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The Fifth Eilene M. Galloway Symposium on Critical Issues in Space Law: Panel – Art. IX Background

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by P.J. Blount with the blog faculty

The first panel con sited on Prof. Joanne Irene Gabrynowicz, Director, National Center for Remote Sensing, Air, and Space Law; Prof. Sergio Marchisio, University Sapienza of Rome; and Les Tennen, Law Offices of Sterns and Tennen.

Gabrynowicz presented “Article IX of the Outer Space Treaty: Context and Considerations.” Hierarchy presentation focused on the travaux preparatoires that were generated during the negotiations that resulted in Article IX of the Outer Space Treaty. She noted that it is the longest provision in the Outer Space Treaty, and that it’s key values are cooperation, due regard, harmful contamination, and international consultations. She stated that Article IX was a product of the Cold War, but also of very specific events such as an impending Lunar landing. She then gave an analysis of Article IX in light of the geopolitical relations at the time of negotiations, specifically noting the differences in views on transparency among the various stakeholders. She then noted that another important issue was the role of scientists in space activities. And whether they should be a formal consultative forum, expert advisors, binding authority, or a conduit for information to the public. The next issue that she highlighted was the relationship between law and politics and how that was debated during negotiations. She then highlighted that negotiators were concerned with the nature of the emerging principle and how they were going to strike the balance between scientific input and legal considerations. Next she moved to the issue of consultations and what was intended and how they are viewed today. She noted the importance of looking to State practice in the area in order to understand how States view the article now.

Marchisio’s presentation was titled “Article IX of the Outer Space Treaty: An Overview.” He also highlighted the four key principles found in Article IX. He noted that the harmful interference language was used only in reference to the consultation obligation, and not as a stand alone obligation. He also noted that Article IX allows for a bridge between law and other disciplines engaged in space activities. Next he turned his attention to the harmful contamination portion of the clause and noted it’s importance to the peaceful uses of outer space. He noted that there was an important link between the contamination and interference clauses. Next he moved to the principle of cooperation. He stated that this cooperation was qualified, so as to make space activities of States reliant on each those of others States. This was done to increase cooperation. He moved to a discussion of the principle of due regard; he stated that due regard was linked to the concept of res communis omnium. Furthermore, he said that Article IX was intended to protect the environment of outer space in a broad sense. He stated that it was important to analyze this in light of general international principles on transboundary harm. He concluded by stating that the article is vague and therefore somewhat weak, which is why he stated that it has never been used.

Finally, Les Tennen presented paper which was co-authored by Patricia Margaret Sterns, Law Offices of Sterns and Tennen. The paper was titled “Consideration of ‘Heavenly Matters’ and the Evolution of Article IX.” he began by noting that preservation of the celestial environments had been an important aspect of space law from very early on, and cited reference to it at the International Astronautical Federation in 1956. He noted several early sources for the developing principles, including a 1959 report by the ad hoc UN Committee on the Peaceful Uses of Outer Space. He also cited early US National Academy of Sciences, ICSU, and COSPAR documents (which developed into the planetary protection policy). He also drew attention to early diplomatic letters between the US and the USSR, wherein the USSR suggests prior consultations on space activities. He also noted that the letter linked space activities to that of global disarmament. He then moved into the negotiations of the Declaration of Legal Principles and then into the debates in UNCOPUOS that led to the development of Article IX. He noted that there was specific debate on how consultations should be formulated in the treaty and whether they should be required, submitted ti the UN Secretary General, or voluntary. He said that the final result was a blend of the US and Soviet propposals.