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46. U.S. statements on specific agenda items before the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space


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AGENDA ITEM 3

GENERAL EXCHANGE OF VIEWS

STATEMENT OF D. STEPHEN MATHIAS
REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE LEGAL SUBCOMMITTEE


Mr. Chairman, it is a pleasure for me once again to represent the United States at the annual session of the Legal Subcommittee. The United States is grateful for your able leadership of this Subcommittee and we look forward to working together as the Subcommittee continues its important contributions to the refinement and development of outer space law.

The United States, and indeed the world, suffered a great tragedy earlier this year with the loss of the U.S. space shuttle Columbia. As we assemble here to focus on the future of space exploration, our thoughts inevitably turn to the past and to the seven astronauts who were lost with the Columbia. These seven individuals dedicated their lives to scientific exploration for the benefit of all humankind. We will remember their bravery, their enthusiasm and their skill as we move forward with space exploration. The loss of the Columbia is a stark reminder of the difficulties and dangers that remain in humankind's quest to explore the world beyond Earth's atmosphere; yet, we are filled with awe and admiration for those individuals who willingly face the dangers and who enable all our dreams to become reality. We will learn from this tragedy. Our journey into space will continue.

The annual meeting of this Subcommittee is an opportunity to reflect on how far we have come in the short time since our exploration of outer space began. This year marks the 40th anniversary of UN General Assembly Resolution 1962, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted December 13, 1963. This Declaration was adopted at a time when space exploration and international interaction in outer space were new realities. Member States recognized that outer space, extraordinary in many respects, also presented unique legal issues. They also understood at the time that the extraordinary nature of outer space and the rapid development of human activities in it would be best served by a pragmatic and gradual approach to these legal issues. The approach that Member States chose - commencing with the study of questions relating to legal aspects, proceeding to the formulation of non-binding principles of a legal nature and, then, incorporating such principles in general multilateral treaties - produced a legal framework that has stood the test of time. The adoption of Resolution 1962 represented a significant first step in this regard. It established the fundamental principles for the orderly use and exploration of outer space and set the stage for the negotiation and conclusion of the four core treaties that govern our activities in space today.

The year 2003 also marks the 35th anniversary of the entry into force of the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space. This "Rescue and Return" Agreement was founded upon a commitment to international cooperation in the peaceful exploration and use of outer space, and upon recognition of the need for international cooperation in responding to accidents, emergencies or other forms of distress. It remains as important today as it was at its inception. The treaty elaborates on the simple, but profound, humanitarian notion, as contained in the 1967 Outer Space Treaty and General Assembly Resolution 1962, that astronauts shall be regarded as envoys of mankind in outer space and shall be rendered all possible assistance in the event of accident, distress or emergency. Unfortunately, space exploration remains a dangerous enterprise and the possibility of accidents or emergencies is real. This Agreement establishes a framework for prompt and effective international response.

Notwithstanding the continuing relevance of the core outer space law instruments -- the Outer Space Treaty, the Rescue and Return Agreement, and the Liability and Registration Conventions -- several key States, including some members of COPUOS, have not accepted key treaties. The United States wishes to stress the need for this Subcommittee to invite States to consider ratifying and implementing the four core space law instruments cited above. Once ratified, of course, States that have accepted the core instruments should assess the sufficiency of their nation's laws to implement them.

The principles contained in the core space law instruments establish a framework that has encouraged the exploration of outer space and benefited both spacefaring and non-spacefaring nations. It is important that we not lose sight of how much has been - and continues to be - achieved for humanity's common benefit within this framework. The language of Articles 1 and 2 of the Outer Space Treaty, which is based in large part upon the Principles in General Assembly resolution 1962, establishes that the exploration and use of outer space is to be carried out for the benefit and in the interests of all peoples, that outer space exploration and use are open on a non-discriminatory basis, that there is freedom of scientific investigation in outer space, and that outer space is not subject to national appropriation. The United States fully supports these principles and remains highly engaged in activities that benefit non-spacefaring nations as well as other spacefaring ones. Data from U.S. meteorological satellites are routinely provided to users around the globe at no cost. These data are invaluable for weather forecast, protection of the natural environment and disaster mitigation. In addition, the U.S. Government will continue to provide service from the Global Positioning System (GPS) for peaceful civil, commercial, and scientific use on a continuous, worldwide basis, free of direct user fees. This is true today and will be equally true in the future. It is our own intention that GPS will remain a high quality and reliable service provided at no/no costs to users. Finally, U.S. space and Earth science data are shared with the world scientific community through cooperative programs or by making them available in accessible data archives, some at no cost and other data only at the cost of reproduction. These include data relevant for fundamental science research as well as data relevant for key applications, such as sustainable development.

Before concluding, I would like to touch briefly upon developments relating to a possible Space Assets Protocol to the UNIDROIT Convention on International Interests in Mobile Equipment. The United States continues to believe that the possibility of a Space Assets Protocol that would facilitate the provision of commercial financing for space activities is worth pursuing. As we have stated in the past, private activities in outer space have become increasingly important in furthering space technology and exploration in recent years. Financing for commercial activities is key to their future success. We were recently informed by UNIDROIT that it has now set a date for the first session of governmental experts for the consideration of the preliminary draft Space Assets Protocol. The first session will take place in December 2003 at the offices of the Food and Agricultural Organization in Rome. We are pleased that this Subcommittee continues to have on its agenda an item relating to the UNIDROIT draft Space Assets Protocol and we look forward to hearing views on this item.

The UNIDROIT proposal of a draft Space Assets Protocol is one example of a topic that can benefit from the expertise and organization of the Legal Subcommittee. We would like to suggest another issue that we believe merits this Subcommittee's consideration. We believe that the LSC could play a useful role in examining State practice in registering space objects. To that end, we intend to propose a multi-year work plan for the LSC to examine State and international organization implementation under the Registration Convention with the view to identifying common elements and making recommendations for enhancing adherence to the Registration Convention. Given that State and international organization practice in recording space objects on the UN Registry appears to be widely divergent, we believe that a LSC study of this practice could be useful in informing States and international organizations of various approaches. Taking on this issue would fit well with this Subcommittee's strength in addressing practical problems in a cooperative manner.

I appreciate your consideration of my remarks. We are pleased to be here and look forward to a productive and collegial session.

AGENDA ITEM 5

INFORMATION ON THE ACTIVITIES OF INTERNATIONAL ORGANIZATIONS

STATEMENT OF THE DELEGATION OF THE UNITED STATES OF AMERICA

Mr. Chairman, I appreciate this opportunity to offer my government's views on the activities of international organizations relating to space law. International cooperation on a regional or global level has been a key factor in the improvement and advancement of space activities and technologies. International organizations have the ability, as well, to further strengthen the legal framework applicable to space activities, by considering steps they can take to encourage wider adherence to the four core outer space treaties so as to make it possible for the organizations to conduct their outer space activities within the framework of the treaties.

As you are well aware, the outer space treaties were drafted to permit international intergovernmental organizations that conduct space activities to do so within the treaty framework. The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, the Liability Convention and the Registration Convention each contain provisions specific to international intergovernmental organizations. Specifically, an international intergovernmental organization that conducts space activities can be a "launching authority" under the Rescue and Return Agreement and the core articles of the Liability and Registration Conventions can be deemed to apply to such an international intergovernmental organization. For this to occur, however, each Convention sets forth two basic requirements. (Rescue and Return Agreement, Article 6; Liability Convention, Article XXII(1); Registration Convention, Article VII(1).) The international intergovernmental organization must declare its acceptance of rights and obligations under the applicable treaty and the majority of the State members of the organization must have adhered to both the Outer Space Treaty and to the applicable treaty (either the Rescue and Return Agreement, the Liability Convention or the Registration Convention, as the case may be).

As my government has noted on several previous occasions, several extremely important international intergovernmental organizations conducting space activities are not conducting those activities within the frameworks of the Rescue and Return Agreement and the Liability and Registration Conventions because not enough of their members have become Party to both the Outer Space Treaty and, respectively, to either the Rescue and Return Agreement, the Liability Convention or the Registration Convention. We believe that the framework established by the Rescue and Return Agreement, the Liability Convention and the Registration Convention is an important and beneficial one for global conduct of space activities. It is surely desirable for international organizations to conduct their space activities under the coverage of these significant instruments.

We would be very interested in hearing the views of international intergovernmental organizations that conduct space activities regarding the possibility of bringing their activities within the rubric of the Rescue and Return Agreement, the Liability Convention and the Registration Convention. We believe that doing so could produce a useful improvement in the coverage and effectiveness of the core Outer Space Treaties
Thank you, Mr. Chairman.

AGENDA ITEM 6
DEFINITION AND DELIMITATION OF OUTER SPACE AND
THE CHARACTER AND UTILIZATION OF THE GEOSTATIONARY ORBIT

STATEMENT BY THE DELEGATION OF THE UNITED STATES OF AMERICA


Mr. Chairman, this standing agenda item is a welcome opportunity to present my government's general views on matters relating to the definition and delimitation of outer space and to the character and utilization of the geostationary orbit, including consideration of ways and means to ensure the rational and equitable use of the geostationary orbit without prejudice to the role of the International Telecommunication Union (ITU).

With respect to matters relating to the definition and delimitation of outer space, I would like to express our appreciation for the efforts of the Working Group on this agenda item, and in particular the efforts of its Chairman, Mr. Manuel Alvarez. The Working Group is performing a valuable service by gathering and analyzing information on this important topic. At this time, the United States remains convinced that there is no need to seek a legal definition or delimitation for outer space. Activities in outer space and in airspace are flourishing and have raised no practical need for a definition or delimitation between the spheres. In the absence of a real need, any attempt to develop a definition would be ill-advised as there would be no experience to call upon in agreeing upon any particular definition or delimitation. The current framework has served us well and we should continue to operate under the current framework until there is a demonstrated need and a practical basis for developing a definition or delimitation. Throughout its history, the Legal Subcommittee has made its most significant contributions when it pursued pragmatic rather than academic topics - the Legal Subcommittee should pursue such a strategy with respect to this issue as well.

With respect to the geostationary orbit, or GSO, I would like to recall this Subcommittee's April 2000 Report on this issue. The April 2000 Report, agreed at this Subcommittee's thirty-ninth session, addressed the principles of equitable access and the rational, efficient, and economic use of the GSO in a constructive manner that remains the appropriate way forward on this issue. My government remains committed to equitable access to the GSO by all States, including satisfaction of the requirements of developing countries for GSO use and satellite telecommunications generally. As a legal matter, the GSO is part of outer space and its use is governed by the 1967 Outer Space Treaty (as well as the International Telecommunication Union's treaties). Article 1 of the Outer Space Treaty provides that "Outer space . . . shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. . . ." Article II of this Treaty further states that outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means. From these articles it is clear that a party to the Outer Space Treaty cannot appropriate a position in outer space, such as an orbital location in the GSO, either by claim of sovereignty or by means of use, or even repeated use, of such an orbital position.

I would like to note some of the actions the United States is taking to further the use of the geostationary orbit, and other uniquely situated orbits, as part of the province of all mankind. The United States makes its Global Positioning System (GPS) freely available to other nations and their citizenry. Furthermore, the United States provides, free of charge, a variety of weather and warning data from its meteorological satellites. Information from NOAA's polar satellites is available globally, while data from GOES geostationary MetSats are available within those satellites' footprints, roughly from Western Europe and Africa to Eastern Australia. Anyone with a receiver can access this data and the United States does not require users to register, so their precise number and locations are unknown. These satellites' transmissions include information about hurricanes, volcanic eruptions and effluent flooding, droughts and related environmental matters and storm tracking data. Finally, the United States, in cooperation with Russia, France and Canada, operates the international satellite-aided search and rescue program known as COSPAS-SARSAT, to provide means for ships, aircraft and others in distress to signal their need for help and their locations. The United States, specifically the U.S. National Weather Service, in coordination with the U.S. Federal Aviation Administration, also provides data to the global aviation community to promote safety of flight, pursuant to arrangements developed under the auspices of the International Civil Aviation Organization (ICAO). These data distributions are supplemented in the Western Hemisphere by the mutual exchange of weather data and forecasts produced by a number of administrations.

At the present time, the ITU Constitution, Convention and Radio Regulations, as well as the current procedures under those authorities for international cooperation among countries and groups of countries, fully take into account the interests of States in the use of the geostationary orbit and related radio frequencies. We note that the LSC continues to have jurisdiction over this issue, should further issues arise that are appropriate for resolution in this United Nations body.
We appreciate your consideration of our views on this important agenda item.


AGENDA ITEM 7
REVIEW AND POSSIBLE REVISION OF THE PRINCIPLES RELEVANT TO
THE USE OF NUCLEAR POWER SOURCES IN OUTER SPACE

STATEMENT BY THE DELEGATION OF THE UNITED STATES OF AMERICA

Mr. Chairman, thank you for this opportunity to share my delegation's view regarding the Legal Subcommittee's consideration of the Principles Relevant to the Use of Nuclear Power Sources in Space (NPS).

First, I would like to commend the Scientific and Technical Subcommittee (STSC) on the successful completion of its four-year work plan on the use of nuclear power sources in outer space. The STSC's consideration of this issue has produced valuable information. In particular, I would like to thank the STSC Working Group on the Use of Nuclear Power Sources in Outer Space for its report that reviewed international documents and national processes potentially relevant to the peaceful uses of nuclear power sources in outer space. This report provides a solid basis for future consideration of ways to maximize the efficiency and safety of the use of nuclear power sources in outer space.

My delegation is pleased that the STSC decided at its recent session to continue its work on this topic by commencing a new multi-year work plan to "establish the objectives, scope and attributes of an international technically-based framework of goals and recommendations for the safety of planned and currently foreseeable space nuclear power source applications." We believe that this continued work by the STSC is important to developing an international consensus on a technically-based framework for space nuclear power source applications.

We do not object to keeping a reference to this agenda item on next year's LSC agenda to track the work of the STSC.

I appreciate your consideration of the U.S. views on this agenda item.


AGENDA ITEM 4
STATUS OF THE INTERNATIONAL TREATIES GOVERNING THE USE OF OUTER SPACE

STATEMENT BY THE DELEGATION OF THE UNITED STATES OF AMERICA


Mr. Chairman, it is my pleasure to have this opportunity to comment generally on the status of the space law treaties under this standing agenda item. The four core space law treaties - the Outer Space Treaty, the Rescue and Return Agreement, the Liability Convention and the Registration Convention - establish a coherent and useful framework for the conduct of both governmental and private activities in outer space. This Subcommittee remains an important forum for encouraging all States to consider adhering to them.
The United States has the honor of serving as one of the depositories for three of these four core space law treaties - the Outer Space Treaty, the Agreement on the Rescue and Return of Astronauts, and the Liability Convention. I have consulted with the State Department's Treaty Office regarding activities with respect to these three treaties. Since the Legal Subcommittee's last meeting in April 2002, our Treaty Office has received one new notice of action with respect to these treaties. Specifically, the Government of Peru deposited with the United States its instrument of ratification for the Liability Convention on November 6, 2002. We also learned recently that Indonesia deposited with the United Kingdom its instrument of ratification for the Outer Space Treaty on June 25, 2002. With respect to the Registration Convention, for which the United States is not a depositary, we are aware of no new actions. We would welcome any further information from other depositories as to whether they have received notices of actions since this Subcommittee's last meeting.

We are pleased that this past year has seen some new State actions taken with respect to adhering to the outer space treaties. As we have noted previously, these treaties have proven over the years to be an effective framework for facilitating increasingly complex activities in outer space. We hope that those States - including some members of COPUOS - that have not yet accepted key treaties will consider carefully their status with respect to the treaties in the coming year. This Subcommittee can provide an important forum for encouraging all States to give serious thought to adhering to each of the four core treaties.

Agenda Item 8
UNIDROIT Space Assets Protocol
Statement by the Delegation of the United States of America


Mr. Chairman, thank you for this opportunity to comment on developments regarding the work of the International Institute for the Unification of Private Law (UNIDROIT) and the development of a Space Assets Protocol. When we met last year, you had recently reported to us on the UNIDROIT diplomatic conference that adopted the Mobile Equipment Convention (now called the Cape Town Convention) and Aircraft Protocol. We are pleased to note that implementation of these instruments is well underway. The Cape Town Convention and Aircraft Protocol are expected to facilitate and enhance the commercial finance market for aircraft and the experience gathered in implementing them will prove valuable as work on the Space Assets Protocol continues.

As I stated last year, the United States firmly supports the goals of the proposed Space Assets Protocol. As we are all aware, the range and volume of activities in outer space being conducted by the private sector have increased dramatically over the last several decades, and particularly within the last five to ten years. The growth and development of the commercial space sector will benefit States in all regions and at all levels of economic development.

Commercial space systems are extremely capital intensive to plan, design, construct, insure, launch and operate. They can take years to complete. In light of the increasing importance of commercial space activities, and the benefits that flow from those activities to all regions and all levels of economic development, the facilitation of financing for commercial space activities -- through modern private financing mechanisms - is a pressing need.

It is precisely this need that the draft Space Assets Protocol to the Cape Town Convention on International Financing of Mobile Equipment aims to address. Through its emphasis on asset-based and receivables financing, it has considerable potential to enhance the availability of commercial financing for outer space activities. This in turn could prove crucial to furthering the provision of services from space to countries in all regions and at all levels of development.

We are pleased that the examination of the preliminary draft Space Assets Protocol has remained on the LSC's agenda and would like to comment on the two issues identified for discussion. The first issue on the agenda is the possibility of the United Nations serving as a Supervisory Authority for the registry established under the preliminary draft protocol. We are pleased that the Secretariat, in consultation with the United Nations Legal Counsel, has completed its report on this issue. The report discusses the possibility of the United Nations agreeing to serve as the Supervisory Authority and some of the related issues (including potential liability and recovery of all costs in serving as Supervisory Authority). The report provides an excellent basis for initiating our consideration of the issues. It is, of course, premature to draw any conclusions on the manner by which such a function may be structured within the UN system, but the report identifies many issues meriting attention. We remain open in principle to the possibility of the UN Office of Outer Space Affairs taking on such a role. As we are all aware, any registry established under a Space Assets Protocol would be a separate and distinct entity from the UN Registry established under the Registration Convention and from any Radiocommunication Sector of the International Telecommunication Union record keeping with respect to the use of orbital locations and related radio frequencies. Although the draft Space Assets Protocol is in early stages of development, we anticipate that it will likely approach the registry in a similar manner as has been done pursuant to the Aircraft Protocol; specifically, the registry would be a computer-based registry including only minimal information as to possible pre-existing claims to priority with respect to registered space assets. Since the registry operator -- the "registrar" -- would not review information filed nor provide any assurances as to its accuracy, we anticipate that registry requirements for staff and other resources would be quite modest. The Supervisory Authority, if an intergovernmental organization, would need generally to be immune from legal or administrative process for any issues relating to the registry and its operation. As with the Aircraft Financing Protocol, the registry operator would likely be a private sector body that would bear liability. Given these anticipated parameters, we are open to giving further consideration of an existing UN body, such as OOSA, taking on the Supervisory Authority role.

A second issue on the agenda is the relationship between the terms of the preliminary draft protocol and the rights and obligations of States under the legal regime applicable to outer space. Initially, I would like to note that the Space Assets Protocol is not intended to affect rights and obligations of States party to the outer space treaty system or the International Telecommunication Union treaties. It is intended to address the distinct and important issue of financing for commercial space activities, rather than the parameters for the conduct of those activities. Nonetheless, we will need to give further consideration to the implications of transfers under the draft Space Assets Protocol and UNIDROIT Convention on the Outer Space Treaty system and the International Telecommunication Union (ITU) Constitution, Convention and Radio Regulations. Under the UNIDROIT Convention and proposed Space Assets Protocol thereto, in the event of default or insolvency, possession of or control over a space asset could be transferred from a national of one State to a national of another, or from one State to another. Such transfers can and do happen today, but a Space Assets Protocol would likely increase their frequency. How will such transfers affect the responsibility of a State Party to the Outer Space Treaty, including State responsibility to supervise certain activities in outer space? Further, we need to examine whether State obligations and rights relating to return of objects launched into outer space would be affected. Moreover, the ITU has established procedures concerning satellite use of radio frequencies. ITU member states will want to examine whether transfers under the UNIDROIT agreements could affect their rights and obligations under the ITU treaties, and if so, how. States may also need to ensure that the Space Assets Protocol provides for State consideration of the transfer of any satellite license. One important issue to consider is whether it will be possible to address these questions in advance of particular transactions -- through arrangements between States that become party to the UNIDROIT Space Assets Protocol or through language in the protocol text itself that would then be effective as between those States parties -- or whether it will be necessary to address them as they arise.

One question that we now face is what role this Subcommittee should or can play to facilitate the further development of the Space Assets Protocol. We certainly believe that the Legal Subcommittee and its members have expertise that may be valuable in the development of the Protocol. While the Legal Subcommittee has much to offer in this context, however, the UNIDROIT Space Assets Protocol will ultimately be negotiated by UNIDROIT member states through the UNIDROIT process. Although we had anticipated a negotiating session being held in 2002, focus on the implementation of the Cape Town Convention and Aircraft Protocol has taken priority. We understand, however, that a UNIDROIT negotiating session on a Space Assets Protocol has now been tentatively scheduled for December 2003. We hope that our discussions within this Legal Subcommittee will be helpful in informing the positions of various member states at that session. We support the Legal Subcommittee's continued study of the developments within the UNIDROIT context and would look favorably upon the continued inclusion of this topic as a one-year agenda item.


Agenda Item 9
New Items
Practice of States in Registering Space Objects

Statement by the Delegation of the United States of America

Pursuant to the 1975 UN Convention on the Registration of Objects Launched into Outer Space, the United Nations established a Register to record information on space objects launched into earth orbit or beyond as provided by launching States. At the time, three reasons were advanced to justify the establishment of a centralized Registry: traffic management, safety, and identification of space objects. Over the years, the Register has served a useful function in regard to each of these concerns.
Since the establishment of the Register, activities in space have dramatically increased and changed in nature to include increasing commercial activities. While the Registration Convention remains both useful and relevant, it has become increasingly evident that State and international organization practice in recording space objects on the UN Registry is widely divergent.

We believe that the LSC could play a useful role in promoting adherence to the Registration Convention with respect to registration of space objects. Through a multi-year work plan the LSC would examine State and international organization practice in recording space objects on the Registry established under the Registration Convention with the view to identifying common elements.

Year One - Member States and international organizations will be invited to present reports on their practice in registering space objects and submitting the required information to the Office of Outer Space Affairs for inclusion on the UN Registry.
Year Two - Examination in a working group of the reports submitted by Member States and international organizations in Year One.
Year Three - Identification of Common Practices and Recommendations for Enhancing Adherence to the Registration Convention.
Year Four - Report to COPUOS



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