015) regulates a wide range of commercial ac vi es:
- space transport
- Remote sensing and mining ac vi es on asteroids
The law also established the O ce of Space Commerce to promote the US space industry and coordinate
space policies as part of the Commerce Department’s space ac vi es.
4. Insight on other countries

Other major States have adopted na onal regula ons to regulate space ac vi es. These legal regimes
re ect the speci ci es and speci c characteris cs of the respec ve legal systems, resul ng in a large part in
experiences that are di cult to replicate tout court.
- Germany: has adopted a law on a speci c issue = the Satellite Data Security Act (2007), which
regulates the authorisa on procedure for the construc on and launch of private high-resolu on
remote sensing systems and the subsequent distribu on of their data, with the aim of preven ng
the risks arising from the dissemina on of data with a par cularly high informa on content but to
allow, at the same me, their marke ng.
- The Grand Duchy of Luxembourg: ini ally oriented its regulatory ac vity towards a par cular
sector, namely the extrac on of mineral resources from celes al bodies, following the path opened
by the US that in 2015 were the rst to provide internal riles for the regula on of the rights of
individuals engaged in ac vi es of extrac on and use of space natural resources.
- The United Kingdom: in 2018 approved the new law Space Industry Act speci cally regula ng
spaceports and launching ac vi es from the na onal territory in order to consolidate its strategic
objec ve of being the leader in the eld of small satellites manufacturing and launching.
- EU: the Trea es on the European Union as amended by the Lisbon Treaty (2009) expressly exclude
that the EU can adopt legisla ve or norma ve acts dealing with the harmonisa on of na onal
space legisla on.
—> the ma er con nues to lie in fact within the exclusive competence of Member States.
5. Adapta on of the Italian legal system

The instruments to achieve the adapta on of the Italian legal order to interna onal law can be divided in
two categories:
1. The ordinary procedure, which involves the reformula on of interna onal norms in corresponding
internal rules
2. The special procedure, which operates through a reference to interna onal norms, subsumed into the
internal order through a special mechanism. Special are the procedures of the automa c adapta on to
interna onal norms of customary nature provided by Ar cle 10, para. 1, of the Italian Cons tu on; and
the order of execu on which is used only for interna onal trea es.
The order of execu on reads as follow: full and complete execu on is given to the treaty from the date of its
entry into force at the interna onal level.
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The formula contains two elements:
1. Relates to the modi ca ons to be introduced in the internal legal order to comply with the interna onal
obliga ons arising from the treaty. The determina on of these modi ca on is le to the interpreters
(operators and judges), on the precondi on that the will of the State is that the treaty must enjoy general
and full observance.
2. The State wants the execu on, as an overall result: the internal rules to be adapted will be those
necessary and su cient for reaching the wanted result.
The form of the order of execu on depends on the varia ons to be introduced int he internal system to give
the treaty full execu on. It can take the form of a cons tu onal law, an ordinary law, or a presiden al
decree.
—> the most common form of the order of execu on is then the ordinary law, necessary when the treaty
involves modi ca ons in the domes c legisla on or intervenes on ma ers covered by a riserva di legge.
Italy is part to the

- OST (order of execu on has the form of an ordinary act of legisla on),
- ARRA (decree of the President of the Republic, deemed su cient because no modi ca on of
exis ng primary laws was envisaged),
- LIAB (order of execu on has the form of an ordinary act of legisla on),
- REG (order of execu on has the form of an ordinary act of legisla on).
The execu on of the LIAB Conven on has been integrated by the adop on of Law n.23 of 25 January 1983
on Rules for the Implementa on of the Conven on on Interna onal Liability for Damage caused by Space
Objects of 1972.
—> the Law is not aimed at implemen ng its scope and broadening the protec on accorded to the
poten al vic ms. It provides in fact that Italian and foreign natural and legal persons have the right to
obtain compensa on form the Italian State for damages caused by a space object of a launching State, not
only when and to the extent the Italian State has requested and obtained compensa on for such damages
from the launching State, but also when the Italian State has not requested and obtained compensa on.
The execu on of the REG Conven on in the domes c legal order —> the order of execu on of a treaty in
form of legisla ve act is associated with the adop on of complementary rules of legisla ve nature, to
achieve the most possibly complete adapta on to the non-self-execu ng norms contained in such treaty.
The technique of mixed adapta on is based on a single legisla ve instrument which operates by referral to
the text of the same treaty, and some rules of ordinary adapta ons as may be needed.
Example: Law n. 153 of 12 July 2005, on the Italian Accession to the Conven on on Registra on of Objects
Launched in Outer Space. The Law contains some norms aimed at implemen ng some non-self-execu ng
provisions of the Conven on. Also introduces legisla ve rules for the establishment of the na onal registry
of objects launched into outer space and a ributes to the Italian Space Agency ASI the responsibility for the
custody and upda ng of such a registry. Each object has to be registered:
a. By individuals or legal en es of Italian na onality or commissioned by them
b. When launched from bases located on na onal territory or under Italian control by individuals or legal
en es of other na onali es.
The Law provides more precise rules on the registra on of space objects, in accordance with Ar cle II, para.
3, of the 1975 Conven on, that leaves the content of each registry and the condi ons under which it is
maintained to be determined by the State of registry.
ASI is entrusted with the ins tu on and custody of a Na onal Register for the objects launched into outer
space, including the informa on concerning each space object as prescribed by Ar cle IV of the REG.
There are several categories of private en es that are required to comply with the law: all persons, natural
or juridical, of Italian na onality that launch or procure the launch from the Italian territory or from a
facility under Italian jurisdic on or control, but also from a territory or facility pertaining to a foreign State.
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The obliga on to no fy the ASI of a space object is only to be complied with and the consequent entry of
this object into the Italian register will only be actual when, considering the speci c launch and the rules
applicable to it, including contractual rules, Italy is to be considered as the launching State of the object
concerned.
If, in addi on to Italy, at least one other State is a launching State of that space object, Italy shall only
register it if it has been so agreed with the other launching State or States.
The Law provides for the registra on of objects launched in outer space by foreign persons from the Italian
territory or from facili es under Italian control.
—> it is not the competence of the Agency to ascertain the requirement of the Italian na onality of natural
or legal persons no fying the launch of an object; this assessment must be carried out in accordance with
the provisions of Italian law:
- natural persons must present a cer cate of ci zenship
- Legal persons must have their headquarters in Italy and present a cer cate of registra on with the
Chamber of Commerce or equivalent body.
The Law rules that persons having the obliga on to no fy the launch of a space object also no fy the
Agency that the registered object has abandoned the Earth orbit.
—> this provision is included to allow Italy, as State of registry, to inform the UNSG, under the 1975
Conven on, of space objects concerning which it has previously transmi ed informa on and which have
been but are no longer in Earth orbit.
—> no speci c norm regards the case of re-entry of a space object.
The Law could have been formulated in a more detailed way, to ll the gaps iden ed in the 1975
Registra on Conven on, like the lack of a me limit for submi ng informa on on launches to the UNSG.
The applica on of Ar cle 3 of Law 153/2005 is detailed in the Regula on on the Establishment, Keeping and
Opera on of the Na onal Register of Objects Launched into Space —> it stresses that the ASI will record in
the na onal register only the objects for which Italy is a launching State pursuant to Ar cle II of the
Conven on; in the presence of several launching States, the ASI must register the object if Italy is designed
by mutual agreement with the other launching State/s as the State of registry.
An object cannot be registered in the Italian Register if it is already registered in the registers of other
States.
The Regula on requires interested par es to no fy ASI of the launch of an object into space and to
communicate, among others, the following informa on:
- name of the launching State(s)
- Descrip on of the general func on
- Date and place of launch
- Orbital parameters: nodal period, inclina on, apogee and perigee UTC launch me
- Longitude on geosta onary orbit, if appropriate
- Web link related to the object launched to get o cial informa on on the thrown object
- In case of transfer of ownership of an object previously registered in the register or acquisi on of
ownership of an object already in orbit
- Informa on on changing the status of the space object
- The approximate date of re-entry or the date of inser on into cemetery orbit
In Italy there is no speci c legisla on on the authorisa on and supervision of private operators wishing to
carry out ac vi es in outer space.
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The only regulatory framework concerning such kind of authorisa ons is the communica ons sector, under
the scope to the Legisla ve Decree n.259 of 2003 on the Electronic Communica ons Code CCE. The Ministry
for Economic Development (MISE) is in charge of authorisa ons rela ng to the rights of use of frequencies
for satellite network services, for the installa on of one or more radio sta ons or for the opera on of
ground and satellite connec ons requiring an alloca on of frequencies.
General authorisa on for:
- electronic communica ons networks and services (Art. 25 CCE)
- Electronic communica ons networks and services for private use (Ar cles 107 and 124 CCE)
Temporary authorisa on for:

- the tes ng of radio communica on systems and equipment (Art. 123 CCE)
- Amateur radio ac vi es (Art. 134 CCE)
The increase in private outer space has gone hand in hand with the commercialisa on of services and,
therefore, space programs have been used to generate goods and services on the market.
—> more recently, in Italy there’s an increasing involvement of research ins tutes and universi es,
especially in the development of small satellites dedicated to educa onal purposes, in-orbit tes ng and to
provide telecommunica ons services all over the world, internet access, solu ons to overcome the digital
divide and the provision of Earth observa on images.
The Italian industrial context is indeed genera ng new operators other than the ASI and the Ministry of
Defence.
The Italian space industry covers the en re space value chain and operates for about 66% in the upstream
manufacturing sector, and for about 34% in the downstream sector.
Also in Italy there has been an increase in private operators who carry out missions with small satellites
with di erent purposes, such as the Group of Astrodynamics for the Use of Space Systems (GAUSS srl)
which launched the UniCubeSat satellite on 13 Feb. 2012, and the UNISAT 5 (Nov. 2013) and UNISAT 6 (Jun.
2014), as well as the TuDOP satellite, released by the ISS on 16 Jan. 2017.
6. The Governance of space ac vi es in Italy

An important piece of legisla on was adopted in Italy in 2018, id est Law n. 7 reforming the governance of
the space sector.
—> the reform puts the President of the Council of Ministers at the top of the space governance, endowed
with a general responsibility and power of coordina on among all ministries interested in space programs.
—> the Interministerial Commi ee on Space and Aerospace Policies COMINT was established to ensure
guidance and coordina on in space and aerospace ma ers.
Ar cle 2 of Law 7/2018: the Commi ee
- de nes the Government’s guidelines in space ma ers;
- develops government strategic guidelines for the space and aerospace sector;
- endorses the Na onal Space Policy Strategy Paper prepared by the ASI;
- directs and supports the ASI in the de ni on of interna onal agreements and in rela ons with
interna onal space bodies;
- Ensures the coordina on of the programs and ac vi es of the ASI with the programs and ac vi es
of central and peripheral administra ons;
- De nes the framework of nancial resources available for the implementa on of space and
aerospace policies.
All of the documents adopted by the Commi ee (as the Na onal Security Strategy for Space 2019) contain
express reference to the need for further legal instruments to regulate outer space ac vi es.
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Chapter XIII - The 1983 Italian Law N. 23 on the Compensa on for
Damages Caused by Space Objects
1. Italian Law n. 23/1983
The issue of compensa on for damage caused by objects launched in outer space is covered in the Italian
legal system by Law n. 426 of 5 May 1976 (ra ca on of LIAB), and by Law n. 23 of 25 January 1983, as an
instrument for the further implementa on of the Conven on.
Law n.23 applies to damage caused by objects launched into outer space by a State party to the 1972 LIAB.
—> under Art. 6 of Law n. 23, the legal regime set up thereby is not applicable if the vic ms of damage
caused by objects launched in outer space are directly pursuing a claim for compensa on in the courts or
administra ve tribunals of the liable launching State.
—> Art. XI LIAB: states that a State is not en tled to present a claim under the Conven on in respect of the
same damage for which a claim is being pursued in the courts or administra ve tribunals or agencies of a
launching State or another interna onal agreement which is binding on the State concerned.
The 1972 Conven on, on the one hand, does not impose the exhaus on of the local remedies which may
be available to a claimant State or to natural and juridical persons it represents as a previous requirement
for presen ng a claim to the liable State, but, on the other hand, it avoids the ins tu on of parallel
proceedings under the Conven on and under na onal, or other interna onal binding procedures.
= no damage can be compensated by the Italian State if a claim for the same damage has been introduced
at the na onal or interna onal level.
The Italian Law does not ins tute any par cular procedure for allowing the vic ms to recover compensa on
for damage caused by objects launched in outer space by the Italian State as launching State.
—> the 1972 Conven on does not impose any obliga on in this regard.
Na onal and foreign individuals that are damaged by space objects launched by Italy may pursue a claim
before Italian courts and tribunals will apply the 1972 Conven on and decide upon the claim according to
the applicable ordinary rules contained in the Civil Code.
2. Broadening the guarantees for the vic ms

Two sets of norms in Law n. 23:
1. The rst one comprises those directed to complement the 1972 Conven on, in order to allow
compensa on for damage.
2. The second one has an integra ng purpose, broadening the guarantees given to individuals that are
vic m of damage caused by space objects.
Natural and juridical persons can obtain compensa on by the Italian State only if and to the extent which
the la er has in its turn presented and obtained compensa on by the launching State under the 1972
Conven on.
—> the Conven on provides for a discre onary power of the concerned State and, for that reason, the
natural and juridical persons that su er the damage, do not have an enforceable right to pretend that this
State should present an interna onal claim to the launching State.
The LIAB is inspired by the same ra onale of the diploma c protec on under general interna onal law.
The main di erences being that, in the case of the LIAB, it is not ques on of responsibility deriving from
viola ons of interna onal obliga ons, illicit acts or wrongful behaviours, but of absolute liability arising
from the mere fact that a damage caused by a space object has occurred.
Only the State of na onality can bring a claim in diploma c protec on, while other States can, subject to
certain condi ons, present a claim for damage caused by space objects.
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The analogy is valid if one looks at the faculty to protect the en tled individuals under general interna onal
law or the 1972 Conven on.
In diploma c protec on, the State is the sole judge to decide whether its protec on will be granted, and
what to extent, while Ar cle VIII, para. 1 LIAB provides that the State may present a claim for compensa on
= the case of Italian Law n. 23.
—> Ar cle 3 of the Law broadens the scope of the LIAB enlarging in two ways the protec on of the vic ms
of Italian na onality. It gives them a right to be compensated even though the Italian State has not obtained
compensa on from the liable launching State under the Conven on.
Italian natural and juridical persons are also en tled to receive compensa on if the Italian State has
presented not claim for compensa on, provided, in this case, that a claim has not been presented to the
liable State by the State on whose territory the damage was sustained or by the State of which the persons
concerned are permanent residents.
Law n. 23 recognises a condi oned right for compensa on to foreign natural and juridical persons, only
when the Italian State has presented a claim and obtained repara on.
—> this principle s cks on Ar cle VIII, paragraphs 2 and 3, of the LIAB, which allows Italy to present a claim
in respect of damage sustained in its territory by foreign natural or juridical persons whose State of
na onality has not presented a claim or by foreign permanent residents when neither the State of
na onality nor the State on whose territory the damage was sustained have presented a claim or no ed
its inten on of presen ng a claim.
3. Procedural issues
Ar cle 3 of Law n. 23: presupposes the iden ca on of the moment in which the claim presented by the
Italian State has to be considered as unsa s ed by the launching State.
The 1972 Conven on does not contain any indica on in this respect.
—> the launching State sa s es the claim when it agrees on compensa on for the requested amount or for
an amount that is accepted by the claimant State.
—> in case of considerable damage, Italy could agree with the launching State a lowest if not symbolic
compensa on, rather than compensate Italian vic ms, if the claim remains unsa s ed, according to the
criteria imposed by its internal legisla on on repara on for damage.
If diploma c means fails, the procedure will con nue via the establishment of a Claims Commission.
—> this second stage is set forth by Ar cle XIV LIAB.
The Claimant State is enabled to ini ate the procedure with or without the coopera on of the launching
State, to arrive at a de ni ve conclusion on the ques on of liability and the amount of compensa on, if any.
The Claims Commission is only competent to render a recommendatory decision; it is also possible that the
par es commit themselves to accept as binding the decision of the Commission in rela on to any future
dispute which might arise on liability for damage caused by space objects.
—> the UNGA Res. 2777 (XXVI) of 29 Nov. 1971 notes that any State may, on becoming a party to the
Conven on, declare that it will recognise as binding, in rela on to any other State accep ng the same
obliga on, the decision of the Claims Commission concerning any despite to which it may become a party.
Italy has not made any declara on as such provided for in para. 3 of UNGA Res. 2777 (XXVI).
If the Italian claim remains unsa s ed or the claim has not been presented, Law n. 23 establishes that
Italian natural and juridical persons can obtain compensa on according to Ar cles 2056, 1223 and 1226 of
the Civil Code.
Ar cle 5, para. 1, of Law n. 23 sets out that the liability of the Italian State is absolute in nature and does
not admit exonera on.
Vic ms can submit their request for compensa on within ve years following the date on which such
damage occurred or its e ects are exhausted, in line with Italian rules on statutory limita ons.
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Italian Law n. 23 enhances the protec on of individuals compared with that resul ng from the 1972
Conven on, at least for vic ms of Italian na onality.
Chapter XIV - Legal Aspects of the European Union’s Space Policy

1. Europe in space: a tripar te model
Outer space is a strategic asset of fundamental importance for the independence and the prosperity of
Europe.
—> space applica ons have become indispensable support tools for protec ng the European assets and
interests and consolida ng the growing responsibility that the EU has assumed at interna onal level.
The EU, the ESA and their Member States together have developed over me strong and unique space
capaci es and industry.
The concept of European Space Policy refers to a complex area of ac on, the result of long-standing
interac ons among these three ins tu onal players.
—> Outer space ac vi es are a sector of necessary coopera on, where it would be unrealis c to imagine
exclusively na onal space policies.
The 1975 ESA Conven on entered into force on 30 October 1980, and registers currently 22 Member States,
three of which (Norway, Switzerland, UK) are not members of the EU; the EU founding trea es a er the
2009 Lisbon reform count 27 Members, some of them not members of ESA (Bulgaria, Croa a, Cyprus,
Malta, Slovakia).
First European organisa on dealing with space ma ers: European Space Research Organisa on ESRO.
Founded by the Agreement of 14 June 1962, entered into force on 20 May 1964 between 11 European
States.
—> entrusted with space coopera on limited to research and technology, with the exclusion of space
applica ons.
On 29 February 1964, the London Agreement set up another organisa on, the European Launcher
Development Organisa on ELDO, composed by six European states plus a non-European country
(Australia) which made available the Woomera launch range.
—> it was supposed to carry out also commercial ac vi es, such as the construc on of space carriers and
related cargoes, intended for prac cal use for peaceful purposes, and the delivery of the same to users.
A complete rearrangement of the European system for space coopera on took place with convening a
European Space Conference, to which all Member States of ESRO and other European Countries, to which
were called; on 20 December 1972, adopted a resolu on recommending the merger of ESRO and ELDO into
a new and single organisa on.
= the origins of the ESA, the intergovernmental organisa on set up by the 1975 Paris Conven on, which
entered into force ve years later. Italy deposited the instrument of ra ca on of the ESA Conven on on 20
February 1978.
The Council, composed by delegates of their respec ve governments, is the supreme decision-making organ
and meets at ministerial level adop ng resolu ons and a nal declara on.
The administra ve organ is the Director General, elected by the Council every four years.
The purpose of the ESA is to provide and promote, for exclusively peaceful purposes, coopera on among
European States in space research and technology and their space applica ons, with a view to their being
used for scien c purposes and for opera onal space applica ons.
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Ar cle V, para. 1, of the Conven on dis nguishes between two categories of ESA ac vi es:
- mandatory ac vi es, in which all Member States par cipate
- Op onal ac vi es, in which all Member States par cipate apart from those that formally declare
themselves not interested in par cipa ng therein (op ng-out clause).
2. The evolu on of EU ac on
The European space policy has been developed within the framework of a typical mechanism of
coopera on between the major space actors in Europe.
The rst hint of a space interest in the European integra on system goes back to the inclusion of research
and development policy among the common policies of the European Communi es (ECs), realised by the
Single European Act SEA of 1986.
—> the SEA was aimed at establishing a single market by 31 Dec. 1992, in view of the monetary union
which was to be introduced by the Treaty of Maastricht on the EU. It set out also the European Poli cal
Coopera on, the rst stone for a common foreign policy of the European countries based on the
intergovernmental method. S ll today, a er the Lisbon reform, this part of the EU’s coopera on, the
Common Foreign and Security Policy CFSP, is founded on a right of veto given to each of the Members.
In 1988, the European Commission issued its rst Communica on on The Community and Space: a Coherent
Approach. Following the 1992 Maastricht Treaty on European Union TEU, documents rela ng to outer space
and between EU and ESA mul plied:
- 1994 resolu on on The Community and Space adopted by the European Parliament.
- The Communica on released by the European Commission in 1996 on The European Union and
Space for a more precise de ni on of the areas of interest for the EC (telecommunica ons, satellite
naviga on and Earth observa on)
- The EU Council Resolu on of 22 June 1998 on the strengthening of the system between ESA and EC.
The 1997 Treaty of Amsterdam introduced sustainable development into the Community’s objec ves so
giving, at least implicitly, an increased emphasis on space applica ons, such as remote sensing.
—> reluctance of the Member States to use one of the passages involving the revision of the founding legal
instruments - Maastricht in 1992 and Amsterdam in 1997 - to include in the TEU an express reference to the
EU’s power for a space policy.
= these texts did not contain an express list of the EU’s competences, but there would have been nothing to
prevent the inclusion of space policy as a new area of Community’s ac on, apart the lack of poli cal will of
the Member States.
Concept of complementarity = ac ons in the space eld were de ned instrumental to the achievement of
the objec ves of other common policies.
Regulatory ini a ves of the EC in the eld of satellite communica ons, aimed at liberalising and
harmonising the area of the terrestrial segment, and those rela ng to the acquisi on of exclusive and
special rights in the provision of services and materials for satellite communica ons.
The European Commission’s 2003 White Paper pointed out that di erent legal basis allowed exis ng EU
policies to appeal to space as an important technology to support their applica on in the ECs rst pillar of
the 1992 Maastricht Treaty, such as provisions on transporta on, trans-European networks , industrial
policy, research and technological development.
—> during this phase the rela ons between the EU and the ESA underwent major developments. The ESA
was implemen ng, in accordance with the Paris Conven on, a long-term European space policy, exclusively
for peaceful purposes, through the concerta on of the space policies of the Member States and the
execu on of an industrial policy linked to its programmes.
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—> the EU-ESA rela ons were based on the model of coopera on between independent interna onal
en es.
The enthusiasm deriving from the possible inclusion of space among the objec ves of the EU gave rise to
proposals aimed at the integra on of ESA into the EU as a technical-execu ve agency. This solu on was
outlined in the Wise Men’s Report of 2000.
—> more cau ously, the 2002 Legal Wise Men’s Report merely outlined two possible op ons:
- the integra on model, according to which ESA would assume the status of a specialised en ty
without legal personality within the EU ins tu onal framework
- the coopera on-partnership model, governed by mutual agreements on equal basis
The Green Paper on Space presented by the European Commission at the beginning of 2003 highlighted
that it was necessary to rede ne the roles and responsibili es of those involved at organisa onal level, in a
spirit of subsidiarity, with the aim of making Europe more e cient in that sector.
—> the subsequent White Paper adopted by the Commission on 1 November 2003, Space: the new
European fron er for a growing Union. An ac on plan to implement the European Space Policy, laid the
founda ons for an extended European space policy, aimed at covering the transi onal period (2004-2007)
and des ned to end with the (possible) entry into force of the Treaty establishing a Cons tu on for Europe.
= such Treaty never entered in force because of the referenda rejec ng it in France and The Netherlands.
The prospects set out in the Commission’s White Paper were largely abandoned and ESA/EU rela ons were
consolidated following the coopera ve model between independent en es.
3. The ESA-EU Framework Agreement

The ESA/EU ins tu onal coopera on culminated in the Framework Agreement FA of 25 Nov. 2003,
concluded on the basis of the relevant provisions of the Treaty Establishing the European Community TEC
(now respec vely Ar cles 186 and 218 TFEU, and Ar cle 14, para. 1, of the ESA Conven on).
The Agreement con rmed:
- the independence of access to space;
- the improvement of scien c knowledge;
- the bene ts of space ac vi es for the market and society
It established a special organ, the Space Council, which brings together in joint and concomitant sessions
the ESA Council at ministerial level and the EU Council and adopts guidelines and conclusions on the
European Space Policy.
Eight speci c elds of coopera on:

1. Sciences
2. Technology
3. Earth observa on
4. Naviga on
5. Communica ons by satellite
6. Human space ight and microgravity
7. Launchers
8. Spectrum policy related to space
FA, Ar cle V:
- it sets out that the joint ini a ve may take the form of management by the ESA of European
Community space-related ac vi es in accordance with the rules of the European Community.
- ESA/EU coopera on may take the form of EU par cipa on in an op onal ESA programme in
accordance with Ar cle V, para. 1, literal b of the ESA Conven on.
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The most relevant policy document resul ng from the delibera ons of the Space Council has been the
resolu on on the European Space Policy ESP, adopted by the Fourth Space Council in 2007, which outlines
the strategic guidelines for Europe’s ac vi es in space.
—> Le er F of Part II of the resolu on, which rea rms ESA’s role in ensuring an e cient structure for
European coopera on in common space projects.
4. The EU programmes before Lisbon

In the absence of an express provision of the founding treaty conferring to the EU a competence in ma er
of space, the Union adopted two important programs in this eld:
1. Galileo
2. Global Monitoring for the Environment and Security GMES
The Union is at the helm of the Galileo programme which was established, under Ar cle 171 of the former
TEC, by Regula on (EC) n. 876 of 21 May 2002 for the purpose of implemen ng the development phase and
preparing its subsequent phases.
Regula on (EC) n. 1943 provided for the cessa on of the ac vi es of the Joint Undertaking on 31 Dec. 2006,
as the European GNSS Supervisory Authority established by Reg. (EC) n. 1321 of 12 July 2004 was able to
resume and subsequently carry out all the ac vi es entrusted to the Galileo Joint Undertaking.
The aim of the programme was to place in orbit a constella on of European satellites (in total 30) but the
system opera on was postponed to 2014 due to technical problems and the di cul es of the public-private
partnership.
—> Galileo integrated the European Geosta onary Naviga on Overlay Service EGNOS.
On 15 Dec. 2016, the Declara on of Ini al Services marked the beginning of Galileo’s opera onal phase,
and, with 28 satellites in orbit out of the 30 and their suppor ng ground infrastructure, Galileo started
o ering three ini al services:
- Open Service, a free mass-marked service for posi oning, naviga on and ming
- Public Regulated Service, for government-authorised users, fully encrypted to provide service
con nuity during emergencies or crisis situa ons
- Search and Rescue, where Galileo’s data helps to locate beacons and rescue people in distress in
every kind of environment with a network of sensor sta ons and uplink sta ons installed around
the globe.
The satellites of the Galileo system in orbit are owned by EU, but so far have been launched and registered
by ESA.
Before the Lisbon Reform EU started also the implementa on of a programme for the collec on and
dissemina on of data and informa on in support of European environmental
policies.
A er Lisbon The programme has been revised and consolidate as Copernicus by REG. n.
911 of the European Parliament and of the Council of 22 Sept. 2010 founded
on the Ar cle 189 of the TFEU. Copernicus, based on a partnership between
the EU, ESA and the Member States, is a user driven programme under civil
control, building on the exis ng na onal and European capaci es.
It consists of a space component ensuring sustainable spaceborne
observa ons for the service areas.
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5. Space competence under the Lisbon Treaty
The Treaty on the European Union TEU and the Treaty on the Func oning of the EU TFEU (1 Dec. 2009)
have the same legal value, but, from a substan ve point of view, the TEU is mainly devoted to se ng out
the basic principles and values of the Union, such as:
- respect of human dignity
- Freedom
- Democracy
- Equality
- The Rule of Law common to the Member States in a society in which pluralism, non-discrimina on,
tolerance, jus ce, solidarity and equality between women and men prevail.
The TFEU organises the func oning of the Union and determines the areas of, delimita on of, and
arrangements for exercising its competences.
= gives the Union an express competence in the eld of outer space as a prerequisite for further
developments and legi mising its ac on in that eld.
The TEU establishes that the limits of the EU’s competences are governed by the principle of conferral,
while the exercise of such competences is governed by the principles of subsidiarity and propor onality
(Ar cle 5).
- Principle of Conferral: the Union shall act only within the limits of the competences conferred upon
it by the Member States in the Trea es to a ain the objec ves set out therein, and, conversely, that
competences not conferred upon the Union in the Trea es remain with the Member States.
- Principle of Subsidiarity: regards the areas of shared competences. In these areas the EU shall act
only if and as far as the objec ves of the proposed ac on cannot be su ciently achieved by the
Member States but can rather be be er achieved at Union level.
- Principle of Propor onality: requires that the content and form of the Union’s ac on shall not
exceed what is necessary to achieve the objec ves of the Trea es.
The categories of EU’s competences iden ed by the TFEU are basically three:
- Exclusive
- Shared
- For suppor ng, coordina ng and supplemen ng the ac ons of the Member States.
Exclusive Only the Union may legislate and adopt legally binding acts, while Member States are
prevented from doing so unless empowered by the Union or for the implementa on of
Union acts.
Areas, listed in Art. 3 of the TFEU:
- customs union;
- the establishing of the compe on rules necessary for the func oning of the
internal market;
- monetary policy for the Member States whose currency is the euro;
- the conserva on of marine biological resources under the common sheries policy;
- common commercial policy.
—> Space does not belong to this category, which is characterised by a substan ve transfer
of sovereignty powers from the Member States of the Union.
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Shared Both the Union and the Member States may legislate and adopt legally binding acts in that
area.
The Member States are permi ed to exercise it only to the extent that the Union has not
exercised its competence.
—> this is a federal like clause synthesised by the brocard nail drives out nail.
Ar cle 4, para. 1: the Union has competence shared with Member States when the Trea es
confer on it a competence and support, coordina on or supplement.
Principle of When the Union exercises a shared competence, the Member States are prevented from
pre-emp on exercising theirs, so that the shared competence of the EU becomes an exclusive
competence.
Space is expressly quali ed as an area of EU’s competence in Ar cle 4, para. 3, of the TFEU:
In the areas of research, technological development and space, the Union shall have competence to carry
out ac vi es, in par cular to de ne and implement programmes; however, the exercise of that competence
shall not result in Member States being prevented from exercising theirs.
—> this provision merely indicates the conduct of ac ons, in par cular the de ni on and implementa on
of programmes.
It speci es that in this area the applica on of the pre-emp on principle is excluded.
= the exercise of the EU’s competence in the eld of space does not have the e ect of excluding that of
Member States.
The space competence of the Union can be con gured as a parallel competence.
—> parallel means that the two competences run side by side always at the same distance between them.
—> the parallel nature of the competence responds too a twofold need:
1. On the one hand, to extent the EU’s competence to space, which was considered an essen al area of
interven on for the evolu on of the integra on process and its applica on to ma ers such as defence
and security.
2. On the other hand, to limit the scope of that extension, while retaining the maximum of the preroga ves
in the eld of space within the sovereign rights of the Member States.
The exercise by States of their competence in this eld is expressly safeguarded.

—> the nature of the Union’s parallel competence in space is con rmed by Ar cle 189 in Title XIX TFEU,
devoted to research, technological development and space, which is the ad hoc legal basis for ac ons in the
space sectors.
The Union’s competence is outlined to promote:
- Technical and scien c progress
- Industrial compe veness
- Implementa on of its policies
- Development of a European space policy —> EU can promote joint ini a ves, support research and
technological development and coordinate the e orts necessary for the explora on and use of
space.
—> the TFEU confers to the European Parliament and the Council the power to laid down the necessary
measures, which may take the form of a European space programme, excluding any harmonisa on of the
laws and regula ons of the Member States.
The President of the Commission, José Barroso, in his speech at the European Space Policy Conference in
Brussels in 15 Oct. 2009, emphasised that the Lisbon Treaty undoubtedly included space as a shared
responsibility of the EU and the Member States.
The Communica on from the Commission to the European Parliament, the Council, the European Economic
and Social Commi ee and the Commi ee of Regions of 28 Oct. 2010, “An Integrated Industrial Policy for the
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Globalisa on Era”, recognised the central role of compe veness and sustainability, incardina ng the
objec ves of the EU space policy in the implementa on of Galileo/EGNOS programme an in strengthening
the EU’s partnership with ESA and Member States, without insis ng on the shared nature of the EU space
competence.
6. Exclusion of harmonisa on of na onal legisla on

Following Art. 189, the Parliament and the Council are en tled to adopt, on the basis of a proposal from the
Commission, regula ons, direc ves or decisions, provided that they are not aimed at harmonising na onal
legisla on.
- The act provided by the TFEU for realising the approxima on of na onal legisla on is the direc ve,
a norma ve instrument which shall be binding, as to the result to be achieved, upon each Member
State to which it is addressed, but shall leave to the na onal authori es the choice of form and
methods (Ar cle 288).
- Regula on: an act which has general applica on, is binding in its en rety and directly applicable in
all Member States.
—> What kind of na onal legisla on Ar cle 189, para. 2, of TFUE refers to: it seems clear that the exclusion
covers na onal legisla on of Member States on outer space ac vi es, adopted mainly to implement or
complement the 1967 OST and other UN Space trea es.
Member States have decided to keep na onal legisla on on outer space ac vi es outside the scope of the
EU’s ac on, even a er the Treaty of Lisbon and to reserve the ma er only for na onal legisla on.
—> the EU did not accept then the rights and obliga ons provided by UN space trea es using the
assimila on clauses present in ARRA, LIAB and REG, while such declara ons of acceptance were
progressively made by ESA, EUMETSAT, EUTELSAT, and Intersputnik.
The European Commission’s 2015 study aimed at assessing the need for EU ac on to prevent signi cant
di erences between na onal legisla on in Europe from cons tu ng an obstacle to the free market and the
ac vity of industries in the space sector, concluded that there was no need for coordina on of legisla on.
The last para. 4 of Ar cle 189 of the TFEU recalls that This Ar cle shall be without prejudice to the other
provisions of this Title (XIX Research and Technological Development and Space).
= the EU may con nue to harmonise na onal legisla on regarding sectors indirectly relevant to outer space
ac vi es but having their legal basis on other provisions of Title XIX.
—> other provisions of the Title, and of the en re Treaty, can be invoked to harmonise domes c disciplines
relevant to outer space ac vi es:
- Decision n. 676/EC of 7 Mar. 2002 on the legal framework applicable to radio spectrum policy in
the EU and the alloca on of frequencies in the context of ITU conferences, based on former Ar cle
95 TEC on the approxima on of laws in the internal market.
- Direc ve 2007/2/EC of 14 Mar. 2007 which establishes an Infrastructure for Spa al Informa on in
the European Community INSPIRE based on Ar cle 175, para. 1, of the TEC and aimed at providing
data func onal to the de ni on and implementa on of the Union’s environmental policies.
7. The evolu on of European space governance

Ar cle 189, para. 3, of the TFEU: The Union shall establish any appropriate rela ons with the European
Space Agency.
The main legal text for reference is the Framework Agreement of 2003.
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—> EU and ESA signed, on 26 Oct. 2016, a Joint Statement on shared vision and goals for the future of
Europe in space, where the two en es emphasised their inten on to reinforce their coopera on in the
future.
The EU is intervening more and more as an ac ve player in the development and nancing of space
programs and applica ons useful for the implementa on of various EU’s policies, suppor ng space projects
with a nancial commitment of on average EUR 2,000 million per year in the period 2021-2027.
The Directorate-General for Defence Industry and Space (DG DEFIS), in charge for EU policy on Defence
Industry and Space, leads the Commission’s ac vi es in these two sector in a more integrated way.
—> in the area of space, it oversees implemen ng the EU Space programs consis ng primarily of:
- The European Earth Observa on Program (Copernicus)
- The European Global Naviga on Satellite System (Galileo)
- The European Geosta onary Naviga on Overlay Service (EGNOS)
The EU has adopted the Space Surveillance and Tracking SST Support Framework with the Decision
541/2014/EU of the European Parliament and the Council.
= crea on of an SST Consor um, composed of seven EU Member States:
- France
- Germany
- Italy
- Poland
- Portugal
- Romania
- Spain
—> the SST Consor um and the European Union Satellite Centre (SatCen) have worked together to develop
an European SST capability and forms the SST Coopera on, through the networking of the assets of the
Consor um’s Member States.
The EU launched the Governmental Satellite Communica ons GOVSATCOM programme, aimed at providing
secure communica ons capabili es to security and safety cri cal missions and opera ons managed by the
EU and its Member States, including na onal security actors and EU Agencies and ins tu on.
Adop on of Regula on (EU) n. 696 of the European Parliament and of the Council of 28 Apr. 2021
establishing the Union Space Programme and the European Union Agency for the Space Programme
(EUSPA).
1. The Regula on has established the space programme of the Union for the dura on of the mul annual
nancial framework 2021-2027.
2. It has created the European Union Agency for the Space Programme, that has replaced and succeeded
the European Global Naviga on Satellite System (GNSS) Agency
—> the new Programme has put together as components the main agship programmes of the EU in the
space sector:
- Galileo: as an autonomous civil global naviga on satellite system under civil control comprising a
constella on of satellites, centres and a global network of sta ons on the ground, o ering
posi oning, naviga on and ming services and integra ng the needs and requirements of security.
- EGNOS: the civil regional satellite naviga on system under civil control consis ng of sta ons on the
ground and several transponders installed on geosynchronous satellites for air-tra c management,
air naviga on services and other transport systems.
- Copernicus: the civil Earth observa on system under civil control, building on the exis ng na onal
and European capaci es, o ering geo-informa on data and services comprising satellites, ground
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infrastructure, data and informa on processing facili es, and distribu on infrastructure, based on a
full, free and open data policy.
- Space Surveillance and Tracking System EUSST: aimed to improve, operate and provide data,
informa on and services related to the surveillance and tracking of space objects that orbit around
the Earth and risk monitoring of near earth objects approaching the Earth (Space Situa onal
Awareness, SSA).
- GOVSATCOM: a satellite communica ons service under civil and governmental control enabling the
provision of satellite communica ons capaci es and services to Union and Member State
authori es managing security cri cal missions and infrastructures.
ESA and EU have signed on 22 June 2021 the new Financial Framework Partnership Agreement FFPA:
- de nes the roles and responsibili es of all partners: the European Commission, ESA and the new
EUSPA
- Will bring Galileo to the next level with the development of the second genera on, a further step
forward with the use of many innova ve technologies
- Includes addi onal components under ESA’s responsibility.
There are s ll some open issues concerning the European space governance:
—> Di erent approaches between the industrial policy of ESA, on the one side, and EU, on the other side.
- ESA: has its own policy based on geographical distribu on, which plays an important role in its
procurement.
- EU: its system is based on fair and open compe on, which is one of the cons tu onal principles
sanc oned by EU law, which enjoys primacy in the legal system of Member States with preference
to all other obliga ons coming from other sources.
—> these two models are complementary, and they should be balanced.
8. Space diplomacy and EU Common Foreign and Security Policy

The EU ac on in outer space sector has acquired, before the Lisbon Treaty, an interna onal dimension
through the promo on of ac ons within the context of the Common Foreign and Security Policy CFSP.
—> one of the most relevant ini a ves has been the dra “Interna onal Code of Conduct for Outer Space
Ac vi es ICoC, aimed at strengthening the security and predictability of outer space ac vi es and open to
the accession of all States.
The dra Code of Conduct was elaborated and presented as an EU response to UNGA Res. 61/75 of 6 Dec.
2006 on strengthening trust and transparency in outer space and to subsequent resolu ons on the subject
adopted by the General Assembly.
Main objec ve: strengthen the security of all space ac vi es, therefore limi ng or minimising harmful
interference in space ac vi es.
Containing Transparency and Con dence-Building Measures, the ini a ve found its legal ground in Title V,
Ar cles 11-27 of the former TEU (Nice version, 2001), concerning the CFSP at the me cons tu ng the
second pillar of the Union.
—> it was nego ated within the EU’s Council Working Group on Global Disarmament and Arms Control
CODUN and the CFSP Presidency was en tled to represent the EU in the external rela ons with third
countries, assisted by the Secretary-General/High Representa ve and his Personal Representa ve on non-
prolifera on.
The dra Code was quali ed as a self-sustained ini a ve, culmina ng in an ad hoc diploma c conference
when a su cient number of countries showed interest in it.
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On 8-9 Dec. 2008, the EU’s General A airs and External Rela ons Council adopted Conclusions regarding
the dra Code of Conduct, which supported the annexed dra ad a basis for consulta on with key third
countries having ac vi es in outer space or interests in outer space ac vi es, with the aim of reaching a
text acceptable to the greatest number of States.
—> the adop on of this rst dra was emphasised by French President Sarkozy in a statement released in
Kourou (European spaceport in French Guyana) in Dec. 2008.
With the entry into force of the Lisbon Treaty, the dra ICoC remained anchored at the CFSP. The speci c
head of competence for the ICoC was Ar cle 2, para.2, of the TFEU:
The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to
de ne and implement a common foreign and security policy, including the progressive framing of a common
defence policy.
The Code’s ini a ve con nued under the responsibility of the EU’s High Representa ve for Foreign A airs
and Security Policy and Title V, Ar cles 21-40, of the TEU.
—> the dra ICoC took the form of an act de ned and implemented by the Council alone ac ng
unanimously.
The decisions adopted by the Council to support and nance the EU ini a ve for an ICoC were founded on
Ar cle 26, para. 2, of the TEU: the Council shall frame the common foreign and security and take the
decisions necessary for de ning and implemen ng it.
—> All these decisions were under the umbrella of a policy document, the European Security Strategy,
adopted by the European Council on 12 Dec. 2003, iden fying global challenges and threats, and calling for
a rule-based interna onal order based on e ec ve mul lateralism and well-func oning interna onal
ins tu ons.
The EU cannot take a posi on on its own without the support of all Member States nor nego ate on its own
an instrument or posi on without ac ng on the basis of an unanimous mandate from the Member States in
Council.
Chapter XV - Ar cle IX of the Outer Space Treaty

1. Introduc on
Ar cle IX:
First Part: it codi es substan ve principles regarding coopera on, mutual assistance, non-harmful
interference and non-contamina on.
Second Part: deals with a procedural ma er, consulta on.
—> it is shaped in a programma c way.
Principle of coopera on between States: is essen al in designing and implemen ng e ec ve policies to

prevent, or at any event to minimise the risk, of signi cant harm to the outer space, the Moon and other
celes al bodies.
Ar cle IX is related to other branches of interna onal law, such as the legal regime of the high seas and
interna onal environmental law.
2. Nego a ons and dra ing history

In 1958, COSPAR established the Commi ee on Contamina on by Extra-Terrestrial Explora on.
It set up the Consulta ve Group on Poten ally Harmful E ects of Space Experiments, which dealt with
biological, chemical and radia on contamina on as a serious environmental threat to the Earth and to
outer space from 1957 to 1967.
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When the UN Commi ee on the Peaceful Uses of Outer Space was established, it dedicated Part III of its
Report to the issue of contamina on, highligh ng that certain ac vi es related to lunar and planetary
impacts might result in biological, chemical, and radia on contamina on.
Possible sources of contamina on included:

- the release of chemical markers
- Radioac vity resul ng from nuclear explosions
- Genera on of gases in connec on with so landings
- Genera on of terrestrial micro-organism
- Re-entry of space vehicles was also men oned as a poten al source of contamina on of the Earth.
From the legal point of view, the aim of the studies to be undertaken was the possible formula on of
technical norms and appropriate interna onal standards.
In 1962, France suggested that measures be considered for the prohibi on of contamina on, either by
microbes or radioac vity, of outer space and celes al bodies.
The USSR proposed an agreement that the study and use of space for peaceful purposes should not be
hindered. The USSR proposal also raised the issue of prohibi on of nuclear tests in the upper atmosphere.
While the principle of coopera on, mutual assistance and due regard were seen as fundamentally inherent
in the freedom of explora on and use of outer space, as well as of non-appropria on, the principle of
avoiding poten ally harmful interference was more linked to the cri cal issue of the use of outer space for
peaceful uses, military uses and military experiments.
—> the genesis of Ar cle IX is very much indebted to the crisis between the USSR and the US from 1961 to
1963 (28.5.1963, soviet statement presented to the UN “Dangerous United States Ac vi es in Outer Space).
The UNCOPUOS was tasked to deal with the issue of poten ally harmful e ects of space experiments:
- the US supported a recommenda on stressing the need for careful study by a State before an
experiment is undertaken, and the desirability of its seeking assistance by consul ng a competent
interna onal scien c group if there were a possibility of the e ects of an experiment being
poten ally harmful.
—> on 29 May 1963, an agreement was reached on a recommenda on that directed the a en on of the
main Commi ee to the urgency and the importance of the problem of preven ng poten ally harmful
interference with peaceful uses of outer space.
While India expressed reserva ons about the limited scope of the recommenda on, the USSR interpreted it
as laying down an important new interna onal principle, con rming the need for prior agreement on space
experiments.
The rst step in the codi ca on process of the general principles applicable to outer space ac vi es was the
adop on by the UNGA of the Declara on of Legal Principles Governing the Ac vi es of States in the
Explora on and Use of Outer Space, contained in UNGA RES. 1962 (XVIII) of 13 December 1963.
Principle 6 of the Declara on:
In the explora on and use of outer space, States shall be guided by the principle of coopera on and the
mutual assistance and shall conduct all their ac vi es in outer space with due regard for the corresponding
interests of other States. If a State has reason to believe that an outer space ac vity or experiment planned
by it or its na onals would cause poten ally harmful interference with ac vi es of other States in the
peaceful explora on and use of outer space, it shall undertake the progress of the explora on and use of
outer space appropriate interna onal consulta ons before proceeding with any such ac vity or experiment.
A State which has reason to believe that an outer space ac vity or experiment planned by another State
would cause poten ally harmful interference with ac vi es in the peaceful explora on and use of outer
space may request consulta on concerning the ac vity or experiment.
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On 20 May 1964, the Execu ve Council of COPSAR adopted a Resolu on on No Harmful Interference from
Wes ord Experiment and ve further recommenda ons on the sterilisa on of space vehicles and space
probes.
—> the STSC adopted a new recommenda on urging all Member States proposing to carry out experiments
in space to consider the problem of possible interference with other peaceful uses of outer space.
The LSC was then tasked to prepare the juridical instruments that would incorporate these principles in a
binding legal document.
—> in 1966, discussions in the UNCOPUOS centred mostly on the elabora on of an interna onal treaty on
principles governing the ac vi es of States in the explora on and use of outer space, including the Moon
and celes al bodies.
The Legal Subcommi ee was presented with two dra s:

1. The rst proposed by the USSR on 20 March 1966
2. The second by the US o 4 Oct. 1966
The Soviet provision concerning the avoidance of harmful contamina on of celes al bodies was replaced by
the requirement that States Par es to the Treaty should pursue studies and explora on of outer space,
including the Moon and celes al bodies, in such a manner as to avoid their harmful contamina on and also
adverse changes int he environment of the Earth resul ng from the introduc on of extraterrestrial ma er,
and should adopt appropriate measures for this purpose.
On 15 Dec. 1966, the dra text of the Outer Space Treaty was submi ed to the First Commi ee of the UN
General Assembly.
On 19 Dec. 1967, this dra text was adopted unanimously by the UNGA and a ached to UNGA RES. 2222
(XXI).
3. The principle of coopera on

The principle of coopera on is directly connected with the principle of free explora on and use of outer
space and is par cularly important since many States par es to the OST cannot par cipate in peaceful
space explora on and research without resor ng to some form of interna onal coopera on, either on a
mul lateral or on a bilateral basis.
The principle of coopera on has been further developed by the UNGA through the Declara on on
Interna onal Coopera on in the Explora on and Use of Outer Space for the Bene t and in the Interest of all
States, Taking into Par cular Account the Needs of Developing Countries.
—> the Declara on clari es that the principle applies to all modes of coopera on, including:
- Governmental
- Non-governmental
- Commercial
- Non-commercial
- Global
- Mul lateral
- Regional
- Bilateral
- Among countries in all levels of development
The principle of coopera on is applicable to:

- public State ac vi es
- Private and commercial ac vi es (which should be under the supervision of the “appropriate”
State).
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The principle of coopera on and mutual assistance should be regarded as a general principle that needs to
be concre sed by more detailed rules.
—> it provides a guide for the ac vi es carried out by the States par es, while precise obliga ons can be
found in interna onal trea es and other instruments that deal with the coopera ve ventures in ques on.
The OST contain several provisions detailing the principle of coopera on. For example, Ar cle III:
States Par es to the Treaty shall carry on ac vi es in the explora on and use of outer space, including the
Moon and other celes al bodies, in accordance with interna onal law, including the Charter of the United
Na ons, in the interest of maintaining interna onal peace and security and promo ng interna onal
coopera on and understanding.
4. The principle of due regard

Ar cle IX refers to the obliga on of States par es to conduct all their ac vi es in outer space, including the
Moon and other celes al bodies, with due regard to the corresponding interests of all other States par es.
—> Ar cle IX func ons as a limita on to the freedom of explora on and use of outer space provided for in
Ar cle I, para. 2 of the OST.
Outer Space is to be explored and used with due diligence (Res communes omnium), considering the
interests and rights of other States.
States are bound to ensure that the exercise of their rights and freedoms in outer space does not interfere
with, or compromise the safety of, space opera ons.
= the freedom to use outer space means that a State is en tled to undertake ac vi es which would not
threaten the ac vi es of other States.
In Ar cle IX of the OST, due regard refers to the performance of an act with a certain standard of care,
a en on or observance.
The requirement of “due regard” is indeed a quali ca on of the rights of States in exercising the freedoms
in outer space, the Moon and celes al bodies.
The State must prove beyond a reasonable doubt that everything possible was undertaken to prevent a
harmful act from occurring.
—> States are responsible for their ac ons or omissions related to non-State actors.
No on of corresponding interests: there are no unilateral interests in outer space and there cannot be
discriminatory treatment.
—> Space ac vi es carried out by a given State should be in accordance not only with its own interests, but
also with the interests and rights of the remaining States Par es to the OST.
5. The “Earth oriented” perspec ve

Ar cle IX may be considered the basis for the environmental protec on of outer space and its preserva on
for peaceful uses.
Ac vi es in outer space are per se ultra-hazardous ac vi es, which may be harmful to both the space and
the terrestrial environment.
= for this reason, they should be carried out with a high standard of care and due diligence.
This “Earth-oriented” perspec ve is present also in other norms, such as Ar cle II of the 1972 LIAB,
concerning the absolute liability of States to pay compensa on for the damage their space objects cause on
Earth and the Principles rela ng to the Use of Nuclear Power Sources in Outer Space, adopted by the 1992
UNGA resolu on 47/68, dealing with the safe use of nuclear power sources in outer space par cularly in
order to avoid the risk of re-entry of radioac ve material to the Earth.
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Ar cle IX implies that any con nua on which would result in harm to a State’s experiments or programs is
to be avoided.
= space debris are a form of harmful contamina on.
It is true that Ar cle IX does not specify under what circumstances it would be necessary to adopt
appropriate measures or which measures would in fact be appropriate.
—> the obliga on to take all appropriate measures to prevent harm, or to minimise the risk thereof, cannot
be con ned to ac vi es which are already properly appreciated as involving such a risk, but extends to
taking appropriate measures to iden fy ac vi es which involve such a risk.
—> Due diligence requires reasonable e orts by a State to inform itself of factual and scien c components
that relate to a contemplated ac vity and to take appropriate measures in mely fashion so as to address
them.
The rules of interna onal law aiming at protec ng the environment have developed remarkably.
Ar cle III of the Outer Space Treaty: ac vi es related to the explora on and use of outer space are to be
carried out in accordance with interna onal law.
= applicable law includes not only interna onal norms speci cally applicable to the environmental
protec on of outer space, but also rules of interna onal law at large, whether such rules are of a
customary, conven onal or other nature.
—> tendency not only toward tackling the problem of the environment preserva on in outer space, but
also towards protec ng, to the maximum possible extent, the space environment and trying to avoid
harmful contamina on.
COSPAR Planetary Protec on Policy: aimed at providing acceptable guidelines which can be generally
adopted by States to avoid contamina on in their space explora on.
- in the USA, NASA has responsibility for implemen ng planetary protec on policies that are
developed in the interna onal scien c community and, speci cally, within COSPAR.
Principles Rela ng to the Use of Nuclear Power Sources in Outer Space and the dra Safety Framework
for the uses of Nuclear Power Sources in Outer Space under discussion within the Joint Working Group
STSC in associa on with the Interna onal Atomic Energy Agency IAEA must be men oned.
—> an example of safety assurance in the use of nuclear power spices is the fact that NASA’s Galileo
nuclear-powered spacecra was deliberately destroyed by disintegra ng it at high al tude within Jupiter’s
atmosphere so as to eliminate the chance of an unwanted impact with Jupiter’s moon Europe.
Na onal space legisla on as part of relevant State prac ce:

—> example: Sec on 5 of the UK’s Outer Space Act (1986), which includes the requirement that their
opera ons be conducted in such a way as to prevent contamina on of outer space or adverse changes to
the environment of the Earth.
6. The consulta on mechanism

The last part of Ar cle IX deals with a mechanism of consulta on regarding the avoidance of poten ally
harmful interference in outer space, including the Moon and other celes al bodies.
1. A State which plans an ac vity or experiment has the obliga on to undertake appropriate interna onal
consulta on with other States par es if it has reason to believe that such ac vity or experiment would
cause poten ally harmful interference to the ac vi es of such other States par es in the peaceful
explora on and use of outer space.
2. A State poten ally a ected by an ac vity or experiment planned by another State has the capacity to
request that the la er enters consulta on concerning the ac vity or the experiment that would cause
poten ally harmful interference.
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The State of origin of the ac vity or the experiment is required to enter consulta on prior to authorisa on
or commencement of an ac vity, while the State poten ally a ected can supposedly ask for consulta on
not only before, but also during the performance of such ac vity or experiment.
1. Ar cle IX deals with consulta on on ac vi es that are not prohibited by interna onal law and that are
normally important to the interests of the State of origin.
2. It would be unfair to other States to allow ac vi es which would cause harmful interference to be
conducted without consul ng them and taking appropriate preven ve measures to avoid such harm
3. Ar cle IX does not provide a right of veto to the States that are likely to be a ected.
Ar cle IX should be considered a precursor of the transparency and con dence-building measures, which
are an important tool for ensuring the peaceful uses of outer space as well as the safety and security of
outer space opera ons.
The widespread diploma c reac ons against China for the experiment of 11 Jan. 2007, when an an -
satellite tool was allegedly tested using a ballis c missile to destroy an aging Chinese weather satellite, were
due to two main reasons:
1. The relevant increase of dangerous space debris in geosta onary orbit
2. The absolute lack of informa on and transparency on the part of the Chinese government.
United States, case of the satellite USA-193, shot down by a missile in Feb. 2008. A Note was in fact sent by
the US Government to the United Na ons and to several States jus fying this inten onal ac on to avoid the
extremely serious consequences of the poten al crash on Earth of the satellite’s tank, which was carrying
toxic hydrazine fuel.
The same Note reminded that the US, as State Party to LIAB, was ready to honor their obliga ons in the
case of damages covered by LIAB.
7. State responsibility in Ar cle IX

Due to the legal nature of outer space as res communis omnium, the ques on arises as to which State is
en tled to invoke the responsibility of the violator State in the case of infringement of an obliga on
concerning the protec on of the outer space environment:
1. According to Ar cle 42 of the Ar cles on State Responsibility for Interna onally Wrongful Acts adopted
by the Interna onal Law Commission in 2001, the injured State in en tled to invoke such State
responsibility as the State whose rights and interests are directly a ected by a viola on of conven onal
or customary norms protec ng the space environment.
2. The responsibility of the violator can be invoked, according to Ar cle 48, literal a, of the Ar cles, by any
State other than an injured State.
There is a need for further scien c and technical standards to ensure the safety, sustainability and security
of space ac vi es and opera ons for peaceful purposes and to avoid harmful interferences in outer space.
Chapter XVI - Protec ng the Outer Space Environment

1. The protec on of the space environment
Pollu on of outer space and the increasing presence of man-made orbital debris have been considered by
jurists ini ally as a poten al nuisance to opera onal satellites, rather than a poten al threat to the
conserva on of the space environment itself.
A er the report adopted by the UNCOPUOS Scien c and Technical Subcommi ee in 1999, we can say that
the peril of debris is a major risk factor for the space environment, especially in Low Earth Orbit (LEOs),
limited resources where debris accumula on is becoming par cularly worrying.
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Professor Francis Lyall outlined that the rules of law, both na onal and interna onal, aimed at protec ng
the terrestrial environment had developed remarkably, but, other than some general principles, few of
them were readily transposable to the space environment.
The main problem in dealing with this ma er lies in the scarcity of primary norms of interna onal law
which impose clear obliga ons upon States carrying out space ac vity and in the weakness of secondary
norms of a customary nature applicable to environmental damage to space.
Back-contamina on: this point of view is shared by several norms contained in the UN space trea es:
- Ar cle IX of the Outer Space Treaty se ng out the obliga on to avoid, in the explora on of outer
space, adverse change in the environment of the Earth resul ng from the introduc on of
extraterrestrial ma er.
- Ar cle II of the 1972 Liability Conven on, concerning the absolute/objec ve liability of States to pay
compensa on for the damage their space objects cause on Earth.
The view that the norms of space law on environmental protec on focus mainly on the protec on of the
Earth is correct. However, this circumstance cannot be overes mated.
—> there is a clear link between Earth pollu on from the space and planetary contamina on, because the
source of the former can, at the same me, be the source of the la er
2. Maintaining the space environment

Some norms of interna onal law serve as a basis for a legal regime of protec on of the space environment
as such.
—> according to Ar cle I of the OST, the explora on and use of outer space shall be the province of all
mankind. This norm is aimed at protec ng not only the freedom of any State to carry out space ac vi es
without su ering harmful interference by others, but also at safeguarding the cosmic environment as an
essen al element of this freedom.
—> Ar cle IX of the OST sets forth the provision that States shall pursue studies in outer space, including the
Moon and other celes al bodies, and conduct explora on of them as to avoid their harmful contamina on.
This norm clearly imposes upon States conduc ng space explora on ac vi es, the obliga on of avoiding
harmful contamina on of outer space and the Earth’s orbits, which are an integral part of the space
environment.
It also establishes a duty of consulta on upon States that have reason to believe that their planned
ac vi es, or experiments could produce poten ally harmful interference with ac vi es of other States.
—> Ar cle 7, para. 1, of the 1979 Moon Agreement elaborates more in comparison with the previous UN
space trea es, by explicitly considering the risk of lunar contamina on and imposing upon States the duty
to take measures to prevent the disrup on of the exis ng balance of its environment.
3. Integra on from interna onal environmental law

Both interna onal environmental law and interna onal space law have evolved through the consolida on
of general principles:
- on the one side the 1972 Stockholm and 1992 Rio Declara ons and the mul lateral environmental
conven ons
- On the other side, the 1967 OST as a treaty on principles.
—> Interna onal environmental law is composed by thousand of trea es; Conven onal space law is limited
to the ve UN trea es and other mul lateral and bilateral instruments, but certainly less than the parent
environmental trea es.
In the area of interna onal law, the general principles di er from customary norms only in the generality of
their wording —> environmental declara ons of principles have func oned as the matrix of customary
norms and treaty law.
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Some principles belonging to the environmental sector, can be quali ed as norma ve concepts, from which
speci c customary norms and treaty norms have developed.
The concept of sustainable development contained in the 1992 Rio Declara on on Environment and
Development has served as a model regula on, as a basis for development to determine what the duty to
balance might be.
The 1992 Rio Declara on cons tutes the most signi cant universally endorsed non-legally binding
statement of general principles concerning the protec on of the environment balanced with the need of
economic development.
—> the Rio Declara on has been a real law developing resolu on: several principles have acquired the
status of norms of customary interna onal law and have been endorsed by several environmental trea es,
such as:
- The prohibi on of transboundary damage,
- The preven on of environmental harm and coopera on principles
- The integra on principle
- The environmental impact of assessment
- The consulta on and no ca on principles
- The duty to inform on ac vi es poten ally harmful to the environment
The primary norms of interna onal space law are to be considered as integrated by rules and principles on
environmental protec on of general scope, which have developed in recent years.
—> the best way to evaluate the interac on between interna onal environmental law and interna onal
space law is to divide the most important general principles of interna onal environmental law into two
categories:
1. The rst include those principles that are func onal to outer space ac vi es
2. The second the principles that are dysfunc onal to the outer space ac vi es sector.
There are speci c general principles of space law relevant to the environmental protec on of outer space,
such as Ar cles I, III, IX and XI of the 1967 OST.
= we nd in these speci c norms:
- the mutual commitment of States to avoiding forward and backward harmful contamina on;
- the principle of due regard for the corresponding interests of all other States when carrying out
ac vi es in outer space, the Moon and other celes al bodies;
- the commitment to observe a high degree of diligence in outer space ac vi es;
- the principle of transparency in the dissemina on of informa on regarding space explora on plans;
- the commitment to no fy planned ac vi es to the UN Secretary-General;
- the engagement to promote the sustainable and bene cial use of outer space for the en re
humanity.
4. The no harm rule as a basic prescrip on

The duty of States to avoid ac vi es in their territory or under their jurisdic on causing signi cant damage
to the environment of other States is a well-established rule of interna onal law connected with the
protec on of the sovereignty of the State and the obliga on not to intrude harmfully in its sovereignty.
- Cosmos 954 case (1978): gives evidence that the intrusion of the Soviet satellite’s fragments and
the radioac ve contamina on of the a ected areas, was rstly and foremostly considered as a
wrongful viola on the Canadian sovereignty.
The tradi onal rule of interna onal environmental law has been enlarged by two declara ons of
environmental principles:
- Principle 21 of the 1972 Stockholm Declara on
- Principle 2 of the 1992 Rio Declara on
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The permanent sovereignty of States over their natural resources goes hand in hand with the prohibi on of
ac vi es that cause serious transboundary harm to other States or to areas beyond the limits of na onal
jurisdic on.
The rule protects not only States, but also the areas beyond the limits of na onal jurisdic on, within which
outer space, the Moon and the celes al bodies are included.
The principle denies that there is a sovereign right to engage in or allow ac vi es having serious harmful
transboundary e ects, pollu ng outer space, the Moon or other celes al bodies, as well as the oceans.
The duty of control, preven ve ac on and due diligence in outer space has been implicitly recognised by
the ICJ in its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, as a general
obliga on of States to ensure that ac vi es within their jurisdic on and control respect the environment of
other States or of areas beyond na onal jurisdic on that is now part of the corpus of interna onal law
rela ng to the environment.
Which State/s is/are en tled to invoke the responsibility of the violator State in the case of infringement of
the obliga on concerning the protec on of the environment and not to cause serious environmental harm.
—> the responsibility of the violator can be invoked by any State, by any member of the interna onal
community, not only by the eventually injured State.
A due diligence obliga on requires adequate policies, and regulatory framework, and the best available
technology.
The principle applies both to governmental and private ac on or inac on, that is, it also concerns private
operators which shall act on their own capacity, and be adequately controlled by the government, to
prevent transboundary harm.
5. Principle of sustainable development/sustainability of space ac vi es

Space applica ons are an important tool for realising sustainable development on Earth —> Climate ac on
is one of the most pressing priori es for ac on within the UN Sustainable Development Goals SDGs
framework.
Earth observa on is an essen al tool to monitor the clima c changes. Space technologies can contribute
signi cantly to global e orts to mi gate and adapt to climate change.
Sustainability of Space Ac vi es:

The 21 Guidelines for the Long-Term Sustainability of Outer Space Ac vi es were adopted in 2019 to
provide guidance on the strategic and regulatory framework for space ac vi es:
- space opera ons security
- Interna onal coopera on
- Capacity-building
- Awareness
- Scien c and technical research and development
—> they also con rm that the Commi ee on the Peaceful Uses of Outer Space should serve as the main
forum for further ins tu onalised dialogue on issues related to implementa on and review of the
Guidelines.
The preamble of the LTS Guidelines recognises that these ac vi es are essen al to achieving the SDGs and
contains a de ni on that includes all the elements referred to in the interna onal literature on sustainable
development and even in the case law of the Interna onal Court of Jus ce.
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“5. The long-term sustainability of outer space ac vi es is de ned as the ability to maintain the conduct of
space ac vi es inde nitely into the future in a manner that realises the objec ves of equitable access to the
bene ts of the explora on and use of outer space for peaceful purposes (…)”.
The rst element of the principle of sustainable development requires environmental protec on to be
treated as an integral part of development process that cannot be considered in isola on from it.
This aspect of the principle of sustainable development also requires economic and other development
considera ons to be considered in developing and applying those interna onal environmental norms.
6. Principle of common but di eren ated responsibility

Principles of Interna onal environmental law that seem to be dysfunc onal regarding outer space ac vi es.
A principle introduced by the 1992 Rio Declara on belongs to this category and regards the so-called
common but di eren ated responsibility CBDR.
—> it would imply that States have a common duty to cooperate, but they have di eren ated concrete
responsibili es because of the di erent contribu on they have made in the past = developed countries
should recognise that they have the greatest burden in the pursuit of sustainable development, because of
the pressures of their socie es on the global environment and the nancial and technological resource they
have.
Countries di erent capaci es and development levels have been acknowledged by including the no on of
CBDR under the 1992 UN Framework Conven on on Climate Change UNFCCC.
—> the original dichotomous di eren a on between industrialised countries and developing countries
re ects neither scien c knowledge nor current poli cal reali es. The system of interna onal climate
policy, together with its legal framework, has become indeed dysfunc onal.
The US did not, and does not accept any interpreta on of Principle 7 of Rio Declara on that would imply a
recogni on or acceptance of any interna onal obliga ons or liabili es, or any diminu on in the
responsibili es of developing countries.
—> interna onal case law has con rmed that the rela ve prac ce cannot be considered as well established.
The only certain conclusion about its value of interna onal customary law was reached in 2011 by the
Chamber of the se lement of disputes of the Interna onal Tribunal for the Law of the Sea in an advisory
opinion on the Responsibili es and Obliga ons in the Area.
States and authori es are required to apply a precau onary approach. It de ned such an approach as the
obliga on to carry out an environmental impact assessment and considered it an integral part of the
general obliga on of diligence.
A exible implementa on of CBDR is needed to consider the mul plica on of country coali ons of States
having interests in outer space ac vi es, such as:
- spacefaring and non-spacefaring na ons
- Developing countries
- Emerging space countries
For such a exible regime that would include di eren a on of State groups beyond the tradi onal
dichotomy, with gradua on and exclusion mechanisms, a set of transparent, measurable, and veri able
indicators of development, contribu on to the debris growth and capaci es are needed and should be
agreed upon (which is not an easy task).
This principle cannot nd its legal roots in Ar cle I of the OST, over evalua ng the language irrespec ve of
their degree of development.
—> the applica on of the precau onary principle aims at avoiding an inde nite postponement of e ec ve
preven ve measures in the face of the risk of causing serious or irreversible environmental damage.
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—> in the prac ce, there is no evidence that State having space programmes and ac vi es are convinced
that there is an obliga on for them to concur obligatorily to the removal of the orbital debris they have
generated in the past according to the respec ve capaci es and resources.
Customary law and general principles have given legal force to some basic rules, which are important in
interpre ng and applying not only environmental, but also outer space trea es.
—> they lack the capacity to set standards which are precise, exible, or su ciently capable of rapid
ar cula on.
—> these principles must be supplemented and implemented through bilateral or mul lateral agreements,
mainly for the outer space environment protec on, or through technical standard, recommended prac ce
and technical rules.
Chapter XVII - The Legal Dimension of the Sustainability of Outer Space

Ac vi es
1. Safety, sustainability, and security of outer space ac vi es
The sustainable and responsible use of outer space is a high priority at the interna onal level.
—> if outer space would not be safe and sustainable, it would also become non-peaceful. The ability to use
it could be denied to all, in contrast with the general principles contained in Ar cle I of the 1967 Outer
Space Treaty.
The rst and main interna onal instrument dealing with this concept is the 1992 Rio Declara on on
Environment and Development, whose Principles 3 and 4 indicate two key elements:
1. The right to development to be ful lled so as to equitably meet developmental and environmental needs
of present and future genera ons
2. The principle of integra on, so that in order to achieve sustainable development, environmental
protec on shall cons tute an integral part of the development process and cannot be considered in
isola on from it.
Judge Weeramantry, former Vice-President of the ICJ —> in the Gabcìkovo-Nagymaros Project case
between Hungary and Slovakia, on how to reconcile the needs of economic development and the
protec on of environment, he suggested that for achieving that result it is necessary to draw upon the
wisdom of all cultures.
Principles:
- trusteeship of Earth resources;
- Intergenera onal rights;
- Maximisa on use of natural resources;
- Preserva on of their regenera ve capacity
- Development and environment protec on should go hand in hand
—> principle of sustainable development in interna onal law as an objec ve to be reached through
adequate measures and the applica on of the exis ng rules of interna onal environmental law, both
customary and conven onal.
Concepts of security, safety and sustainability as complementary. Other no ons such as stability and
predictably are also used.
—> di erent meanings:
- Sustainability: refers to the use of outer space in a way that maintains its poten al to meet the
needs and aspira ons of present and future genera ons, and that ensures that all humanity
con nues to use the outer space for peaceful purposes, scien c and technological advancements
and socioeconomic bene ts.
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- Safety: means mainly managements of risks. It is required to assure the safe opera on of outer
space ac vi es, suppor ng the con nued evolu on of a strategy to improve safety performance
and systema cally address safety risks.
- Security: has more to do with the freedom from threats and ac ons that would ul mately
undermine the ability of countries to con nue to use outer space for their purposes. Is aimed at
ensuring the free access to, and use of, outer space in support of vital interests of all na ons.
—> space debris are not the only risk. In fact, conges on of Low Earth Orbit LEO, collisions among space
objects, orbital debris, frequencies overlapping, inten onal and uninten onal harmful interferences,
deliberate destruc on of satellites, are already a reality.
—> Space objects can be used as armaments: it is a ma er of intent.
The legal background for the security, safety and sustainability of space ac vi es can be found in several
instruments and provisions of interna onal law as well as na onal legisla on which deal with the concern
relevant to the future of space ac vi es, namely:
- the ra onal use of outer space
- The responsibility of States for outer space ac vi es
- Interna onal liability in case of damage and the transparency in the u lisa on and the exploita on
of outer space, in par cular Earth’s orbits.
There are three elements to be considered:

1. The UN space trea es does not have ins tu onal structures, such as conferences of the par es, to
discuss the applica on of such trea es and adopt any adap ng instruments needed.
2. The pillars of the 3OS

The rst basket is composed by the technical rules adopted for the mi ga on of space debris:
- the Space Debris Mi ga on Guidelines set out in 2002 by the Inter-Agency Space Debris
Coordina on Commi ee IADC, and updated in 2007, have de ned the no on of space debris as all
man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the
atmosphere, that are non-func onal.
- The European Code of Conduct for Space Debris Mi ga on, adopted in 2007 by ASI, CNES, DLR, ESA
and UK Space Agency
- The COPUOS Space Debris Mi ga on Guidelines, endorsed by UNGA RES. 62/217 of 21 Dec. 2007
On 13 Jun. 2021, at the G7 Leaders’ Summit in Cornwall, delegates from Canada, France, Germany, Italy,
Japan, the US, the UK and the EU pledged to take ac on to tackle the growing hazard of space debris as
Earth’s orbit becomes increasingly crowded.
—> they welcomed all e orts, public and commercial, in debris removal and on-orbit servicing ac vi es and
undertook to encourage further ins tu onal or industrial research and development of these services.
—> they acknowledge the importance of developing common standards, best prac ces and guidelines
related to sustainable space opera ons alongside the need for a collabora ve approach for space tra c
management and coordina on.
Between 2007 and 2019 other interna onal ini a ves aimed at ensuring space sustainability, safety and
security were launched:
- the UNCOPUOS Long-Term Sustainability of Space Ac vi es Working Group
- The dra Interna onal Code of Conduct for Outer Space Ac vi es
- The Group of Governmental Experts on Transparency and Con dence-Building Measures in Outer
Space Ac vi es
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Common elements:
1. all of them addressed in a pragma c way poten al and actual risks and threats to the safety, security and
sustainability of space ac vi es, without indulging in ideological considera ons;
2. their outcome was expected to result in non-binding interna onal commitments, to be accepted by the
interested States on voluntary basis, without prejudice for further norma ve developments;
3. they were interrelated and complementary, not alterna ve, diploma c ac ons.
The three ini a ves maintained di erent origins and purposes:

1. The LTS was held under the umbrella of the COPUOS Scien c and Technical Subcommi ee and was
tasked with producing a consensus report outlining voluntary guidelines for all space actors to ensure the
long-term sustainability of outer space, to prevent poten al risks and redress exis ng dangerous
situa ons.
2. The WG operated following a bo om-up scheme, involving the main stakeholders, public and private.
3. The dra Interna onal Code of Conduct for Outer Space Ac vi es was an instrument aimed at se ng up
non-legally binding norms of responsible behaviour in outer space ac vi es.
—> in 2007, the EU ini ated the process, which led to the endorsement of a dra Code of Conduct on
Outer Space Ac vi es by the EU Council a rst me in 2008 as a part of the Common Foreign and Security
Policy and as a reply to the UNGA resolu ons calling Member States to submit concrete proposals in the
eld of transparency and con dence-building measures in the outer space.
= the issue of poten al harmful interferences in outer space required top-level poli cal a en on.
4. The Group of Governmental Experts on TCBMs, made of 15 interna onal experts nominated by Member
States of the UN on the basis of equitable geographical representa on, was set up by the UNGA, in
accordance with its resolu on 63/68 of 2011. It was expected to produce by 2013 a consensus report
outlining recommenda ons on TCBMs.
—> TCBMs are part of the legal and ins tu onal framework suppor ng military threat reduc ons and
con dence-building among na ons. They have been recognised by the UN as mechanism that o er
transparency, assurances and mutual understanding amongst States and reduce tensions.
These ini a ves:

- two ended with a nal result agreed by the nego a ng States, namely GGE on TCBMs and LTS
- The third one, the EU’s ICoC did not have an agreed outcome mainly because of the cri cism
a ached not as its content, but as the process followed by the EU, which was considered by some
States not su ciently inclusive.
3. The 21 Guidelines on LTS

In 2008, a document was outlined to introduce some thoughts on possible recommenda ons and
mechanism that would contribute to keeping outer space safe and sustainable for the long-term.
—> the Commi ee decided to establish the Working Group on LTS in 2010 under the umbrella of the STSC
(tasked with producing a consensus report outlining voluntary guidelines for all space actors to ensure the
long-term sustainability of outer space.
In the period 2010-2018, the ad hoc Working Group on LTS nego ated a compendium of guidelines on the
long-term sustainability of space ac vi es, opera ng following a bo om-up scheme, involving - through
Member States - the main stakeholders, public and private.
—> challenge: concerns of emerging space na ons that any guidelines should not impose unacceptable
barriers to new entrants in the space arena.
Main characters of the guidelines:

- they should be high-level and not too technically detailed
- Voluntary and not legally binding, based on actual, proven, e cient and e ec ve prac ces
- Consistent with exis ng interna onal legal frameworks for space ac vi es.
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Four Expert Groups, composed by experts nominated by Member States, IGOs with permanent observer
status with COPUOS, while inputs were received from non-governmental organisa ons.
The Expert Groups dealt with:
1. Sustainable Space U lisa on Suppor ng Sustainable Development on Earth
2. Space Debris, Space Opera ons and Tools to Support Collabora ve Space Situa onal Awareness
3. Space Weather
4. Regulatory Regimes and Guidance for Actors in the Space Arena
The Guidelines progressively took a systema c form:

A. Policy and regulatory framework for space ac vi es
B. Safety of space opera ons
C. Interna onal coopera on, capacity-building and awareness
D. Scien c and technical research and development
States and IGOs should voluntarily take measures, through their own na onal or other applicable
mechanisms, to ensure the implementa on of the guidelines to the greatest extent feasible and prac cable.
—> they should be guided by the principle of coopera on and mutual assistance and conduct all their
ac vi es in outer space with due regard for the corresponding interests of all other States.
The me originally allo ed to the WG was extended repeatedly, un l an agreement was reached on a group
of 12 Guidelines at the COPUOS in Jun. 2017, while addi onal Guidelines were agreed upon during the STSC
in Feb. 2018.
On 7 other Guidelines it was not possible to reach a consensus, even though nego a ons con nued in the
margins of the session of COPUOS in June 2018 during the UNISPACE+50.
—> the impossibility to conclude the work in June 2018 was due to the existence of wide divergences
between Member States:
- On the one hand, a group of countries (Australia, Canada, France, Germany, Israel, Italy, Japan, The
Netherlands, New Zealand, the UK, the US) argued that the set of approved Guidelines should be
considered as a compendium and transmi ed to the General Assembly for approval in a stand-
alone resolu on. They also pointed out that, since these were non-binding guidelines, an important
element on which to focus the a en on of States would be that rela ng to their voluntary
implementa on, regardless of the conclusion of the nego a ons and the forms of a possible nal
instrument.
- On the other hand, the Russian Federa on insisted on the adop on of a resolu on aimed at
con nuing the work of the Working Group or other formula that would allow the con nua on of
nego a ons on the remaining 7 Guidelines —> the themes were about
1. providing, in na onal legal and/or policy frameworks, for a commitment to conduc ng space
ac vi es solely for peaceful purposes;
2. taking measures to iden fy, mi gate and manage the risk to terrestrial infrastructure suppor ng
the opera on of orbital systems;
3. observing procedures for preparing and conduc ng opera ons for ac ve debris removal of in-
orbit space objects;
4. developing procedures for outer space ac vi es involving non-registered objects;
5. observing measures for the safe conduct of proximity space opera ons and measures of
precau on when using natural space environment modi ca on techniques for peaceful purposes;
6. Raising awareness of the need to exclude the use of informa on and communica ons technology
products compromising the safety and security of space objects and related equipment.
In June 2019, the COPUOS reached a nal step in adop ng the Preamble and 21 Guidelines previously
agreed within the WG.
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The Commi ee also decided that the WG would be guided by the following tripar te framework:
a. Iden fying and studying challenges and considering possible new guidelines for the long-term
sustainability of outer space ac vi es.
b. Sharing experience, prac ces and lessons learned from voluntary na onal implementa on of the
adopted guidelines.
c. Raising awareness and building capacity, in par cular among emerging space na ons and developing
countries.
The LTS Guidelines are the visible result of many years of nego a on and provide non-legally binding rules
that each country can adopt to ensure that space remains sustainable and accessible in the future.
—> it is evident that the adop on of na onal legisla on or other forms of regulatory measures with respect
to the commitments deriving from these speci c non-binding instruments should be le to each interested
State.
Not necessarily each guideline will require implementa on through na onal legisla on; more o en policy
measures would be su cient, as well as administra ve prac ces.
Example: In France, the COPUOS Space Debris Mi ga on Guidelines have been translated into obliga ons
for the operators, who had to show how they intended to implement them.
To achieve sustainability, outer space ac vi es need also to rest on sound policies and clearly formulated
interna onal agreements, laws, and codes.
—> the Guidelines are divided into di erent aspects:
- Guidelines that address, encourage States to develop standards, and best prac ces, share
informa on in some areas (such as space situa onal awareness and space tra c management,
where a lot of work is s ll to be done).
- Guidelines that pose par cular challenges for new space players.
So the Guidelines will need to undergo a periodic review process, and then they can be amended.
The interna onal space community cannot wait for other 10 years to assess or revise any Guidelines that
are not really prac cal in terms of implementa on.
Chapter XVIII - The Artemis Accords: Safe and Sustainable Space

Explora on and Use
In 2020, Italy par cipated with other countries in the nego a ons and signature of the Artemis Accords,
which provide non-legally binding guidance for outer space and celes al bodies explora on and sustainable
use.
Italy has a long history of successful interna onal coopera on in science and explora on of outer space for
peaceful purposes, and there is a long-standing collabora on with the US.
—> the Preamble of the Artemis Accords underscores the con nuing importance of exis ng bilateral space
coopera on agreements, such as the Framework Agreement between the US and Italy for Coopera on in
the Explora on and Use of Outer Space for Peaceful Purposes (done on 19 Mar. 2013).
—> Italy decided to further develop coopera ve lunar explora on ac vi es contribu ng towards a
sustainable human presence one the Moon and signed, on the 25 of Sept. 2020, a Joint bilateral Declara on
of intent with the US to cooperate on the Artemis programme.
—> Italy and the US could expect to bene t from commercial collabora ons among their industries, in
compliance with the interna onal obliga ons deriving from the applicable UN trea es and the two
countries’ respec ve laws and regula ons.
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The dra text of the Artemis Accords was ini ally presented by the US and submi ed to a process of
nego a on in good faith among partners.
The nal text is the result of several di erent proposals advanced during the nego a ons held in 2020. The
Accords are inclusive and remain open to any State wishing to accept them.
The Accords have not been debated in UN Commi ee on the Peaceful Uses of Outer Space.
The Artemis Accords rea rm the importance and applicability of the UN space trea es and introduce some
novel standards for a new kind of space explora on —> the Accords’ ten opera ve paragraphs refer to
three main objec ves:
1. Reinforce core tenets of interna onal space law, emphasising that all space ac vi es must be for
“peaceful purposes”, performed “in accordance with relevant interna onal law” and in compliance with
the 1967 OST.
2. Concern speci c issues to promote transparency, interoperability, and the sharing of scien c data.
3. The Artemis Accords intend to contribute to the reduc on of the uncertainty surrounding space resource
recovery and u lisa on.
Two elements are important:

A. Ar cle I of the OST which grants the freedom of explora on and use of outer space, the Moon and
celes al bodies —> the use of outer space, the Moon and other celes al bodies it has to be carried out
in conformity with the principle of due regard to the interests of other States provided in Ar cle IX of the
OST.
B. The biggest limita on is that the use of outer space can never correspond to be a basis for claim of
sovereignty —> for the purposes of Ar cle II of the OST, this use does not and can never be such as to
cons tute “na onal appropria on” giving rise to sovereignty rights.
Sec on 10 of the Artemis Accords does not men on the issue of ownership rights over the extracted
resources:
1. The Signatories note that the u lisa on of space resources can bene t humankind by providing cri cal support for
safe and sustainable opera ons.
2. The Signatories emphasise that the extrac on and u lisa on of space resources, including any recovery from the
surface or subsurface of the Moon, Mars, comets, or asteroids, should be executed in a manner that complies with the
Outer Space Treaty and in support of safe and sustainable space ac vi es. The Signatories a rm that the extrac on of
space resources does not inherently cons tute na onal appropria on under Ar cle II of the Outer Space Treaty, and
that contracts and other legal instruments rela ng to space resources should be consistent with that Treaty.
3. The Signatories commit to informing the Secretary-General of the United Na ons as well as the public and the
interna onal scien c community of their space resource extrac on ac vi es in accordance with the Outer Space
Treaty.
4. The Signatories intend to use their experience under the Accords to contribute to mul lateral e orts to further
develop interna onal prac ces and rules applicable to the extrac on and u lisa on of space resources, including
through ongoing e orts at the COPUOS.
Sec on 11 rea rms the principles of due regard and avoidance of harmful interference and due
considera on to the UN Guidelines for the Long-term Sustainability of Outer Space Ac vi es adopted by
the COPUOS in 2019. It also expressly men ons the need to be consistent with Ar cle IX of the OST, about
consulta ons, no ca on and coordina on on the establishment and opera on of “safety zones” around
lunar installa ons.
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Chapter XIX - The Legal Regime of Remote Sensing in Space Law
1. The 1986 Declara on of Principles on Remote Sensing
The term remote sensing refers to the observa on of the Earth from advantageous posi ons in outer space.
Satellite-mounted camera take detailed images of the Earth, which reveal features invisible to the naked eye
= these images are then transmi ed to ground sta ons where analysts interpret the data and extract
informa on from them.
This informa on can be used to
- map forests
- Detect pollu on
- Measure al tude
- Locate crops
- Territorial dispute se lement
- Nuclear prolifera on monitoring
- Compliance with interna onal environmental trea es
- Support for humanitarian relief opera ons
The eld of remote sensing has been entered by private companies, star ng with the French company SPOT
Image.
There has been a steady development of the market for remote sensing data, which previously was only
available to the intelligence services of the two superpowers and to the manufacture of product using such
data.
In the mid-1980’s, the UN COPUOS deemed it necessary to regulate remote sensing ac vi es in outer
space.
The rst proposal for a non-binding declara on of principles on remote sensing was submi ed to COPUOS
in 1970. Four years later, France and the USSR presented a joint working paper on a new agenda item under
the heading: Legal Implica ons of Remote Sensing Applica ons from Space.
Di erent views were expressed during this debate, but the main ques on was how to strike a balance
between the protec on of the na onal sovereignty of the sensed States and the freedom of teledetec on.
The principles merely codi ed already established conducts by States before 1986 —> the exis ng
di erences were overcome between 1981 and 1984, and the nego a on process culminated in the dra ing
of the 15 principles and the adop on of United Na ons General Assembly resolu on 41/65 by consensus
on 3 December 1986.
—> the Declara on of Principles on Remote Sensing belongs to the category of the Assembly’s declara on
of principles = nothing more than recommenda ons.
The decisive element in assessing the legal value of this kind of principles comes from State prac ce.
The legal status of the principles is quite variable:

- some of them are rmly established in interna onal customary law, as in the case of freedom of
observa on of the Earth from outer space or the right of States to permanent sovereignty over
their natural resources
- Others such as the principle of mutual informa on between States with regard to remote sensing
ac vi es and data, seems to be less consolidated.
2. The scope of the Principles

Principle 1 of the Declara on spells out the scope of Principles on Remote Sensing. It covers ac vi es
carried out for the purpose of improving natural resources management, land use and the protec on of the
environment.
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Regarding the remote sensing meteorological data, their inclusion in the scope of the Principles stems
implicitly from their relevance to environmental protec on; military reconnaissance or surveillance remote
sensing ac vi es do not fall within the scope of applica on of the Declara on and are subject to special
regimes de ned in interna onal trea es rela ng to disarmament or arms control.
Principle I, literal a, of the UNGA Declara on de nes remote sensing as the observa on of the Earth’s
surface from outer space. Literal e of the same expands the scope of applica on of certain Principles by
including the quite di erent concept of remote sensing ac vi es as referring to a large number of
opera ons to be carried out on Earth.
Three types of informa on:

1. Primary Data: collected by sensors placed onboard a space object and transmi ed or communicated to
the ground from space by telemetry in the form of electromagne c signals, photographic lms, magne c
tapes or any other medium.
2. Processed Data: products resul ng from the processing of primary data, necessary to make such data
usable.
3. Analysed Informa on: informa on derived from the interpreta on of the processed data, data inputs
and knowledge from other sources.
Principle XIV: provides for a dual system of responsibility covering each one of these categories of remote
sensing.
According to part I of Principle XIV, States opera ng remote sensing satellites bear interna onal
responsibility for their ac vi es and shall ensure that such ac vi es are carried out in accordance with
those principles and the norms of interna onal law.
—> remote sensing by private companies is normally subject to licensing systems established by na onal
law in accordance with Ar cle VI of the OST, which is largely echoed by the men oned Principle of
Declara on.
The second part of the provision establishes that Principle XIV is without prejudice to the applica on of the
norms of interna onal law on State responsibility for “remote sensing ac vi es” (ac vi es which are
carried out in ground sta ons).
—> ac vi es realised on Earth are subject to the ordinary regime of responsibility for breaches of
interna onal obliga ons and that, in order to be a ributable to a State, such ac vi es, where they are
unlawful, must have been carried out by administra ve authori es (primarily by persons ac ng o cially on
behalf of a State). It is also applicable the principle of the a ributability to the State of individual conducts
carried on under its direc on or control (Art. 8 of the Ar cles on State Responsibility).
Remote sensing ac vi es carried out by private en es ac ng under the direc on or control of a State can
also be a ributed to that State. In reality there is not so much di erence between the special regime of
responsibility under interna onal space law and the general regime of State responsibility for wrongful acts
under customary interna onal law.
Under the US Land Remote Sensing Policy Act (1992), the Secretary of Commerce licenses private systems.
Title II of the Act provides that the holder of such license must ensure compliance with the foreign policy of
the USA, and also with its interna onal obliga ons, including those under Ar cle VI of the OST and the UN
Principles on Remote Sensing.
—> licensees must maintain climate control of their systems and make available to the government of the
sensed State the data, collected by the system, concerning the territory under the jurisdic on of that
government on reasonable commercial terms as soon as the data become available.
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3. Key contents
Principle III: remote sensing ac vi es shall be carried out in accordance with interna onal law, including the
Charter of UN, the Treaty on Principles Governing the Ac vi es of States in the Explora on and Use of Outer
Space, including the Moon and other celes al bodies, and relevant instruments of the ITU.
Principle IX recalls the du es of States under Ar cle IV of the REG Conven on and under Ar cle IX of the
OST to inform the UNSG of their remote sensing ac vi es.
Principle IV refers speci cally to Ar cle I of the OST and incorporates the principles of common bene t of
mankind, the freedom of explora on and use of outer space, and the right of full and permanent
sovereignty of all States and peoples over their natural wealth and resources.
—> the right to undertake remote sensing ac vi es in outer space is recognised by the UN Declara on and
certainly by interna onal customary law, so that no prior consent of the sensed State/s is required.
—> as the counterpart of this freedom stands the protec on of the legi mate rights and interests of the
sensed States, including the right to access States to the relevant data kept by sensing States from remotely
sensing their territories.
One of the key elements of the UN legal regime on remote sensing is the emphasis on coopera on
enshrined in Principles V, VIII and XIII. They men on:
- the commitment of sensing States to encourage interna onal coopera on and to o er other States
the opportunity to par cipate on fair and mutually acceptable terms to these ac vi es;
- The commitment of the UN and the specialised agencies of the UN system to promote coopera on,
including technical assistance and coordina on in the eld of remote sensing;
- The promo on of interna onal coopera on, in par cular with regard to the needs of developing
countries, through consulta ons, upon request, with the sensed States.
The growing relevance of the obliga on to cooperate, which is one of the main chi ers of interna onal
space law in accordance with Ar cle IX of the OST, has been rea rmed in some important legal texts of the
UNGA, such as the 1996 Declara on on Interna onal Coopera on in the Explora on and Use of Outer
Space for the Bene t and in the Interest of All States, and the Vienna Declara on on Space and Human
Development of 30 July 1999, adopted by UNISPACE III.
4. Environmental informa on
Other key parts of the Declara on deal with environmental informa on and data transfer. A general
requirement in Principle IX speci es the commitment of States conduc ng a remote sensing programme to
communicate the resul ng informa on to the fullest extent possible, in line with Ar cle XI of the OST.
Principles X and XI relate to environmental hazards:
- the rst requires that States involved in remote sensing ac vi es that have iden ed indica ons in
their possession likely to prevent any phenomenon harmful to the Earth’s natural environment
should make such indica ons known to the States concerned;
- The second requires the transmission of data and informa on rela ng to natural disasters to the
States concerned as soon as possible. —> implies rapid ac on con rmed in the text by the
expression “as soon as possible”, which means in this case without delay and using the most rapid
means available.
—> Principles X and XI therefore seem complementary and connected by the circumstance that no men on
is made to condi ons such as non-discrimina on and reasonable price.
= the States to be informed are not only the sensed States but, more generally, all the States concerned.
The promo on of the protec on of the Earth’s natural environment (Principle X) and of humanity against
natural disasters (Principle XI) is one of the general objec ves of remote sensing of the Earth’s surface from
space, that is, the improvement of the management of natural resources and environmental protec on.
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Some di erences exist between Principle X and XI of UN Remote sensing Principles, and Principles 18 and
19 of the Rio Declara on:
- the scope of Principles 18 and 19 of the Rio Declara on is to commit the State within whose
jurisdic on or control the natural disaster or emergency or harmful ac vi es occurs
- The Principles on remote sensing require the mere possession by States of informa on and data on
harmful phenomena or natural disasters in order to envisage a commitment of disclosure and
transmission, irrespec ve to the lieu of origin of the harm or of the disaster.
—> both set of principles do not prescribe the commitment of the sensing States to transmit the relevant
informa on to the competent interna onal organisa ons or to the UNSG.
—> neither the Rio principles, nor the UN Remote Sensing Principles make explicit reference to informa on
and data concerning imminent threats, natural disasters or serious harms to areas beyond na onal
jurisdic ons. No ca on and transmission of data in this context is an obliga on rooted in customary
interna onal law.
These principles have been strongly in uenced by the evolu on of other branches of interna onal law and
especially interna onal environmental law.
—> many environmental trea es require States to warn and inform neighbouring States and poten ally
a ected States of their ac vi es that are likely to have a signi cant transboundary adverse e ect on the
environment.
Principle XII: access to such data without discrimina on and under reasonable price condi ons.
5. Data distribu on policies

Principle XII:
1. First part: rela ng to the right of access of sensed States to primary or processed data without
discrimina on and under reasonable price condi ons. This principle does not require the free or
reciprocal exchange of data and does not exclude their marke ng. The licensee is allowed to seek
reasonable terms for its data, which involve commercial rates. This provision prevents a company from
entering into an exclusivity contract that would require the holding of the data of a sensed State and
implies that the data must be sold to anyone reques ng it at the same price.
2. Second part: the commitment to make known to a sensed State the available analysed informa on
concerning the territory under its jurisdic on is subject to two condi ons: 1. The possession of the
informa on by States par cipa ng in remote sensing ac vi es; 2. The availability of informa on, it being
understood that the two concepts of possession and availability are not equivalent.
Commercialisa on should not prevent the right of access of the sensing States and the States are supposed
to ensure that private remote sensing en es comply with the principle of free and non-discrimina on
access to data.
The US legisla on has incorporated this principle of non-discriminatory access into its Remote Earth Sensing
Acts of 1984 and 1992, as amended by the Commercial Space Act of 1998.
—> these laws require private en es engaged in remote sensing ac vi es to respect access to data
without discrimina on aimed at preserving the public good aspects of remote sensing. The 1986 UN
Principles are expressly men oned in the Earth Remote Sensing Act of 1992, which also requires that
improved data provided by private remote sensing systems are made available to the sensed State as soon
as they are available.
—> US has adopted a policy of open access, o en free of charge, which is par cularly advantageous for
users.
Other countries have followed this general trend.

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France rea rmed the 1986 Principles with regard to access to data without discrimina on, while recalling
that it is not against the idea of a return on investment.
—> the data of the French company SPOT were to be distributed without discrimina on, in accordance with
the Principles of the UN, but on a commercial basis.
Where there is no na onal legisla on with regard to remote sensing ac vi es or ac vi es taking place in
outer space, the countries concerned normally engage in such ac vi es in accordance with the UN
Principles.
—> In Italy, a bill limi ng the availability of satellite imagery without taking into account the Principles of
the UN was withdraw from the legisla ve process in 1997.
The o cial policy of the European Space Agency on the distribu on of ERS/ENVISAT data is unequivocal.
—> the provision of data to users has been regulated as follows: Primary ERS/ENVISAT data shall be made
available freely and without discrimina on, in accordance with the UN Principles on Remote Sensing.
—> the data are also distributed free of charge to the na onal meteorological services of the countries
belonging to the WMO (World Meteorological Organisa on), the European Organisa on for the Exploita on
of Meteorological Satellites and the European Centre for Medium-Range Weather Forecas ng.
WMO policy on the exchange of meteorological data and products, as set out in RES. 40 of 1995 “WMO
Policy and Prac ce for the Exchange of Meteorological and Related Data and Products Including Guidelines
on Rela onships in Commercial Meteorological Ac vi es”.
—> this resolu on refers to the basic principle of free and unrestricted interna onal exchange of
meteorological data, which de nes free and unrestricted as without discrimina on and free of charge,
namely the cost of reproduc on.
Two categories of data:
1. Essen al data: must be freely accessible, and includes data and products transmi ed by opera onal
meteorological satellites.
2. Addi onal data: whose re-export for commercial purposes may be subject to certain condi ons.
According to EUMETSAT’s data policy regula ons, approved by the Council in 1998, all users located within
Member States must have received a license from their Na onal Meteorological Service NMS, which acts as
the exclusive agent on behalf of EUMETSAT.
—> in accordance with WMO RES. 40/1995, some products and data are considered essen al and are made
available to all users on a free and unrestricted basis.
A number of interna onal agreements and private-law contracts have incorporated the Principles of the
UN.
—> men on may be made of the contracts that EOSAT has concluded with na onal ground sta ons around
the world, which give these sta ons a non-exclusive right to receive and use data against a basic right of
access.
Interna onal Trea es:
- Ar cle 6 of the 1992 Agreement between ESA and the Italian Space Agency on processing and
archiving facili es: ERS data provided or produced by the Agency and archived by the processing
and archiving facili es located in Matera shall be accessible to all interested users on a free and
non-discrimina on basis, in accordance with the relevant data policy adopted by the Agency.
The Principles have not been updated —> they do not re ect the evolu on of data collec on and
processing techniques, nor do they take into account the need to limit the militarise of high-resolu on
commercial satellite imagery and to precent such data from calling into enemy hands.
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—> there is a method that would be to impose technological restric ons, such as limi ng the resolu on
allowed for imagery systems of a country’s commercial or civilian satellites, so that the data is less useful to
military uses.
The US government uses administra ve measures to prevent US commercial operators of Earth observa on
satellites from collec ng or selling images for reasons of the country’s military or foreign policy.
Restric on re ec ng security concerns cannot be considered contrary to the UN Principles on Remote

Sensing.
—> any system makes it possible to limit freedom of informa on for reasons of urgency; moreover the
existence of such restric ons does not a ect either the general recogni on or the acceptance of the
principle of access to data by the sensed States as a general rule.
Remote sensing ac vi es from a di erent perspec ve: that of freedom of informa on, provided for in most
na onal cons tu ons and in several interna onal declara ons and trea es on human rights.
—> if we consider imagery and remote sensing data as public informa on protected as such by this
fundamental freedom, we must accept that all interna onally relevant rules under human rights trea es
apply to remote sensing ac vi es, including those that provide for legi mate excep ons and interferences
in the enjoyment of those rights, such as
- the protec on of na onal security,
- the protec on of public order and respect for the rights of others, including their material and
intellectual property rights.
The compromise enshrined in the Principles was intended to be the rst step in a legisla ve process that
would lead to a formal treaty.
The Principles of 1986 have not turned into a treaty: the main reason is the risk of reopening the debate on
agreed issues that allowed for the adop on of RES. 41/65.
—> the non-binding nature of the 1986 Principles is what makes them a broad and exible legal framework
and be er suited to respond on the ongoing developments in the eld of technology.
6. Charter on Major Disasters

Charter on Coopera on to Achieve the Coordinated Use of Space Facili es.
—> following the UNISPACE III Conference held in Vienna (Jul. 1999) the European and French space
agencies ini ated the Interna onal Charter Space and Major Disasters, with the Canadian Space Agency
signing the Charter on 20 Oct. 2000.
—> aims at providing a uni ed system of space data acquisi on and delivery to those a ected by natural or
man-made disasters through authorised users.
The Charter is a worldwide collabora on among space agencies to make satellite data available for the
bene t of disaster management authori es during the response phase of an emergency.
The Charter is to date the rst interna onal instrument which gives full implementa on to Principle XI of
the 1986 UN Principles on Remote Sensing, as well as to Principle 18 of the 1992 Rio Declara on on
Environment and Development.
—> its preamble makes an express reference to the UN Resolu on 41/45 of 1986 on Remote Sensing of the
Earth from Space, which establishes that “Remote sensing shall promote the protec on of mankind from
natural disasters (…)”.
—> Rio Principle 18 states in its turn that “States shall immediately no fy other States of any natural
disasters or other emergencies that are likely to produce sudden harmful e ects on the environment of
other States.
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The mechanism of the Charter serves well the achievement of these commitments set forth at the
mul lateral level endorsing all the main elements that stem from the applica on of the principle of
solidarity to the interna onal responses to natural and human made disasters and emergencies.
Chapter XX - The ICoC: a Forward-Looking Mul lateral Ini a ve for

Space Security
1. Introduc on
EU proposal for an Interna onal Code of Conduct on outer space ac vi es ICoC and Group of governmental
experts on Transparency and Con dence Building Measures in outer space (GGE on TCBMs) dealt with the
growing number of factors threatening outer space security and the civil, commercial, and military
opera ons which all depend in space being free harmful interference.
The Charter of UN provides that States shall refrain from the threat and use of force, with the two
excep ons consis ng of the right of self-defence under Ar cle 51 of the Charter, and whenever there is an
authorisa on of the Security Council under Chapter VII.
The OST obligates States par es not to place in orbit around the Earth any object carrying nuclear weapons,
or any other weapon of mass destruc on, installing such weapons on celes al bodies, or sta oning them in
outer space in any other manner.
—> there is a general understanding that there is a need to ll the gap through addi onal norma ve
instrument facing the challenges posed by the poten al weaponisa on of outer space. Mul lateral e orts
register a confronta on between di erent approaches:
1. An ambi ous treaty that seeks to prevent the placement of weapons and the threat or use of force in
outer space
2. A narrow treaty banning the worst and most veri able kinds of ASAT tests
3. A norm-se ng interna onal code of conduct or other non-legally binding instrument
Russia and China support the rst approach, o ering a dra treaty, the Treaty on the Preven on of the
Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects PPWT.
The second and third op ons are not mutually exclusive.
—> the third op on is the best; based on the value of non-binding instruments embedding rules for
responsible behaviour and measures for transparency and con dence building in outer space, wai ng for a
binding instrument to have momentum.
TCBMs are aimed at enhancing the clarity of inten ons of space actors, reducing the risk of mispercep on
and miscalcula on, helping sharing informa on and assis ng to prevent confronta on.
—> they are very common in agreements on arms control but they are not intended to replace veri ca on
provisions nor measures of disarmament.
2. The Interna onal Code of Conduct for outer space ac vi es

The engagement of the EU has been focused on the adop on of non-legally binding norms of responsible
behaviour on outer space ac vi es.
—> a proposal for an interna onal code was rst conceived in a paper circulated by Italy on 15 Mar. 2007 in
Geneva. The document was linked to the Conference on Disarmament’s agenda item on PAROS.
The Italian diplomacy no ced that despite a repertory of exis ng TCBMs, there were s ll several gaps.
Ambassador Carlo Trezza, “A Possible Comprehensive Code of Conduct for Space Objects in an EU
Perspec ve” (2007): it considered that a more focused EU’s approach to this issue within the framework of
both the CD and UNGA would propi ate the adop on of a program of work to allow the Conference in
Geneva to resume its ins tu onal task and overcame the deadlock it was facing.
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The proposal was then endorsed by the EU’s partners, as a European “food for thought” on a
“Comprehensive Code of Conduct for Outer Space Ac vi es” which should codify new con dence-building
measures and strengthen exis ng best prac ces.
—> the EU had always supported the UNGA resolu ons regarding TCBMs in outer space, while most EU’s
countries cosponsored these GA resolu ons invi ng UN Member States to submit to the UNSG concrete
proposals on TCBMs.
Period characterised by the withdrawal of the US from the An -Ballis c Missile Treaty and the Chinese ASAT
Test conducted on 11 Jan. 2007.
—> A Chinese weather satellite was destroyed by a kine c kill vehicle launched with a mul stage solid-fuel
missile from China’s territory and traveling with a speed of 8km/s in the opposite direc on.
The Chinese destruc ve experiment has increased risk of collision with debris fro all opera onal spacecra
in LEO, including Earth observa on satellites, mega-constella ons and the Interna onal Space Sta on.
—> the US and other countries called on China to refrain from destabilising ac ons that threaten the
security of the outer space environment, on which all na on depend.
On Feb. 2008 US successfully destroyed USA-193 at an al tude of approximately 13 miles with a kine c
ASAT missile.
At that point, the dra Code became an a empt to a ain poli cal commitments for responsible ac on in,
and peaceful use of, outer space.
—> the Portuguese presidency prepared a revised document, based on the principles of freedom to use
outer space for all peaceful purposes; preserva on of the security and integrity of space objects in orbit and
due considera on for the legi mate security and defence interests of States.
—> the text of the dra code was presented to the UN as a EU’s joint reply to GA resolu on 61/75 of 2006,
which had called Member States to submit concrete proposals for improving TCBMs in outer space.
The EU’s Council endorsed, under the Presidency of France, the dra Code in its Conclusions of 3 Dec. 2008.
—> the proposal was conceived as a basis for consulta on with key third countries having interests in outer
space, with the aim of reaching a text acceptable to the greatest number of countries.
The EU’s ini a ve was originally presented as self-sustained, so that a diploma c ad hoc conference might
be considered if enough countries showed interest joining, alongside the model of The Hague Interna onal
Code of Conduct against Ballis c Missiles Prolifera on of 25 Nov. 2002.
A new consolidated version of the dra was prepared in June 2010 and endorsed by the EU’s Council.
This framework was changed only in minimal part a er the entry into force, on 1 Dec. 2009, of the Lisbon
Treaty, that has rearranged the Common Foreign and Security Policy with the ins tu on of the High
Representa ve, Vice-President of the Commission, and the consolida on of the European External Ac on
Service.
The ICoC obtained an important men on in the 2013 report of the GGE on TCBMs, which endorsed e orts
to pursue poli cal commitments, for example in the form of unilateral declara ons, bilateral commitments
or a mul lateral code of conduct to encourage responsible ac ons in, and the peaceful use of, outer space.
The EU organised a mee ng in NY in Jul. 2015, with 109 States and 8 IGOs par cipa ng.
—> some delega ons did not spare cri cism on the process qualifying it as non-transparent and non-
inclusive.
The ICoC, however, received support from many quarters and it became clear that the dra ing of a code of
conduct on space ac vi es was viewed as a posi ve step by the interna onal community.
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3. The main characteris cs
The added value of the ICoC lays in three aspects:
1. All-encompassing scope and holis c approach to cover all dimensions of space opera ons, civil as well as
military
2. Commitment to refrain from any ac on bringing about, directly and indirectly, damage, or destruc on, of
space objects. That corresponded to a poli cal commitment to ban the tes ng of destruc ve an -
satellite weapons.
3. Dynamic nature of the Code. The ra onale was that progress in implemen ng the Code would be
monitored through the mee ngs of the Par es as to revise and update the text in light of the
forthcoming developments.
4. Scope and content

The Code was intended to be applicable to all outer space ac vi es conducted by a subscribing State or
jointly with other State(s) or by non-governmental en es under the jurisdic on of subscribing State,
including those conducted within the framework of IGOs.
—> freedom of ac on to engage in certain types of irresponsible behaviour (such as ASAT tests that
generate lethal space debris) can ruin space for everyone.
= it lled a real gap in the exis ng or prospected regulatory systems.
Point 4.2:
The Subscribing States resolve, in conduc ng outer space ac vi es, to refrain from any ac on which brings
about, directly or indirectly, damage, or destruc on, of space objects unless such ac on is jus ed:
- by impera ve safety considera ons, in par cular if human life or health is at risk; or
- in order to reduce the crea on of space debris; or
- by the Charter of the UN, including the inherent right of individual or collec ve self-defence
And where such excep onal ac on is necessary, that it be undertaken in a manner so as to minimise, to the
greatest extent prac cable, the crea on of space debris.
References to the inherent right of self-defence in the Code re ected an objec ve situa on under
interna onal law.
Ar cle III of the 1967 OST makes clear that interna onal law, including the UN Charter, applies to outer
space. —> the right of self-defence is a fundamental principle of interna onal law and integral to the UN
Charter, recognised in Ar cle 51.
Ensuring that acts of destruc on do not happen except in very excep onal and clearly de ned
circumstances. Where such excep onal ac on is necessary, it should be undertaken in a manner so as to
minimise the crea on of long-lived space debris.
—> this commitment applies to all categories of space debris from the inten onal destruc on of space
objects, whether for military or civilian purposes.
The text recommended other commitments to take appropriate measures to minimise the risk of collision
when execu ng manoeuvres of space objects in outer space.
5. Coopera on and consulta on mechanism

The dra Code also dealt with coopera on mechanisms, such as no ca on of outer space ac vi es,
informa on on outer space ac vi es, consulta on mechanism and a possible mechanism to inves gate
proven incidents a ec ng space objects and to collect reliable and objec ve informa on facilita ng their
assessment.
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On no ca on of outer space ac vi es, the Code suggested this prac ce with regard to
- scheduled manoeuvres which might result in dangerous proximity to outer space objects of both
subscribing and non-subscribing States;
- pre-no ca on of launch of space objects;
- collisions, break-ups in orbit, and any other destruc on of a space object(s) genera ng measurable
orbital debris;
- predicted high-risk re-entry events in which the re-entering space object or residual material from
the re-entering space object would likely cause poten al signi cant damage or radioac ve
contamina on;
- malfunc oning of space objects which could result in a signi cantly increased probability of a high
risk re-entry event or a collision between space objects.
—> States were commi ed to provide the described no ca ons to all poten ally a ected States through
diploma c channels, or by any other method mutually agreed.
The Code foresaw to commit the States involved in a consulta on to decide on a meframe consistent with
the mescale of the iden ed risk.
—> Ar cle IX of the OST focuses more on the State of origin of the ac vity than on the State poten ally
a ected; the consulta on mechanism of ICoC envisaged not only bilateral consulta ons but also
mul lateral consulta ons. The OST’s provision deals principally with environmental concerns, to avoid
planetary and back-contamina on, rather than on security challenges.
Se ng of organisa onal aspects, providing for a minimal structure, but indispensable to ensure a correct
governance of the process.
It envisaged to confer to the periodic mee ngs of the subscribing States to de ne, review and further
develop the Code and ensure its e ec ve implementa on. The decisions at such mee ngs were to be taken
by consensus by the States present.
A central Point of Contact to be established would receive and announce the subscrip on of addi onal
States; maintain and electronic database and communica ons system; and serve as secretariat at the
mee ngs of the States.
The electronic database and communica ons system would have been used exclusively for the States’
bene t in order to collect and disseminate no ca ons and informa on submi ed in accordance with the
Code and serve as mechanism to channel requests for consulta ons.
6. The 2015 Mul lateral Nego a ons

Mee ng at the UNHQ convened in NY from 27 to 31 July 2015 in which delega ons from 109 States plus 8
IGOs and NGOs took part.
—> tled: Mul lateral Nego a ons on an Interna onal Code of Conduct for Outer Space Ac vi es.
The concept of a Code of conduct that would contribute to improving security in outer space was
welcomed. There were divergent opinions on some substan ve points of the Code, such as that rela ng to
the right of self-defence in outer space as a general principle and as an excep on to the commitment not to
destroy space objects in orbit.
The argument presented by the Russian Federa on that reference to the right of self-defence was
legi mised in a legally binding instrument such as the PPWT was of course scarcely convincing.
—> the main cri cisms raised in NY were about the process as being not transparent and inclusive, rather
than about the content.
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The New York Mee ng bene ted from the robust discussions on substan ve and procedural issues, which
took place in a construc ve atmosphere and enabled par cipants to be er understand the rela onship
between the scope of a code and the various ways and means to move forward the nego a ons.
—> measures for ensuring the security of outer space ac vi es should not hamper the ability of States
(par cularly emerging spacefaring na ons) from accessing, using and exploring outer space.
The UNGA could be for many the most appropriate forum for nego a ng a code, no ng its universal
membership and its ability to address all issues of a cross-cu ng, mul -commi ee nature.
A er NY, the EU and its Member States kept open the diploma c ini a ve on a non-biding instrument on
the security of space ac vi es.
—> Conversa ons within the EU have therefore con nued under the tle of Principles for the Responsible
Use of Outer Space PORBOS. The EU, however, did not nd, a er the suspension of the ICoC ini a ve, the
necessary internal agreement and mo va on for pursuing with a convincing way ahead, aimed at
convening an open-ended WG of the UN to nego ate a code or a similar instrument.
A er the Brexit, this op on has been resumed by the UK, presen ng a so-called new approach urgently
needed to increase trust and con dence between countries opera ng in Space.
—> the UK ini a ve wanted to break the impasse on space, increase transparency and reduce the risk of
miscalcula on between na ons. The UK therefore tabled a dra resolu on at the UNGA First Commi ee:
- UNGA RES. 75/36 on Reducing Space Threats through Norms, Rules and Principles of Responsible
Behaviours was formally adopted on 16 Dec. 2020 = it has encouraged Member States to study
exis ng and poten al threats and security risks to space systems, including those arising from
ac ons, ac vi es or systems in outer space or on Earth, characterise ac ons and ac vi es that
could be considered responsible, irresponsible or threatening and their poten al impact on
interna onal security, and share their ideas on the further development and implementa on of
norms, rules and principles of responsible behaviours and on the reduc on of the risks of
misunderstanding and miscalcula ons with respect to outer space.
Other two States have experimented ASAT’s weapons:

1. India tested its rst kine c an -satellite weapon in Mar. 2019, tled Mission Shak , becoming the fourth
na on to demonstrate a kine c interceptor capability.
2. On 15 Nov. 2021, Russia conducted an an -satellite test in LEO, where an interceptor of the Nudol
ground-based ASAT system was used to destroy one of Russia’s own derelict satellites, Cosmos-1408.
—> neither India, nor Russia seemed to consider their behaviours irresponsible or prohibited under current
interna onal law.
Chapter XXI - Military Uses of Outer Space

1. Peaceful uses of outer space
Outer space ac vi es have changed, but on element remains unchanged: the importance of military uses as
a driving force for the development of explora on and scien c research ac vi es in outer space and on
celes al bodies.
—> the two superpowers carried on military experiments in outer space, including through nuclear
explosions, and used space for military purposes (such as intelligence gathering, communica on and Earth
observa on).
—> the divergent interests of USA and USSR made space policy a fundamental aspect of foreign policy.
Various phases:
- the most acute period of the Cold War, when the main strategic problem of the rival powers was to
develop adequate means of transport and launch of nuclear weapons. The development of Thor
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and Jupiter nuclear missiles in military bases located in GB, Italy and Turkey opened into the
possibility of hi ng Soviet targets without exposing American territory to the risk of atomic
retalia on. The USSR based its military strategy on the compactness and closure of the socialist
territorial bloc.
- By sending the rst Sputnik into orbit on 4 Oct. 1957, the USSR demonstrated that it possessed the
technology for launching nuclear missiles capable of achieving any objec ve, thanks to the constant
work of surveillance on a world scale carried out through satellites.
- The rst US satellite, Explorer 1, was launched on 31 Jan. 1958.
- In the following decade, the two na ons placed in orbit more than 5,000 space objects, for
explora on, scien c research, communica on, meteorology, remote sensing, satellite naviga on;
the launch of lunar and planetary probes.
- On 12 Apr. 1961, the USSR made the rst launch of a spacecra orbi ng the Earth with a man,
cosmonaut Gagarin, onboard.
- On 21 July 1969, the US Apollo 11 mission allowed the rst Moon landing of the two astronauts
Armstrong and Aldrin on the lunar surface.
—> years when the interna onal community witnessed the transforma on of the no on of disarmament
into that of arms reduc on and control.
The two superpowers reached an agreement in the sense of considering the military, but not aggressive,
uses of outer space, as peaceful uses, therefore legi mate form the point of view of interna onal law,
together with civilian and commercial ones.
Adop on of important binding agreements:

1. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, signed in
Moscow on 5 Aug. 1963
2. Outer Space Treaty, concluded in 1967
The OST of 1967 sets out (Art. IV) the obliga on of States par es not to place in orbit around the Earth any
carrier of nuclear weapons or other types of weapons of mass destruc on —> from this provision
originated the interna onal prac ce of interpre ng the no on of peaceful uses.
Outer space ac vi es have profoundly evolved as a result of commercialisa on, the entry of private
individuals and the prospects of the new space economy.
—> strategic interests related to na onal defence and the security of cri cal infrastructures in space, the
protec on of strategic products, the control of the transfer of sensi ve technologies have become
fundamental.
Claims of supremacy in outer space have been advanced by various States, which are proposing new
scenarios characterised by an arms race and the transforma on of outer space into a poten al ba le eld.
—> space ac vi es con nue to be characterised by a high degree of dangerousness, due to the hos lity of
the space environment to human ac vi es.
2. New Threats to space security

Threats to the security of outer space cri cal infrastructures have increased: some States have developed a
diverse range of technological capabili es to destroy, damage or disable the satellites on which many
terrestrial ac vi es depend.
—> even in peace me, a State can seek to carry out hos le ac vi es in outer space, taking advantage of the
fact that interna onal law does not regulate certain aspects related to the prolifera on of armaments in
space.
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The interna onal customary norm of ius cogens on the prohibi on of threat and use of force against the
territorial integrity of States, re ected in Ar cle 2, para. 4, of the UN Charter, applies also to outer space, so
prohibi ng all aggressive military uses of.
—> Ar cle IV of the OST sets the prohibi on of placing nuclear weapons or other weapons of mass
destruc on in orbit around the Earth install such weapons on celes al bodies, or sta on them in outer
space in any other manner.
—> the Treaty is silent about other types of armaments and o ensive systems.
The dual uses (military and civil) of space infrastructures are spreading, from satellite pla orms for
telecommunica ons to robo c instruments for the ac ve removal of space debris ADR. Satellites systems
designed for commercial purposes also host addi onal payloads for tasks such as intelligence, surveillance
and reconnaissance, or missile defence.
The orbits appears increasingly congested, both for the presence of a growing number of objects launched
by States and private actors , with increased risks of collision, and for the number of orbital debris, ranging
in size from few millimetres to 25 meters of the wreck of the Envisage satellite.
—> the growth in the number of objects in orbit, from low orbits to geosta onary, the diversi ca on of
space actors and the increase in the capacity for hos le ac ons, awareness has grown of the need to
developing new norms that direct States and space industry towards the consolida on of prac ces
protec ng the common interest to preserve the ability of space to meet the needs of the present and
future genera ons.
3. The GGE on TCBMs

Group of Governmental Experts on TCBMs in outer space ac vi es —> successful ini a ve leading to a
landmark consensus in 2013.
The GGE recommended States and IGOs to consider and implement a range of measures to enhance the
transparency of outer space ac vi es, further interna onal coopera on, consulta ons and outreach, and
promote interna onal coordina on in order to enhance predictability in the use of outer space.
—> created following a Russian ini a ve. The GA requested a study by a GGE from 1991 to 1993, whose
report contained a number of proposals for TCBMs.
TCBMs gained new momentum un l when the General Assembly adopted resolu on 65/68 of 13 Jan. 2011,
which requested the UNSG to establish a GGE to conduct a study on TCBMs in outer space ac vi es,
star ng in 2012, and to present its report to the General Assembly in 2013.
—> Resolu on 63/68 was sponsored by major spacefaring na ons, such as Russia and China. While the US
had publicly declared its support for the process, it abstained from vo ng on the resolu on, objec ng to its
men on of the Chinese-Russian dra PPWT.
The GGE was made up of 15 governmental experts: apart the permanent ve (P-5) of the Security Council,
always guaranteed to have a seat in these groups, the remaining expert spots were lled by ten other
countries, selected by the SG based on State applica ons and fair geographic representa on.
Resolu on 65/68 established the mandate of the GGE to recommend transparency measures in outer space
ac vi es and not to nego ate a legally binding text.
The GGE has a mul na onal character, being composed of experts appointed by countries representa ve of
the various geopoli cal aggrega on in the world.
The real challenge of the GGE was to combine realism with ambi on.
—> the nal report has achieved this objec ve by iden fying a wide range of TCBMs, including:
a. Measures to improve the transparency of space programmes, such as exchanges of informa on and
visits to space sites
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b. Measures to expand informa on on objects in space, including prior no ca on and no ca on of
planned launches, space manoeuvres that could result in dangerous forms of proximity between space
objects and the re-entry of objects from space.
c. Interna onal coopera on measures.
d. Consulta on mechanisms
—> a main feature pf the GGE Report is that it clari es the characteris cs that each TCBM should possess in
order to achieve its goals.
—> TCBMs need to be clear, prac cal and proven
- Both the applica on and the e cacy of the proposed TCBM should have been demonstrated by
one or more actors.
- The applica on of the proposed TCBM should be objec vely veri able by other par es, either
independently or collec vely.
- The proposed TCBM should reduce or even eliminate the causes of mistrust, misunderstanding and
miscalcula on regarding the ac vi es and inten ons of States.
The UNGA endorsed by consensus the nal report with RES. 68/50 of 5 Dec. 2013, which has encouraged
Member States to review and implement the proposed TCBMs.
—> TCBMs developed in a mul lateral framework would have the best chance of adop on by the
interna onal community. The report noted the e orts of the EU to develop an Interna onal Code of
Conduct for Outer Space Ac vi es through open-ended consulta ons within the Interna onal community.
The use of TCBMs in place of trea es may not be the ideal diploma c solu on to deal with the issue of
space security and stability.
—> the use of TCBMs is a prudent course for States to take addressing the issue of stability and security in
outer space while simultaneously preserving na onal security interests in that realm.
4. UN Disarmament Commission
The GGE report recommended that the UNGA decide how to further advance TCBMs and provide for their
universal considera on and support, including by referring the recommenda ons to the Commi ee on the
Peaceful Uses of Outer Space, the Disarmament Commission and the Conference on Disarmament for
considera on, as appropriate.
The response of the Member States of the Commi ee was not par cularly proac ve, con rming the low
propensity of this organ to deal with space security issues and TCBMs.
—> Only Italy, Germany and the US submi ed replies with a view to iden fying those recommenda ons
that could be instrumental for ensuring the security of space opera ons.
—> these replies were aimed at sharing informa on concerning the ways in which they were implemen ng
the recommended measures.
Italy underlined the domes c measures for implemen ng TCBMs referred to exchange of informa on on
the principles and goals of its outer space policy, and to no ca on related to outer space ac vi es and risk
reduc on, to no ca ons and monitoring of uncontrolled high-risk events; to contact with and visits to
space launch sites and facili es; to interna onal coopera on; outreach, and coordina on.
The evalua on of the implementa on of the GGE recommenda ons has been entrusted to another UN
organ, the Disarmament Commission UNDC, which deals with issues related to disarmament and arms
control.
In 2018, UNDC decided to take ac on to reply to the call of promo ng the prac cal implementa on of
those TCBMs contained in the report which can demonstrably contribute to PAROS. On the other hand, the
Commission may elaborate addi onal TCBMs, with the goal of preven ng an arms race in outer space.
In 2019, some space security issues were iden ed which UNDC could construc vely address:
- no ca ons on scheduled manoeuvres;
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- no ca ons of interna onal orbital break-ups;
- publica on of informa on on na onal space policies, implemen ng some sec ons of the 2013 GGE
report on TCBMs.
5. Ini a ves of the Russian Federa on and China: the dra PPWT
Ini a ves of Russia and China: elabora on of a binding interna onal “Treaty on the Preven on of the
Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects PPWT”,
tabled with the CD in Geneva, in a rst version in 2008, and then reformulated in 2014 to take into account
some comments made by other States.
The main obliga ons:

- not to place any weapons in outer space
- not to resort to the threat or use of force against outer space objects of States par es to the treaty
- not to engage, as part of interna onal coopera on, in outer space ac vi es that are inconsistent
with the object and purpose of the treaty;
- not to assist or induce other States, groups of States, IGOs, NGOs, including non-governmental legal
en es established, registered or located in territory under their jurisdic on and/or their control, to
par cipate in ac vi es inconsistent with the object and purpose of the treaty.
The two countries consider the ban on placing weapons in outer space as one of the most important tool to
strengthen global stability and security.
Ar cle II prohibits the placement of any weapon in space.

Ar cle I, literal b, de nes the term weapons in outer space as meaning any outer space object or component
thereof which has been produced or converted to destroy, damage or disrupt the normal func oning of
objects in outer space, on the Earth’s surface or in its atmosphere, or to eliminate human beings or
components of the biosphere which are important to human existence, or to in ict damage on them by
using any principles of physics.
Ar cle I, literal c, establishes that a device is considered to have been “placed in outer space” if it orbits the
Earth at least once, or follows a sec on of such an orbit before leaving that orbit, or is permanently located
in outer space or on any celes al bodies other than the Earth.
—> prohibi on of the deployment or sta oning in space of any device - produced or modi ed to destroy,
damage or disrupt the normal func oning of objects in outer space - regardless of whether it is connected
to a military mission, and regardless of the speci c technologies employed by the weapon system in
ques on to cause destruc on, damage or disrup on.
There are no prohibi ons on the research, development, produc on and terrestrial storage of space
weapons.
Ar cle II of the dra also prohibits the use of the threat or use of force against space objects of States
par es.
—> the term “use of force” means any ac on intended to in ict damage on an outer space object under the
jurisdic on and/or control of other States, and the term “threat of force” means the clear expression in
wri en, oral or any other form of the inten on to commit such an ac on.
Interna onal law already prohibits the use of force or the threat of the use of force on the basis of Ar cle 2,
para. 4, of the UN Charter.
—> rewri ng this norm in rela on to outer space could therefore be challenging, since this provision knows
no spa al limits of e ec veness and therefore applies on land, at sea, in outer space and in any other place.
The de ni ons contained in the dra PPWT also di er from exis ng interna onal law in rela on to
excep ons to the prohibi on of the use of force.
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The prohibi on contained in the PPWT dra contains a limit of e ec veness, while the prohibi on of
interna onal law covers the use of force against the space objects of all States, regardless of whether they
have accepted the treaty.
The de ni on of use or threat of use of force contained in the 2014 PPWT dra no longer explicitly includes
ac ons that cause temporary or reversible e ects, such as those resul ng from radio frequency
interference, cyber-a acks, lasers and dazzling op cal sensors, or the deliberate altera on of another
country’s satellite orbit.
The dra PPWT does not address the most pressing and current threat to space infrastructures: ground-
based an -satellite weapon systems.
—> the PPWT project does not appear to impose bans on the research, development, tes ng, produc on,
stockpiling or deployment of ground-based an -satellite weapons = the Chinese test of 11 Jan. 2007, of an
ASAT directed against its own non-func onal meteorological satellite would therefore be considered lawful,
despite having caused the forma on of over 2,600 long las ng space debris.
Absence in the dra PPWT of provisions on the veri ca on of the ful lment of the obliga on assumed,
provisions that are present in all interna onal regimes rela ng to the limita on of armaments.
—> the Russian Federa on and China have repeatedly acknowledged that the provisions of the PPWT
cannot be e ec vely veri ed using the currently available detec on, monitoring and localisa on
technologies, and that therefore the adop on of a veri ca on regime must be postponed to a future
addi onal protocol when technology would make it possible.
TCBMs can reduce the risk of miscalcula on or interpreta on during a crisis, and can complement, for the
purposes of an arms control agreement such as the proposed dra treaty, but not replace an e ec ve
legally binding veri ca on regime.
6. The “No First Placement of Weapons in Space” pledge

Unilateral declara on on the “No First Placement” of weapons in outer space —> a poli cal ini a ve known
by its acronym NFP, that the Russian Federa on proposed in 2004 in the rst Commi ee of the UNGA.
It counts 18 par cipa ng States:
- Russian Federa on
- Armenia
- Belarus
- Kazakhstan
- Kyrgyzstan
- Tajikistan
- Brazil
- Indonesia
- Sri Lanka
- Argen na
- Cuba
- Venezuela
- Bolivia
- Nicaragua
- Ecuador
- Uruguay
- Vietnam
- Suriname
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—> Russia presents a resolu on to the UNGA each year calling on all States to make unilateral pledges
commi ng themselves not to be the rst to place weapons in space. In 2020, the Resolu on was adopted
by 131 votes in favour.
It is di cult to include these types of commitments among TCBMs. Unilateral declara on can be either
legally binding or legally non-binding. In the case of NFP, the statement whereby a State pledges that it will
not be the rst to place weapons of any kind in outer space and calls upon all other spacefaring na ons to
follow its example, is presented as a non-legally binding measures.
Unilateral act: manifesta on of will of an interna onal subject, which, as such, produces the legal
consequences wanted by the author.
In classical interna onal law, the declara on of war was a typical example of a unilateral act provided by a
customary rule with the e ect of establishing a State of war between its author and the subject, or subjects,
to which it was directed.
Other unilateral declara ons produc ve of binding legal e ects are:
a. Recogni on, aimed at ascertaining a factual or legal situa on, such as the recogni on of States and
governments
b. Waiver of a right, which entails the loss of the corresponding obliga on of another person
c. Reserva on, which excludes the obligatoriness of a treaty clause against its author according to the 1969
Vienna Conven on on the Law of Trea es
d. Objec on to a reserva on formulated by another subject.
In the twin decisions of 20 Dec. 1974 on the Nuclear Tests cases (Australia v. France and New Zealand v.
France), the ICJ admi ed the possibility for a State to assume binding obliga ons through unilateral
declara ons.
—> the Court referred to the unilateral declara ons by which France would no longer conduct atmospheric
nuclear tes ng in the Paci c Ocean a er those conducted in 1974.
To determine the status and scope of unilateral declara ons:

- admission that declara ons made unilaterally and concerning factual or legal situa ons may
produce the e ect of crea ng legal obliga ons.
- Not all unilateral acts involve legal obliga ons. The inten on of a State to be bound by its own
unilateral will must therefore be ascertained by interpre ng the act.
—> the principle of good faith plays a relevant role in ma er of interna onal obliga ons assumed through
unilateral declara ons, since the interested States can rely on them and are en tled to pretend that the
obliga ons thus created are respected.
—> unilateral declara ons of a binding nature cannot be arbitrarily revoked.
The obligatory character of some unilateral acts is con rmed by the prac ce of the UNSG concerning the
applica on of Ar cle 102 of the UN Charter, establishing that every treaty and interna onal agreement
concluded by a member of UN must be registered with the Secretariat as soon as possible and published by
it.
—> the expressions treaty and interna onal agreement are also intended to include unilateral
commitments, such as the declara ons of Member States of the UN on the acceptance of the compulsory
jurisdic on of the ICJ according to Ar cle 36, para. 2, of its Statute, and some declara ons that create
binding obliga ons between the declaring State and other States.
—> unilateral declara ons are to be considered equal to trea es only for the purposes of registra on and
publica on. As for the rest, precisely because they are unilateral, declara ons of such kind are not
comparable to interna onal agreements.
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In the case of the resolu on sponsored by Russia on no rst placement of weapons in outer space two
elements are relevant:
1. There are no interna onal norms, customary or conven onal, providing for such declara on having
legally binding character.
2. The text of resolu on presents every year the same content and focuses on the importance and urgency
of the objec ve of preven ng an arms race in outer space; on the primary role of the Conference on
Disarmament, as the single mul lateral nego a ng forum one this subject, and in the nego a on of a
mul lateral agreement, or agreements, on the preven on of an arms race in outer space in all its aspect.
The resolu on encourages all States to consider the possibility of upholding a poli cal commitment not to
be the rst to place weapons in outer space.
The pledge whereby a State vows that it will not be the rst to place weapons of any kind in outer dice and
cells upon all other spacefaring na ons to follow its example, is a declara on that contains a promise by the
State not to act in contradic on with it.
= paradoxical quality of being both permanent and reversible in the sense that the commitment falls away
immediately once the State making it believes that another State has emplaced weapons in outer space
“ rst”.
Veri ca on of this measure aimed at avoiding the placement of weapons in outer space, is only fully
realised once weapons are placed in outer space —> the pledge is made only in nega ve terms and the
ac on is the declara on itself.
It is not so clear that this proposed TCBM is demonstrably implementable, nor demonstrably veri able —>
there is a big degree of ambiguity of the very idea of not to be the rst to place, which may en ce States to
prepare to be second or third.
The NFP ini a ve does not de ne adequately what cons tutes a weapon in outer space. Space objects and
technologies that can be used for aggressive purposes are not necessarily arms.
= States would lack mutual understanding of the opera ve terminology, which could increase mistrust or
misunderstanding about the ac vi es and inten ons of States.
—> as long as there is no agreement on what cons tutes a space weapon, it would be impossible to verify
implementa on of this measures.
Because the NFP ini a ve focuses exclusively on space-based weapons, it does not reduce the causes of
mistrust, misunderstanding, and miscalcula on with regard to other types of an -satellite weapons.
7. The GGE on PAROS

The Russian Federa on and China promoted the adop on of RES. 72/250 by the UNGA, on 24 Dec. 2017,
tled Further Prac cal Measures for the Preven on of an Arms Race in Outer Space PAROS.
—> it mandated the UNSG to set up a GGE, designated by up to 25 Member States on the basis of fair
geographical representa on, in order to examine and make recommenda ons on substan ve elements of
an arms race in space.
Workshop organised in Beijing (4-6 July 2018) by the UN O ce for Disarmament UNODA together with MFA
of China and the Russian Federa on.
Three themes:
1. Security in space and consequences of an arms race
2. Framework of the applicable rules and their adequacy
3. The possible substan ve elements of a legally binding instrument
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—> China and Russia reiterated that the cons tu on of the GGE was intended to overcome the di cul es
related to the discussion of the dra PPWT Treaty, presented to ll the gap in Ar cle IV of the OST by
sanc oning a generalised ban covering any other category of weapons in Earth orbit.
The Group also adopted its working methods:

- the experts would par cipate in the work of the GGE in their personal capacity
- It was not appropriate to circulate collec ve contribu ons, leaving the ini a ve to individual
na onal experts
—> a dra treaty on PAROS con nued to present a number of points of di cult solu on:
- The development of an acceptable de ni on of weapon in space
- The iden ca on of measures for the in situ veri ca on of the commitments entered into by the
contrac ng States
- The prevalence, if not exclusive, dual-use of space systems
- The exclusion of the issue of space debris caused by the use of ground-based an -satellite weapon
systems in the exis ng dra binding instrument
It was rea rmed the posi on of a group of experts in favour of de ning a non-binding interna onal
instrument covering security aspects in outer space, including a commitment not to inten onally destroy
space objects and not to create long-las ng space debris.
A point shared by the en re Group concerned the rela onship between a possible treaty on PARIOS and the
PPWT —> the preven on of an arms race in outer space implies not only the de ni on of prohibi ons
related to the placement of weapons in outer space, but also the prohibi on of irresponsible behaviours:
Behaviours/ac ons v. Weapons/capabili es
This combina on did not solve the problem of knowing how best to achieve a balance between the two
aspects.
Another issue concerned the prohibi on of the use of force in outer space.
—> the majority agreed that the applicability of this prohibi on in space was beyond dispute. This issue was
closely associated with self defence as an excep on permi ed by interna onal law and the UN Charter.
The issue of the applicability of interna onal humanitarian law in case of a con ict in outer space also
raised di erent opinions, following a presenta on by the Interna onal Commi ee of the Red Cross.
—> Ar cle 36 of the First Addi onal Protocol of 1977 on New Weapons and the Obliga on of States, when
developing or adop ng a new weapon, new means or methods of warfare, to determine whether their use
is not prohibited by the provisions of interna onal humanitarian law.
= the purpose of PAROS is to prevent con icts in space, not to regulate them.
En re spectrum of threats:
- jamming
- Blinding lasers
- Cyber-a acks
- Ground-space a acks sources producing long-las ng orbital debris
- Space-space a acks sources of similar debris
- Space-space a acks not genera ng debris
- A acks through space robots
- The deployment and use of nuclear weapons
- The deployment of bombs in space to a ack ground targets
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The reference to space debris raised a debate that registered two opposing approaches:
1. That of some experts, for whom the inten onal crea on of debris cons tutes a major threat to the
security of space ac vi es and should be considered a substan al element of a new legal instrument on
PAROS.
2. The posi on that this was an issue unrelated to PAROS to be discussed in other UN fora, such as COPUOS.
—> the PPWT works precisely in the direc on of reducing orbital debris, introducing the prohibi on of the
use of the force and of the placement of weapons in space.
Russian and Chinese experts —> veri ca on is already feasible through measures such as:
- pre-launch inspec ons
- veri ca on of the func on of space objects through the examina on of their shape
- legal analysis of contracts for commercial satellites
The majority of experts con rmed the relevance of TCBMs compared to PAROS and noted that the 2014
version of the Russian-Chinese PPWT has signi cantly reduced their func on.
—> The scope should be broad and comprehensive, such as to cover the en re cycle of capabili es
(development, tes ng and stockpiling of weapons), and the three possible con ic ng scenarios:
1. Earth-to-space
2. Space-to-space
3. Space-to-Earth
While the work of the GGE was characterised by a construc ve a tude of coopera on, the di erences on
de ni ons, the su ciency of the exis ng legal regime, the fundamental obliga ons and the veri ca on of
their ful lment proved to be irreconcilable.
In accordance with the prac ce of GGEs which fail to adopt the report by consensus, the dra nal report
nego ated at length was not made public.
—> the work of the GGE on PAROS has con rmed the existence of divergent views on the usefulness of a
binding treaty and the di culty of resolving the technical and regulatory aspects that have so far prevented
its discussion in the Conference on Disarmament.
8. Concluding remarks
Perspec ves concerning outer space iden ed in the comprehensive report of the UNSG, issued in 2021
and tled Our Common Agenda as an agenda of ac on designed to accelerate the implementa on of
exis ng agreements, including the SDGs.
Among the key proposal to promote peace and prevent con ict, we nd a New Agenda for peace and
peaceful, secure and sustainable use of outer space, including through a mul stakeholder dialogue on outer
space.
—> Outer space is included among the “global commons”.
In some areas, robust agreements and momentum exist but they are failing to keep pace with the gravity of
the challenge or are su ering from lack of implementa on, while in other areas agreements are dated,
fragmented or nascent.
Guidelines for the Long-Term Sustainability of Outer Space Ac vi es: have shown that progress in
governance is possible, but many gaps remain.
A combina on of binding and non binding norms is needed, building on exis ng frameworks and drawing in
the full range of actors now involved in space explora on and use.
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Immediate ac ons could include:
- The development of a global regime to coordinate space tra c
- The elabora on of new instruments to prevent weaponisa on of outer space —> to that end,
considera on could be given to a mul -stakeholder dialogue on outer space as part of a Summit of
the Future bringing together governments and other leading space actors.
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The Law of Outer Space Activities

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THE LAW OF OUTER SPACE ACTIVITIES

1.2 Space law as a fruit of the UN

1.3 The Outer Space Treaty of 1967

The Treaty also sets out restraints on States:

1.4 OST and private actors

The ARRA contains on the one side provisions, based on

Other legal texts have o ered a clearer dis nc on between:

1.7 Registra on Conven on

The Conven on establishes the types of informa on to be provided, including:

1.8 Moon Agreement

1.9 The declara ons of principles

1.10 Other UN resolu ons

2.2 The law-making phase

Three evolu onary phases:

2.3 The so law instruments

2.4 Further possible developments

The problem of the management of orbital debris raises many concerns:

CHAPTER IV – RES COMMUNIS OMNIUM, COMMON HERITAGE OF

CHAPTER V – THE EXPLOITATION OF MINERAL RESOURCES OF CELESTIAL

CHAPTER VI – REVIEWING THE ASTRONAUTS AGREEMENT

6.2 Is there a need to update the 1968 Agreement?

6.3 Proposals put forward in the COPUOS

4. The role of the Par es to the ARRA

5. Subsequent na onal and interna onal prac ce

7. Future perspec ves

2. Responsibility and liability under interna onal space law

3. Primary and secondary norms in the law of interna onal responsibility

4. Liability for damage caused by space objects

5. Di erent liability regimes under the 1972 Conven on

6. Liability by fault in the event of collisions in orbit

Two par cular cases:

7. Con nuing on liability

8. Claims Commission and disputes concerning damages

2. 1975 REG Conven on

4. Jurisdic on and control

5. The UN Conven on Register

6. Harmonisa on of prac ces on registra on

7. Large constella ons of small satellites

Case of the Dutch space legisla on:

8. Clauses in launch contracts

The typical clauses of space contracts are several:

Russian Federa on:

10. Transfer of ownership of space objects in orbit

11. Registra on of space objects by IGOs

2. The ITU legal system

The current basic legal instruments are

2 To this end, the Union shall in par cular:

Ar cle 44, CS:

3. Protec on from harmful interference

Chapter X - Aerospace Objects and Interna onal Responsibility

Chapter XI - The interna onal Responsibility of States for Planetary

2. Primary norms of interna onal law on planetary defence ac vi es

1967 OST, Opera ons of planetary defence shall be in conformity with:

3. Secondary norms of interna onal law on State responsibility

4. The special regime of interna onal space law

5. The consequences of interna onal responsibility for planetary defence ac vi es

6. Circumstances precluding wrongfulness