COPUOS, Space Mining and the Development of International Law
The Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space (COPUOS) met in Vienna over the past fortnight (1-12 April). I attended as part of the delegation of the observer group the Space Generation Advisory Council (SGAC) as I am Co-lead of their Space Law and Policy Project Group. I have written about the specific discussions of the topic of space mining (or space resource activities) on my personal blog which you can read here. In this post I want to talk about the role of COPUOS, particularly the Legal Subcommittee, in the development of the law of outer space.
COPUOS was set up two years after the launch of Sputnik. Initially it was an ad hoc committee but was quickly established as a permanent committee. The Scientific and Technical Subcommittee (STSC) and the Legal Subcommittee (LSC) were established in 1961, these two bodies report to the main committee which itself reports via the Fourth Committee to the United Nations General Assembly (UNGA). COPUOS covers a wide range of discussions and the LSC is a key focal point for international discussions of space law but as its name implies its focus is on peaceful uses of outer space. While issues of non-peaceful uses do get raised from time to time (such as the recent ‘ASAT’ test) the main focus for those sorts of discussions is the Conference on Disarmament. COPUOS has been responsible for the five UN space law treaties and several other non-binding instruments.
Treaties are one of the main sources of international law (there are four outlined in Article 38 of the Statue of the International Court of Justice, but I’ll focus on the two main sources treaties and custom today.) The five (or if you prefer the four ‘core’) UN space law treaties form the foundation of the law of outer space. Treaties are binding on those who have signed up to them (and by that I mean States) but aspects of them can become binding on all States via customary international law. It is also possible for treaties to codify existing customary international law, though it is important to note that the treaty obligation and the customary obligation are separate and can be different. It is widely agreed that numerous provisions of the Outer Space Treaty (such as the freedom of use and the non-appropriation principle) are also customary principles. However, this could be because of the space law treaties or the UNGA Resolution that proceeded the Outer Space Treaty, the Declaration of Legal Principles.
Customary International Law
Customary international law is a second source of international law. It is just as legally binding as treaty law but perhaps a bit harder to ‘prove.’ There is quite a bit of debate as to what exactly it is and how it forms, which I will not really touch on in this post. The ICJ Statue describes it as common practice accepted as law. There are two elements to a customary obligation, first State Practice which is the common practice, i.e. something that States do frequently, ideally quite a lot. However, the second element is arguably more important and is generally referred to using the Latin phrase opinio juris which essentially means that States feel under a legal obligation to engage in that practice. This is important because custom isn’t simply something that States do a lot it is something they do because they ‘have to’. This creates something of a chicken and egg problem for the development of customary international law but that is an issue that I won’t delve into here for the sake of brevity. However, COPUOS is relevant for the development of customary international law and there are three reasons for this; state practice, opinio juris, and UNGA resolutions.
Statements made by States at COPUOS (and other similar forums) can constitute evidence of opinio juris and opposite. Sometimes States explicitly State that they view something as having developed into a norm of customary international law, this is starting to happen with the UN space debris mitigation guidelines, and the contrary is true too. Furthermore, statements made at forums like COPUOS may be evidence of State practice and indeed some suggest that they may be State practice themselves, at least under certain circumstances. Therefore, COPUOS discussions of space law are important and are part of the process of the development and advancement of the international law governing activities in outer space.
There is another way in which COPUOS can influence the development of space law and that is through UNGA resolutions. UNGA Resolutions are not binding, however they may be reflective of customary international law and space lawyer Bin Cheng suggests that under the right circumstances they may even create what he calls ‘instant’ customary international law. There is controversy around this, and Michael Scharf has discussed an alternative, what he calls the ‘Grotian Moment’ which is a rapid albeit not instant development of customary norms in ‘times of fundamental change’ one such development being the changes to the Law of the Sea following the ‘Truman Proclamation.’
Space Mining at COPUOS
The discussions of space resources at COPUOS over the past few years help illustrate this. States have discussed how they interpret the Outer Space Treaty and the Moon Agreement as they apply to space resources. This potentially provides evidence of opinio juris, there are, for example a group of States who clearly feel that Article I of the Outer Space Treaty, by itself, permits space resource activities. Conversely there are States who feel that there needs to be an international framework, and this perspective isn’t just limited to those States who are party to the Moon Agreement. Furthermore, thanks to statements and discussions at the LSC it is possible to demonstrate an evolution in the thinking of the international community on this issue, even if it is not yet possible to talk about a ‘consensus view’. Additionally, the discussion by States of their national legislation regarding space resource activities and their intention to develop such laws is important. States can provide the reasoning and rationale for their approaches as well as justification for enacting the legislation in and of itself, this again provides important evidence for understandings of legal obligations on the part of States. Individual States are likely to be the main drivers of developments concerning space resource activities, and that is likely to remain the case for sometime to come, but it is important both for States themselves and for the development and understanding of international law that they have an authoritative forum within which to discuss and if needs be direct these developments.
COPUOS is important. Like it or not States are still the driving force in the international system, and via Article VI of the Outer Space Treaty States are required to authorise and continually supervise the activities of their nationals (natural and legal – i.e. people and companies) in outer space. COPUOS is the main forum where those States interested in the governance of activities in outer space come together to discuss that governance. It is not the only forum, nor should it be, but it is a central forum. The development of international law is a slow process, particularly where states disagree, but this isn’t necessarily a bad thing, particularly within the framework of the Outer Space Treaty. It is important to get these rules and regulations right, and it is important for them to enjoy broad legitimacy. The international order works because States adhere to it, and they adhere to it because they create it, they give consent to it, this takes time and compromise. Space resources demonstrate this quite well; the past few years have seen an evolution of COPUOS’ discussions of space resource activities and one of the key elements of that evolution is a broad acceptance of the activity albeit while there is still disagreement upon the basis and framing of the authorisation (i.e. does there need to be a new multilateral framework.)
The opinions expressed in these blogs posts are those of the author and do not necessarily represent the views of the Centre for a Spacefaring Civilization or anyone else.
The Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Agreement
Which excludes the Moon Agreement due to its low uptake (currently 18 States are party to the treaty)
Michael P. Scharf ‘Accelerated Formation of Customary International Law’ (2014) 20 ILSA Journal of International and Comparative Law 305, 312-313
Bin Cheng, Studies In International Space Law (Clarendon Press, 1997), 138-148
https://thomascheneyblog.wordpress.com/2019/04/09/space-resources-at-the-un/; https://thomascheneyblog.wordpress.com/2018/04/27/uncopuos-legal-subcommittee-2018/; https://thomascheneyblog.wordpress.com/2017/09/15/space-law-and-space-mining/; https://thomascheneyblog.wordpress.com/2017/04/07/space-law-at-the-un/