The United Nations (UN) may rightfully be described as a universal and global international organization, with comprehensive subject-matter and geographic competency. Nevertheless, the scope of its activities even goes beyond the Member States’ territories. In fact, it goes beyond any states territories and the limits of our planets. As a matter of undeniably international concern, outer space has been on the agenda of the United Nations since the earliest days of space flight. To ensure the peaceful, prosperous and safe exploration and use of outer space, the international community decided to set binding rules for the activities of states (and private individuals) in outer space. Along with international cooperation in outer space, this body of international space law has been a main focal point of one of the publicly lesser known deliberative bodies of the UN, the UN Committee on the Peaceful Uses of Outer Space (COPUOS).
First established as an ad hoc body in 1958, in response to the launch of the Soviet Sputnik-1 satellite, COPUOS was made a permanent committee under the UN General Assembly (UNGA) with 24 members in 1959, meeting annually. Since 1962, the work of the committee has been supported by a Legal and a Scientific and Technical Subcommittee. An ever growing membership makes COPUOS one of the largest committees in the United Nations.
The importance of the committee particularly for the development of international space law, can hardly be overestimated. The committee served as a vital negotiation forum for the drafting of the five major UN space law treaties: the Outer Space Treaty 1967, the Rescue Agreement 1968, the Liability Convention 1972, the Registration Convention 1975, and the less successful Moon Agreement 1979.
Since the era of intense outer space treaty making, political consensus has only permitted COPUOS to develop non-legally binding norms (also called soft law). As unhappy as some lawyers (including the author of this piece) are about the term soft law, the impact of COPUOS soft law documents has been recognizable, with many of its standards and guidelines being voluntarily accepted and followed by the major space-faring nations. Although soft law does not abrogate the need for clear and binding legislation and compliance can hardly be enforced, it is one way to achieve at least limited progress.
The UN Office for Outer Space Affairs
The UN Office for Outer Space Affairs (UNOOSA) is one of the smallest offices in the UN, but arguably the one with the largest jurisdiction, at least geographically. It is responsible for the coordination of all UN bodies using space applications in their operations (UN-Space), for the UN space applications program, a legal advisory program, for the use of space technology for disaster risk reduction, capacity building, and, last but not least, it serves as the secretariat of COPUOS and its subcommittees.
Other bodies particularly involved, besides the 1st and 4th committees of the UNGA, are the International Telecommunications Union (ITU), dealing with radio frequencies and the satellites in the geostationary Earth orbit, as well as the UN Conference on Disarmament (CD), the UN Office for Disarmament Affairs (UNODA) and the UN Institute for Disarmament Research (UNIDIR), dealing with the issue of space militarization.
Recent Developments in COPUOS on Space Resource Utilization
The discussion on space resource utilization has picked up steam since at least 2015. Since then, the United States, Luxembourg and the United Arab Emirates have passed domestic laws, allowing for the lawful extraction of mineral resources on celestial bodies and/including asteroids. The question whether resource utilization is lawful under international law, in particular under the non-appropriation clause of Article II of the Outer Space Treaty, is not yet settled. The United States, interpreting the Article as permissive of private resource extraction and merely prohibiting the acquisition of territory on celestial bodies by states, are trying to compel significant progress on the issue with their partners in the Artemis Accords. The Trump administration refuted the Moon Agreement, the principle of space as global commons and encouraged comprehensive private resource utilization activities.
In 2019, COPUOS agreed to hold “scheduled informal meetings” at the 2020 session of the Legal Subcommittee in order to establish an official Working Group on space resource exploration, exploitation and utilization. This process had to then be postponed by a year due to Covid-19, which effectively led to cancellation of the meetings of COPUOS and its Legal Subcommittee that year. These discussions have intensified during the 2021 meetings and a range of proposals on the mandate of a potential working group have been discussed and a five-year Working Group on potential legal models for activities in the exploration, exploitation and utilization of space resources. (paras. 251-258) The Working Group first met during the COPUOS meeting in August/September 2021 and first proposals on its mandate and work plan were presented.
The progress at COPUOS may sometimes be maddeningly slow, but as all relevant state actors are on board so far, this approach seems more promising in the long term than the unilateral alternative.
Space Militarization and Disarmament
The issue of military uses of outer space has been intensely debated and, at the same time, tolerated to a certain extent. Far from any science fiction fantasy, space based communication, observation and navigation applications are crucial and accepted components of modern military actions. However, as these valuable assets are also vulnerable, states are eager to protect them.
Article IV of the Outer Space Treaty speaks a clear language when it comes to the placement of weapons of mass destruction, nuclear weapons in outer space or the militarization of celestial bodies. It does not prohibit state military space forces or the development or deployment of space weapons.
There have been ongoing debates about the issue of conventional space weapons and the weaponization of outer space generally. The joint Russian-Chinese draft for a Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects (PPWT) has largely been received negatively. The discussion on any new treaty in the area has largely come to a halt.
New Initiatives on Space Disarmament
Recently there have been two new initiatives at the UN:
First, the United Kingdom is championing a new attempt at reigning in military activities in outer space. With the support of the United States, this new initiative builds on the legal views on the topic of military uses of outer space, submitted by UN Member States upon a resolution proposed by the United Kingdom in 2020. The proposals so far neither insist on nor exclude the creation of a legally binding treaty. The initiative may also end up going for non-legally binding “norms of behavior”, in particular for military operations in outer space.
Second, an open letter has been submitted to the UN Secretary General, urging him to advocate for a treaty to ban the testing of (kinetic) anti-satellite weapons (ASATs). These tests, conducted by China, the United States and, recently, India have drawn intense criticism. In particular the Chinese test has dramatically increased the number of pieces of space debris in Earth orbit. In light of the impact of these tests, the supporters of this plea (mostly academics and civil society) envision a treaty similar to the Partial Test-Ban Treaty, which, inter alia, prohibits test of nuclear weapons in outer space. The chances for success seem small at the moment, but the growing amount of space debris may force all of the major space-faring nations to rethink this issue.
A Larger Role for COPUOS?
The recent initiatives at the UN, along with the ever-increasing number of private space flights, have shown two things: (1) The future of space activities and its regulations is on all the major states’ minds and (2) the latter are still (or maybe again) willing to find international solutions to these issues. Thorny topics, like military space activities, will always remain in the sovereign, independent and somewhat secretive realm of national self-interest. One of the common rationales of Cold War era arms control agreements, namely not to start a war by accident, may again nudge states into accepting at least some form of norms of behavior and transparency and confidence-building measures (TCBMs). These issues are being discussed during the 76th session of the UNGA in September 2021. Also in the field of space resource utilization, sheer self-interest and the will to avoid interference by other states in one’s national activities, should compel states to cooperate. For example, the proposed safety zones of the Artemis Accords, will only ever deserve that name, if they are respected by other technologically potent states and private entities.
COPUOS has positioned itself as the appropriate forum to have the discussion about resource utilization. With regard to militarization, there still seems to be agreement to have these negotiations separately at the CD. However, whether or not COPUOS, because of the size of its membership and unique competence on space matters, should be formally mandated to also discuss military uses, it will need to consider many space law issues in light of military uses and, ideally, in accord with the ongoing negotiations at the UN disarmament bodies. No one wants COPUOS to get stalled by disarmament issues. Still, ignoring them completely is not a great option either.
Author Biography: Michael Friedl is a Deputy Moderator-in-Chief of the International Law and Policy Brief (ILPB) at The George Washington University Law School. He obtained a first law degree from the University of Vienna (Austria) and currently pursues a LL.M degree in National Security and U.S. Foreign Relations Law as a Fulbright scholar at The George Washington University Law School. He is a member of the European Centre for Space Law and has been teaching space law and public international law at the University of Vienna.