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GIVING DUE REGARD TO THE OBLIGATION OF ‘DUE REGARD’ UNDER ARTICLE IX OF THE OUTER SPACE TREATY
Article Title
JOANNA JAROSE[*]
The first sentence of art IX 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 (‘Outer Space Treaty’) sets out a requirement that states undertaking any activities in outer space show ‘due regard to the corresponding interests of other States’. In the decades since the Outer Space Treaty was finalised, many differing opinions have been offered as to what this means and what this seemingly nebulous expression practically requires of states. Reinterpreting art IX through the lens of orthodox treaty interpretation — and drawing on a close examination of the Outer Space Treaty’s travaux préparatoires — this article concludes that these words establish the demonstration of ‘due regard’ as a standalone obligation, one intrinsically tied to and representative of the key principles underlying the outer space legal regime. Although general in nature, it requires spacefaring states to (1) respect (and, where reasonable, facilitate) the space activities of other states; (2) interrogate the objective benefit to all states of the activities they wish to pursue; and (3) ensure that this resource is, as far as possible, safely available for utilisation by others.
The article also examines the utility of a parallel often drawn on by scholars of space law: the jurisprudence surrounding ‘due regard’ under the United Nations Convention on the Law of the Sea. In doing so, it identifies clear limits in the possible transference of such reasoning to the variable outer space context, while acknowledging the informative context it provides regarding the character of ‘due regard’ obligations generally.
CONTENTS
Article IX of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (‘Outer Space Treaty’)[1] sets out an obligation for states to ‘conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of other States’.[2] Article IX is a lengthy provision, and the travaux préparatoires support that it is a collection of relatively discrete obligations, iteratively separated out by contributing state delegations over the course of the drafting.[3] On this basis, this article adopts the view that the obligation on states parties to ‘conduct all their activities in Outer Space’[4] with due regard is separate from (1) the obligation to ‘avoid ... harmful contamination’ in outer space, (2) the obligation to avoid ‘adverse changes’ on Earth by the ‘introduction of extraterrestrial matter’[5] and (3) the obligation to consult prior to conducting any activity or experiment expected to cause harmful interference.[6] Though these obligations are connected by their general topic (interstate relations) and grouped together, they are not dependent on one another.
This article will focus on the first sentence of art IX, which sets out the obligation of due regard. This obligation has been interpreted in various ways: through the lens of developing ‘norms’ of behaviour in outer space;[7] as a qualifying requirement in applying the other obligations in art IX;[8] as a ‘toothless’ nicety of no practical impact;[9] and quite frequently via transposition of judicial views from the maritime domain.[10]
This article will take the view that due regard is a broader, more general obligation which applies to all state activity in outer space — not only those which cause harmful interference or harmful contamination. It will take an orthodox approach towards the interpretation of ‘due regard’ under art IX. Using the customary international law framework represented by the Vienna Convention on the Law of Treaties (‘VCLT’),[11] it will draw extensively on the travaux préparatoires to determine how this obligation ties into and supports the overall framework of the Outer Space Treaty. On this basis, it will be argued that the obligation of due regard, while general, is not weak. The fact that states parties must show not only ‘due regard’, but due regard ‘guided by the principle of cooperation and mutual assistance’,[12] contextualises the obligation in a way which connects it to the underlying core principles of the Outer Space Treaty propounded by state delegations involved in its drafting. As will be explored below, these core principles — and their connection to the obligation of due regard — are reinforced throughout the entire negotiating history and text of the various treaty instruments applicable to outer space, providing further nuance for what due regard in outer space should look like.
The article will then examine the pertinence of interpretations of ‘due regard’ under the law of the sea and assess what, if any, further instruction can be drawn from these. The conclusion reached is that while there are some instructive general parallels, the prescriptive requirements set down in the maritime jurisprudence are difficult to apply under the more general regime applicable to outer space — particularly in higher traffic orbits.
Finally, the article will seek to put forth some practical perspectives on how states can demonstrate due regard in the modern space environment.
For most of the history of human space exploration, states have been bound to the provisions of the 1967 Outer Space Treaty.[13] The treaty is brief — comprising only 17 articles, four of which relate to procedural issues — and the obligations it sets out are quite broad in their terms.
This was always expected and intended by the drafting delegations involved.[14] Even before the United Nations Committee on the Peaceful Uses of Outer Space (‘UNCOPUOS’) became a permanent body, it had identified that highly prescriptive legal principles likely could not work in space. The ‘Ad Hoc’ UNCOPUOS first met in May 1959,[15] just over 18 months after the Soviet Union’s Sputnik became the first artificial satellite to be successfully launched into space. Its delegates clearly understood that the rapid and unpredictable advancement of space technology would make defining applicable legal principles a difficult task: its report indicated ‘that it would be impossible at this stage to identify and define, exhaustively, all the juridical problems which might arise in the exploration of outer space’.[16]
In 1962, the now permanent UNCOPUOS was formulating what would become the December 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (‘Declaration of Legal Principles’). State delegates continued to reiterate that any principles set down would have to be general in nature, continuing to evolve ‘in step with new developments’.[17] At the same time, the Committee understood there had to be some manner of regulation, to avoid a lacuna in the law which would otherwise be filled by ‘undesirable faits accomplis’ underlying the development of customary international law.[18]
The brevity and general nature of the Outer Space Treaty does not reduce its impact or the required respect for its rules. From the very earliest consideration of legal principles applicable to space, delegations involved were required to balance several delicate political realities. The negotiating history was marred by an antagonistic ‘cold war atmosphere’;[19] there was outrage at various times in the negotiations over both the United States’ space activities — especially upper atmosphere nuclear testing and the release of copper needles into orbit as part of Project West Ford[20] — as well as its involvement in the Vietnam War.[21] It seems in many ways remarkable that these negotiations resulted in a treaty at all, let alone five treaties heavily predicated on cooperation between states, mutual assistance between them and collaboration in the use of outer space. The fact that the few vital principles reflected in the Outer Space Treaty were considered crucial enough to become binding law, in this atmosphere of great political, scientific and legal uncertainty, should only increase efforts to discern their meaning and apply them in good faith.
Article 6 of the 1963 Declaration of Legal Principles included the requirement that all states must ‘be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of other States’.[22] This wording remained unchanged in the 1967 Outer Space Treaty, apart from the replacement of ‘other States’ with ‘all other States Parties to the Treaty’.[23]
There is no formal body of case law surrounding art IX which could inform the meaning given to ‘due regard’ in the outer space context and what this obligation actually requires of states undertaking activities in space. No state has ever challenged another on the ground of a failure to uphold this obligation, and no tribunal has considered what it specifically requires in context. However, the starting point for understanding this obligation must be to use the rules of treaty interpretation to distil the meaning of ‘due regard’ in art IX.
The Outer Space Treaty predates the VCLT, but the key rules of interpretation set out in its arts 31 and 32 have long been confirmed as representative of customary international law.[24] Article 31 provides that ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.[25] This primary stage of interpretation must also take into account ‘subsequent agreement between the parties regarding the interpretation of the treaty’[26] and ‘subsequent practice’ in circumstances where it ‘establishes the agreement of the parties regarding [the treaty’s] interpretation’.[27]
There is some controversy about what ‘ordinary meaning’ itself specifically refers to — what is a term’s ‘ordinary meaning’ and how is this determined?[28] The phrase ‘due regard’ is particularly malleable. As the Oxford English Dictionary definition suggests, ‘due regard’ means: ‘[a]ttention or heed paid to a person or thing, as having an effect or influence on action or conduct’:[29] the sort of conduct that may be implied is entirely dependent on the broader context. In a legal context, ‘due regard’ is generally used to mean literally ‘the regard due’ in all the circumstances — ie, it denotes a situation where a factor must be taken into account in making a decision, but the required approach or action resulting may be variable because the factor itself, and all other factors relevant in the circumstances, are variable.[30] Examples of this type of application can be found in other treaty instruments,[31] such as the United Nations Convention on the Law of the Sea (‘UNCLOS’), as well as in the travaux préparatoires for the Outer Space Treaty.[32]
However, as the VCLT makes clear, ordinary meaning cannot be assigned in a vacuum and is always dependent on the broader context and the object and purpose of the treaty.[33] This must be particularly true of a term which has such a flexible application — a fact which already foreshadows the difficulty of trying to transfer such interpretation across domains.
The context of any treaty term greatly informs its meaning and forms a key part of the primary matrix for interpretation under art 31 of the VCLT. In the case of ‘due regard’ in the Outer Space Treaty, this context is the rest of art IX and the broader provisions of the treaty.[34] Article IX directly connects the obligation of ‘due regard’ to ‘the principle of cooperation and mutual assistance’.[35] This principle and the idea of state collaboration generally is strongly emphasised by many provisions of the Outer Space Treaty. For example, art I requires states to ‘facilitate and encourage international cooperation’ in scientific investigation of outer space.[36] Article III sets out the obligation to comply with international law more broadly, so as to ‘promot[e] international cooperation and understanding’.[37] Article V requires states to give ‘all possible assistance’ to astronauts requiring it who land in their territory, and to inform one another of any threat to astronauts they may discover; astronauts of different states must also help one another if required while in outer space under the same article.[38] Article IX of course requires states to act with ‘due regard’, but also to conduct consultations with other states before proceeding with any space activity they believe ‘would cause potentially harmful interference’[39] — providing further context that the first obligation of due regard should apply even to non-harmful acts. Articles X and XI both reiterate the need to ‘promote international cooperation’.[40]
The treaty’s object and purpose, as evidenced in its preamble and the General Assembly resolution which introduced it, adds further nuance to this overarching emphasis.[41] The Outer Space Treaty was intended to ensure that outer space would be used ‘for the benefit of all peoples’, to provide a framework in which this could occur through ‘broad international cooperation’ and to ‘contribute to the development of mutual understanding and ... friendly relations’.[42]
Overall, both the context and the object and purpose create a coherent picture of what the treaty — and art IX — was intended to do. The overriding obligation on all states is clear: work together and help one another. This suggests a strong expected standard for demonstrating due regard to the space activities of other states. Although evidently a state must be allowed to make use of and explore outer space,[43] the Outer Space Treaty requires it to also actively enable other states to do the same, working with and supporting them where required to ensure mutual success. On this basis, it seems that a state which proceeds with any space activity knowing this is likely to prevent another state from doing so would — prima facie — show a lack of due regard.
The VCLT provides that any subsequent agreement between the parties of a treaty is also a primary means of interpretation which must be considered ‘together with the context’.[44]
The four later treaties concluded in relation to outer space,[45] which were specifically intended to expand upon the general framework set out by the Outer Space Treaty, could provide relevant additional context under art 31(3)(a). There is significant overlap between the states parties to the Outer Space Treaty and those of the first three subsequent space treaties — the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (‘Rescue and Return Agreement’) (99 parties); the Convention on International Liability for Damage Caused by Space Objects (‘Liability Convention’) (98 parties); and the Convention on Registration of Objects Launched into Outer Space (‘Registration Convention’) (72 parties).[46] However, it is unclear if ratification by only a majority of Outer Space Treaty parties (and not all of them) is sufficient for these treaties to demonstrate subsequent state agreement in the application of the Outer Space Treaty for the purposes of VCLT art 31(3)(a).[47] At the very least, the drafting and accession to these treaties are persuasive examples of subsequent state practice.[48]
For the most part, these three agreements expand on obligations already set out under the primary Outer Space Treaty and reiterate the same basic principles. For example, the Rescue and Return Agreement derives from arts V and VIII of the Outer Space Treaty. Its preamble notes that it seeks to ‘promote international cooperation’ and is ‘prompted by sentiments of humanity’,[49] while its provisions emphasise the need to collaborate and communicate in the rescue of astronauts[50] and recovery of space objects.[51] Meanwhile the Liability Convention is a more detailed and technical elaboration of art VII of the Outer Space Treaty; its preamble again speaks of its purpose being the ‘strengthening of international cooperation in the field of the exploration and use of outer space for peaceful purposes’.[52]
In certain cases, the practice of states in applying the provisions of a treaty can also be considered a primary means of interpretation.[53] State practice of this kind is persuasive, capable of completely overruling the ordinary meaning of a term if the parties so agree.[54]
The International Law Commission (‘ILC’) recently undertook a detailed examination of the role of subsequent agreement and subsequent state practice in the interpretation of treaties.[55] This study found that for state practice to be applicable as a primary method of interpretation under art 31(3)(b), it must demonstrate a ‘sufficient common understanding’ between the parties, which such parties recognise as and intend to be evidence of the correct interpretation of the treaty.[56] Relevant state practice must confirm that the parties ‘have taken a position regarding the interpretation’.[57] The ‘weight’ of such practice is further dependent on ‘its clarity and specificity’ and ‘whether and how it is repeated’.[58]
This is only fair: after all, as the entire jurisprudence of the International Court of Justice (‘ICJ’) confirms, states are perfectly capable of misinterpreting, misapplying or simply failing to uphold their treaty obligations. It cannot be assumed that because a state party to a treaty acts in a certain way or declares a certain view, this could modulate the meaning of the treaty for all states. In the complicated modern diplomatic context, a state also ‘may, for political or other reasons, decide not to avail itself of the treaty, without this signifying in any way that it renounces doing so in the future’[59] — especially when it concerns a provision of broad and general application. To impact the interpretation of a treaty under art 31(3)(b), subsequent state practice therefore requires relatively widespread and consistent implementation expressly relating to the treaty’s meaning.
Subsequent state practice that would satisfy these criteria is limited in the context of outer space. State commentary relating to outer space is often framed in vague political terms, without any reference to applicable treaty obligations at all.[60] Any express legal interpretation is usually put forward by one or a few states, without any general concurrence — such as, for example, the 2022 Philippines paper examining the meaning of ‘due regard’.[61]
The ILC did indicate that common understanding of a provision’s application may arise even in circumstances where some parties to the treaty have not engaged in the relevant practice and have therefore accepted by ‘silence or omission’.[62] However, they emphasised that such acceptance was ‘not established easily’.[63] In the Temple of Preah Vihear case, the ICJ found that silence on the part of one state could constitute acquiescence to a certain interpretation of the treaty if the ‘circumstances were such as called for some reaction, within a reasonable period’.[64] However, the circumstances in question were a very direct challenge to the rights of a specific state in the form of a map indicating (and reducing) its physical territory. Given the broad and general nature of the ‘freedoms’ of states in outer space conferred by art I of the Outer Space Treaty, and the res omnium communis nature of the domain generally, it is difficult to draw a direct parallel and establish when, precisely, a state should be expected to respond to conduct of another state at the risk of being seen to acquiesce to that state’s interpretation of relevant treaty obligations.
For example, the conduct of Anti-Satellite Weapons (‘ASAT’) tests — with the potential generation of harmful debris that will directly impede the ability of other states to conduct activities in space — seems absolutely counter to the requirement to show ‘due regard’ to the interests of all other states parties. Yet four states have now conducted such ASAT tests, and no state has formally declared this a contravention of art IX or a violation of the obligation of due regard.[65] Is this demonstrating relevant ‘acquiescence’ under art 31(3)(b) to an interpretation that the obligation of due regard requires no real deference to the interests of others — seemingly in complete contrast to the context, object and purpose provided by the Outer Space Treaty?
The situation is clearly different to that identified in Temple of Preah Vihear. No one or more states could be pinpointed as being somehow singled out, or more directly required to respond than others; none had a specific right challenged or overturned by any apparent failure to show due regard. Further, even though no state invoked art IX of the Outer Space Treaty, there were official statements condemning the tests, particularly those conducted by China and Russia,[66] and even a growing movement towards a moratorium on any further tests[67] — it could hardly be said that states mutely accepted the conduct was in accordance with their interpretation of the Outer Space Treaty. Even one state conducting an ASAT test confirmed the continuing need to consider and show due regard, believing this would be done through careful timing of the impact.[68] Finally, as identified by the ILC, for subsequent state practice to be interpretively significant under art 31(3)(b), there must be widespread positive agreement among the parties as to the correct application of the treaty.[69] This seems difficult to establish when the majority of parties do not demonstrate any relevant state practice.
As a result, there does not appear to be state practice, applicable under art 31(3)(b) of the VCLT, which could directly affect the interpretation of art IX of the Outer Space Treaty.
The ILC study noted that subsequent state practice which does not demonstrate the required level of agreement between the parties is still potentially relevant as a source of ‘supplementary’ interpretation under art 32 of the VCLT (even though not specifically listed in that article).[70] It can therefore be applied, together with the travaux préparatoires, to help confirm or clarify an interpretation derived under art 31.[71]
Supplementary interpretation under art 32 may be used to determine the actual meaning of a treaty provision when the result derived under art 31 is ‘ambiguous or obscure’[72] or ‘[l]eads to a result that is manifestly absurd or unreasonable’.[73] Based on the provisional examination above, this does not seem to apply to the obligation of due regard. The broad scope of the obligation may be too idealistic for the taste of modern spacefaring states, but it is ultimately relatively straightforward and consistent with the rest of the space treaty regime.
Article 32 can also be used, together with the travaux préparatoires, to ‘confirm’ the meaning arrived at under art 31.[74]
There is little state practice specifically addressing the correct interpretation of ‘due regard’. The Philippines’ 2022 paper on this topic drew heavily on the maritime jurisprudence.[75] As discussed below, this approach has not been uncommon, but is problematic in its practical application. However, what the paper also underlines is first, that due regard is and remains a separate ‘legal obligation of all spacefaring nations’,[76] and secondly, that a better understanding of its requirements ‘would enrich considerations on responsible behaviour in space’.[77] These two general views have also been supported by other states.[78] Further, the Philippines’ paper emphasises the need for states to consider the needs of both other states and of the ‘wider international community’,[79] in line with the plain text of the Outer Space Treaty.
Unlike the first three subsequent treaties, the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (‘Moon Agreement’) has been poorly subscribed, with only 18 states having ratified it as of January 2022.[80] However, its provisions were vigorously debated over a period of years[81] and it illustrates the understanding of states involved in UNCOPUOS at the time of its conclusion. Therefore, even if it is not persuasive as an example of subsequent state agreement, it and the associated negotiations still add to the picture of relevant subsequent state practice. The Moon Agreement reinforces, arguably even more emphatically, the requirements of ‘cooperation and mutual assistance’.[82] This does seem to support the view that the Outer Space Treaty and the requirement of due regard oblige states to approach their use of outer space on a collaborative, constructive basis.
From the very earliest beginning of state consideration, there was an emphasis on international cooperation and the need to equitably share outer space. This became an enduring theme of the negotiations, eventually reflected as the concept of ‘cooperation and mutual assistance’ in art IX of the Outer Space Treaty.[83]
States involved in the early years of UNCOPUOS did not only have a political minefield to deal with, as discussed above; they were also faced with the serious conundrum that only two of their number were operating in outer space at all. However, it was recognised that others would soon follow, and that even for those who could not directly do so there was a need ‘to make available and to exploit the possibilities that exist for participation by nations at all levels of development’.[84] Therefore, the drafting delegations had to work out how to preserve the use of space for all their number, while giving appropriate deference to those who would be most immediately affected by any legal principles laid down.
Fortunately, both the Soviet Union and the US sought to claim the moral high ground from the outset (whether out of global goodwill or perhaps, more cynically, due to apprehension about the potential military applications each might find for this new technology). Each proposed, in 1958, that the General Assembly discuss the issue of outer space, and each immediately stressed the need for international cooperation. The Soviet Union proposed an ‘international agreement’ intended to ‘promote an easing of international tension, the establishment of confidence among States and the development of broad international cooperation in many spheres of human activity’.[85] The US, meanwhile, acknowledged that ‘outer-space developments are a matter of international concern, because the exploration and eventual exploitation of outer space will affect the life of every human being’ and also proposed a need for ‘a solid basis for international cooperation in development of the peaceful uses of outer space’.[86]
The tone appeared to be set. The resolution establishing UNCOPUOS on a permanent basis, in December 1959, emphasised the ‘great importance of international cooperation’,[87] while the first brief declaration of principles by the General Assembly in December 1961 spoke of an ‘urgent need to strengthen international cooperation in this important field’.[88] The US representative’s words at the second meeting of the nascent permanent UNCOPUOS reflected the attitude adopted by its participants:
We — all of us — the members of this Committee, and all other Member States of the United Nations, are committed to the free exploration and free development of the great reaches of outer space, under the rule of law, on the basis of international cooperation and for the benefit of all nations and all peoples.[89]
This ongoing emphasis on mutual assistance, respect and cooperation saw concrete representation in the draft instruments put forward to the UNCOPUOS Legal Sub-Committee. The draft General Assembly declaration proposed by the Soviet Union in June 1962 included an obligation that
[c]ooperation and mutual assistance in the conquest of outer space shall be a duty incumbent upon all States; the implementation of any measures that might in any way hinder the exploration or use of outer space for peaceful purposes by other countries shall be permitted only after prior discussion of and agreement upon such measures between the countries concerned.[90]
In this might be recognised the early progenitor of what eventually would become art IX of the Outer Space Treaty. This specific wording was not accepted: it was broadly interpreted by Western states as imposing an inappropriate ‘veto’ over the space activities of states,[91] which could be subject to misuse.[92] However, even states who protested the Soviet approach acknowledged that there was a need to address ‘the question of the exercise, in the general interest of all States, of the basic freedom to use and explore outer space’.[93] States were to be free to use outer space, but at the same time, this freedom must be fettered to the extent required to respect the equivalent freedoms of others.
The first appearance of a recognisable obligation of due regard in the various proposed draft declarations was put forward by the United Kingdom in December 1962. The UK draft was a brief statement of essential guiding principles, including that the freedom of exploration and use of outer space ‘shall be exercised by all States with due regard to the interests of other States in the exploration and use of outer space, and to the need for consultation and cooperation between States in relation to such exploration and use’.[94] This formulation was endorsed by several delegations during the following Legal Sub-Committee session in 1963.[95]
The year 1963 of course brought with it another very important event — the conclusion of the Moscow Partial Nuclear Test Ban Treaty.[96] This was explicitly acknowledged as the cause of both a more conciliatory atmosphere in UNCOPUOS, and a willingness by the Soviet Union to relax the measure of actual control other states would require over potential space activities (as these could no longer include nuclear weapons tests).[97] Although the draft Declaration of Legal Principles was not finalised during the 1963 UNCOPUOS session, bilateral negotiations between the US and the Soviet Union continued towards the end of that year.[98] When their agreed draft declaration was returned to UNCOPUOS for a single meeting in November 1963, the ‘due regard’ wording had been adopted as one aspect of the amended art 6 to create an obligation which survived into the Outer Space Treaty.[99]
The space law framework has therefore always emphasised the requirement that outer space be used cooperatively, in the ‘common interest’[100] and ‘for the benefit of all mankind’.[101] This continued from the very first General Assembly resolution in 1959,[102] and on through the 1979 Moon Agreement.[103] It has also consistently been acknowledged that these principles may require concessions by individual states. For example, Legal Sub-Committee Chairman Manfred Lachs of Poland, introducing the completed Outer Space Treaty draft to the First Committee in December 1966, explained that under the proposed treaty,
States’ freedom of activity in outer space was further limited by the requirement that its exploration and use must be for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development. Not only must States not abuse their rights, but they must respect those of others.[104]
Some delegates identified the obligation of due regard in art IX as a concrete reflection of these key principles; it was an obligation ‘closely linked with the duty of States to cooperate with each other, which was laid down in the Charter of the United Nations, and to the fundamental idea that outer space should be used and explored for the benefit of all mankind.’[105] In December 1966, just before the Outer Space Treaty was promulgated by the General Assembly, the Belgian delegate observed that ‘[t]he principle of cooperation and mutual assistance was the keystone of the treaty’.[106]
Overall, the travaux confirm the interpretation suggested by the ordinary meaning, context, and object and purpose of the treaty text itself: showing ‘due regard’ in the Outer Space Treaty requires states to do what they reasonably can to facilitate the beneficial space activities of other states and to ensure that space is, on balance, being used for the benefit of states as a whole.
The negotiating history also suggests that showing due regard does not require that states conduct consultations prior to any space activity which might impact that of another state, as this requirement was expressly rejected by many delegations. This suggests a point of difference from the conclusions, in regard to ‘due regard’ in the maritime exclusive economic zone (‘EEZ’), drawn by the International Tribunal for the Law of the Sea (‘ITLOS’).[107] Consultations were required only where harmful interference was expected, as specified by the latter part of both art 6 of the Declaration of Legal Principles and art IX of the Outer Space Treaty. However, the ‘due regard’ obligation was seen to require that states support equitable use of outer space and be willing to compromise where necessary to accommodate the interests of others — a qualification on the otherwise free use of outer space. As the US delegate indicated in August 1966, on the ‘home stretch’ towards the conclusion of the Outer Space Treaty, ‘it should not be forgotten that activity in outer space and on celestial bodies concerned mankind and not a single State’.[108]
As identified above, there has been no judicial consideration of the ‘due regard’ obligations under the Outer Space Treaty. However, it has been suggested that because ‘due regard’ obligations of one kind or another are found across many international law instruments, the meaning it is given in one context can to some extent be applied, mutatis mutandis, to others.[109] Examinations of due regard in outer space have often drawn, in particular, on judicial interpretation of due regard under the law of the sea.[110]
‘Due regard’ is a term frequently used in UNCLOS,[111] and is a ‘recognised pivot for the reconciliation of competing international legal interests’ in the maritime context.[112] This obligation has been given significant attention by the ITLOS in the last decade, setting out a fairly clear framework of meaning.[113]
Perhaps the closest equivalent to the outer space obligation under art IX of the Outer Space Treaty is that of ‘due regard’ owed in the high seas under art 87(2) of UNCLOS.[114] Article 87(1) establishes certain ‘freedoms’ — navigation, overflight, fishing, etc — which all states enjoy in the high seas.[115] This can be seen as parallel in some respects to the freedoms set out in art I of the Outer Space Treaty, which upholds freedoms of exploration and use, access to all areas of celestial bodies and freedom of scientific investigation. Article 87(2) of UNCLOS then establishes that these freedoms of the high seas must be exercised with ‘due regard for the interests of other States in their exercise of’ such freedoms.[116] However, it must be noted that ITLOS has not yet addressed the interpretation of due regard in art 87(2) specifically. The issue was raised in the case of the M/V ‘Norstar’; however, the Tribunal determined that it was not relevant on the facts and based its decision on Italy’s direct infringement of the listed freedoms provided in art 87(1).[117]
Almost all judicial consideration of due regard under UNCLOS has been in relation to its appearance in arts 56(2) and 58(3). These articles relate to due regard in a coastal state’s EEZ: the coastal state must have ‘due regard to the rights and interests of other States’[118] and, correspondingly, any other state(s) present in the EEZ must ‘have due regard to the rights and duties of the coastal State’ and comply with any laws it adopts which are compatible with UNCLOS and other international law.[119] The problem, when comparing this instance of ‘due regard’ to that in the Outer Space Treaty, is that interactions in the EEZ are governed by a much more detailed and prescriptive legal regime: the ‘rights and interests’ in question are specifically assigned to states by UNCLOS and exhaustively delineated within it, the EEZ itself being a construct created by that instrument.[120] ITLOS’s interpretation of the reciprocal ‘due regard’ obligations in arts 56(2) and 58(3) depends in part on this context, consistent with the requirements of the VCLT.[121] For example, the Chagos Marine Protected Area Arbitration neatly summarises ITLOS’s approach to these obligations:
The ordinary meaning of ‘due regard’ calls for the [coastal state] to have such regard for the rights of [the other state] as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of [the other state’s] rights; nor does it uniformly permit [the coastal State] to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by [the other state], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by [the coastal state] and the availability of alternative approaches. In the majority of cases, this assessment will necessarily involve at least some consultation with the rights-holding State.[122]
The proposed balancing process is dependent on the outcome and impact of a state’s activities being clearly foreseeable: it requires a detailed understanding of the comparative importance of the rights and interests of each party, what the expected impact will be and how detrimental each party would find any resulting hindrance on their activities. This is possible in the EEZ because all the specific rights and responsibilities of each state are noted exhaustively by UNCLOS, down to what specific activities and objects the coastal state will have jurisdiction over[123] and what measures the coastal state can take to preserve marine life species and fish stocks.[124] State encounters in the EEZ can therefore be assessed objectively, based on clear rules governing what any given state can and cannot do. Similarly, disputed interactions in the EEZ generally involve a predictable and limited number of parties: the coastal state and nearby states, who may fish the same waters, for example. The understanding expressed by ITLOS that showing due regard would generally require ‘at least some consultation’ seems reliant on the predictability of the parties involved and their small number.[125]
A similar approach is borne out in riparian law,[126] where the concept of due regard also finds expression — for example, that ‘according to the rules of good faith’, an upstream state must show that ‘it is genuinely concerned to reconcile the interests of the other riparian State with its own’.[127] In a river course, as in the EEZ of a coastal state, it is highly predictable whose interests will be affected by the actions of any given state, and what this effect is likely to be.
This prescriptive approach may translate quite easily to some areas of outer space — for example, the relatively low-population geostationary orbit, in which satellites tend to remain in proximity with other space objects whose purpose and attributable state is known. An assessment of due regard in this orbit could be conducted very much in accordance with the principles set out by ITLOS in regard to the maritime EEZ.
However, in higher-traffic orbits such as low-Earth orbit (‘LEO’) there may be thousands of active objects — attributable to dozens of states — orbiting at the desired elevation,[128] each circumnavigating the entire planet up to 16 times per day.[129] All of these objects are a space activity which must be given ‘due regard’ under art IX. Further, space objects must be adjusted frequently to maintain their elevation or to avoid space debris, changing their proximity to other space objects[130] and therefore to the states whose interests may be most immediately affected. Finally, although the Registration Convention requires basic information to be provided to the UN and be available on a public register,[131] this is not necessarily sufficient to establish the exact purpose and importance of that space object. In this context, the obligation of due regard is both more onerous — as any impairment caused may be disastrous — and less specific, because the number of parties potentially directly affected by any one decision is much higher and the actual impact is less clear. As a result, the level of certainty required to accurately evaluate and balance competing rights and interests on a case-by-case basis may simply not be available.
‘Due regard’ is a general term used often in international law. To the extent of identifying an ordinary meaning, its application across domains will always be relevant. However, when used in a treaty, the ordinary meaning of a term will be affected by its context, the object and purpose of the specific treaty, and the application of the provision by states.[132] This nuance reduces how well the interpretation of a term under one treaty may apply to understand its meaning in another treaty. In the case of the law of the sea and outer space, such transposition is challenged by the different rights and interests at play, the different nature of interactions between parties and the practical operation of objects in space compared to vessels at sea.
This is not to say that there is nothing helpful which can be gleaned from the consideration of ‘due regard’ obligations in UNCLOS and under other treaty instruments. As raised above, for certain uses of space (such as the geostationary orbit) the EEZ approach to due regard may be quite comprehensive and easy to apply, mutatis mutandis. Further, the law of the sea jurisprudence also provides a useful overview of how such obligations may operate generally, which is transferrable across domains. In the Chagos Marine Protected Area Arbitration, for example, ITLOS found that ‘due regard’ obligations are similar to obligations to ‘refrain from unjustifiable interference’ and to act in good faith.[133] They require some active attempt to consider and take account of the interests of others, beyond simply acknowledging such interests exist.[134] Further, ITLOS is not the only international tribunal contributing to the framework as to how such obligations must operate. In an ICJ matter which considered a separate obligation of due regard, Whaling in the Antarctic,[135] the Court was required to determine whether Japan had breached its legal obligations by its lethal sampling of whales. There was a treaty requirement for Japan to give ‘due regard’ to recommendations calling for an assessment of alternative (non-lethal) sampling methods before proceeding with lethal sampling.[136] The Court determined that a lack of evidence of analysis by Japan of the appropriateness of alternative non-lethal methods indicated a failure to comply with the obligation of due regard in that context.[137]
The conclusions drawn in such cases seem transferable, insofar as they confirm that showing due regard will always require demonstrating some measure of active attention and effort. It seems unlikely that any ‘due regard’ obligation could be upheld without a genuine attempt to consider, respect and accommodate the interests (even if in general terms) of other states parties.
A state contemplating a space launch into a high traffic orbit is faced with what appears to be, prima facie, a conundrum: it is legally required to have ‘due regard’ to the space activities of all other states, but may not be able to clearly identify which interests specifically may be most affected and their relative importance compared to its own — particularly across the expected functional life of its space object. The prescriptive ‘balancing process’ applied by ITLOS in the EEZ may be unworkable in this situation. So how can the obligation of due regard be upheld, in the context of the expansive modern usage of outer space? There seems to be one clear method by which states can (and do) show due regard in a generalised manner, without any need for a case-by-case balancing or analysis.
Tracking of a space object via reliable space situational awareness (‘SSA’) data systems helps avoid conjunctions with and obstruction of other space objects across the duration of its existence.[138] Accurate SSA allows an object to be tracked and manoeuvred to ensure safe operation, enabling a state to show due regard by ensuring as far as possible — at any given moment — that its space activities do not impede those of other states. In an increasingly congested space environment, requiring and providing due regard to the freedom of other states to conduct activities in outer space seems largely dependent on such systems. Showing due regard would of course necessitate adequate response to any potential issues detected, rather than just passive observation — remembering that as a general rule, obligations of due regard require active steps be taken to accommodate the interests of other states as far as possible.
In situations where a state does not have adequate SSA capacities of its own, working collectively with other states — such as via the US Data Sharing Program[139] — can also allow this obligation to be upheld. Sharing of SSA data, even by states which do have sufficient means to comprehensively track all space objects, directly upholds the ‘principle of cooperation and mutual assistance’ specified by art IX to guide the demonstration of due regard.[140]
Such sharing is also arguably supported by art XI of the Outer Space Treaty. This article requires a state to ‘inform the Secretary-General of the UN as well as the public and international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of [activities in outer space]’.[141] There can be little doubt that in the modern context, SSA and sharing of tracking data allows a state to provide location information ‘to the greatest extent feasible and practicable’.[142] Article XI was the result of an emphasis by several negotiating delegations, particularly the US, on the importance of information sharing and openness to help safeguard the success of all space activities.[143] The recognition of the potential importance of sharing satellite data began as far back as 1959.[144] Collaboration in SSA seems a practical modern reflection of this impulse. Using data sharing to ensure a greater chance of success for all space activities seems precisely aligned with the principles of the Outer Space Treaty and the views of state delegations involved in its drafting.
Collaboration via SSA data systems can perhaps even comprise a form of the consultation that ITLOS viewed as generally required for due regard in the EEZ, in a simplified form adapted to the outer space context. This may occur via system alerts or notifications sent between states or automatically by tracking systems indicating the detection of a potential conjunction.
Based on the above analysis and given the rapid increase of objects in outer space, some activities can also be identified which are generally unlikely to show the ‘due regard’ required by art IX. In lower-population orbits, such as the geostationary orbit, this may occur where clearly affected space assets and state interests are not taken into account or placed at risk. But in higher traffic orbits, where an exact balancing of all potentially relevant state rights and interests may not be possible at the point of launch, a general assessment can still be made as to the broad impact of a launch on the usability of outer space as a whole.
Where a space activity generates no objective benefit at all, it arguably cannot uphold the obligation of due regard. Any launch generates a risk, even if slim, of hampering the space activities of others; the Outer Space Treaty requires that such risk be outweighed by the potential benefit expected for all states. One example may be a launch undertaken for a frivolous or unconstructive purpose.[145] Another example which generally could not show due regard would be a space launch which results in the deliberate generation of even relatively short-lived space debris: such an action hampers future outer space activities and reduces the ability of other states to make use of this shared resource.[146] Finally, activities which require a very large number of space launches to achieve a certain outcome, such as the creation of major satellite constellations in LEO, may require particular attention to the obligation of due regard. To satisfy the obligation, the expected global benefit obtained would need to outweigh the general negative impact of a major increase in the number of space objects on the capacity of all states to utilise outer space. With each further space object launched, and each further debris-generating incident, the capacity of all states to make use of the outer space environment as anticipated and protected by the Outer Space Treaty is diminished.
The drafting of the Outer Space Treaty, like that of many international law instruments, was a process akin to tightrope-walking. The delegations involved had to navigate an atmosphere of heightened political tensions, mediating between two space powers who seemed inclined to disagree almost on principle. This may be one contributing factor that led to the lack of specificity in this instrument. But this troubled genesis only serves to underline the key importance of the few broad principles which could be agreed and made into binding law, despite the contentious atmosphere of their creation.
The obligation of states to ‘be guided by the principle of cooperation and mutual assistance’ and ‘conduct all their activities in outer space ... with due regard to the corresponding interests of all other states parties’ ultimately reflects a principle which states involved in the development of outer space law considered absolute: that space must be used cooperatively and for the good of all. Widespread, authentic concurrence between states specifying an alternative interpretation of ‘due regard’ in outer space could genuinely override the meaning drawn from the travaux;[147] however, at present there are few states’ opinions even on record.
The practical reality of space has changed since the 1960s. Even in the early 1970s it was predicted that increasing space traffic would ‘in future require considerably intensified cooperation among States’.[148] In the 21st century, the proliferation of launches and the sheer number of space activities being undertaken may mean that global collaboration in tracking objects and debris has become the only way, in the case of most space launches, to effectively show due regard as it was envisioned under the Outer Space Treaty: a safeguard to ensure the use of outer space would be for the benefit of all states. Utilisation of outer space has brought incalculable benefit to humanity. To safeguard this crucial resource into the future, states will need to — as anticipated by the early pioneers of space law who crafted the Outer Space Treaty — cooperate in good faith, support one another’s endeavours and uphold the obligation of due regard in outer space.
[*] PhD candidate and sessional lecturer, Adelaide Law School; research associate, Law School’s Research Unit for Military Law and Ethics. I would like to acknowledge and thank Professor Matthew Stubbs and Ms Rachel Neef for their invaluable guidance and critique. I also express my thanks to the reviewers for their very constructive insights.
[1] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) (‘Outer Space Treaty’).
[2] Ibid art IX. The ‘corresponding interests of other States’ refers to the capacity of other states to also freely utilise outer space: see, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Seventeenth Meeting, UN Doc A/AC.105/C.2/SR.17 (27 June 1963) 6.
[3] See, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Provisional Summary Record of the Twenty-Third Meeting, UN Doc A/AC.105/C.2/SR.23 (29 April 1963) 6; Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Provisional Summary Record of the Twenty-Fourth Meeting, UN Doc A/AC.105/C.2/SR.24 (1 May 1963) 11 (‘Legal Sub-Committee 24th Meeting’); Committee on the Peaceful Uses of Outer Space, Verbatim Record of the Twenty-Fourth Meeting, UN Doc A/AC.105/PV.24 (22 November 1963) 11–12 (‘UNCOPUOS 24th Meeting’).
[4] Outer Space Treaty (n 1) art IX (emphasis added).
[5] Ibid.
[6] Ibid.
[7] See, eg, ‘Space Law Fundamentals’, Australian Navigational Guide Explaining Laws for Space (Web Page) <https://spacelaws.com/space-law-fundamentals/>, archived at <https://perma.cc/6GEG-UYMB>; Paul B Larsen, ‘Space Traffic Management Standards’ (2018) 83(2) Journal of Air Law and Commerce 359, 373.
[8] See, eg, Michael C Mineiro, ‘FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal Obligations under Article IX of the Outer Space Treaty’ (2008) 34(2) Journal of Space Law 321, 333–4.
[9] John Goehring, ‘The Russian ASAT Tests Caps a Bad Year for the Due Regard Principle in Space’, Just Security (online, 12 January 2022) <https://www.justsecurity.org/79820/ the‑russian-asat-test-caps-a-bad-year-for-the-due-regard-principle-in-space/>, archived at <https://perma.cc/EH99-CQ2R>. See also Cassandra Steer, ‘Sources and Law-Making Processes Relating to Space Activities’ in Ram S Jakhu and Paul Stephen Dempsey (eds), Routledge Handbook of Space Law (Routledge, 2016) 3, 19; PJ Blount, ‘Renovating Space: The Future of International Space Law’ (2012) 40(1–3) Denver Journal of International Law and Policy 515, 526.
[10] See, eg, Republic of the Philippines, The Duty of ‘Due Regard’ as a Foundational Principle of Responsible Behaviour in Space, Agenda Item 6(a), UN Doc A/AC.294/2022/WP_ (6 May 2022) (advanced and unedited version) (‘Philippines Paper on Due Regard’); Hitoshi Nasu and Michael Schmitt, ‘A Threat or a Warning: Russia’s Weapons Testing in Space’, Just Security (online, 31 July 2020) <https://www.justsecurity.org/71783/a-threat-or-a-warning-russias-weapons-testing-in-space/>, archived at <https://perma.cc/EB7S-H5XC>; Michelle Hanlon, ‘“Due Regard” for Commercial Space Must Start with Historic Preservation’ (2021) 9(1) Global Business Law Review 130, 147–8.
[11] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 31 (‘VCLT’). For the customary law status of these interpretation principles, see also Richard Gardiner, Treaty Interpretation (Oxford University Press, 2nd ed, 2015) 162–3, 174, 210; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 110 [160] (‘Application of the Convention on Genocide’).
[12] Outer Space Treaty (n 1) art IX.
[13] Ibid.
[14] See, eg, Manfred Lachs (Chairman of the Legal Sub-Committee of the Committee on the Peaceful Uses of Other Space) who introduced the completed draft Outer Space Treaty by stating that ‘[t]he present treaty could be followed by other treaties and by agreement on both general principles and specific problems, each of which would interact with the others, giving rise to a general body of space law’: UN GAOR, 1st Comm, 21st sess, 1491st mtg, Agenda Items 30, 89 and 91, UN Doc A/C.1/SR.1491 (16 December 1966) 418 [12] (‘First Committee 1491st Meeting’). Mr Goldberg of the United States said that ‘[t]he aim of the negotiators had not been to provide in detail for every contingency in the exploration and use of outer space but rather to establish a set of basic principles. That was why the provisions of the treaty were purposely broad’: UN GAOR, 1st Comm, 21st sess, 1492nd mtg, UN Doc A/C.1/SR.1492 (17 December 1966) 428 [6].
[15] Report of the Ad Hoc Committee on the Peaceful Uses of Outer Space, UN GAOR, 14th sess, Agenda Item 25, UN Doc A/4141 (14 July 1959) 5 (‘1959 Ad Hoc Committee Report’).
[16] Ibid 61.
[17] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Third Meeting, UN Doc A/AC.105/C.2/SR.3 (21 August 1962) 2. See the remarks of Miss Gutteridge (United Kingdom), noting that ‘her delegation considered that the law of space should be made responsive to the facts of space and that a legal regime should be established step by step as the need arose’: at 3. See also Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Second Meeting, UN Doc A/AC.105/C.2/SR.2 (21 August 1962) 5, where Mr Spacil of Czechoslovakia stated that ‘[s]uch law would evolve gradually out of the results of practical space exploration, and it was not possible to predict all the legal problems that would arise’.
[18] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Fifth Meeting, UN Doc A/AC.105/C.2/SR.5 (21 August 1962) (‘Legal Sub-Committee 5th Meeting’) 4.
[19] Committee on the Peaceful Uses of Outer Space, Verbatim Record of the Thirteenth Meeting, UN Doc A/AC.105/PV.13 (21 February 1963) 13 (‘UNCOPUOS 13th Meeting’).
[20] Particularly during the first session of the Legal Sub-Committee in 1962: see, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Fourth Meeting, UN Doc A/AC.105/C.2/SR.4 (21 August 1962), which recorded the outcry from multiple delegations after the Soviet Union delegate read a pre-prepared statement condemning the tests. Mr Glaser of Romania stated that ‘[t]he action of the United States Government in carrying out nuclear tests at a very high altitude, which by its own admission would affect conditions in outer space, contradicted its express intention of cooperation in the work of the Legal Sub-Committee’: at 9. Mr Georgiev of Bulgaria stated that ‘the Government of the United States of America had committed an act of aggression against humanity’: at 12. Mr Kopal of Czechoslovakia stated (at 13–14) that
the American tests might hamper space research and endanger the health of astronauts; they were therefore in clear contradiction with the purpose of General Assembly resolution 1721 (XVI) and with all the efforts made by the Committee on the Peaceful Uses of Outer Space.
Mr Misha of Albania claimed that the actions of the US had ‘flagrantly violated the principles of the United Nations Charter and of the General Assembly’s resolutions on which the work of the Sub-Committee and the parent Committee was based; they were a crime against science and humanity, and acts of aggression’: Legal Sub-Committee 5th Meeting, UN Doc A/AC.105/C.2/SR.5 (n 18) 5. Mr Lewandowski of Poland condemned the US’ ‘narrow and self-defeating military goals’ which had led to the aforementioned tests: ibid 29.
[21] See, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Fifty-Seventh Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.57 (20 October 1966) (‘Legal Sub-Committee 57th Meeting’). Mr Morozov of the Soviet Union criticised the ‘hypocritical assertions made by the United States delegation in the Security Council, and no justification for the shameful aggressive war still being waged by the United States in Viet-Nam’: at 15. Mr Glaser of Romania ‘[drew] attention to certain circumstances which represented an obstacle to all international cooperation ... the aggression of the United States in Viet-Nam’: Committee on the Peaceful Uses of Outer Space, Legal Sub‑Committee, Summary Record of the Sixty-First Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.61 (20 October 1966) 5.
[22] Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII), UN GAOR, 18th sess, 1280th plen mtg, UN Doc A/RES/18/1962 (13 December 1963) para 6.
[23] Outer Space Treaty (n 1) art IX.
[24] Gardiner (n 11) 162–3, 174, 210; Application of the Convention on Genocide (n 11) 110 [160].
[26] Ibid art 31(3)(a).
[27] Ibid art 31(3)(b).
[28] See, eg, Brian G Slocum and Jarrod Wong, ‘The Vienna Convention and Ordinary Meaning in International Law’ (2021) 46(2) Yale Journal of International Law 191.
[29] Oxford English Dictionary (online at 3 October 2022) ‘regard’ (n, def I.1.b).
[30] See, eg, Julia Gaunce, ‘On the Interpretation of the General Duty of “Due Regard”’ in Aldo Chircop, Scott Coffen-Smout and Moira L McConnell (eds), Ocean Yearbook 32 (Brill Nijhoff, 2018) 27, 28.
[31] See, eg, Convention on International Civil Aviation, opened for signature 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) art 3(d), which requires states to have ‘due regard for the safety of navigation of civil aircraft’ when issuing regulations for state aircraft. See also United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered force 16 Nov 1994) art 60(3) (‘UNCLOS’), which requires states removing artificial islands, installations or structures to have ‘due regard to fishing, the protection of the marine environment and the rights and duties of other States’. It also requires states ‘when laying submarine cables or pipelines [to] have due regard to’ those already in position: at art 79(5). The Charter of the United Nations art 23(1) requires the General Assembly to elect non-permanent members of the Security Council with ‘due regard being specially paid’ to contributions by member states to ‘the maintenance of international peace and security’ and also ‘to equitable geographical distribution’. It also requires ‘due regard’ be given to ‘recruiting staff on as wide a geographical basis as possible’: at art 101(3).
[32] See, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Thirteenth Meeting, UN Doc A/AC.105/C.2/SR.13 (22 August 1962) 7, where Mr Meeker of the US suggests a working group selection should be made with ‘due regard for the appropriate representation of the various areas of the world’. See also UN GAOR, 1st Comm, 18th sess, 1342nd mtg, Agenda Item 28, UN Doc A/C.1/SR.1342 (2 December 1963) 160 (‘First Committee 1342nd Meeting’), where Mr Fedorenko of the Soviet Union spoke of ‘working out of suitable solutions to major international problems with due regard for the interests of all concerned’.
[33] Sir Humphrey Waldock, Special Rapporteur, ‘Document A/CN.4/186 and Add.1–7: Sixth Report on the Law of Treaties’ [1966] II Yearbook of the International Law Commission 51, 95.
[34] Reports of the International Law Commission on the Second Part of Its Seventeenth Session (3–28 January 1966) and on Its Eighteenth Session (4 May–19 July 1966), UN GAOR, 21st sess, Supp No 9, UN Doc A/6309/Rev.1 (1966) 52.
[35] Outer Space Treaty (n 1) art IX.
[36] Ibid art I.
[37] Ibid art III.
[38] Ibid art V.
[39] Ibid art IX.
[40] Ibid arts X, XI.
[41] Ibid Preamble; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, GA Res 2222 (XXI), UN GAOR, 21st sess, 1499th plen mtg, UN Doc A/RES/21/2222 (19 December 1966).
[42] Outer Space Treaty (n 1) Preamble.
[43] Ibid art I.
[45] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968) (‘Rescue and Return Agreement’); Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972) (‘Liability Convention’); Convention on Registration of Objects Launched into Outer Space, opened for signature 14 January 1975, 1023 UNTS 15 (entered into force 15 September 1976) (‘Registration Convention’); Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (‘Moon Agreement’).
[46] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Status of International Agreements Relating to Activities in Outer Space as at 1 January 2022, 61st sess, Provisional Agenda Item 6, UN Doc A/AC.105/C.2/2022/CRP.10 (28 March 2022) 10 (‘Status of International Agreements’).
[47] International Law Commission, Report of the International Law Commission, UN GAOR, 73rd sess, Supp No 10, UN Doc A/73/10 (30 April–1 June and 2 July–10 August 2018) 16, 30–1 [10], [13]–[14] (‘ILC Subsequent Agreements and Practice Draft Conclusions’).
[48] Ibid 30 [11]–[12]. See below Parts III(C), III(D).
[49] Rescue and Return Agreement (n 45) Preamble.
[50] Ibid arts 1–4.
[51] Ibid art 5.
[52] Liability Convention (n 45) Preamble.
[53] VCLT (n 11) art 31(3)(b).
[54] ILC Subsequent Agreements and Practice Draft Conclusions, UN Doc A/73/10 (n 47) 12, 51–2, 54.
[55] See the full range of reports and other documentation: ‘Analytical Guide to the Work of the International Law Commission: Subsequent Agreements and Subsequent Practice in Relation to Interpretation of Treaties’, International Law Commission (Web Page, 9 June 2022) <https://legal.un.org/ilc/guide/1_11.shtml>, archived at <https://perma.cc/8EDY-54LM>.
[56] Georg Nolte, Special Rapporteur, Second Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, UN GAOR, 66th sess, UN Doc A/CN.4/671 (26 March 2014) 125 [43], 128 [55] (‘Second ILC Report’); ILC Subsequent Agreements and Practice Draft Conclusions, UN Doc A/73/10 (n 47) 75–7.
[57] ILC Subsequent Agreements and Practice Draft Conclusions, UN Doc A/73/10 (n 47) 43.
[58] Ibid 70–4.
[59] Marcelo G Kohen, ‘Desuetude and Obsolescence of Treaties’ in Enzo Cannizzarro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press, 2011) 350, 357.
[60] See, eg, US Department of State, ‘Russia Conducts Destructive Anti-Satellite Missile Test’ (Press Statement, 15 November 2021), referring to the Russian Anti-Satellite Weapons (‘ASAT’) test as ‘reckless and irresponsible’ and calling on states to ‘develop norms of responsible behaviour’, without invoking any legal obligation under the space treaties’ framework. In 2018, French Defence Minister Florence Parly accused Russia of ‘espionage’ and ‘unfriendly’ actions over a close approach of the Russian Luch/Olymp satellite to one of its own satellites in geospatial orbit, but similarly did not invoke international law or the Outer Space Treaty: Angelique Chrisafis, ‘“Act of Espionage”: France Accuses Russia of Trying to Spy on Satellite Data’, The Guardian (online, 8 September 2018) <https://www.theguardian.com/world/2018/sep/07/france-accuses-russia-spying-satellite-communications-espionage>, archived at <https://perma.cc/6PSC-CZKB>.
[61] Philippines Paper on Due Regard, UN Doc A/AC.294/2022/WP_ (n 10).
[62] Second ILC Report, UN Doc A/CN.4/671 (n 56) 129 [59].
[63] Ibid 131 [66].
[64] Temple of Preah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 23.
[66] See, eg, ‘China Anti-Satellite Test Draws Global Ire’, CBS News (online, 19 January 2007) <https://www.cbsnews.com/news/china-anti-satellite-test-draws-global-ire/>, archived at <https://perma.cc/36ZK-G2LW>; Chelsea Gohd, ‘Russian Anti-Satellite Missile Test Draws Condemnation from Space Companies and Countries’, Space.com (online, 10 August 2022) <https://www.space.com/crussian-anti-satellite-missile-test-world-condemnation>, archived at <https://perma.cc/3LQQ-4TVL>.
[67] Park Si-soo, ‘Japan, Germany Declare Moratorium on Anti-Satellite Missile Tests’, Space News (online, 14 September 2022) <https://spacenews.com/japan-germany-declare-moratorium-on-anti-satellite-missile-tests/>, archived at <https://perma.cc/45WS-GEW6>.
[68] NASA Office of Public Affairs, ‘Reentry of US Satellite’ (Media Briefing, 14 February 2008). NASA Administrator Michael Griffin said (at 18):
There are good times to conduct the intercept and poor times to conduct the intercept based on the positioning of the Station, and I and my colleagues will work together to make sure that, if possible, we pick one of the good times, but even the bad times are not too bad, and I would assure all of you that we are conducting this with due regard to the safety of people on orbit.
[69] Second ILC Report, UN Doc A/CN.4/67 (n 56) 125 [43], 128 [55]; ILC Subsequent Agreements and Practice Draft Conclusions, UN Doc A/73/10 (n 47) 75–7.
[70] ILC Subsequent Agreements and Practice Draft Conclusions, UN Doc A/73/10 (n 47) 17, 20–1.
[72] Ibid art 32(a).
[73] Ibid art 32(b).
[74] Ibid art 32.
[75] Philippines Paper on Due Regard, UN Doc A/AC.294/2022/WP_ (n 10).
[76] Ibid 1 [3].
[77] Ibid.
[78] New Zealand Ministry of Foreign Affairs and Trade, Norms, Rules and Principles of Responsible Behaviours in Space: New Zealand Contribution (Report, May 2021) 3 [10]–[11], submitted to inform Reducing Space Threats through Norms, Rules and Principles of Responsible Behaviours: Report of the Secretary-General, 76th sess, UN Doc A/76/77 (13 July 2021). See also United Kingdom, Rules and Principles of Responsible Behaviours, Agenda Item 5, UN Doc A/AC.294/2022.WP.11 (10 May 2022) [17]; Chair’s Summary of Discussions under Agenda Items 5 and 6(a), Agenda Items 5 and 6(a), UN Doc A/AC.294/2022/3 (20 May 2022) [8]; European Union, Second Part: Existing International Legal and Other Normative Frameworks concerning Threats Arising from State Behaviours with Respect to Outer Space, Agenda Item 6, UN Doc A/AC.294/2022/WP.5 (5 May 2022) 4 [18]–[20].
[79] Philippines Paper on Due Regard, UN Doc A/AC.294/2022/WP_ (n 10) 2 [9].
[80] Status of International Agreements, UN Doc A/AC.105/C.2/2022/CRP.10 (n 46) 10.
[81] See generally Committee on the Peaceful Uses of Outer Space, Verbatim Record of the One Hundred and Seventy-Second Meeting, UN Doc A/AC.105/PV.172 (20 July 1977) 87, where the Austrian delegate expressed disappointment at the lack of progress on finalising the Moon Agreement given that ‘the major part of such a draft was already formulated and approved by the Sub-Committee five years ago’.
[82] Moon Agreement (n 45) Preamble, arts 2, 4.
[83] Outer Space Treaty (n 1) art IX.
[84] 1959 Ad Hoc Committee Report, UN Doc A/4141 (n 15) 29.
[85] A Sobolev, Permanent Representative of the Union of Soviet Socialist Republics to the United Nations, Union of Soviet Socialist Republics: Request for the Inclusion of an Item in the Provisional Agenda for the Thirteenth Session, UN GAOR, 13th sess, Agenda Item 60, UN Docs A/3818 and Corr.1 (17 March 1958) [15], [18].
[86] Henry Cabot Lodge, Permanent Representative of the United States of America to the United Nations, United States of America: Request for the Inclusion of an Additional Item in the Agenda of the Thirteenth Session, UN GAOR, 13th sess, Agenda Item 60, UN Doc A/3902 (2 September 1958) [3].
[87] International Cooperation in the Peaceful Uses of Outer Space, GA Res 1472 (XIV), UN GAOR, 14th sess, 856th plen mtg, UN Doc A/RES/1472 (XIV) (12 December 1959) (‘GA Resolution 1472’).
[88] International Cooperation in the Peaceful Uses of Outer Space, GA Res 1721 (XVI), UN GAOR, 16th sess, 1085th plen mtg, UN Doc A/RES/1721 (20 December 1961).
[89] Committee on the Peaceful Uses of Outer Space, Verbatim Record of the Second Meeting, UN Doc A/AC.105/PV.2 (4 May 1962) 13–15.
[90] USSR Proposal: Declaration of the Basic Principles Governing the Activities of States Pertaining to the Exploration and Use of Outer Space, UN Doc A/AC.105/C.2/L.1 (6 June 1962) 2.
[91] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Seventh Meeting, 1st sess, Agenda Item 3, UN Doc A/AC.105/C.2/SR.7 (21 August 1962) 8–9; Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Ninth Meeting, UN Doc A/AC.105/C.2/SR.9 (21 August 1962) 3, 7 (‘Legal Sub-Committee Ninth Meeting’); Committee on the Peaceful Uses of Outer Space Legal Sub-Committee, Summary Record of the Tenth Meeting, UN Doc A/AC.105/C.2/SR.10 (21 August 1962) 3 (‘Legal Sub-Committee 10th Meeting’).
[92] See, eg, UNCOPUOS 13th Meeting, UN Doc A/AC.105/PV.13 (n 19) 17, where Mr Dauge of France stated that
[d]espite the arguments of my friend Mr Morozov, my delegation thinks that the present draft would give third States the possibility of blocking the carrying out of national or international programmes on scientific pretexts, whereas as a matter of fact their designs would be purely political in nature.
[93] Legal Sub-Committee 10th Meeting, UN Doc A/AC.105/C.2/SR.10 (n 91) 3 (Miss Gutteridge, UK). See also Legal Sub-Committee Ninth Meeting, UN Doc A/AC.105/C.2/SR.9 (n 91) 8, where Mr Sztucki of Poland said:
[A] constructive effort should be made to qualify the concept of freedom of exploration and use of outer space by States to that there would be no interference with the equal rights of others, and to establish some internationally recognized standards of conduct by States by drawing distinction between the kind of action that was allowed and the kind of action that was prohibited.
Mr Georgiev of Bulgaria stated that ‘an elementary and essential rule of general law ... applied in all societies: that the free exercise of any activity in a society was governed by the legal rights of the other persons in that society’: at 11.
[94] AH Campbell for Sir Patrick Dean, Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations, Letter Dated 4 December 1962 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the Chairman of the First Committee, UN GAOR, 17th sess, Agenda Item 27, UN Doc A/C.1/879 (4 December 1962) [1].
[95] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Provisional Summary Record of the Twenty-First Meeting, UN Doc A/AC.105/C.2/SR.21 (25 April 1963) 6; Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Provisional Summary Record of the Twenty-Second Meeting, UN Doc A/AC.105/C.2/SR.22 (26 April 1963) 11. Note the endorsement of the UK delegation’s draft and the concept of ‘due regard to the interests of other states’: Legal Sub-Committee 24th Meeting, UN Doc A/AC.105/C.2/SR.24 (n 3) 11.
[96] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, opened for signature 5 August 1963, 480 UNTS 43 (entered into force 10 October 1963).
[97] Committee on the Peaceful Uses of Outer Space, Verbatim Record of the Twentieth Meeting, UN Doc A/AC.105/PV.20 (10 October 1963) 5, 17.
[98] Legal Sub-Committee 24th Meeting, UN Doc A/AC.105/PV.24 (n 3) 14, 18; First Committee 1342nd Meeting (n 32), UN Doc A/C.1/SR.1342 160–1 [13].
[99] Legal Sub-Committee 24th Meeting, UN Doc A/AC.105/PV.24 (n 3) 14.
[100] See, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Records of the 29th to 37th Meetings, UN Doc A/AC.105/C.2/SR.29–37 (24 August 1964) 72.
[101] See, eg, Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Sixty-Fifth Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.65 (24 October 1966) 4; Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Sixty-Second Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.62 (24 October 1966) 2–3.
[102] GA Resolution 1472, UN Doc A/RES/1472 (n 87).
[103] Moon Agreement (n 45) art 4.
[104] First Committee 1491st Meeting, UN Doc A/C.1/SR.1491 (n 14) 418.
[105] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Sixty-Eighth Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.68 (21 October 1966) 10. See also at 9; Verbatim Record of the Fourteen Hundred and Ninety-Second Meeting, 1st Comm, 21st sess, 1492nd mtg, UN Doc A/C.1/PV.1492 (27 January 1967). Mr Goldberg of the US indicated that art IX is one of two provisions in the complete Outer Space Treaty which ‘concretely illustrate’ the cooperative spirit which states should demonstrate in space: at 17.
[106] UN GAOR, 1st Comm, 21st sess, 1493rd mtg, Agenda Items 30, 89 and 91, UN Doc A/C.1/SR.1493 (17 December 1966) 440 [49].
[107] See below Part IV.
[108] Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Seventieth Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.70 (21 October 1966) 7 (‘Legal Sub-Committee 70th Meeting’).
[109] Mathias Forteau, ‘The Legal Nature and Content of “Due Regard” Obligations in Recent International Case Law’ (2019) 34(1) International Journal of Marine and Coastal Law 25, 31–2.
[110] See, eg, Philippines Paper on Due Regard, UN Doc A/AC.294/2022/WP_ (n 10); Nasu and Schmitt (n 10); Hanlon (n 10); Goehring (n 9); Neta Palkovitz, ‘Exploring the Boundaries of Free Exploration and Use of Outer Space: Article IX and the Principle of Due Regard, Some Contemporary Considerations’ in Rafael Moro-Aguilar, PJ Blount and Tanja Masson‑Zwaan (eds), Proceedings of the International Institute of Space Law 2014 (Eleven International Publishing, 2014) 93, 98.
[111] ‘Due regard’ appears 22 times in UNCLOS (n 31).
[112] Caroline E Foster, Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard and Due Diligence (Oxford University Press, 2021) 27.
[113] See, eg, Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (Award) (UNCLOS Arbitral Tribunal, 7 July 2014) [507]–[508]; Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award) (UNCLOS Arbitral Tribunal, 18 March 2015) [518]–[541] (‘Chagos Marine Protected Area Arbitration’); South China Sea Arbitration (Philippines v China) (Award) (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) [741]–[757] (‘South China Sea Arbitration’). The South China Sea Arbitration also considered the concept of ‘due regard to the observance of good seamanship’ under r 8 of the 1972 Convention on the International Regulations for Preventing Collisions at Sea, signed 20 October 1972, 1050 UNTS 16 (entered into force 15 July 1977), which ITLOS considered had been incorporated into UNCLOS by art 94: see South China Sea Arbitration (n 113) [1082]–[1083], [1101].
[114] UNCLOS (n 31) art 87(2).
[115] Ibid art 87(1).
[116] Ibid art 87(2).
[117] M/V ‘Norstar’ (Panama v Italy) (Judgment) (International Tribunal for the Law of the Sea, Case No 25, 10 April 2019) [231], [293].
[118] UNCLOS (n 31) art 56(2).
[119] Ibid art 58(3).
[120] Ibid Part V.
[122] Chagos Marine Protected Area Arbitration (n 113) [519].
[123] UNCLOS (n 31) art 56(b).
[124] Ibid arts 61–8.
[125] Chagos Marine Protected Area Arbitration (n 113) [519].
[126] Riparian law governs the use of rivers and other waterways.
[127] Foster (n 112) 90, quoting Lake Lanoux Arbitration (France v Spain) (Decision) (1957) 24 ILR 101, 139 [22].
[128] Miles Lifson and Richard Linares, ‘Op-Ed: Is There Enough Room in Space for Tens of Billions of Satellites, as Elon Musk Suggests? We Don’t Think So’, Space News (online, 4 January 2022) <https://spacenews.com/op-ed-is-there-enough-room-in-space-for-tens-of-billions-of-satellites-as-elon-musk-suggests-we-dont-think-so/>, archived at <https://perma.cc/7BR4-ZSCE>.
[129] ‘Types of Orbits’, European Space Agency (Web Page, 30 March 2020) <https://www.esa.int/Enabling_Support/Space_Transportation/Types_of_orbits>, archived at <https://perma.cc/H3YL-8HUQ>.
[130] Holli Riebeek, ‘Catalog of Earth Satellite Orbits’, NASA Earth Observatory (Web Page, 4 September 2009) <https://earthobservatory.nasa.gov/features/OrbitsCatalog>, archived at <https://perma.cc/6KZ2-GWSD>.
[131] Registration Convention (n 45) arts III–IV.
[133] Chagos Marine Protected Area Arbitration (n 113) [540].
[134] Ibid [519].
[135] Whaling in the Antarctic (Australia v Japan) (Judgment) [2014] ICJ Rep 226.
[136] Ibid 257 [83].
[137] Ibid 269–72.
[138] See, eg, Secure World Foundation, Space Sustainability: A Practical Guide (Report, 2018) 16; Jeff Foust, ‘Data Sharing Seen as Critical to Future of Space Situational Awareness’, Space News (online, 20 September 2019) <https://spacenews.com/data-sharing-seen-as-critical-to-future-of-space-situational-awareness/>, archived at <https://perma.cc/X2X6-P3WL>.
[139] See, eg, US Space Command Public Affairs Office, ‘USSPACECOM Signs 100th Commercial Agreement to Share Space Data, Service’, US Space Command (Web Page, 1 July 2021) <https://www.spacecom.mil/Newsroom/News/Article-Display/Article/2680576/ usspacecom-signs-100th-commercial-agreement-to-share-space-data-service/>, archived at <https://perma.cc/W5A3-QB4T>.
[140] Outer Space Treaty (n 1) art IX.
[141] Ibid art XI (emphasis added).
[142] Ibid.
[143] Legal Sub-Committee 57th Meeting, UN Doc A/AC.105/C.2/SR.57 (n 21) 7, 16; Committee on the Peaceful Uses of Outer Space, Legal Sub-Committee, Summary Record of the Sixty‑Fourth Meeting, 5th sess, UN Doc A/AC.105/C.2/SR.64 (24 October 1966) 11; Legal Sub‑Committee 70th Meeting, UN Doc A/AC.105/C.2/SR.70 (n 108) 5.
[144] 1959 Ad Hoc Committee Report, UN Doc A/4141 (n 15) 9–10 [15], 50 [88].
[145] See, eg, launching human remains, cheese or terrestrial motor vehicles: Roger Cormier, ‘17 Odd Things We’ve Sent to Space for Some Reason’, Mental Floss (Web Page, 6 August 2014) <https://www.mentalfloss.com/article/58171/15-odd-things-weve-sent-space-some-reason>, archived at <https://perma.cc/B5SC-CYHA>.
[146] See ‘The Cost of Space Debris’, European Space Agency (Web Page, 7 May 2020) <https://www.esa.int/Space_Safety/Space_Debris/The_cost_of_space_debris>, archived at <https://perma.cc/942M-WCLD>.
[147] Under VCLT (n 11) art 31(3)(b).
[148] Provisional Verbatim Record of the Eighteen Hundred and Sixty-Sixth Meeting, 1st Comm, 27th sess, 1866th mtg, UN Doc A/C.1/PV.1866 (18 October 1972) 14–15.
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