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50. U.S. statements at the 41st session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space, Agenda Items 3-9 (April 2-12, 2002)


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AGENDA ITEM 3

GENERAL EXCHANGE OF VIEWS

STATEMENT OF AMBASSADOR KENNETH BRILL
PERMANENT REPRESENTATIVE OF THE UNITED STATES OF AMERICA TO THE UNITED NATIONS IN VIENNA

Mr. Chairman, let me first take this opportunity to thank you for your efforts in furthering the work of the Legal Subcommittee. Under your leadership, the Subcommittee has continued to make important contributions to the refinement and development of outer space law.
As an initial matter, I would like to recognize that the year 2002 marks the 35th anniversary of the entry into force of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. This seminal treaty, known as the Outer Space Treaty, was in many ways the foundation of the now well-established field of space law and it set the framework and cooperative tone for tremendous technological progress in outer space activities. In no small part, these accomplishments can be attributed to the role of COPUOS and this Subcommittee, which throughout its existence has been characterized by the process of consensus and the desire and interest of member States to develop space law which promotes, not hinders, space exploration. Under this legal regime, space exploration 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. The Outer Space Treaty has truly stood the test of time; its provisions remain as relevant and important today as they did at the inception of space exploration.
This 35th anniversary of the Outer Space Treaty is also an opportunity for us to address the fact that the world is far from general acceptance of the four core space law instruments: the Outer Space Treaty, the Rescue and Return Agreement, and the Liability and Registration Conventions. Several key States have not accepted key treaties, including some members of COPUOS. This Subcommittee should make a clear call for States to ratify and implement 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.
The core space law instruments have established a framework that encourages the creation and sharing of benefits from the exploration and use of outer space. Articles 1 and 2 of the Outer Space Treaty in particular set forth key principles: 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 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.
During last year's meeting, several delegations referred to the Convention on the Law of the Sea as a possible model for the future development of outer space law. Such comparison is strained, in our view. Activities at sea and activities in outer space are factually distinct and their respective developments have raised different issues for the international community to address. The legal frameworks that have been established in the respective spheres are appropriately separate. Outer space law has been particularly influenced by the need to retain a broad and flexible structure to accommodate rapidly changing technology. We believe that the four core treaties, along with the numerous UN principles, continue to meet this need, while providing a framework within which outer space activities have flourished. A single comprehensive treaty in the outer space arena is neither necessary, desirable, nor feasible in our view.
This year marks the 40th anniversary of the Legal Subcommittee, which first met in May 1962. As we proceed with our work at this session, Mr. Chairman, I would like to mention the extraordinary record of success this Subcommittee has had in advancing the field of space law. It seems to me 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.
One of the exciting developments that this Subcommittee is now considering is the possibility of a Space Assets Protocol to the UNIDROIT Convention on International Interests in Mobile Equipment. When this Subcommittee began its work 40 years ago, the issues under consideration primarily concerned State-conducted or State-procured outer space activities. Today, the landscape is considerably different, as the past decade has seen a tremendous rise in commercial use of outer space. The level of interest in a Space Assets Protocol is indicative of the importance that private activities now hold for the future development of outer space activities and the need to facilitate the establishment of adequate financing mechanisms for such activities. While the current legal framework continues to function extremely well and to foster both governmental and commercial outer space activity, we believe that a mechanism that takes into account national licensing policies and rules could help to enhance financing for private sector space activities.
Mr. Chairman, another recent and interesting development over the last year involved the flight of the first non-professional astronaut to the International Space Station (ISS). Since that time, NASA and its ISS Partners developed through the Multilateral Crew Operations Panel and subsequently approved through the Multilateral Coordination Board, "Principles Regarding Processes and Criteria for Selection, Assignment, Training, and Certification of ISS (Expedition and Visiting) Crewmembers." These principles are to be used by all ISS Partners when assigning their professional astronauts/cosmonauts or space flight participants as ISS expedition or visiting crewmembers. The partnership has already demonstrated the successful implementation of this new process, in approving the flight of a South African citizen, sponsored by Rosaviakosmos, the Russian Aviation and Space Agency, who will fly on a Soyuz vehicle to the ISS later this month.
In a related vein, I should note that both Russian and U.S. companies are involved in securing passengers for Soyuz taxi flights to the ISS, and entrepreneurs are proposing potential new vehicles for space tourism.
Thank you for your consideration. My delegation looks forward to a productive and collegial session.


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, under this standing item on the LSC agenda, each of us has the opportunity to comment in a more general way on the status of the space law treaties. I would like to touch upon two issues.
First, I would like to address the general issue of the status of the four core space law treaties. I have consulted with the State Department's Treaty Office regarding three of the space law instruments - the Outer Space Treaty, the Agreement on the Rescue and Return of Astronauts, and the Liability Convention - for which the United States has the honor to serve as one of the depositaries. Since the Legal Subcommittee's last meeting in April 2001, our Treaty Office has received no new notices of action. We are likewise not aware of any new actions with respect to the Registration Convention, for which the United States is not a depositary. If other depositories have received notices of actions since this Subcommittee's last meeting, we would be interested in hearing of them. In any event, as several important States - including some members of COPUOS - have not accepted key treaties, we do hope that the coming year will see some new State actions taken with respect to the treaties. My government firmly believes that the outer space treaties continue to function well in today's increasingly complex environment. They provide a valuable framework that has facilitated the growth in both governmental and private activities in outer space. This Subcommittee should continue to encourage all States to consider seriously adhering to each of the four core treaties.
As a second point, I would like to touch upon the issue of domestic implementation of the treaties. During last year's LSC meeting, I emphasized the United States' view that we must all focus on our domestic implementation of the treaties. As you are aware, the Registration Convention provides that a launching State shall register a space object on its registry. In that regard, I would like to share with you some steps that the United States is taking with respect to this Convention. During the past year, the United States has been engaged in a process of upgrading the U.S. national registry of space objects so it is accessible via the Internet and can be updated electronically, to enhance the utility of our national registry. As part of that process, we have undertaken to clarify the domestic criteria for including objects on the U.S. Registry. This is intended to ensure that U.S. owners/operators of space objects and non-U.S. entities have a clear understanding as to the circumstances under which space objects are and are not registered by the United States. We intend to include on the U.S. registry all space objects that are owned or operated by U.S. private or governmental entities and launched from inside or outside U.S. territory. In general, the United States will not include on its registry non-U.S. payloads that are launched from U.S. territory or facilities. It is our view that such non-U.S. payloads should be included on the registry of the State of the payload's owner/operator because that State is best positioned to exercise continuing supervision. In addition, we will continue our practice of including certain non-functional objects on the U.S. Registry.

We are also carefully reviewing those objects brought to our attention by the Office for Outer Space Affairs, based on its search of the UN online database, that represent potential U.S. objects that have not been registered, or objects that have been registered by the United States and another State, to determine whether revisions to the Registry are required and how to avoid such problems in the future.
We invite other States to undertake a similar clarification of their registration practice. As States clarify and improve their domestic practice, overall international practice will be enhanced and all nations will benefit. The promotion of increased international cooperation in the registration area may be an appropriate activity for this Subcommittee and the UN Office for Outer Space Affairs.

AGENDA ITEM 5

INFORMATION ON THE ACTIVITIES OF INTERNATIONAL ORGANIZATIONS

STATEMENT OF THE DELEGATION OF THE UNITED STATES OF AMERICA

Mr. Chairman, under this standing item on the LSC agenda, each of us has the opportunity to comment on the activities of international organizations relating to space law. I would like to once again reiterate my government's call for members of international organizations to consider steps they could 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. Over the years, we have witnessed an increasing number of countries working together on a regional or global level to provide space-based services. Such international cooperation has clear benefits in terms of pooling resources and has led to many important developments in space activities and technology.
The Outer Space Treaties explicitly contemplated the conduct of space activities by international organizations and included provisions to address such activities. International organizations that carry on space activities have the opportunity to accept the principles of the Agreement on the Rescue and Return of Astronauts and the Liability and Registration Conventions. 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. In each instance, however, two requirements must be met. (Rescue and Return Agreement, Article 6; Liability Convention, Article XXII(1); Registration Convention, Article VII(1).) The organization must declare its acceptance of rights and obligations under the applicable treaty and the majority of the 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 a result of the latter condition, several extremely important intergovernmental organizations conducting space activities remain unable to elect to bring those activities into 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. The result is a potentially significant gap in the coverage of key treaties.
We again encourage any international intergovernmental organizations that may be in this position, and their members, to consider taking steps to remedy this problem. We believe that doing so could produce a useful improvement in the coverage and effectiveness of the core Outer Space Treaties. We would welcome clarification as to what steps these organizations are already taking to address this problem.
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, I am pleased to have this opportunity to present my government's general views on agenda item 6, 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).
On the question of the definition and delimitation of outer space, I would like to reiterate what I stated at last year's LSC meeting; namely, that the United States sees no need to seek a legal definition or delimitation for outer space. To date, the lack of such a definition has not caused any legal or practical problems and in particular, it has not impeded the development of activities in either airspace or outer space. On the contrary, the differing legal regimes applicable in respect of airspace and outer space have operated well in their respective spheres.
As I noted last year, in the absence of legal or practical problems, the development of a definition would in itself risk creating future problems, as there would be no experience to call upon in agreeing upon any particular definition or delimitation. A definition or delimitation created to respond to purely theoretical rather than practical concerns could create an inflexible framework ill-suited to emerging issues and advancing technology. We believe that it would be prudent to continue to operate within the current framework until practical or legal issues arise that demonstrate a need for a definition or delimitation and that could inform any exercise to formulate a definition or delimitation. The Legal Subcommittee should only take on this issue when and if the need for a legal definition or delimitation has become absolutely clear.
With respect to the issue of the geostationary orbit, or GSO, I would like to note at the outset the United States' commitment to equitable access to the GSO by all States as well as the need to satisfy the real requirements of developing countries for GSO use and satellite telecommunications generally. We believe that the LSC's April 2000 Report on this issue constructively addressed the principles of equitable access and the rational, efficient, and economic use of the GSO and that this Report remains the appropriate way forward on this issue. Moreover, we believe the present ITU Constitution, Convention and Radio Regulations, and the current procedures under those authorities for international cooperation among countries and groups of countries with respect to the geostationary and other orbits fully take into account the interests of States in the use of the geostationary orbit and the radio frequency spectrum. 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.
Some delegations have argued that the GSO is or can be subjected to the sovereignty of States or that States may have preferential rights to the use of such orbits. We firmly believe, however, that because this orbit, at approximately 36,000 kilometers above the Earth, is in outer space, its use is governed by the 1967 Outer Space Treaty and in particular Articles 1 and 2 of that treaty. As you know 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 or by any other means. From these articles it is clear that a party to the Outer Space Treaty cannot appropriate a position in the GSO either by claim of sovereignty or by means of use, or even repeated use, of such an orbital position.
Thank you for the opportunity to express 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, I appreciate 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 recognize the excellent progress the working group on NPS of the Scientific and Technical Subcommittee (STSC) has made under that Subcommittee's multi-year work plan on the use of nuclear power sources in outer space. The work plan establishes a process and framework for developing information or data to facilitate future discussions of NPS. Development and sharing of information relevant to NPS remains, in our view, extremely important in fostering cooperation and coordination.
My delegation firmly believes that the continued implementation of the STSC's work plan will be crucial for establishing a firm scientific and technical consensus for any future NPS deliberations. The report reflecting several years of data gathering and deliberations was completed by the NPS Working Group and adopted by the STSC. The progress that has been made to date within the STSC has been significant and has set the stage for the final year of the STSC work plan next year. At that time, we will have an opportunity to consider what next steps with regard to NPS should be taken within COPUOS, if any. To encourage continued progress and to facilitate the discussions next year, the STSC has called for informal consultations in June, during the session of the full Committee, to develop a set of potential options for consideration by the Subcommittee on any additional steps that might be deemed appropriate with regard to space nuclear power sources, including that of drawing up a multi-year work plan. 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 in listening to our views on this agenda item.

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

Since our meeting last April, there have been significant developments regarding the work of UNIDROIT and the development of a Space Assets Protocol. Last fall, the diplomatic conference to adopt a Mobile Equipment Convention and an Aircraft Protocol met in Cape Town, South Africa and adopted both the convention (now called the Cape Town Convention) and the Aircraft Protocol. We would like to take this opportunity to thank you, Mr. Chairman, for your valuable report on this diplomatic conference. Your report highlighted the significant progress made at that conference as well as the work that lies ahead on the draft Space Assets Protocol.
We would also like to commend the Secretariat for its work together with UNIDROIT, with the Governments of France and Italy, and with the European Space Agency on the organization of two working meetings of the ad hoc consultative mechanism on the UNIDROIT Convention and the draft Space Assets Protocol thereto. The work of the ad hoc consultative mechanism has been beneficial, particularly in identifying issues for consideration by the member States of UNIDROIT in negotiating the Space Assets Protocol. The United States participated in both working meetings and we are pleased with the report submitted by the consultative mechanism to the Legal Subcommittee.
The United States is firmly committed to the goals of the Space Assets Protocol. As we are all aware, commercial activities in outer space have increased significantly, especially 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, and take years to complete. In the communications market, for example, satellite systems are often more expensive than other types of communications technology. In addition, privatization and pro-competitive policies have begun to reduce many governments' financing of outer space activities. Furthermore, throughout history, including times such as now, economic factors may limit funding sources. The availability of financing mechanisms for commercial activities, which is crucial to the sector's on-going growth and development, has become more challenging.
We continue to believe that the draft Space Assets Protocol to the Cape Town Convention on International Financing of Mobile Equipment - through its emphasis on asset-based and receivables financing -- has considerable potential to enhance the availability of commercial financing for outer space activities. By facilitating greater commercial financing of satellites and other mobile equipment, the Space Assets Protocol ultimately could further the provision of services from space to countries in all regions and at all levels of development.
We would like at this point to express our views on certain issues that we believe should be addressed in order to establish an effective system under the protocol for the commercial financing of outer space activities. These can broadly be characterized as issues arising in the context of existing treaties -- the Outer Space Treaties and the international telecommunication treaties -- and other issues relating to domestic regulatory practice.
With respect to the treaty-related issues, we believe that we will need to give further consideration to the implications of transfers under the draft Space Assets Protocol and UNIDROIT Convention on State obligations and rights under the Outer Space Treaties 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 the territory of one State to the territory of 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 launching State and how will they affect either State's 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 procedures establish priority rights concerning spectrum at geostationary orbital locations for Member States of the ITU. We will want to examine whether transfers under the UNIDROIT agreements could affect Member State rights and obligations under the ITU treaties, and if so, how. 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 on a case-by-case basis.
With regard to domestic regulatory practice, we see two concerns specific to space assets: the licensing of any transfers of satellite operations and the export control implications of possible transfers under the protocol. While we support the goal of certainty for creditors and debtors, which is key to bringing new financing to space ventures through capital markets, there are some domestic regulatory reviews that will have to continue. In the event of transfers resulting from default or insolvency, for example, there may be domestic regulatory procedures that would need to be addressed prior to any final transfer under the Protocol. At the same time, ways to enhance predictability need to be considered, as predictability would enhance credit potential for many countries. It may be possible to address these issues through appropriate language within the Space Assets Protocol.
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 continue to be negotiated by its member States through the UNIDROIT process. An UNIDROIT negotiating session will be held this fall. We hope that the work of the ad hoc consultative mechanism and 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

REVIEW OF THE CONCEPT OF THE "LAUNCHING STATE"

STATEMENT BY THE DELEGATION OF THE UNITED STATES OF AMERICA


Mr. Chairman, I appreciate the opportunity to comment on this agenda item.
First, I would like to thank the Secretariat for its efforts in compiling the excellent report reviewing the concept of the launching State. This document contains a highly informative synthesis of State practice in applying the concept of the launching State, as well as identification of issues regarding that concept and elements that could be included in national space legislation and licensing regimes. It will undoubtedly prove to be a tremendous resource to both members and non-members of this Subcommittee.
Second, I would like to commend the Chairman of the Working Group on this agenda item, Kai-Uwe Schrogl, for his outstanding work in leading deliberations under this multi-year work plan. The discussions on this item have yielded highly interesting results on a very important topic. We thank Chairman Schrogl for distributing draft conclusions of the Working Group. The United States looks forward to discussing these draft conclusions in the Working Group and we anticipate having some specific comments at that time.
With respect to the issue of the definition of "launching State," my government would like to reiterate the point it made last year that problems have not arisen in practice with regard to the definition of the term launching State as used in the Registration and Liability Conventions. The Registration and Liability Conventions define the term a "launching State" as a State that launches or procures the launching of a space object or a State from whose territory or facility a space object is launched. Although both Conventions create certain obligations for launching States, they have separate purposes. The Liability Convention defines the circumstances in which a launching State bears liability to pay compensation for certain damage caused by its space object. The drafters of the 1972 Liability Convention emphasized the victim-oriented nature of the Convention, seeking to maximize the potential for recovery by injured parties with a broad definition of the term "launching State."
Under Article VI of the Outer Space Treaty, States Parties bear international responsibility for national activities in outer space and the activities of non-governmental entities in outer space require authorization and continuing supervision by the appropriate State party to the treaty. As the Secretariat's report notes, ensuring the safety of space activities is an important policy behind most national space laws, in particular laws governing the launch of objects into outer space. Individual launching States are uniquely suited to attain the goal of protecting nationals through domestic licensing regimes. This conclusion is supported by not only the report of the Secretariat and the work of the Chairman of the Working Group on the Launching State agenda item, Kai-Uwe Schrogl, but also by recent industry/academic fora on the subject, including the Workshop on International Legal Regimes Governing Space Activities, held in early December 2001, in Scottsdale, Arizona, by the American Astronautical Society.
The Registration Convention requires at least one launching State as registrant for a space object. The nature and criteria of registration, however, are not explicitly linked to a launching State's responsibility under the Liability Convention, including vis-�-vis other launching States, or of responsibility a State may bear as a State Party to the Outer Space Treaty. In practice, the frameworks established by the Registration and Liability Conventions have been effective in facilitating outer space activities, including launch activities. Both governmental and private launches occur on a regular basis and they have been able to proceed with the support of private insurance.
I appreciate the opportunity to express the views of the United States on this agenda item. Thank you, Mr. Chairman.



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