HOW WOULD THE OUTER SPACE TREATY BE DIFFERENT IF DRAFTED IN 2017?

1. HOW WOULD THE OUTER SPACE TREATYBE DIFFERENT IF DRAFTED IN 2017?

2. What is the O.S.T ? • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies • 1966 - Considered by the Legal Subcommittee and agreed by the General Assembly - G.A resolution 2222 (XXI) • Entered in force in 1967 – 50 years old • In 2017 : 107 ratifications – 23 signatures • Magna carta of Space Law • 17 articles – 3 pages • International Public Law : Obligation on States (Cold War space race) • Basic framework on international space law including general principles • Free exploration and use • Non-appropriation - Prohibition of military activities on the celestial bodies and stationing weapons of mass destruction • Protection of the space environment • Liability of “launching States”

3. Should we review the O.S.T ? The Pros - Calls for a modernization of a fifty-year old treaty Prof. Wheeler • Outdated? Disconnection between O.S.T and the commercial space industry. • Insufficient ? Lack of long term security due to absence of clear provisions E.g. Weaponization, space debris or supervisory institutions The Cons - The actual legal framework provide enough solutionsProf. Gabrynowicz • Risk of destabilization of a quasi-constitutional legal framework • Better solutions to resolve perceived threats with cyclical elections in existing institutions, changes of administration, changes of fiscal policies and budgetary constraints Path to redraft through a democratic and efficient revision process Work of legal renovation : Maintain key notion while updating and incorporating issues related to the evolution of space sector Work of legal assertiveness : Strengthen the commitment of the International community and reattach Space Law to general International Law

4. I. PreambleGive the essence to the provisions and their interpretation • Update chronologically the references to other space legislation • Present the equilibrium between new and past notion • Hierarchize adapted principlesaccording to their legal stringency • Right to use and explore outer space as a common good for the global citizenship • Rule of Law • Peaceful use of outer space • Duty of the international community in the field of cooperation • Recognition of institutions and acknowledgment of procedural principles

5. II. Text structure Redraft sample I. Scope and DefinitionArticle 1° - Scope Article 2° - Definitions II. Principles Article 3° - Global citizenship rights to pursue common good in outer space Article 4° - Representative of global citizenship in outer space Article 5° - Peaceful use of outer space and prohibition of weapon Article 6° - Common responsibility of the international community toward the long term sustainability of outer spaceArticle 7° - Prohibition of unauthorized appropriation of outer space III. Grounds of derogation to general principles Article 8° - Grounds justifying the use of space for military purpose Article 9° - Grounds justifying the appropriation of space for commercial activities IV. Institutional Supervision Article 10° - Integrated outer space international institutions Article 11° - Obligation to provide information in the conduct of space activities Article 12° - Agreement and inspections concerning military activitiesArticle 13° - Consultation and agreement concerning commercial activitiesArticle 14° - Sanctions Article 15° - Responsibility

6. III. Scope of application and definitionsAiming precision, clearness and willing to prevent misleading interpretation Scope of application - Article 1° - (current art. XIII) • Delineate “outer space” - E.g Celestial bodies ? • Interaction with other Law - E.g. Air and space traffic ? • Prefer a broad functional criteria ofspace activities • Intersect the functional with subsidiary technical criteria Definitions - Article 2° • Need to preciseexistingnotions : “Exclusively peaceful purposes” “Natural resources”, “Celestial bodies”... • Need to develop new ones “Global citizenship” (Which rights) ? “Common good” (What regime) ? • Source of inspiration : Post space treaties (The Moon Agreement) Maritime Law - The Area(Part XI : 1982 Convention on the Law of the Sea)

7. IV. Principles and derogation Putting common interest above private ones Redraft sample – 3 package of principles II. Principles Article 3° - Global citizenship rights to pursue common good in outer space Article 4° - Representative of global citizenship in outer space Article 5° - Peaceful use of outer space and prohibition of weapon Article 6° - Common responsibility of the international community toward the long term sustainability of outer space Article 7° - Prohibition of unauthorized appropriation of outer space III. Grounds of derogation to general principles Article 8° - Grounds justifying the use of space formilitary purpose Article 9° - Grounds justifying theappropriation of space for commercial activities

8. IV. Principles and derogation Putting common interest above private ones Article 3° - The Right to pursue the common good in outer space for the global citizenship • Need to affirm legal foundations in outer space • Explicit reference to the Rule of Law (current article III) • Develop anindividualized right of exploration and use and non-discrimination principle • Translation of fundamental principles in more common and well-known legal terms to reinforce predictability and bindingness • E.g. “Benefit and interest of all countries” related to the idea of sharing propriety can find a translation in the regime of the “common good” • E.g. “Province of all mankind” refers to the idea of a single population including all citizens of the world as a “global citizenship”

9. IV. Principles and derogation Putting common interest above private ones Article 4° - Representative of the global citizenship in the outer space • Adapt to the evolution and diversification of spacecraft personnel • Definition of a functionaltriple regime (Prof. Y. Hashimoto test) • Astronauts - Role of global citizenship emissary(“envoy of mankind”) • Space crew members - Other professionals trained for space flight performing activities related to the exploration and use of outer space or celestial bodies - E.g. Commercial space actors • Spaceflight participant - Non professionals E.g. Commercial customers in the sector of transport, tourism... • Extend of States common obligations regarding all spacecraft personnelstatusGeneral immunity, information, protection and return to their launching State • Further UN resolutions could define and organize the hierarchy with the astronauts regime take precedence on other personnel in terms of power and duty

10. IV. Principles and derogation Putting common interest above private ones Article 6° - The Common responsibility of the international community toward long term sustainability of outer space • Affirm the general long term sustainability (U.N. goals) • Foster financial aid obligation for capacity-building • Develop routine diplomatic consultations and TCBMs - Report of the G.G.E on Transparency and Confidence-Building Measures • Present the double nature of duty on Earth and in space • Growth of information-sharing and educational cooperation to improve worldwide space skills and knowledge – E.g. Integrated Registry System (space objects, debris, slots...) ; United Nations Programme on Space Applications ; Space Security Index 2017 … • Scientifical and Technical cooperation to improve research and environment security through cross border capacities – E.g. UN-SPIDER ; Space Situationnal Awareness (SSA) programs... • Avoid the jeopardization capacity-building programs between developing countries

11. IV. Principles and derogation Putting common interest above private ones Peaceful use of outer space - Issues • “Space war” involve direct but also subsidiary negative effects - E.g. Space debris created, use of radio frequencies and orbital slots due to redundancy • Unilateral militarization (different of weaponization) is a fact that hinder the credibility of the current O.S.T • Weaponization : Deployment of weapons systems that operate in space - E.g. Satellite-based systems for Ballistic Missile Defence (BMD), space-based Anti-Satellite (ASAT) and Space To Earth Weapons (STEWs) • Militarization : Use of military assets in Space – E.g. Military satellite • Acknowledge the the currentdisarmament trend in Space Law • 2014 - International Code of Conduct for Outer Space Activities (ICoC) • 2014 - “Treaty on the Prevention of Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) • 2014 - “No First Placement of Weapons in Outer Space” Resolution (NFP) • Ad hoc Committee for Prevention of an Arms Race in Outer Space (PAROS)

12. IV. Principles and derogation Putting common interest above private ones Peaceful use of outer space, prohibition of weaponization and exceptionsArticle 5° - (current article IV) and new Article 8° (ground of justifications) Recall and strengthen thegeneral principleof PUOS (5.1°) Recognize a right to supervised militarization (5.4° and 8°) • Extend a total prohibition for every type of space weaponization (5.2°)E.g. Foolproof missile defence system not feasible in the foreseeable future • Introduce a clear partial prohibition of the use of force in outer space (5.3°) • Allow exceptional and proportionaluse of military activitiesE.g. Use military satellites to direct bombing raids avoiding casualties • Strict exception for launch weaponsinto space from Earth restricted to • Measures related to human life or health safety, space debris reduction or decided by Security Council E.g. Destruction of space objects threatening the Earth Specific institutions power - Article 12° Authorization of military activities(Legal sub.) Inspection of infrastructures(O.D.A)

13. IV. Principles and derogation Putting common interest above private ones Redraft possibility - Article 7° (current art. II) 1° Theouter space lato sensu, should be made available to all States underequitable conditions and is not subject to national appropriation by any means including claims of sovereignty, use or occupation. 2° The outer space stricto sensu, including the geostationary orbit and radio frequency spectrum, constitutes a res communes not subject to appropriation by any means and regulated rationally and equitably by institutions. 3°Celestial bodies constitute a res nulliusopen to title of property as supervised by space institutions. Prohibition of unauthorized appropriation of outer space . Connection with - New Article 9° The appropriation of space by titles of property of any kind must be justified by the pursuit of : a) Scientific research and exploration b)Telecommunication and particularly remote sensing and telemedicin c) Transport d) Mining operation Connection with - Article 13° UNOOSA and Legal sub. supervizion of license Coop. with the International Civil Aviation Organization (ICAO)

14. IV. Institutional supervision of outer space activitiesPass from intergovernmental to integrated governance • Coherently empower United Nations bodies for integrated governance Article 10° - Integrated outer space international institutions (current art. XI) . Assistance WeaponizationUse of the force General supervision Article 11° - Information obligation against harmful interference (current art. X XI) United Nations inter-agency mechanisms • Registration of space objects (Registration Convention) • Consultation practice(Moon Agreement) • Provision of information in databases to forecast natural hazards – E.g. UN Spider ; SSA • Introduction of procedural principles Principle of transparency, due delay and public access • Explicit reference to the obligation for every entity under States jurisdiction E.g. Private spacecraft

15. V. Sanctions and liability Distinguish “administrative” from economic responsibility Article 14° - Sanctions - (current art. VI - VII – VIII) Distinguish responsibility of States toward the global citizenship • Stress the principle of “appropriate launching state” (Liability Convention) • Maintain the obligation to authorize, refuse and ensure a continuous supervision • Allow transferof supervision to more convenient monitoring States (registration) . Recognize an administrative power of sanction largely held by the Legal sub. Article 15° - Liability - (current art. VI - VII – VIII) Open liability and dispute resolution procedures to all economic actors • Broaden to the the liability regime to share between public and private actors in proportion to their participation and respective faults • Allowthe access to dispute settlement procedures and remedies E.g. Claims Commission - Liability Convention

16. ConclusionWalk together rather than walk alone • Current trend of “walk alone” States - U.S.Space Act 2015 and Draft of the Luxembourgian Space Act 2016 in contradiction with the O.S.T • Pernicious impact of “walking alone” with unilateral adoption of laws rather than develop a harmonize law through consensus • Counter productivity for international entrepreneurship - E.g Waste of time founding the appropriate law, legal uncertainty or legal loophole • Regulatory competition environment decreasing safety • “Bidding wars” : Governments proposing disproportionate advantages exploited by investors - E.g. Public subsidies • Possible development of flag of convenience States or Malus forum shopping : E.g. companies choosing the registering States, Law or jurisdiction with the lowest standards. • “Race to the bottom” Governments decreasing standards (health and safety regulations, or environmental) to regain actors rejected from other systems or accept other not sufficiently serious.