AwaitingLaunch_1397728623369

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20. http://en.wikipedia.org/wiki/Kessler_syndrome 21. http://www.arssdc.org/ 22. http://settlement.arc.nasa.gov/Contest/ 23. http://www.spaceset.org/ 24. Draft “International Code of Conduct for Outer Space Activities”, Version 16 September 2013, http://eeas.europa.eu/non-proliferation-anddisarmament/pdf/space_code_conduct_draft_vers_ 16_sept_2013_en.pdf 25. Outer Space Treaty, sometimes in shorter OST, refers to “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”. The treaty has 102 parties as of 1 January 2013. 26. Satellite Industry Association, “State of the Satellite Industry Report”, October 2013, available at: http://www.sia.org/wpcontent/uploads/2013/10/2013_SSIR_Final_Oct.pdf. 27. Ibid. 28. China Economic Weekly, 27 May 2013, p. 33, available at: http://paper.people.com.cn/zgjjzk/html/2013- 05/27/content_1248040.htm?div=-1. 29. “Space Security Index 2013”, Project Ploughshares, available at: http://www.spacesecurity.org/SSI2013.pdf. 30. Ibid. 31. Ibid. 32. Yuan Lin, “Uncover the Secret of ASAT Weapon,” China News Weekly 5, 2007, p. 63. 33. Needless to say, EU has the earlier editions. 34. The consultation attended by some 140 participants from 61 countries. The author of this article attended and made a speech “The changing face of international law: increased use of soft law tools?” as Chinese international law expert invited by UNDIR. 35. The terms “hard law” and “soft law” are not strict legal terms. “Hard law” is used with the appearance of “soft law” to indicate they are different. 36. Opinions expressed in this article are his own and not necessarily reflect positions of the Government of Egypt. 37. Christopher Greenwood, “International Law and the 'war against terrorism', International Affairs Vol. 78, No. 2, 2002, p. 313; OR: Louis-Philippe Rouillard, “The Caroline Case: Anticipatory Self-Defence in Contemporary International Law”, Miskolc Journal of International Law Vol. 1, No. 2, 2004, p. 112 & p. 114- 5; OR: Chris Richter, “Pre-emptive Self-Defence, International Law and U.S. Policy”, Dialogue Vol.1, No. 2, 2003, p. 57. 38. One of the issues of the EU Code of Conduct revolved around logistics. The EU Council lacked the resources and experience to facilitate an international undertaking like the Code. When the International Code of Conduct was announced, the EU Council outlined three specific projects to be undertaken: outreach activities promoting the proposal for an international Code of Conduct for outer space activities, the organisation of up to three multilateral experts' meetings to discuss the proposal for an international Code of Conduct, and the coordination of a consortium of nongovernmental experts. The EU Council allocated €1.49 million (U.S. $1.85 million) to sub-contract with the United Nations Institute of Disarmament Research (UNIDIR) to facilitate the technical performance of these projects. 39. See Andrey Makarov, Transparency and Confidence- Building Measures: Their Place and Role in Space Security, Security in Space: The Next Generation- Conference Report, 31, March-1 April 2008, United Nations Institute for Disarmament Research (UNIDIR), 2008 for a discussion about TCBMs and their role in outer space security. 40. There are three types of legal Executive Agreements: Congressional executive agreements, executive agreements made pursuant to an earlier treaty and sole executive agreements. Unlike a non-legal agreement, each of these agreements are legally binding at the international level. See Michael John Garcia, International Law and Agreements: Their Effect Upon U.S. Law, March 1, 2013, pp. 3-5, available at http://www.fas.org/sgp/crs/misc/RL32528.pdf 41. There are other factors used to determine whether or not an agreement is intended to be legally binding or not, including the form of the agreement and the specificity of its provisions. SeeId.at p. 6. 42. Michael J. Listner, Congressional opposition to a Code of Conduct for space, The Space Review, February 6, 2012, available at http://thespacereview.com/article/2018/1#! 43. Congress took preemptive steps to address the potential regulatory effect on the national security of the United States by adopting a measure such as the Code when it passed H.R. 4310. H.R. 4310 requires the President and the Secretary of Defense to give assurances and notifications prior to negotiating a measure synonymous to the Code as well as other conditions. See generally, Michael J. Listner, Separation of powers battle continues over the Code of Conduct, The Space Review, January 7, 2013, available at http://www.thespacereview.com/article/2215/1#! 232 | Awaiting Launch: Perspectives on the Draft ICoC for Outer Space Activities
44. This is more commonly referred to as the Commercial Space Act. 45. There is a question as to whether an assurance made under the Code could require the Secretary of Transportation to implement regulations under Title 51, Chapter 509 to affect commercial space activities. 51 U.S.C. §50919(e)(1) requires that the Secretary of Transportation ..."carry out this chapter consistent with an obligation the United States Government assumes in a treaty, convention, or agreement in force between the Government and the government of a foreign country..." The issue is whether the Code, which is a non-legal agreement, would be considered "an agreement" for purposes of this statute. If "an agreement" equates to a legally binding executive agreement and not a non-legal agreement, commercial space activities under Title 51, Chapter 509 may be immune if the Code is adopted by the United States, unless Congress amends the law. This would be an unlikely scenario given the current Congress' concern as articulated in the January 18, 2012 letter. 46. This definition of customary international law was articulated by the 11th Circuit Court of Appeals in United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012). The definition of customary international law pronounced by the 11th Circuit in this case is unanimous throughout the Federal Circuit Court of Appeals. 47. Article IX states that "In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment." 48. Japan invoked Article IX of the Outer Space Treaty for the first time shortly after China's ASAT test in 2007; however, that one use of Article IX did not necessarily establish customary practice. Compare this to the intercept of USA-193 where the United States consulted with COPUOS before it intercepted its wayward satellite but did not invoke Article IX because it determined the nature of the intercept did not require Article IX to be raised. Whether the United States inadvertently created a customary practice regarding Article IX, specifically as to when it need not be invoked, depends on whether the United States intended that decision to be a legally binding international practice. Absent that intent, its decision will have no binding effect under customary international law. 49. The National Space Policy of 2010 reads in part that "[t]he United States will pursue bilateral and multilateral transparency and confidence-building measures to encourage responsible actions in, and the peaceful use of, space. The United States will consider proposals and concepts for arms control measures if they are equitable, effectively verifiable, and enhance the national security of the United States and its allies." SeeNational Space Policy of the United States, June 28, 2010, p. 6, available at http://www.whitehouse.gov/sites/default/files/natio nal_space_policy_6-28-10.pdf. 50. See generally Michael J. Listner, TCBMs: A New Definition and New Role for Outer Space Security, July, 2011 available at http://www.defensepolicy.org/michlis/tcbms-anew-definition-and-new-role-for-outer-spacesecurity#! 51. See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1252 (11th Cir. 2012). 52. See Ibid. 53. The two wildcards in this analysis are the People's Republic of China (PRC) and the Russian Federation. Both have expressed doubts (and in some cases disdain) for the Code. The rationale for their objections are varied with many being political, but the root of their objections lie in the fact the Code is not intended to be legally binding. Both countries co-sponsored the Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), which is currently languishing in the Conference of Disarmament (CD). The PPWT has limited support and its prospects to become binding international Endnotes | www.orfonline.org 233
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AWAITING LAUNCH: PERSPECTIVES ON TH
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Contents Preface About the Authors
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IV. ICoC: Perspectives from Latin A
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and done with the purpose of evolvi
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subscribed and those that have not.
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Geneva, Switzerland. Prior to joini
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Institute of Space Law (IISL), and
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George Washington University (Washi
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Dr. Gayya Habila Umaru is a space l
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Dr. Solomon Belay Tessema is Direct
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IMSO ISEF ISO ITSO ITU LEO LTSS MEO
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ICoC and Long-Term Sustainability o
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Meteorological Satellites (CGMS) fo
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guidelines by the end of 2014. The
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egional and global levels in both p
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formulated by the EU, is neverthele
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"There are some who question the re
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encourages a longer view and even f
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Commerce The Code is also fundament
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These omissions are fortunate becau
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mind its behaviour and follow some
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The UN has made two guidelines for
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any disobedience of the latter will
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ICoC: Recommendations for Further E
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improving the outer space environme
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diminish the ability of any state,
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It happened to Us… Ronnie Nader W
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Customary International Law: A Trou
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elating to the now defunct(EU CoC)
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specifically under §§ 5-6 that ar
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1.4 Subscription to this Code is op
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many years since the treaty's entry
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declarations to which the subscribi
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of “consensus” in this context
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The ICoC: A Starting Point Victoria
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Strengths The CoC is being negotiat
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59 defence as recognised in the Cha
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Space Code of Conduct.... Only a Be
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effort is the resolution about Prev
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important platform for discussions
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Towards A More Responsible Use of O
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It was also raised by the author of
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d. discussing the implementation of
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ICoC and the Right of Self Defence
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Difficulties of Verification If it
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were conducted under the chairmansh
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II. Unique Perspectives Unique Pers
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the Functioning of the European Uni
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countries (as of early 2014) has be
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The ICoC Project: A Way to Avoid Mu
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Second, Internet looks different fr
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The Benefits of an ICoC There are s
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the main cyber powers agree on thes
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Reference A. Kerrest, “Treaty vs
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provides ground-breaking opportunit
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104 scientifically useful orbits to
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Reference Argoun, Mohamed B., 2012.
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ICoC for Outer Space Activities: An
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Addressing Challenges in Space thro
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Making the International Code of Co
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of negotiations and creating more i
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III. Regional Views Regional Views
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objects of human origin in orbit ar
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Non-space faring nations could supp
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“Actively participate in the nego
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Space Situational Awareness In the
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EU Efforts for an ICoC: A Mexican P
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ilateral agreements to prevent or m
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aspects of space activities, and is
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that a successful ICoC could weaken
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ICoC and Sustainable Use of Outer S
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due to the Moon race and the Cold W
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such a way as to avoid the creation
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is said to amount to 20 per cent of
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oosting transparency and confidence
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Conclusion The concept of developin
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eyond disarmament issues. Therefore
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• • • consistently reinforce
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government and private sectors. The
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Debris Environment The space enviro
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preventive steps that might minimis
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and it must be pro-actively involve
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• • • • • The Treaty on P
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development of international rules
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content of ICoC is beyond the compe
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References Becerra, R. (2013). Cien
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epresentatives in order to discuss
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practices and undertaking confidenc
Page 190 and 191: • Beijing and Russia have categor
Page 192 and 193: “United Nations Committee on the
Page 194 and 195: In that regard, efforts that have b
Page 196 and 197: aim of investing in space technolog
Page 198 and 199: and, to a different degree, Argenti
Page 201 and 202: Treaty on Principles Governing the
Page 203 and 204: use of military personnel for scien
Page 205 and 206: Article X In order to promote inter
Page 207 and 208: Depositary Governments. Such withdr
Page 209 and 210: One of its efforts is to recommend
Page 211 and 212: Organisations are encouraged to use
Page 213 and 214: 3.5 Operational Phases 3.5.1 Launch
Page 215 and 216: (3) High-pressure vessels should be
Page 217 and 218: each the surface of the Earth shoul
Page 219 and 220: Article I For the purposes of this
Page 221 and 222: Treaty, which shall: (a) Accept for
Page 223 and 224: Version16September 2013 DRAFT Inter
Page 225 and 226: and global security and stability,a
Page 227 and 228: • the Space Debris Mitigation Gui
Page 229 and 230: 5.2. The Subscribing States resolve
Page 231 and 232: • • • • • The Subscribing
Page 233 and 234: 9.2. The Subscribing States resolve
Page 235 and 236: Noting the constructive debates tha
Page 237: V. Endnotes Endnotes | www.orfonlin
Page 242 and 243: law are not good. However, if both
Page 244 and 245: ActaAstronauticaVol. 71, 2012, pp.1
Page 246 and 247: 132. The two monographs referenced
Page 248 and 249: at:http://www.esa.int/esapub/sp/sp1
Page 250: http://www.bbc.co.uk/news/world-lat
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