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82. U.S. views re space program at COPUOS meeting in Vienna (April 2006)


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U.S. Statements to UN Committee on Peaceful Uses of Outer Space, Legal Subcommittee

AGENDA ITEM 3

GENERAL EXCHANGE OF VIEWS

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE 45TH SESSION OF THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE, APRIL, 2006

Mr. Chairman, I would like to begin by congratulating you on your election as Chairman of this Subcommittee. My delegation is pleased that you have taken on this responsibility and we are certain that this Subcommittee will continue to make important contributions to the refinement and development of outer space law under your leadership.

It is a pleasure to be here in Vienna to meet with this distinguished group of legal experts. The Subcommittee’s last session was a very productive one and we look forward to continued progress in addressing issues of practical concern to all of us. COPUOS and this Subcommittee have a distinguished history of working through consensus to develop space law in a manner that promotes, rather than hinders, space exploration. In particular, this Subcommittee should be commended for its role in establishing the core Outer Space Treaties -- the Outer Space Treaty, the Astronaut Agreement, and the Space Liability and Registration Conventions. Under the legal framework of these treaties, use of space by nations, international organizations and, now, private entities has flourished. As a result, space technology and services contribute immeasurably to economic growth and improvements in the quality of life around the world.

This session is also an opportunity for us to consider the fact that the world remains far from general acceptance of the four core space law instruments. Many States have not accepted key treaties, including some members of COPUOS. This Subcommittee should invite States and international organizations to consider ratifying and implementing the four core space law instruments cited above. And, of course, it should encourage States that have accepted the core instruments to look at the sufficiency of their nation’s laws to implement them. Parties ought to ensure that they are indeed doing what they have promised they will do.

Before turning to the work of the Subcommittee for this session, I would like to comment briefly about recent activities in the United States that bear significantly on our space program.

The United States (U.S.) Federal Aviation Administration’s Office of Commercial Space Transportation (FAA/AST) is laying the foundation for commercial human space flight by developing new regulations supporting this emerging industry. On December 23, 2004, President George W. Bush signed into law the Commercial Space Launch Amendments Act of 2004 (CSLAA). In order to promote the emerging industry, and to create a clear legal, regulatory, and safety regime, the CSLAA extends FAA authority to include regulation of commercial human space flight and, among other things, establishes a new experimental permit regime for development of reusable suborbital rockets.

In December 2005, the FAA issued a Notice of Proposed Rulemaking (NPRM) describing the human space flight requirements for launch and reentry of vehicles with flight crew and space flight participants. The draft rules describe the requirements for crew qualification and training, informing crew and space flight participants of risks, environmental control and life support systems, space flight participant waiver of claims against the U.S. Government, and space flight participant training and security. The public comment period for the proposed rule ended in February and a final rule is expected later this year.

With regard to the U.S. civil space program and our pursuit of the Vision for Space Exploration, NASA is working toward the next launch of the Space Shuttle in July of this year, and has reached agreement with its partners on the International Space Station (ISS) to complete construction of the ISS with the Space Shuttle prior to 2010. In the area of space science, NASA has achieved notable success with space activities that include the continued operation of the rovers Spirit and Opportunity on the surface of Mars, the recent return of cometary samples to Earth on its Stardust mission, the January 2006 launch of the first-ever robotic mission to Pluto, and the much anticipated arrival in Mars orbit of the Mars Reconnaissance Orbiter just a few weeks ago. NASA’s Earth Observation satellites have also contributed a vast amount of data about the Earth’s environment including the tracking of changes in the Earth’s polar ice sheets and sea ice.

As we proceed with our work at this session, Mr. Chairman, I would like to reflect once again on the extraordinary record of success this Subcommittee has had in advancing the field of space law. I believe that much of the success is due to this Subcommittee’s ability to focus on practical problems and to seek to address any such problems via a consensus-based and results-oriented process. We should aim in our discussions to continue that tradition and to avoid the temptation to focus on theoretical rather than practical issues. In addition, the Subcommittee’s success may be attributed to its avoidance of protracted debate on extraneous political issues.

In this connection, I would like to highlight one item in particular on the Subcommittee’s agenda this year that builds on its strength in addressing practical issues. The Committee will return to its agenda item on the practice of States and international organizations in registering space objects. We are pleased that this Subcommittee has taken up this issue. We appreciated the reports given by States on their registration practices during the past sessions, and look forward to the opportunity to discuss this topic further during this session.

Thank you for your consideration. My delegation looks forward to a productive and collegial session.

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AGENDA ITEM 4

STATUS OF THE INTERNATIONAL TREATIES GOVERNING THE USE OF OUTER SPACE

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL, 2006

Thank you, Mr. Chairman, for this opportunity to provide the views of the United States on this agenda item. The four core treaties governing the use of outer space – the Outer Space Treaty, the Agreement on the Rescue and Return of Astronauts, the Liability Convention, and the Registration Convention – have served States parties well over many decades. The United States is honored to serve as one of the depositaries for three of these treaties: the Outer Space Treaty, the Rescue and Return Agreement, and the Liability Convention. I have consulted with the State Department’s Treaty Office regarding actions with respect to these treaties, and can report that, since the Legal Subcommittee’s last meeting in April 2005, our Treaty Office received, on January 17, 2006, an instrument of ratification of the Outer Space Treaty by Luxembourg. We would welcome any further information from other depositaries on any relevant treaty actions since this subcommittee’s last meeting. We would also welcome further adherence to these treaties, and hope that those States and international organizations – including some members of COPUOS and some organizations that participate as observers to this subcommittee – that have not yet become party to these treaties will carefully consider their status with respect to them in the coming year.

Mr. Chairman, this meeting also gives us the opportunity to take stock of the work done by the Working Group on this topic over the past four years. This Working Group began in 2002 with a three-year work plan to consider the status of the United Nations treaties on outer space, review their implementation and obstacles to their universal acceptance, as well as promotion of space law, especially through the United Nations Programme on Space Applications. Subsequently, the Working Group was given the additional mandate of reviewing the application and implementation of the concept of the “launching State”, as reflected in the conclusions of the Subcommittee’s consideration of the three-year work plan on “Review of the concept of the “launching State”, as well as any new, similar issues that might be raised in discussions in the Working Group provided that those issues fell within the existing mandate of the Working Group. The three-year period of the Working Group’s original mandate expired in 2004. The Legal Subcommittee extended that mandate for one additional year, and agreed that the Subcommittee would review during last year’s session the need to extend the mandate of the Working Group beyond this year.

During the period of its work, the Working Group has taken a number of useful steps in fulfillment of its mandate. It has received reports from member states on the status of their past and planned future actions with respect to accession to the outer space treaties, and on the steps they were taking to comply with these treaties. It has drafted a model letter and accompanying informational material that the Secretary-General has sent to States that have not yet acceded to the outer space treaties. These materials encourage those states to consider acceding to the treaties, and note the benefits to, and rights and obligations of, States parties to the treaties. The Working Group has also prepared a resolution on the concept of the “launching State” which was adopted in 2004 by the General Assembly. The Working Group’s efforts over the past four years have played an important role in contributing to increased awareness of, and accession to, the outer space treaties.

Thank you for this opportunity to comment on this agenda item.

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Agenda Item 5

Information on the activities of international organizations

statement BY MARK SIMONOFF, US RePRESENTATIVE to the LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL, 2006

Mr. Chairman, thank you for affording me this opportunity to present the United States views on this standing agenda item. The activities of international organizations relating to space law are significant and have contributed much to the development of the field. Many space activities rely on regional or global cooperation and such cooperation has enhanced the abilities of individual States to improve and advance space activities and technologies. International organizations also have an important role to play in the strengthening of the legal framework applicable to space activities; they can consider steps they can take to encourage their members to adhere to the four core outer space treaties so as to bring the activities of the international organizations within the framework of the treaties.

The outer space treaties were drawn up in full awareness of the possibility of international organizations conducting space activities. Indeed, several of the treaties contain mechanisms 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. Under Article 6 of the Rescue and Return Agreement, an international intergovernmental organization that conducts space activities can be a “launching authority” if two conditions are met: 1) the organization must declare its acceptance of the rights and obligations of the Agreement; and 2) a majority of the States members of the organization must be contracting parties to the agreement and to the Outer Space Treaty. With respect to the Liability and Registration Conventions, the core articles of those treaties can be deemed to apply to an international intergovernmental organization if two conditions are met: 1) The international intergovernmental organization must declare its acceptance of rights and obligations under the applicable treaty; and 2) a majority of the State members of the organization must have adhered to both the Outer Space Treaty and to the applicable treaty (either the Liability Convention or the Registration Convention, as the case may be).

It is my government’s view that it would be beneficial for international intergovernmental organizations conducting space activities to do so within the frameworks of the Rescue and Return Agreement and the Liability and Registration Conventions. Several extremely important international intergovernmental organizations are not operating within the treaties 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. As 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 hope that international intergovernmental organizations that conduct space activities will consider steps they can take to bring 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.

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AGENDA ITEM 6

DEFINITION AND DELIMITATION OF OUTER SPACE AND

THE CHARACTER AND UTILIZATION OF THE GEOSTATIONARY ORBIT

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL, 2006

Thank you, Mr. Chairman, for affording me this chance to present the United States 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).

I would like to begin by commenting on the first part of this agenda item, concerning matters relating to the definition and delimitation of outer space. As we have stated on previous occasions the United States is firmly of the view that there is no need to seek a legal definition or delimitation for outer space. The current framework has presented no practical difficulties and indeed, activities in outer space are flourishing. Given this situation, an attempt to define or delimit outer space would be an unnecessary theoretical exercise that could potentially complicate existing activities and that might not be able to anticipate continuing technological developments. 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. This Subcommittee can operate most effectively and make its most significant contributions when it focuses its attention on practical problems, which are not apparent here.

With respect to the geostationary orbit, or GSO, I would like to state my government’s continuing commitment to equitable access to the GSO by all States, including satisfaction of the requirements of developing countries for GSO use and satellite telecommunications generally. We would like to recall once again 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. From the legal point of view, it is clear that 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). As set forth in Article 1 of the Outer Space Treaty, “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. These articles make 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.

As I previously stated, the United States is committed to equitable access to the geostationary orbit and takes numerous actions 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 the National Oceanic and Atmospheric Administration’s (NOAA's) polar meteorological satellites is available globally, while data from the Geostationary Operational Environmental Satellites (GOES) are available within those satellites' footprints. Anyone with a receiver can access this data. While registering does allow for information and updates on systems operations to be transmitted to users, the United States does not require users to register, so the precise number and locations of all users 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 NOAA’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.

Also highly relevant to this agenda item are 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. We believe that at the present they fully take into account the interests of States in the use of the geostationary orbit and related radio frequencies. The LSC continues, of course, to have a legitimate interest in this issue, and it is fitting that the issue remain on this Subcommittee’s agenda 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.

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AGENDA ITEM 7

REVIEW AND POSSIBLE REVISION OF THE PRINCIPLES RELEVANT TO

THE USE OF NUCLEAR POWER SOURCES IN OUTER SPACE

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL 2006

Mr. Chairman, this standing agenda item is a welcome opportunity to share my delegation’s views 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) for its continued work on this topic. As you are aware, the STSC is presently addressing a 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.” The United States was pleased with the progress made by the STSC on this topic during its most recent meeting, which included a joint workshop with the IAEA to exchange views on standards development and to discuss design and operational considerations that are unique to space nuclear power applications. The focus on further technical work is essential. 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.

Thank you for your consideration of the U.S. views on this agenda item.

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AGENDA ITEM 8

UNIDROIT SPACE ASSETS PROTOCOL

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL 2006

Thank you, Mr. Chairman, for affording us the opportunity to present the United States’ views regarding the work of the International Institute for the Unification of Private Law (UNIDROIT) and the development of a Space Assets Protocol. Since our last session, there continue to be developments regarding this issue. The UNIDROIT Mobile Equipment Convention (now called the Cape Town Convention) and Aircraft Protocol have both come into force March 1 of this year, and implementation of the new treaty system is now well underway with the new international finance registry already operational. The experience gathered in implementing these instruments will certainly prove valuable as work on the Space Assets Protocol continues. Last year, UNIDROIT convened the second intergovernmental meeting to discuss the proposed Space Assets Protocol. The negotiating session was an informative and productive one. The United States participated and looks forward to the next negotiating session, which may be scheduled in late 2006 after continuing consultations are completed.

As we have stated in past years, my government is a firm supporter of the goals of the proposed Space Assets Protocol. This Protocol offers an opportunity to facilitate the expansion of the commercial space sector, as well as to enable a broader range of States, in all regions and at all levels of economic development, to benefit from this expansion, both by having a better opportunity to acquire interests in space equipment as well as acquiring services generated from space equipment.

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. While there has been a dramatic increase in such activities, it is also true that the commercial space sector faces certain challenges. Commercial space systems are extremely capital-intensive to plan, design, construct, insure, launch and operate. They can take years to complete. There is no established market for commercial financing of such activities as exists for most other capital-intensive sectors, and no parallel to capital financing of aviation-related activities. In the absence of a new treaty-based system for obtaining secured financing interests in space activities, that situation is unlikely to change in any significant way. 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.

The draft Space Assets Protocol to the Cape Town Convention on International Financing of Mobile Equipment aims to address this need. Specifically, it would set up a framework through which States can support a system of asset-based and receivables financing. By permitting such secured financing for the space sector, 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 believe that it is appropriate 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 for financing interests to be established under the draft protocol. We were pleased that the Secretariat, in consultation with the United Nations Legal Counsel, completed its report on this issue. 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 records maintained by the Radiocommunication Sector of the International Telecommunication Union with respect to the use of radio frequencies and related orbital locations. 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 creditor’s claims with respect to 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 minimal. The Supervisory Authority, if an intergovernmental organization, would need to be immune from legal or administrative process for any issues relating to the registry and its operation and this immunity would be set forth in the Protocol. 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 to the idea of OOSA taking on the Supervisory Authority role.

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AGENDA ITEM 9

PRACTICE OF STATES AND INTERNATIONAL ORGANIZATIONS IN REGISTERING SPACE OBJECTS

STATEMENT BY MARK SIMONOFF, US REPRESENTATIVE TO THE LEGAL SUBCOMMITTEE OF THE UN COMMITTEE ON THE PEACEFUL USES OF OUTER SPACE

APRIL 2006

Thank you Mr. Chairman. My delegation is pleased to again have the opportunity to address the Subcommittee on the question of the practice of States and International Organizations in registering space objects under the Convention on Registration of Objects Launched into Outer Space. The Subcommittee is now in the third year of its work plan on this topic. The United States was pleased to join with other members of the Subcommittee in proposing this work plan.

In the first year of this work plan, Member States and international organizations presented reports on their practice in registering space objects and submitting the required information to the UN Office for Outer Space Affairs for inclusion on the Register. In the second year, the Subcommittee examined those reports, and agreed that the focus of attention of the working group for the current session of the Subcommittee could be on:

a) harmonization practices (administrative and practical);

b) Non-registration of space objects;

c) Practice with regard to transfer of ownership of space objects in orbit;

d) Practice with regard to registration/non-registration of “foreign” space objects.

As we have stated previously, the United States believes that this Subcommittee can play a useful role in promoting adherence to the Registration Convention with respect to registration of space objects.

Since the establishment of the UN Register for space objects, activities in space have dramatically increased and changed in nature to include increasing commercial activities. With increasing commercial activity, there has also been an increasing number of commercial transactions involving transfers, between private entities, of ownership or control of space objects.

Mr. Chairman, with regard to the issues that are the focus of the working group’s attention this year: In the first instance, we should continue to urge greater adherence to the Registration Convention. This will lead to more launching States taking steps to register government-owned and privately owned space objects. It will also contribute to the ability of international organizations to accept the rights and obligations of the Convention as provided for in Article VII. Regarding practical administrative measures, we would suggest that States Parties clearly identify a central point of contact for the maintenance of the registry and consider establishing on-line access to that registry. We note that the UN Office for Outer Space Affairs has put the entire UN Register on-line.

We see the non-registration of space objects to be a continuing issue. There are a number of factors that have contributed to this situation. For example, States that are not party to the Registration Convention or international organizations that are unable to accept the provisions of the Convention have no obligation to register their space objects. All Parties to the Registration Convention should ensure that space objects for which they consider themselves to be a launching State are duly registered. In the United States, in recent years, NASA, in its cooperative agreements with other countries’ space agencies, has included a provision stating which agency will request that its government register the space object that is the subject of that cooperative agreement.

Regarding registration of “foreign” space objects, the United States believes that it is appropriate for a State to include on its registry all payloads owned or controlled by the State’s private or governmental entities and launched from outside that State’s territory, unless otherwise agreed by relevant States. In the United States, we have asked U.S. owner/operators to provide the State Department with information needed to include their payloads on the U.S. Registry once the payload is in orbit, regardless of the territory or facility of launch. The Office of Space and Advanced Technology of the Department of State is their point-of-contact. In the case of a non-U.S. payload launched from U.S. territory or facility, the owner/operator should ensure that its payload is included on the Registry of a State Party to the Convention other than the United States or international organization that has accepted the terms of the Convention.

With regard to transfers of space objects, I would like to address the situation in which, as a result of the transfer between private entities, through a lease arrangement, there is also a change in the manner in which those entities are supervised. In the United States, the U.S. Federal Communications Commission has authorized several such transfers in recent years. The FCC’s practice is to consult informally with the relevant agency of the “receiving” State, in order to develop a common understanding concerning the supervision of the private entities involved in the transaction. The consultations address responsibility for licensing and coordination under the ITU’s Radio Regulations. The consultations also address whether the satellite will, to the greatest extent possible, maintain the capability to be properly removed from orbit at its end of life. This understanding is then memorialized in a non-binding exchange of letters. Because such transfers do not change the “launching state” of the space object, they do not result in changes to the U.S. Registry of Space Objects.

Thank you for the opportunity to share these views.



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