Proceedings of the International Institute of Space Law 2015 9789462745957, 9789462366992

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2015 PROCEEDINGS OF THE INTERNATIONAL INSTITUTE OF SPACE LAW

Proceedings of the International Institute of Space Law 2015

Proceedings of the International Institute of Space Law 2015

P.O. Box 85576 2508 CG The Hague The Netherlands Tel.: +31 70 33 070 33 Fax: +31 70 33 070 30 e-mail: [email protected] www.elevenpub.com Sold and distributed in USA and Canada International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786, USA Tel.: 1-800-944-6190 (toll-free) Fax: +1-503-280-8832 [email protected] www.isbs.com

Editors Rafael Moro-Aguilar, Editor P.J. Blount, Editor Tanja Masson-Zwaan, IISL President Eleven International Publishing is an imprint of Boom uitgevers Den Haag. ISBN 978-94-6236-699-2 ISBN 978-94-6274-595-7 (E-book) © 2016 The authors | IISL This publication is protected by international copyright law. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher. Printed in The Netherlands

Table of Contents Preface T. Masson-Zwaan

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About the IISL

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Board of Directors 2015-2016

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New Members Elected in 2015

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Standing Committee on the Status of International Agreements Relating to Activities in Outer Space

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IISL Board of Directors Position Paper on Space Resource Mining (2015)

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58th IISL COLLOQUIUM ON THE LAW OF OUTER SPACE JERUSALEM, ISRAEL SESSIONS 1. Nandasiri Jasentuliyana Keynote Lecture on Space Law & 7th Young Scholars Session The Impact of National Space Legislation on Private Space Undertakings: A Regulatory Competition between States? Dimitri Linden, Winner of the 2015 Isabella H.Ph. DiederiksVerschoor Award for Best Paper by a Young Author

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Sustainable Space Exploration and Use: Space Mining in Present and Future Perspectives Rishiraj Baruah & Nandini Paliwal

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The International Regime Governing Exploitation of Natural Resources in Outer Space: Potential Process of Formulation Yangzi Tao & Guoyu Wang

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The Effects of the Fragmentation of International Law on Aerospace Regulation Charles Stotler

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The Legal Implications of Erroneous GNSS Signal, Resulting from Harmful Interference Simona Spassova & Andreas Loukakis

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The Intellectual Property Rights Regime for the Development Phase of Galileo Caroline Thro

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Extraterrestrial Extraterritoriality: Enforceability of Patents from the Earth to the Moon Brendan Cohen & Elena Carpanelli

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NASA’s Transactional Approach to Commercializing Space Systems Activities: A Novel Way Forward Brian M. Stanford

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Identifying Elements of lex mercatoria in the Space Domain Anja Nakarada Pecujlic

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2. The Relationship of International Humanitarian Law and Territorial Sovereignty with the Legal Regulation of Outer Space The Applicability of the United Nations Space Treaties during Armed Conflict Steven Freeland & Ram S. Jakhu Practical Application of jus in bello and jus ad bellum to the Legal Regulation of Outer Space Environment Olusoji Nester John, Victoria Morenike John-Olorioke, Ololade Olateru-Olagbegi & Olaposi Adedolapo Olaseeni

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Avoiding Legal Black Holes: International Humanitarian Law Applied to Conflicts in Outer Space Cassandra Steer

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Extending the International Law Principle of Good Neighborliness to Outer Space Motolani Fadahunsi-Banjo

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Environmental Protection as a Limitation to the Use of Force in Outer Space Peter Stubbe

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Humanitarian Law Implemented: Space Communication in the Service of International Humanitarian Law Mahulena Hofmann & Loren François Florey

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The Applicability of the Right to Self-Defence to the Area of Exploration and Exploitation of Outer Space Olga A. Volynskaya

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Cybersecurity in the Space Age Michael Potter

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3. The Portrayal of Space (Law) in Media and Movies Space Law and the Media: Science Fiction Movies on the Moon Rafael Moro-Aguilar Where Law Meets Cinema: James Cameron’s Avatar as Food for Thought about the Anthropocentric Nature of Space Law George D. Kyriakopoulos The Hard or Soft Law of “Gravity”? Larry F. Martinez Bugs Bunny and Daffy Duck vs. Marvin the Martian – A Perspective from (Earthly) International Space Law Annette Froehlich

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The Meaning of Life and Close Encounters of the Commercial Kind George Anthony Long

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Avatar Film: Perspectives from Space Law Álvaro Fabricio dos Santos & José Monserrat Filho

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4. Legal Issues of Space Traffic Management Space Traffic Management: A Challenge of Cosmic Proportions Frans G. von der Dunk

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Space Traffic Management Regime Needs and Organizational Options 397 James D. Rendleman & Brian D. Green

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Space Traffic Management and the United States Data Sharing Environment P.J. Blount The Current Practice of the European Space Agency in Registering Its Space Objects Launched into Earth Orbit or Beyond Alexander Soucek, Tim Flohrer, Stijn Lemmens, Marco Ferrazzani, Pierre Reynaud & Stefan Frey Looking into the Future: The Case for an Integrated Aerospace Traffic Management Michael Chatzipanagiotis An Economic Analysis of the Legal Liabilities of GNSS Hatsuru Morita

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The Impact of Growth Markets in the Downstream Sector – The Parameters for Connectivity and Services: Beyond Outer Space Law Lesley Jane Smith

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Legal Regulation of the Commercial Use of the Radio-Frequency Spectrum Elina Morozova

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Right of Way for On-Orbit Space Traffic Management Nathan A. Johnson

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5. Recent Developments in Space Law The Controversial Rules of International Law Governing Natural Resources of the Moon and Other Celestial Bodies Maureen Williams

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How Simple Terms Mislead Us: The Pitfalls of Thinking about Outer Space as a Commons Henry R. Hertzfeld, Brian Weeden & Christopher D. Johnson

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Who Owns the Natural Resources on Asteroids? Guoyu Wang & Yangzi Tao

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Hypothetical “Exploration and Use of Outer Space Act of 2015” Dennis J. Burnett

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Space Legislation for Developing Countries – Lessons from Europe Kumar Abhijeet

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Spain: Towards a National Space Legislation and a Spanish Space Agency? María-del-Carmen Muñoz-Rodríguez

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Small But on the Radar: The Regulatory Evolution of Small Satellites in the Netherlands Neta Palkovitz & Tanja Masson-Zwaan

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Legal Issues in China’s Future Participation in the Space Protocol to the Cape Town Convention Yun Zhao

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European Earth Observation Data Policy – Meeting Various Goals by Multiple and Diverse Actors: A Herculean Task? Irmgard Marboe

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International Legal Issues on Developing Space-Based Solar Power Shouping Li

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Earth in Danger and Space Law José Monserrat Filho

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JOINT IISL/IAF SESSION Legal Framework for Cooperative Space Activities International Cooperation Mechanisms Used by the United States in the Peaceful Exploration and Use of Outer Space Sumara M. Thompson-King & Robin J. Frank Global Space Governance for Ensuring Responsible Use of Outer Space, Its Sustainability and Environmental Security: Legal Perspective Olga S. Stelmakh Impact of International Code of Conduct for Outer Space Activities and EU Contribution to Collaborative Projects – Devising a New Approach for Space Law in Europe Anita Rinner

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INTERACTIVE PRESENTATIONS Space Stations and International Cooperation: Possible Models of Jurisdiction for the Impending China Space Station (CSS) Jie Long

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Assistance by the Launching Authority – Requirement or Entitlement? Hannes Mayer

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Policy Considerations for New Human Space Exploration Strategies: The Space Generation Perspective Chantelle Dubois, Laszlo Bacsardi, S. Ali Nasseri, Michael Deiml, Alana Bartolini, Kate Howells, Abhijeet Kumar & Jessica Todd Mining Outer Space: Overcoming Legal Barriers to a Well-Promising Future Maria Manoli Space Law Principles in Action: Case Study of Human Exploration in Outer Space in Mass Effect, the Trilogy of Role-Playing Video Games Kamil Dobrowolski International Code of Conduct for Outer Space Activities: Analysis from an Institutional Perspective Anastasia Voronina Internet from the Sky: Legal Challenges Dimitrios Stratigentas & Mclee Kerolle

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COLLOQUIUM REPORT Report of the 58th Colloquium on the Law of Outer Space Jerusalem, Israel, 2015 Dimitrios Stratigentas, Neta Palkovitz, Simona Spassova, Michael Chatzipanagiotis, Deepika Jeyakodi, Andreas Loukakis & Olga S. Stelmakh Compiled and edited by P.J. Blount & Rafael Moro-Aguilar

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30th IAA-IISL SCIENTIFIC-LEGAL ROUNDTABLE Universities as Actors in Space Report of the Roundtable Christiane Lechtenbörger & Nicola Rohner-Willsch

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IAA-IISL INTERNATIONAL CONFERENCE ON CLIMATE CHANGE AND DISASTER MANAGEMENT KERALA, INDIA (26-28 February 2015) Report of the Conference V. Gopalakrishnan, Shripad Jagdale & Kumar Abhijeet Role of Non-State Actor in Enforcing Environmental Laws vis-a-vis Remote Sensing Technology and International Obligations Kumar Abhijeet

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Legal Framework of Indian Satellite Data Measuring Climate Changes Malay Adhikari

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Intellectual Property Rights Protection for Data Received from Outer Space Sadaf Amrin Fathima

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International Programs and Initiatives on Space for Disaster Management Shripad Jagdale

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Disaster Management Law in the Space Age Paul B. Larsen Climate Change and Role of Outer Space: A Multilevel Framework for Legal and Policy Issues K.R. Sridhara Murthi & V. Gopalakrishnan

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UNITED NATIONS 2015 IISL-ECSL SPACE LAW SYMPOSIUM HELD ON THE OCCASION OF THE 54th SESSION OF THE LEGAL SUBCOMMITTEE OF UNCOPUOS, VIENNA, AUSTRIA Space Traffic Management (13 April 2015) Program of the Symposium

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Report of the Symposium Carol A. Anderson & Mclee Kerolle Edited by Rafael Moro-Aguilar

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Rights and Obligations in the International Commons – The Case of Outer Space Stephan Hobe

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10th EILENE M. GALLOWAY SYMPOSIUM ON CRITICAL ISSUES IN SPACE LAW, WASHINGTON D.C., UNITED STATES Through the Looking-Glass of Time: What Has Been Achieved and Where It Leads (December 2015) Program of the Symposium

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Report of the Symposium P.J. Blount

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Excerpts from and Expansion of Luncheon Keynote Sumara M. Thompson-King

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24th MANFRED LACHS SPACE LAW MOOT COURT COMPETITION Report of the 2015 Manfred Lachs Space Law Moot Court Competition (Introduction, Case and Winning Memorials) Martha Mejía-Kaiser

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Author Index

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Preface Highlights of the IISL in 2015 and a Personal Message Tanja Masson-Zwaan IISL Secretary 1991-2007; IISL President 2007-2016 This Preface provides an overview of IISL events and activities throughout 2015, and as this is the last one in my name, it concludes with a personal message on the occasion of the end of my term as President of IISL. In Memoriam

In 2015 we lost two space law pioneers. Prof. Dr. Priyatna Abdurrasyid passed away in Jakarta, Indonesia on May 22, 2015 at the age of 85. As appreciation for Professor Priyatna’s contributions to Indonesia, a State Funeral was held in Jakarta. He was Board Member of the IISL and served as its Secretary from 1979-1985. He became Honorary Director 1993 and received the IISL Lifetime Achievement Award that year. Barely a week later, on May 28, Prof. Yuri Kolosov passed away in Russia. Yuri Kolosov made a significant contribution to the development of the principles of international space law. He lectured at many universities all over the world and authored over 250 publications, including 5 monographs. His textbook co-authored with Professor Gennady Zhukov stands in testimony to his contribution to the subject. Obituaries are published on the IISL website at the ‘In Memoriam’ section. Conferences

IISL organized the following events in 2015: From 26-28 February 2015, the IAA-IISL Conference on Climate Change and Disaster Management was held in Trivandrum, India. It was coorganised by the IAA, the IISL and the Kerala State Council for Science, Technology and Environment (KSCSTE), and addressed the contribution of space activities to understanding and solving the problems of climate change and disaster management from technical/technological, policy and legal perspectives. It included two legal sessions addressing the legal aspects of climate change and disaster management. Their papers are published in this volume of the Proceedings.

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On 13 April 2015, on the occasion of the 54th Session of the Legal Subcommittee of the UN COPUOS in Vienna, Austria, the IISL and the European Centre for Space Law (ECSL) organized the annual Symposium for delegates of the COPUOS Legal Subcommittee. The symposium addressed Space Traffic Management. The Coordination Committee consisted of Joanne Gabrynowicz (Board of Directors, IISL), Corinne Jorgenson (Board of Directors, IISL), Diane Howard (Executive Secretary, IISL), P.J. Blount (Assistant Executive Secretary, IISL), Sergio Marchisio (President, ECSL), and Edmond Boulle (Executive Secretary ECSL). The program and a report are included in this volume. The 58th IISL Colloquium was held from 12-16 October 2015, in conjunction with the 65th IAC, in Jerusalem, Israel. The IISL hosted five legal sessions, as well as two joint sessions with IAA and IAF respectively. Prof. Joanne Gabrynowicz delivered the Nandasiri Jasentuliyana Keynote Lecture on Tuesday 13 October, followed by the 7th Young Scholars Session. Further sessions analyzed the subjects of the Relationship of International Humanitarian Law and Territorial Sovereignty with the Legal Regulation of Outer Space, the Portrayal of Space (Law) in Media and Movies, the Legal Issues of Space Traffic Management, as well as the Recent Developments in Space Law. The 30th IAA-IISL Scientific/Legal Roundtable addressed the topic “Universities as Actors in Space”, and the joint session with IAF concentrated on the Legal Framework for Collaborative Space Activities. Finally, the IISL contributed to a Plenary Event on Small Satellites. The sessions were expertly managed by Colloquium Coordinators Lesley Jane Smith and Mahulena Hofmann, with excellent help from Olga Stelmakh and Andreas Loukakis. The papers presented in all these sessions, as well as a report of the IISL sessions and of the Roundtable, are published in this volume of the Proceedings. The anniversary 10th Eilene Galloway Symposium on Critical Issues in Space Law was held at the Cosmos Club in Washington DC on 9 December 2015. The topic was ‘Through the Looking-Glass of Time; What has Been Achieved and Where it Leads’. U.S. Representative Brian Babin (Republican, Texas), Chairman of the Space Subcommittee, House Science, Space and Technology Committee opened the event. Keynote Speakers included Sumara ThompsonKing, General Counsel, NASA, and Doug Loverro, Deputy Assistant Secretary of Defense for Space Policy. The programme and a report are published in these Proceedings, as well as the presentation by NASA General Counsel, Sumara Thompson-King. Manfred Lachs Space Law Moot Court Competition 24th Manfred Lachs Moot Court Competition

In 2015, nearly sixty teams from four regions (Africa with seven teams, Asia Pacific with twenty-four teams, Europe with fifteen teams and North America with eleven teams) competed throughout the year. The teams from the

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University of Mississippi Law school (United States), National and Kapodistrian University of Athens (Europe), Obafemi Awolowo University (Africa) and NALSAR University of Law, Hyderabad (Asia-Pacific) met in Jerusalem, Israel, for the World Finals on October 15, 2015. The 2015 hypothetical Problem was written by Frans von der Dunk (The Netherlands/United States) and Leslie Tennen (United States) and was titled Case Concerning Planetary Defense. It presented dual issues relating to the response to a threat to the Earth posed by the risk of collision with a Near Earth Object and the utilization of natural resources of the celestial object. Judges of the International Court of Justice, Peter Tomka, Dalveer Bhandari and Kirill Gevorgian presided over the Final Pleading between winners of the semi-final rounds, the University of Mississippi and National and Kapodistrian University. The University of Mississippi was ultimately declared winner of the competition and Mr. Athanasios Plexidas, from the National and Kapodistrian University team, was selected as the best oralist. Great thanks are due to the Moot Court Committee, led by co-chairs Martha Mejía-Kaiser, Leslie Tennen and Melisa Force, for their continued efforts in upholding the excellent reputation of the competition and for motivating so many students to engage in the study of space law. Our heartfelt thanks also go to all sponsors of the regional rounds and the world finals. A report about the competition, including the case and the finalists’ briefs is published in this volume. Publications

Eleven International Publishing publishes the annual IISL Proceedings. Members are entitled to a 40% discount. The content of the Proceedings since 1992 is also available via a subscription that is fully searchable on keywords, authors’ names etc. In addition, all volumes of three years and older are available via Heinonline. On December 20, 2015 the IISL Board of Directors issued and adopted by consensus a Position Paper on Space Resource Mining, one month after the adoption of the US Commercial Space Launch Competitiveness Act (H.R. 2262) in November 2015. The IISL Board argues that in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty, one can conclude that the use of space resources is permitted. Viewed from this perspective, the new US Act is a possible interpretation of the Outer Space Treaty. The Board further observes that the US explicitly does not make any claim of sovereign rights over celestial bodies, and that the Act thus pays respect to the international legal obligations of the United States and applicable law on which the property rights to space resources will continue to depend. It considers that the adoption of the law can be a starting point for the development of international rules to be evaluated by means of an international dialogue in order to coordinate the free exploration and use of

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outer space, including resource extraction, for the benefit and in the interests of all countries. The position paper is published on the IISL website, and also reprinted in this volume. Monthly e-Newsletters were mailed to all IISL members in 2015. They are compiled by the Assistant Executive Secretary and contain news, photos, calls for observers to COPUOS, award nominations, board candidates, information about elections, events, and so on. The newsletters are also archived on the IISL website. Awards

The Institute gives several awards and certificates annually to those who have shown outstanding achievement in the field of space law. In the course of the 58th IISL Colloquium in Jerusalem, the IISL conferred the following awards: A Lifetime Achievement Award to Marcia S. Smith (United States), “In recognition of her four decades of outstanding services to the international community of nations and the International Institute of Space Law, to which she has made invaluable contributions as a director and as Vice President, played notable roles in the promotion of research and discourse on policy and legal aspects throughout her distinguished professional career, making significant contributions to the development of literary resources and rendering immense service to academies and policy making bodies at national and international level in the fields of space and astronautics”,

A Distinguished Service Award to Sergio Marchisio (Italy): “In recognition of his outstanding and dedicated services to the International Institute of Space Law and to the international legal community, his distinguished leadership in the development of international space law and institutions such as the European Centre for Space Law; his stewardship in organisation of Manfred Lachs Space Law Moot Court Competitions in Europe; his exceptional contributions to academics and space law literature, and his leading role for advancing international space law in the United Nations and other intergovernmental bodies”,

An Award of Appreciation jointly to Martin Stanford (United Kingdom) and Bernhard Schmidt-Tedd (Germany): “In recognition of their initiative, drive and organization of the Berlin conference of States and their valuable contributions towards the drafting and successful negotiations of the Space Protocol of the UNIDROIT Cape Town Convention, which after a long duration, resulted into a binding new instrument of space law”,

and

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A Certificate of Gratitude to the Japanese Aerospace Exploration Agency (JAXA): “In recognition of its nurturing an exemplary spirit of international cooperation in promoting the capacity for space law among students in the Asia Pacific Region, its longstanding support to the organisation of the Manfred Lachs Space Law Moot Court Competition by financing the winning team of the Asia Pacific Regional to attend the World Finals, and the contributions for organisation of the 2013 Asia Pacific Regional Round at the Keio University in Tokyo”.

The Prof. Dr. I.H.Ph. Diederiks-Verschoor Award was conferred to Dimitri Linden (Belgium) for his paper “The Impact of National Space Legislation on Private Space Undertakings: A Regulatory Competition between States”. The IISL Young Scholars Fund awarded prizes to the participants in the regional rounds of the Manfred Lachs Space Law Moot Court Competition. Elections Board Elections

The following was the result of the 2015 Board elections, managed by the Elections Committee, composed of Jonathan Galloway, Christian Brünner
and Elina Morozova (Chair): Kai-Uwe Schrogl was re-elected VicePresident. P.J. Blount, Marco Ferrazzani, Corinne Jorgenson and Zhenjun Zhang were newly elected as Directors, and Setsuko Aoki, Joanne Gabrynowicz, Lesley Jane Smith, Milton (‘Skip’) Smith, and Maureen Williams were re-elected as Directors. 
 Election of New Members

The Board approved the nomination of several new members of the IISL. Their names are listed in these proceedings. Cooperation

IISL’s close cooperation with UNCOPUOS and the UN Office for Outer Space Affairs continues. Cooperation with our partners at the IAC, the International Astronautical Federation (IAF) and the International Academy of Astronautics (IAA), among others, also continues. Bylaws

The General Assembly in Jerusalem agreed to amend article 3.4 and article 4 of the IISL Bylaws. The amendment to article 3 concerns the transition from Prospective membership to Individual membership and aims to provide additional clarity to the process. The amendment to article 4 concerns the payment of dues per fiscal year instead of calendar year. The revised Bylaws are published on the IISL website.

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Social Media

The Committee on Public Relations Including Social Media (PRISM) issued several press releases in 2015 on issues such as election results, moot court results, etc. The IISL page on Facebook had 3,325 ‘likes’ at the time of the Jerusalem Colloquium. The Facebook page for the Manfred Lachs competition had 2,088 likes in Fall 2015. The IISL Twitter account had 2,775 followers, and the Manfred Lachs competition Twitter account had 1,230 followers. The IISL Group on LinkedIn comprises 139 members and mainly serves as a networking platform. These channels are an excellent means to disseminate information, engage in exchanges with our members and specially to reach out to the wider community and create awareness about space law, the IISL and its activities. A Personal Message

I conclude this Preface not with the usual strategic outlook, but with a look back at nine years as IISL President. In the Spring of 2016 I announced that I would not be seeking re-election after three elected terms, and will leave office after the Guadalajara Colloquium. By then, I will have been a member of the Board for twenty-five (!) years, and the time has come for a new leadership to take the Institute further. I am very proud of the positive changes that I have managed to bring about over the past years, and I would like to close by recalling some of them here. Over the years the impact of IISL has grown, as can be demonstrated by various achievements. For example, the IISL issued two Board statements during my 9-year Presidency. One in 2009, which was a follow up to the first ever statement in 2004, concerning private property rights on the Moon and other celestial bodies. More recently, the December 2015 position paper on the adoption of a national law in the USA on ownership rights of space resources was issued, as reported above. Another sign of the impact of IISL is that several of the topics addressed during the UNCOPUOS symposia, which IISL organizes each year with ECSL, have subsequently been adopted as agenda items of the Legal Subcommittee of COPUOS. An example is the 2014 symposium on the regulation of small satellites. The creation of the Directorate of Studies should also be mentioned in this context. This committee was created in 2008 and plays a major role in formulating statements, replies to questions from COPUOS, and defining the colloquium topics. In the years of my presidency, the Institute has gone through several other institutional reforms that were recorded in amendments of its Statutes and Bylaws. In 2007 the Institute was established as an independent organization

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in The Netherlands after having been dependent of the IAF for several decades, and as a consequence IISL could officially apply to become a permanent observer of the UNCOPUOS in 2008. The statutes were amended in 2009 to reflect this institutional change. The Statutes and Bylaws were again amended to a much larger extent in 2012. At that time, major changes were agreed to modernize the IISL and to bring it more in line with current requirements of democratic processes. The members were deeply involved with the amendment process: in 2011, for the first time ever, the IISL conducted an extensive online membership survey consisting of fifty questions aimed at gaining insight in their views. Board elections is one example where a major change was adopted. An Elections Committee would from now on be appointed by the General Assembly, replacing the Board appointed Nomination Committees. Moreover, elections were to be conducted electronically, so that all IISL members could express their vote, and not only those who attend the IAC. Further, all candidates were to fill in a standard application form that would be placed on the website, outlining for instance their motivations for being a Board member and their previous work in IISL. The current terms of Board members, as well as their bios and photos, were also added to the website, to create transparency about terms of office. Qualification criteria for and responsibilities of various Board positions were specified in the Bylaws. During my years as President, sixteen new Board members have been elected, five women and eleven men. Another major change was the introduction of a new membership category: a 2-year prospective membership for young professionals and students with an interest in space law who do not yet meet the requirements for full membership. They do not pay dues and do not have the right to vote. Since the introduction of this new category, some 50 prospective members have been elected, and some have already transitioned to full membership. The Institute also continuously encourages young space lawyers to be involved in the Institute’s management. In 2008, the position of Assistant Executive Secretary was created, a position consecutively held by bright young lawyers who have since then risen to important positions, including Board membership of IISL. In 2010 the position of Assistant Treasurer was established. These positions are held for a period of 2-3 years, so as to provide an opportunity to many young lawyers. The finances of the Institute have also been improved. The introduction of a new accounting system has helped in streamlining the process of dues payments, and the membership list has gradually been ‘cleaned up’ to reflect the current status more accurately. The financial situation of IISL became much more stable thanks to the 2015 agreement with the IAF to reintroduce a monetary guarantee into the contracts between the IAF and the Local Organising Committee for each IAC. This was the result of complex discussions,

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and will facilitate financing of the IISL moot court and associated events at the IACs, like the annual dinner in the future. That brings me to the Manfred Lachs Space Law Moot Court Competition. I am very proud of the creation and growth of the African round of the competition during the past five years. After an introductory African Round during the Cape Town IAC in 2011, the round started officially in 2012 and is now held annually. It is incredible to see how fast the space law capacity is being built in this continent, and how motivated the often very young students are. This is the result of major efforts coordinated by the Moot Court Committee Co-Chairs, which will hopefully in the future also lead to the creation of a Latin American round. The competition is not only a wonderful tool to build a new generation of space lawyers, it is also instrumental in building space law capacity in many emerging space countries. The numerous members involved each year in judging and organizing the moot court funding rounds, regional rounds and world finals helped realise this success. Another big change for the Lachs Moot Court took place in 2011, when the Asia Pacific round started to rotate in this vast region in stead of being held each year in Australia. This too has helped to grow space law capacity in the region, which can be exemplified by the steep progress made by teams from China. The Judges of the International Court of Justice have been unfailing in their support to the competition named in honour of the Court’s former President. Each year they join us to decide in the World Finals, often traveling great distances despite their busy schedules. On top of that, the original Lachs Trophy found a permanent place on display near the President’s office at the Peace Palace in The Hague. It is hard to believe that it has been twenty-five years since that first event in Washington DC in 1992; we will celebrate a quarter century of this competition in Mexico this year, and I am very happy that the Moot Court Committee accepted to prepare a commemorative book looking back at those first twenty-five years. Innovations have also taken place with regard to the annual Colloquia and other events. A new feature in the annual colloquia was the start of the Nandasiri Jasentuliyana Keynote lectures, combined with the Young Scholars sessions, in 2008. These have grown into one of the most appreciated sessions of the colloquium, where the new generation of space lawyers can present their papers, either orally or as a poster or interactive presentation, and have the opportunity to have their paper published in the IISL Proceedings. The keynotes have been given by prominent lawyers including former Judges of the ICJ, chairs of COPUOS and pioneers of space law. The Institute also organised many events outside the Colloquium at the annual IAC. Of course the annual Eilene Galloway symposia were held each December at the Cosmos Club in Washington DC. The tenth Eilene Galloway symposium took place in December 2015. Another example of stand

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alone events are the ‘Space Law & Policy’ conferences, organised in collaboration with the IAA (Washington DC 2010, Toulouse 2012, Trivandrum 2015). The Institute also partnered with the IAF in various ‘Global Conferences’ throughout the years. With regard to publications, a major achievement was the signing of a contract with a new publisher, Eleven International Publishing in 2012. This was combined with a contract with Heinonline to include all past proceedings up to three years back in their online collection. The first Proceedings published by Eleven were those covering the year 2011, and it was a huge improvement in look and feel of the book. The availability of back issues via Heinonline furthermore ensures that scholars and students all over the world can easily access the searchable content via their universities and libraries. Two important books were published during my presidency. In 2010, on the occasion of the 50th anniversary of the Institute, IISL arranged the republication by Brill of the famous 1972 book by Judge Manfred Lachs, ‘The Law of Outer Space: An Experience in Contemporary Law-Making’. And in 2013, the book ‘Pioneers of Space Law’, initiated by the Directorate of Studies, was also published by Brill. I also want to mention the book with papers presented in the Young Scholars session that was published in 2011 by IISL with the help of ISRO. Furthermore, in 2012 we received approval to publish on our website the two history books that were written about IISL, one written by former President Eugène Pépin in 1982, and one by Honorary Director Stephen Doyle in 2002. This ensures that a permanent record of the early years remains easily accessible and available to all. A more recent innovation in the field of publications are the monthly enewsletters that IISL started sending to its members from 2015, replacing the bi-annual one that had been issued until then. This ensures a much more continuous flow of information to and with the members of the Institute. The IISL is active on social media since many years. It started with the creation of the IISL Facebook page and Linkedin Group in 2008. Twitter was added in 2013, and separate social media accounts were also set up for the Moot Court (Facebook in 2011 and Twitter in 2013). This allows to build a lasting record of photos, news items etc., which are accessible to a broad audience comprising both the IISL membership and the wider space law community. The Institute created a new website and added a hosted website for the Lachs moot court in 2010. That same year the members’ website was created. It serves as an online membership database combined with a feature for members to publish and exchange their professional profiles and contact details with each other. The online database guarantees that there is one unique and secure database recording members information. Before I retire as President, another major renewal of the website will be introduced, integrating the

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members portal into the main website, adding credit card payment facilities and making the Moot court pages more visible. Of course all of the above does not mean that everything always went well; there have been difficult moments and disappointments too. But with the help of colleagues and friends we have managed to safeguard and strengthen the positive spirit of cooperation that marks the IISL. As a result, the Institute has become more united and determined to excel in fulfilling its mission: to promote the further development of space law and expansion of the rule of law in the exploration and use of outer space for peaceful purposes. I want to put on record here my deepest appreciation for all current and former colleagues on the IISL Board of Directors. The progress that I highlighted above is a direct result of their efforts and hard work. Board members commit their valuable time and expertise to IISL, and truly work as a team, reaching agreement by consensus, with great wisdom and in a spirit of collegiality. It has always been an immense privilege and a pleasure to work with them, and I respect them tremendously. The members who work tirelessly in the many committees are also essential and equally share in the successes of the IISL. Whether it is the moot court committee, the membership committee, the various colloquium/symposium coordinators, the proceedings editors, the election committee, the audit committee, the awards committee or others, they all commit to their tasks with great dedication. We are fortunate that we have so many members willing to take on these tasks. They make the IISL visible as an organisation that is worth volunteering for and contributing to in so many different ways, and that in turn allows the Institute to function in a smooth manner. I have thoroughly enjoyed the friendly cooperation with all the wonderful space lawyers who are members of the IISL. They make IISL into an association which is internationally recognized for its expertise and professionalism, while also providing ample opportunities for young lawyers to become involved in the Institute’s management and activities. The IISL and everything it encompasses will always remain close to me, and I wish the best of luck to my successor, who will no doubt bring the Institute to new heights. I also thank my predecessor, President Emeritus Nandasiri Jasentuliyana for the pleasant cooperation during his presidency between 1993 and 2007, and for his confidence in supporting me as his successor. To conclude, I would like to salute two grand ladies of the IISL: our President Emerita Isabella Diederiks-Verschoor, who celebrated her 100th birthday in 2015, and the late Eilene Galloway, long-time Vice President, whose unfailing support, encouragement, wisdom, wit and friendship have meant the world to me. Ad Astra!

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About the International Institute of Space Law

Founded in 1960, the International Institute of Space Law (IISL) is an independent non-governmental organisation dedicated to fostering the development of space law. The membership of the Institute is composed of individuals and institutions from more than forty countries elected on the basis of their contributions to the field of space law or other social sciences related to space activities. In addition, prospective membership is open to students and young professionals with a demonstrated interest in space law. The purposes and objectives of the IISL include the promotion of further development of space law and expansion of the rule of law in the exploration and use of outer space for peaceful purposes, the holding of meetings, colloquia and competitions on juridical and social science aspects of space activities, the preparation or commissioning of studies and reports, the publication of books, proceedings, reports and position papers, and the cooperation with appropriate international organizations and national institutions in the field of space law. The IISL holds an annual Colloquium at the International Astronautical Congress. During this Colloquium the Nandasiri Jasentuliyana Keynote lecture takes place, as well as a special session for Young Scholars. In addition the Institute organises a variety of conferences on space law throughout the year in locations all over the world. It publishes an annual volume of IISL Proceedings with papers and reports of all activities during the year. Since 1992, the IISL organizes the annual Manfred Lachs Space Law Moot Court Competition. The competition is based on a hypothetical space law case, written by IISL members, in which around sixty student teams from universities in North America, Europe, Asia Pacific and Africa participate. Members of the International Court of Justice judge the World Finals of the competition, making it unique in the world. The IISL is an officially recognized observer at sessions of the United Nations Committee on the Peaceful Uses of Outer Space, and its Scientific & Technical and Legal Subcommittees. Further information regarding the IISL can be found at www.iislweb.org.

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Board of Directors 2015-2016 INTERNATIONAL INSTITUTE OF SPACE LAW

www.iislweb.org

[email protected] Board of Directors 2014 – 2015

President Asst. Prof. Tanja L. Masson-Zwaan International Institute of Air and Space Law, Leiden University, THE NETHERLANDS Vice-Presidents Mr. K.R. Sridhara Murthi National Institute of Advanced Studies, Indian Institute of Science, INDIA Prof. Dr. Kai-Uwe Schrogl ESA Policies Department, Paris, GERMANY Executive Secretary Prof. Dr. Diane Howard Embry Riddle University, Daytona Beach, FL, USA Treasurer Mr. Dennis J. Burnett Springfield, VA, USA Members of the Board Prof. Setsuko Aoki Institute of Space Law, Keio University, Tokyo, JAPAN Dr. Olavo Bittencourt Catholic University of Santos, BRAZIL Prof. P.J. Blount University of Mississippi School of Law, USA Prof. Dr. Frans von der Dunk* University of Nebraska-Lincoln, College of Law Leiden, THE NETHERLANDS Mr. Marco Ferrazzani European Space Agency, ITALY Prof. Steven Freeland University of Western Sydney, School of Law, AUSTRALIA

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Em. Prof. Joanne Irene Gabrynowicz University of Mississippi School of Law, USA Dr. Yasuaki Hashimoto National Institute for Defence Studies, Tokyo, JAPAN Prof. Dr. Stephan Hobe* Institute of Air and Space Law, University of Cologne, GERMANY Prof. Dr. Mahulena Hofmann Faculty of Law, Economics and Finance, University of Luxembourg, LUXEMBOURG Ms. Corinne Jorgenson Advancing Space, USA Prof. Sergio Marchisio University La Sapienza / National Research Council, Rome, ITALY Prof. Dr. Lesley Jane Smith Weber-Steinhaus & Smith, Bremen, GERMANY Mr. Milton ("Skip") Smith Sherman & Howard, USA Prof. Dr. Maureen Williams University of Buenos Aires / Nat. Science Council, Buenos Aires, ARGENTINA Prof. Zhenjun Zhang China Institute of Space Law, CHINA PRESIDENTS EMERITI Prof. Dr. I.H.Ph. Diederiks-Verschoor, THE NETHERLANDS Dr. Nandasiri Jasentuliyana, SRI LANKA HONORARY DIRECTORS Prof. Dr. Karl-Heinz Böckstiegel, GERMANY Prof. Elisabeth Back Impallomeni, ITALY Prof. Dr. Aldo Armando Cocca, ARGENTINA Dr. Stephen E. Doyle, USA Dr. Ernst Fasan**, AUSTRIA Prof. Jonathan Galloway, USA Dr. Peter Jankowitsch, AUSTRIA Prof. Toshio Kosuge, JAPAN Dr. Gabriel Lafferranderie*, FRANCE Prof. Francis Lyall, SCOTLAND, UK Prof. Nicolas Mateesco Matte***, CANADA Prof. José Monserrat, Filho, BRAZIL Dr. Sylvia Ospina, USA Prof. Dr. Priyatna Abdurrasyid, INDONESIA Dr. Patricia M. Sterns, USA Prof. Vladlen S. Vereshchetin***, RUSSIA Amb. Eugeniusz Wyzner, POLAND * ** ***

Former Treasurer Former Secretary Former Vice-President See also http://www.iislweb.org/board.html

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New Members Elected in 2015 The IISL welcomes the following members elected in 2015: Institutional Membership:

Prospective Membership:

Universidade Católica de Santos (Brazil)

AGARWAL Aakarshi (India) BALAN Nikhil (India) CARBONE Luisa (Italy) CHATTERJEE Joyeeta (India) ERDEM Merve (Turkey) FATHIMA B Sadaf Amrin (India) GARG Dhruv (India) JIRIK Anne-Kathrin (Germany) LOBUCNIK Lucius (Slovenia) MAYER Hannes (Austria) MILLER Danielle (USA) NAPIER Lauren J (USA) SPASSOVA Simona (Bulgaria) WICK Bastian (Germany) GEORGE Rohan (India) GUPTA Bharat (India) MICHHANE Sudha (Nepal) PADHY Amit K (India) PADHY Ankit K (India) SRIVASTAVA Utkarsh (India) VEGADARSHI K (India) YADAV Radhika (India)

Individual Membership:

ANDERSON Carol (UK) ANTONI Ntorina (Greece) BERGAMASCO Federico (Italy) BLUMENKRON Jimena (Mexico) BOULLE Edmond (UK) DUVENAGE Francois C. (South Africa) GOLDBERG Jodi (Canada) HUMPHREY Nicholas (Australia) JOHNSON Nathan (USA) KARIMI-SCHMIDT Yvonne (Austria) KEALOTSWE Icho (Botswana) KFIR Sagi (USA) KUMAR Abhijeet (India) LEWIS Janna (USA) MOENS Sarah (Belgium) MODERT Guy (Luxembourg) MOLODTSOVA Ekaterina (Russia) MOTOLANI Fadahunsi-Banjo (Nigeria) OKEGBE Christopher (Nigeria) NAKARADA PECUJLIC Anja (Serbia) RINNER Anita (Austria) SCAVUZZI DOS SANTOS Juliana (Brazil) TAPIO Jenni (Finland) VIANA Tatiana (Brazil)

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Standing Committee on the Status of International Agreements Relating to Activities in Outer Space

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STANDING COMMITTEE ON THE STATUS OF INTERNATIONAL AGREEMENTS RELATING TO ACTIVITIES IN OUTER SPACE

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IISL Board of Directors Position Paper on Space Resource Mining (2015) Adopted by Consensus by the Board of Directors on 20 December 2015 I.

The U.S. Commercial Space Launch Competitiveness Act

On 25 November 2015, the President of the United States signed into law the U.S. Commercial Space Launch Competitiveness Act (H.R. 2262).1 It consists of four Titles: I. Spurring Private Aerospace Competitiveness and Entrepreneurship; II. Commercial Remote Sensing; III. Office of Space Commerce; and IV. Space Resource Exploration and Utilization. Title IV, which is of interest here, addresses in a preliminary way space resource exploitation. It consists of three sections, whereby Section 402 with its amendments contains most of the substantial legal provisions and envisions: the facilitation of “commercial exploitation for and commercial recovery of space resources by United States citizens”; discouragement of “government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration”; and promotion of “the right of United States citizens to engage in commercial explorations for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government”. The Act determines in §51303 that United States citizens engaged in commercial recovery of an asteroid resource or a space resource under this chapter “shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.” Finally, Section 403 of the Act assures that the United States does not assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.

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See https://www.congress.gov/bill/114th-congress/house-bill/2262/text.

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II.

The Legal Situation Relating to Space Resource Exploitation under International Space Law

1. In 2004 and 2009, the Board of Directors of the IISL addressed questions regarding the appropriation of the Moon, other celestial bodies and their resources, in two statements2 to which reference is made. The adoption of the United States law gives rise to the following evaluation of the current legal situation: a. First, the Outer Space Treaty of 1967 contains the basic legal regulation for outer space and celestial bodies. In its Article II, it provides that “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” b. Second, it is uncontested under international law that any appropriation of “territory” even in outer space (e.g. orbital slots) or on celestial bodies is prohibited, it is less clear whether this Article also prohibits the taking of resources. Article I para. 2 of the Outer Space Treaty specifies the right of the free exploration and use of outer space and celestial bodies, without discrimination of any kind, on the basis of equality and in accordance within international law. Yet, there is no international agreement, whether the right of “free use” includes the right to take and consume non-renewable natural resources, including minerals and water on celestial bodies. c. Third, according to the Moon Agreement of 1979, concluded twelve years after the Outer Space Treaty and adopted by consensus in the United Nations General Assembly, natural resources cannot become “property of any State, international intergovernmental or nongovernmental organization, national organization or non-governmental entity or of any natural person” (Article 11 para. 3). State Parties to the Moon Agreement agreed to establish an international regime to “govern the exploitation” of mineral resources “as such exploitation is about to become feasible”. This clause, be it interpreted as a moratorium or not, is binding upon the sixteen States that have so far ratified the Moon Agreement, but not upon the United States. Moreover, Article 11 has not gained the status of a rule of customary international law. 2. Therefore, in view of the absence of a clear prohibition of the taking of resources in the Outer Space Treaty one can conclude that the use of space resources is permitted. Viewed from this perspective, the new United States Act is a possible interpretation of the Outer Space Treaty. Whether and to what extent this interpretation is shared by other States remains to be seen.

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Full texts of the Statements available online at: www.iislweb.org/docs/IISL_Outer_ Space_Treaty_Statement.pdf and www.iislweb.org/docs/Statement%20BoD.pdf.

IISL BOARD OF DIRECTORS POSITION PAPER ON SPACE RESOURCE MINING (2015)

3. This is independent from the claim of sovereign rights over celestial bodies, which the United States explicitly does not make (Section 403). The purpose of the Act is to entitle its citizens to these resources if “obtained in accordance with applicable law, including the international obligations of the United States”. The Act thus pays respect to the international legal obligations of the United States and applicable law on which the property rights to space resources will continue to depend. III.

Future Perspectives

It is an open question whether this legal situation is satisfactory. Whether the United States’ interpretation of Art. II of the Outer Space Treaty is followed by other states will be central to the future understanding and development of the non-appropriation principle. It can be a starting point for the development of international rules to be evaluated by means of an international dialogue in order to coordinate the free exploration and use of outer space, including resource extraction, for the benefit and in the interests of all countries.

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58th IISL COLLOQUIUM ON THE LAW OF OUTER SPACE Session 1 NANDASIRI JASENTULIYANA KEYNOTE LECTURE ON SPACE LAW & 7th YOUNG SCHOLARS SESSION Co-Chairs: Tanja Masson-Zwaan Orna Ben Naftali Rapporteurs: Dimitrios Stratigentas & Neta Palkovitz

The Impact of National Space Legislation on Private Space Undertakings A Regulatory Competition between States? Dimitri Linden*

Abstract With the growing trend of privatisation and commercialisation of space activities, states have deemed the adoption of national space legislation the most suitable way to regulate and control private space initiatives in order to ensure compliance with international space law principles. Several states have thus far enacted national space laws, which diverge in their substances. Considering these differences in national space laws, the idea of regulatory competition is discussed and is contrasted with harmonisation of national space legislation. While harmonisation is explicitly excluded in the European Union’s space competence, there seem to be other ways to provide a more centralised approach to space legislation in Europe. These include the use of different legal bases, non-binding measures, the ‘enhanced cooperation’ mechanism, the ‘approximation of laws’ basis, the flexibility clause ex article 352 TFEU, and the ‘open method of coordination’. Harmonisation in this context can be desirable when keeping objectives such as the prevention of ‘flags of convenience’ and ‘forum shopping’ phenomena, increased technical safety through the harmonisation of quality standards, mutual cross-border recognition of authorisations, and increased consistency in the interpretation of international space law, in mind. The harmonisation of the registration of space objects should be encouraged as to ensure that all necessary information about space activities is transparently available. On the other hand, aspects like the national political sensitivity of space activities and the diversity in market characteristics in the space sector, contradict harmonisation. Current discretionary powers of states with regard to licensing, export control, and other regulatory aspects could make these states more reluctant to opt for harmonisation in these areas.

I.

Introduction

The existing body of international space law was enacted in a time frame where nation states were the main actors in space, so logically, the international corpus iuris spatialis generally addresses state actors. However, the

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University of Leuven, Belgium, [email protected].

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growing trend of privatisation and commercialisation of space activities brought (and still brings) legal challenges to space law. With this emergence, it soon became clear that adopting national space legislation was the best suited instrument to regulate and to control private space initiatives. This finding was supported by the fact that states are responsible for ensuring that national space activities (including those conducted by private companies) are in compliance with international space law principles. In this regard, it seemed more appropriate for states to govern the involvement of their nationals in space domestically, rather than developing new internationally concluded rules.1 But this adoption of national space legislations is not only the practical result of the legal obligations arising out of the international space law treaties. This ‘legalisation’ of space activities is the logical step forward given the ever-increasing participation of private actors in the space industry.2 Greater regulation will provide increased certainty for all concerned parties, which in turn will encourage other interested parties to take the leap as well.3 So far, the adopted national space legislations tend to differ in scope and content. These differences are the product of the intrinsic characteristics and extent of the space activities carried out under the supervision of the state in question.4 The diversity in national space laws creates an expanding pool of regulatory frameworks to choose from. This choice may well be crucial for the success and profitability of the business at hand.5 In light of this, it is possible that competition between regulatory environments will develop, as states profit from private undertakings establishing themselves in their territory. For states, this will lead to increased economic activity, which in turn decreases unemployment, lowers social welfare costs, and raises tax revenues.6 It is not surprising, then, that states would want to attract these private firms to their territory through their national space laws. Talking about regulatory competition inevitably brings up the question of harmonisation, which resides at the other side of the spectrum. To provide contrast with regulatory competition in national space laws, this research delves deeper into the legality and desirability of harmonising national space legislation, with a focus on the European Union (EU).

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4 5 6

4

F. TRONCHETTI, Fundamentals of Space Law and Policy, Springer, 2013, 26. I. MARBOE, “National space law” in F. G. VON DER DUNK and F. TRONCHETTI, eds., Handbook of Space Law, Edward Elgar Publishing, 2015, 127-130. S. FREELAND, “The Australian Regulatory Regime for Space Launch Activities: Out to Launch?”, Proceedings of the Forty-seventh Colloquium on the Law of Outer Space, 2004, 57. F. TRONCHETTI, Fundamentals of Space Law and Policy, Springer, 2013, 26. T. AGANABA, “Legal Framework in Support of Commercialization of Outer Space: the Case of the Isle of Man”, International Institute of Space Law, Vol. 5, 2008, 1. W. SCHÖN, “Playing Different Games? Regulatory Competition in Tax and Company Law Compared”, Common Market Law Review, Vol. 42, 2005, 331-332.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

II.

Regulatory Competition, Harmonisation, and National Space Legislation

To introduce the topic of regulatory competition and harmonisation, some theoretical background is given in order to provide an adequate basis that can be used when assessing these issues specifically with regard to space law. The forms, conditions, advantages, and disadvantages will be explored accordingly. In the end, several examples will be given of how both types of regulation appear in practice. Afterwards, the focus is put back on national space legislation when it is examined if harmonisation of national space laws is legally possible and/or desirable. II.1.

Regulatory Competition vs. Harmonisation

II.1.1.

Regulatory Competition

Regulatory, institutional, or rules-based competition occurs when states compete with each other, in their capacity as regulators, to attract resources and mobile factors of production (e.g. undertakings) by providing these potential legal subjects the possibility to use their attractive regulations. Regulatory competition is one of the reasons that domestic laws are not only the result of a natural and purely domestic evolution of their systems. External factors, such as the success of foreign systems, also have a part in this. For regulatory competition to take place, both the opportunity for and the perceived benefits of such competition have to exist. The opportunity exists when there is actual or possible access to the market where the regulators are present. In this context, mobility is important: citizens should be able to choose the jurisdiction whose principles are to apply to their transactions.7 Besides mobility, regulatory competition also requires information on the substance of foreign rules. Measures to improve information flow include standardisation, which would be helpful to make regulatory competition work. Likewise, the legal possibility for potential legal subjects to demand and exploit competitive advantages and the legal possibility for regulators to respond to market forces by enacting regulations as demanded, are required for regulatory competition to work.8 Additionally, the potentially competing regulator must be convinced of the benefits that he will gain by entering the regulatory competition. Besides being economic, these benefits may also be political or social.9

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8

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V. HEYVAERT, “Regulatory Competition – Accounting For the Transnational Dimension of Environmental Regulation”, Journal of Environmental Law, Vol. 25(1), 2013, 5-6. C. M. TIEBOUT, “A Pure Theory of Local Expenditures”, Journal of Political Economy, Vol. 64(5), October 1956, 422 and 424; R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 438-442. A. M. SACHDEVA, “Regulatory competition in European company law”, European Journal of Law and Economics, Vol. 30, 2010, 138 and 148; W. SCHÖN, “Playing

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Globalisation is one factor for the growing trend of regulatory competition. The great increase in mobility of production factors (including human resources, besides capital) has stirred the dynamic forces that influence the market for regulatory frameworks applicable to firms. Another factor is the theoretical discussions. Regulatory competition takes up a prominent role in the debates on regulatory diversity vs. harmonisation in different areas of law.10 Advantages and justifications for regulatory competition include the effective matching of the substantive rules with the desires and preferences of the citizens. Different laws are able to satisfy more, distinct preferences of citizens. The more regulators compete, the more preferences may be satisfied (in theory). Logically, the more homogeneous the preferences are, the less advantageous regulatory competition will be. When preferences are more heterogeneous and mobility across jurisdiction is possible, it should be presumed that competition between legislators has a positive impact on (economic) society.11 Other advantages are the promotion of diversity and experimentation in the quest of finding effective legal solutions and the promotion of information flow on law-making by providing means for preferences to be expressed and for alternative solutions to be compared. Proponents of regulatory competition argue that it stimulates innovation and product differentiation in regulation, amounting to the creation of more competitive, efficient, and qualitative laws. The dynamics of competition also apply to the market of regulations.12 Classically, theorisations have warned about ‘races to the bottom’ when dealing with regulatory competition. Generally, this phenomenon occurs under conditions of economic interdependency between jurisdictions, when one state lowers its regulatory standards in order to attract investments. The other states will then lose businesses, revenue, and labour, prompting them to react by lowering their own standards. This then creates a cycle of systematic lowering of regulatory standards that ends up with all states (and consumers) being in a position which is worse than the one they were in before this race

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11 12

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Different Games? Regulatory Competition in Tax and Company Law Compared”, Common Market Law Review, Vol. 42, 2005, 332 and 364. W. W. BRATTON and J. A. MCCAHERY, “The New Economies of Jurisdictional Competition: Devolutionary Federalism in a Second-Best World”, Georgetown Law Journal, Vol. 86(201), 1997, 213; W. SCHÖN, “Playing Different Games? Regulatory Competition in Tax and Company Law Compared”, Common Market Law Review, Vol. 42, 2005, 333. R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 438-442. C. BARNARD and S. DEAKIN, “Market Access and Regulatory Competition” in C. BARNARD and J. SCOTT, eds., The Law of the Single European Market, Hart Publishing, 2002, 198-199; P. B. STEPHAN, “Regulatory Competition and Anticorruption Law”, Virginia Journal of International Law, Vol. 53(1), 2012, 54-56.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

to the bottom or by coordinating their policies.13 Races to the bottom thus call for harmonisation and/or intervention on a centralised level. In the same manner, races to the top can also occur. States then respond to an initial raising of standards by raising their own regulatory standards in order to retain market access. Examples of such standards include the regulation of intellectual property, health and safety regulations, and environmental standards.14 II.1.2.

Harmonisation

At the other side of the spectrum, harmonisation or centralised regulation can be found. This implies the forced coordination of legislation by a centralised regulator. To justify such an approach, it is often argued that diverging legal norms create unequal conditions of competition and that such diversion should be minimised as to create a ‘level playing field’ for the market actors. Regulatory competition may lead to lower (quality) standards that have a negative effect on citizens.15 According to neo-classical welfare economics, factors in favour of centralised regulation include the avoidance of a race to the bottom, the need to internalise externalities across jurisdictions, the reduction of transaction costs, and the attainment of scale economies. Market imperfections for legislations may thus justify (quasi-)centralised rules. However, these advantages and their magnitude differ between areas of law. For example, a race-to-the-bottom scenario is more plausible and dangerous in the field of tax law. In any event, such a scenario has to be assessed empirically. Externalities, on the other hand, occur when parties are able to enter into (contractual) relationships that have detrimental effects on third parties or on the public in general. A good example of this can be found in environmental law: if a state lowers its environmental standards to attract businesses and, subsequently, the damage caused to the environment is not contained in the territory of the former state, other states bear the costs of this lowering of environmental stand-

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15

P. B. STEPHAN, “Regulatory Competition and Anticorruption Law”, Virginia Journal of International Law, Vol. 53(1), 2012, 55. C. BARNARD and S. DEAKIN, “Market Access and Regulatory Competition” in C. BARNARD and J. SCOTT, eds., The Law of the Single European Market, Hart Publishing, 2002, 199-200; D. C. ESTY and D. GERADIN, “Regulatory Co-opetition” in D. C. ESTY and D. GERADIN, eds., Regulatory Competition and Economic Integration: Comparative Perspectives, Oxford University Press, 2001, 33; C. M. RADAELLI, “The Puzzle of Regulatory Competition”, Journal of Public Policy, Vol. 24(1), May 2004, 2 and 6; A. M. SACHDEVA, “Regulatory competition in European company law”, European Journal of Law and Economics, Vol. 30, 2010, 138-140. S. MOCK, “Harmonization, Regulation and Legislative Competition in European Corporate Law”, German Law Journal, Vol. 3(12), 2002; R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 445.

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ards.16 On the other hand, negative points regarding harmonisation occur in the form of political distortions. Politicians and other pressure groups may pursue their own goals that can differ from the interests of citizens. Political economists therefore generally oppose harmonisation. It is also important that harmonisation and regulatory competition should not be seen as mutually exclusive. The optimal solution may well be a mix of both forms of governance. Regulatory quality should be the prime goal with regard to the level of decision-making and the actual substance of the enacted rules.17 When deciding what form of governance to adopt as to remedy economic distortions, an inclusive comparison of the legal options should be made (including investigating ‘doing nothing’ and concluding multilateral relationships between some states). The most adequate remedies to cure economic distortions depend on the properties of the specific economic distortion. For example, if an externality only affects some states, it may be better for said states to engage in multilateral discussions in order to adopt appropriate remedies, rather than trying to mend things at the highest level of governance. Otherwise there is a risk of only reducing the benefits of regulatory competition, without bringing any compensating advantages. When preferences of legal subjects are heterogeneous, full harmonisation should remain an ultimum remedium when regulatory competition creates substantial costs that are not compensated by benefits. Another technique is minimum harmonisation. This form of harmonisation is restricted to the adoption of minimum standards while still allowing for regulatory competition above these norms set by the centralised legislator.18 II.1.3.

Practice

Investors attach great importance to so-called ‘fundamentals’ when searching for appropriate places to invest or start projects. These fundamentals consist of market access and long-term growth potential, political and macroeconomic stability, the availability of adequately skilled workers, and the presence of necessary infrastructure. Remarkably, financial or fiscal incentives given by the host government are less important to them, but are still taken into consideration. For this reason, governments should enhance these fundamentals when being faced with intensifying regulatory competition.19

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17 18 19

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W. SCHÖN, “Playing Different Games? Regulatory Competition in Tax and Company Law Compared”, Common Market Law Review, Vol. 42, 2005, 349; J. P. TRACHTMAN, “International Regulatory Competition, Externalization, and Jurisdiction”, Harvard International Law Journal, Vol. 34(1), Winter 1993, 56. R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 436 and 445. R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 446-447 and 461. Y. AHARONI, The Foreign Investment Decision Process, Harvard University Press, 1966, 54-56; C. OMAN, “Policy Competition for Foreign Direct Investment: A Study

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

Financial and fiscal incentives (i.e. incentives-based competition) comprise a wide variety of measures offered by governments to attract investments. Common financial incentives consist of grants, subsidised loans, and loan guarantees. Often, these incentives are targeted: grants for wage subsidies, labour training, donations of land or facilities, rebates on the cost of water and electricity, and loan guarantees for international lines of credit. The reason for the targeting is to promote investment in certain types of activities or in specific regions. Fiscal incentives usually consist of reductions on the base (corporate) income tax rate that specific categories of investors have to pay (e.g. investments in certain types of activities or foreign investments), tax holidays (temporary reduction or elimination of a tax), exemptions from import duties, investment and re-investment allowances, accelerated depreciation allowances, deductions from social security contributions, and specific deductions from gross earnings for income tax purposes. Both of these incentives can be granted automatically when the granting conditions are met, or be subject to the discretionary powers of an administrative authority. In the latter case, transparency is reduced and room is given to negotiations by the potential investors as to efficiently target the incentives and allow for prompt responses to competition. Of course, this way of granting incentives increases the likelihood of abuse and corruption.20 A problem with financial and fiscal incentives can be that the increased public subsidies given by governments surpass the level that can be justifiable from the perspective of society, even when taking into account additional positive spillovers generated by the increased incentives. These increased public subsidies can be the result of intensifying regulatory competition and the perceived need by the government to go further and engage in costly ‘bidding wars’. Here, a ‘prisoner’s dilemma’ occurs: the collective interest of a society is to refrain from such bidding wars, yet governments do so out of fear of losing investments to other jurisdictions that offer more incentives. Potential investors can exploit this phenomenon by negotiating possible conditions for the incentives with different governments.21 Rules-based competition consists of broader, more diverging incentives. Two important fundamentals in this type of competition are the rules on workers’ rights and the protection of the environment. Other important rules-based

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of Competition among Governments to Attract FDI”, OECD, 2000, 17, available at www.oecd.org/mena/investment/35275189.pdf. C. OMAN, “Policy Competition for Foreign Direct Investment: A Study of Competition among Governments to Attract FDI”, OECD, 2000, 20-21, available at www.oecd.org/mena/investment/35275189.pdf. Y. AHARONI, The Foreign Investment Decision Process, Harvard University Press, 1966, 221-225; C. OMAN, “Policy Competition for Foreign Direct Investment: A Study of Competition among Governments to Attract FDI”, OECD, 2000, 18-19, available at www.oecd.org/mena/investment/35275189.pdf.

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forms include the greater protection of intellectual property rights, improved judicial systems and government accountability, strengthening the rule of law, market deregulation, and the liberalisation of trade and investment policies. Especially the protection of intellectual property may be relevant for this research, as it arguably attracts the inflow of advanced technology and knowhow. The importance that investors attach to stability and predictability of the (regulatory) environment should also not be overlooked. Regulatory competition measures such as the strengthening of the judicial system go hand in hand with these fundamentals. A fair, consistent, independent, and authoritative judicial system is a powerful attractor to a lot of investors. More broadly, the government’s credibility and its (transparent) policy are regarded as important as well.22 The United States (US), for example, is strong in technology and capital markets and generally adopts a business-friendly policy with modest tax burdens. Yet, these policies are not there to attract (foreign) investments. They are only the outcome of the long-standing pro-business tradition of the US and the political effectiveness of local entrepreneurs and investors who have lobbied for rules to promote and embed domestic investments. It is even so that many of the regulations that are important to investors do not stem from the federal level, but rather from the state-level and to a lesser degree from city and community governments. These rules are often enacted to attract investments. Going to Europe, similar phenomena can be observed. The subnational governments of Scotland, Wales, and the Isle of Man in the United Kingdom (UK) are among the most active competitors to attract foreign direct investment.23 In the EU, the principle of subsidiarity contained in article 5 of the ‘Consolidated version of the Treaty on European Union’ (TEU) makes regulatory competition between legislators the rule and centralised regulation (e.g. harmonisation) the exception.24 The principle promulgates that centralised institutions (the EU) should only intervene when powers cannot be satisfactorily exercised by decentralised authorities (e.g. EU member states). In the EU, most legislative measures were introduced by the need to achieve the objectives of market integration. The subsidiarity principle in the EU does not apply to exclusive competences of the EU; only to mixed competences. Decentralisation (being favoured by the subsidiarity principle) does not necessarily

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C. OMAN, “Policy Competition for Foreign Direct Investment: A Study of Competition among Governments to Attract FDI”, OECD, 2000, 21-22, 26, 91, and 107, available at www.oecd.org/mena/investment/35275189.pdf. C. OMAN, “Policy Competition for Foreign Direct Investment: A Study of Competition among Governments to Attract FDI”, OECD, 2000, 59-60 and 67, available at www.oecd.org/mena/investment/35275189.pdf. Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

mean that there will be competition between legal rules. For real competition to happen, mobility between jurisdictions needs to be possible.25 One particular form of regulatory competition is ‘vertical competition’. With vertical competition, economic actors have the ability to choose whether they want to be governed by local rules and authorities or by more centralised, federal rules and authorities. In the EU, practically, this would mean a choice between being regulated by the member states or by EU rules and institutions. In theory, this should combine both advantages of legal diversity (i.e. market pressure, political responsibility, and innovation) and harmonisation (i.e. simplicity, transparency, and cross-border applicability).26 II.2.

Harmonisation of National Space Legislation

The ongoing doctrinal discussions concerning international responsibility ex article VI of the Outer Space Treaty are a good example to introduce the topic of harmonisation of national space laws.27 While until recently these discussions could safely be treated in the realms of the doctrine, the growing number of adoptions of national space legislations demand a more pragmatic view of the issue. When implementing the international rights and duties into national space laws, states can freely interpret the wordings of the international space law treaties, which have led (and may lead) to divergent sets of national provisions and solutions taking into account the states’ own economic, infrastructural, legal, and technological culture. But beyond the sovereign prerogatives of states, it is to be stimulated that legal differences or gaps (created by the implementation of international space law) between national systems are avoided as much as possible. This is especially true when keeping multinational activities in mind; a flexible interface with foreign legislation is needed to provide a workable environment. Common regulatory conditions provide for legal certainty and comparable conditions for space operators in distinct states.28 One way to accomplish this is to harmonise national space laws. Another – less drastic – way to do this is to conclude international

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Cf. supra Regulatory competition; R. VAN DEN BERGH, “Towards an Institutional Legal Framework for Regulatory Competition in Europe”, KYKLOS, Vol. 53(4), Winter 2000, 435. W. SCHÖN, “Playing Different Games? Regulatory Competition in Tax and Company Law Compared”, Common Market Law Review, Vol. 42, 2005, 360-361 and 365. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Washington, 27 Jan. 1967), 610 U.N.T.S. 205, entered into force 10 Oct. 1967. M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 35, available at www.espi.or.at/images/stories /dokumente/studies/espi%20report%2021.pdf.

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agreements in order to fill those gaps and make sure that these provisions ensure technical and legal security for the space activities.29 When talking about harmonisation in Europe, it is an understandable reflex to consider harmonisation in the framework of the EU, as has been done in other areas. The EU could possibly make use of its legislative or regulatory powers to achieve harmonisation of the space regimes of its member states. A benefit for the EU of such regulatory intervention would be to reinforce the European position in the world with regard to its space partners and/or competition. This would be in line with Europe’s wish to have independent capabilities in all major areas of space as to be on par with other space fairing states or regions.30 II.2.1.

Legality and Forms of Harmonisation

Before the explicit space competence introduced in the form of article 189 of the ‘Consolidated version of the Treaty on the Functioning of the European Union’ (TFEU), the EU has not been inactive in the field of space.31 Already in its first Communication on “The Community and space: a coherent approach” of 1988, the European Commission found that “there are many different areas in which the Community has exclusive or joint competences and ambitions, and on which space activities have or are likely to have a bearing: these include research, telecommunications, industrial development, agriculture, the environment, development and aid and regional development”.32

For example, the deployment and exploitation of the EU’s flagship project Galileo, a space-based navigation system, is based on the Trans-European Networks competence.33 For the Global Monitoring for Environment and Security (GMES) programme, the related components are managed through the 7th Framework Programme for Research and Technological Development

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J. F. MAYENCE, “Granting Access to Outer Space: Rights and Responsibilities for States and their Citizens – An Alternative Approach to Article VI of the Outer Space Treaty, Notably Through the Belgian Space Legislation” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 114-115. COM(2003) 673, 26; J. F. MAYENCE, “Granting Access to Outer Space: Rights and Responsibilities for States and their Citizens – An Alternative Approach to Article VI of the Outer Space Treaty, Notably Through the Belgian Space Legislation” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 116. Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012. COM (88) 417, 10. Regulation 683/2008 on the further implementation of the European satellite navigation programmes (EGNOS and Galileo), OJ L 196/1, 24.7.2008, 1.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

(FP7).34 Other initiatives, such as the Directive Establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), have been adopted on the basis of special competences like environmental policy.35 The space competence enshrined in article 189 TFEU is of a different nature. It somewhat falls in a sub-category of the shared competences under article 4 (3) TFEU, which states that the EU has competence to carry out activities in the area of space, but this exercise does not prevent member states from exercising theirs. So, de facto, it could be seen as a parallel competence or a support or coordination competence.36 Of course, the EU should not violate the principle of subsidiarity when exercising its competence.37 As a reminder, in the framework of the EU, it is also important to keep the principle of proportionality in mind.38 EU legislative action should not go further than what is necessary for the aim to be achieved. In the present case, this could be interpreted as a certain safeguard for regulatory competition between member states.39 An interesting and clear wording in the new space competence is the fact that any harmonisation of laws and regulations of the member states is explicitly excluded, which was different in the first draft of the EU’s space competence.40 This shows that there was unwillingness among the member states to give up their sovereignty in the area of space. Member states thus have the possibility to elaborate a national space policy with independent priorities

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Article 2 of Regulation 911/2010 on the European Earth monitoring programme (GMES) and its initial operations (2011 to 2013), OJ L 276/1, 20.10.2010. Directive of the European Parliament and the Council establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), OJ L 108, 25.4.2007, 1-14; M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 38, available at www.espi.or.at/images/stories/dokumente/studies/espi%20report%2021.pdf; B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 299-302. See also article 2 (5) TFEU; J. BECLARD, “The Lisbon Treaty and the Evolution of European Space Governance”, The Europe & Space Series, Vol. 12, July 2013, 2; J. WOUTERS, “Space in the Treaty of Lisbon” in K.-U. SCHROGL, C. MATHIEU, and N. PETER, eds., Yearbook on Space Policy 2007/2008: From Policies to Programmes, Springer Wien New York, 2009, 120-121. Cf. supra Practice; B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 299-302. Article 5 (3) TEU; F. G. VON DER DUNK, “European space law” in F. G. VON DER DUNK and F. TRONCHETTI, eds., Handbook of Space Law, Edward Elgar Publishing, 2015, 241-243. B. GUYOT, Droit spatial européen, Helbing Lichtenhahn, Bâle, Bruylant, 2011, 69-70. Article 189 (2) in fine TFEU. Cf. article III-254 (2) Treaty establishing a Constitution for Europe.

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and programmes. When looking at the long-term European Space Agency (ESA) experience, this seems to be a good solution, considering the success of leaving leeway for decision-making with the member states.41 However, the wording of the article (“establish the necessary measures”) leaves enough possibilities for taking up other initiatives. Decisions, model laws, best practices, and benchmarks should, for example, still be possible.42 This exclusion may prompt policymakers to search for alternatives for ‘hard’ harmonisation. For example, the space sector can be affected through regulations in the context of other policies that have a relation with the space sector, as has been done in the past (e.g. through the Trans-European Networks competence).43 The use of these connected policy domains may enable the EU to harmonise regulations that impact space, in spite of article 189 (2) TFEU. The type of the competence determines the power for the EU in this regard.44 The negative side of this is that it may lead to a confusing and decentralised regulatory regime for space.45 Secondly, EU member states may opt to use the ‘enhanced cooperation’ mechanism in the framework of the EU, creating a European institutional framework with a competence in space, much like was done with the Schengen Area and the Economic and Monetary Union. Enhanced cooperation aims to facilitate the fostering of EU objectives and strengthen the integration process, allowing (a minimum of nine) member states to opt for such enhanced integration in policy areas that are not of exclusive competence.46 Thirdly, articles 114 and 115 TFEU may be used to “approximate” laws when actions in the context of the internal market have not been explicitly attributed. Recourse to these legal bases can only be done with the aim to ensure the functioning of the internal market. As stated in the Tobacco Advertising II case, article 114 TFEU can be used as an appropriate legal basis where there are differences between member state provisions that obstruct the fundamental freedoms and thus have a direct effect on the functioning of

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B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 200-306. J. WOUTERS, “Space in the Treaty of Lisbon” in K.-U. SCHROGL, C. MATHIEU, and N. PETER, eds., Yearbook on Space Policy 2007/2008: From Policies to Programmes, Springer Wien New York, 2009, 122. Cf. supra. B. GUYOT, Droit spatial européen, Helbing Lichtenhahn, Bâle, Bruylant, 2011, 70. J. WOUTERS and R. HANSEN, “Strategic Autonomy in EU Space Policy: A Conceptual and Practical Exploration” in C. AL-EKABI, ed., European Autonomy in Space, Springer International Publishing, 2015, 58-59. Article 20 (1) TEU and article 329 (1) TFEU; J. M. BENEYTO et al., Unity and Flexibility in the future of the European Union: the challenge of the enhanced cooperation, Fundación Universitaria San Pablo CEU, 2009, 9-10.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

the internal market (e.g. to combat ‘forum shopping’).47 Furthermore, it can be a possible legal basis to adopt measures that prevent future obstacles to trade that result from differences in national laws.48 Depending on the kind of distortions on the internal market – and possibly some creativity – the EU could make a case as to adopt measures on the ground of these legal bases. A good example in this regard is the European Commission’s proposal for a Directive on the dissemination of earth observation satellite data for commercial purposes.49 In the past, article 114 TFEU has already been used to initiate harmonisation in the coordination of frequency allocation, most notably in International Telecommunication Union conferences. This is dealt with by the ‘Radio Spectrum Decision’.50 Fourthly, when EU action is necessary to attain EU objectives and there is no competence provided to do so, article 352 TFEU grants the competence to adopt appropriate measures (excluding the possibility of harmonisation where harmonisation is prohibited, though).51 Finally, the intergovernmental policy mechanism ‘open method of coordination’ (OMC) may be used. The objectives of this instrument include encouraging cooperation by an exchange of best practices and the agreement of common targets and guidelines for member states. ‘Mutual learning processes’ are put in place in order to have periodic monitoring, evaluation, and peer review.52 Borrás and Jacobsson have analysed this form of governance, concluding that it is a method that can be used to create unity in diversity.53 It is a pragmatic policy instrument to find the balance between the diversity of member states and common EU action. Member states set common goals for a policy and evaluate each other. The OMC is a mechanism that does not entail legally binding measures. Given the discussion above, this instrument would fit the wish to have common EU action while still leaving the important remaining autonomy at member state level, amounting to a bot-

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Case C-380/03 Germany v Parliament and Council [2006] ECR, I-11573, para. 37. Case C-380/03 Germany v Parliament and Council [2006] ECR, I-11573, para. 38. COM(2014) 344, 4-5. Decision 676/2002/EC on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision), OJ L 108/1, 24.4.2002. S. MARCHISIO, “Italian Space Legislation Between International Obligations and EU Law”, Proceedings of the Forty-seventh Colloquium on the Law of Outer Space, 2004, 114-115. Lisbon European Council 23 and 24 March 2000 – Presidency Conclusions, EUROPEAN COUNCIL, para. 37, available at www.europarl.europa.eu/summits/lis1_en.htm. S. BORRAS and K. JACOBSSON, “The open method of coordination and new governance patterns in the EU”, Journal of European Public Policy, Vol. 11:2, 2004, 185-208, available at http://eucenter.wisc.edu/OMC/Papers/borrasJacobssonJEPP.pdf.

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tom-up approach and a process of ‘collective self-coordination’.54 It could be used to establish coherent common practices and guidelines in, for example, the areas of authorisation, supervision, and technical evaluation in space activities.55 As an end note, states are, of course, not stopped to further cooperate outside the auspices of the EU.56 II.2.2.

Desirability of Harmonisation

The interest in harmonisation lies in the fact that it facilitates international cooperation and fosters national industries, since private firms face fewer differences in legal and administrative requirements. It creates a fair and competitive environment for all space operators.57 Additionally, it also prevents the ‘flags of convenience’ and forum shopping phenomena, which should be avoided.58 Space entrepreneurs could take advantage of regulatory competition by creating a sequence of companies in order to avoid the (more strict) supervision of their real home state. Because of the inherent dangers of space activities, it is in the interest of everyone that the highest standards are adhered to. Space actors may be inclined to take decisions on the basis of regulations rather than on market conditions.59 Another argument in favour of harmonisation is the fact that it would be counterproductive if national space legislations would use their own, distinct terms and interpretations when implementing the international space law treaties. It would thus be optimal to make reference to the terms and definitions of the international space law treaties in the national space legislations.

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B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 315-316. C. BARNARD and S. DEAKIN, “Market Access and Regulatory Competition” in C. BARNARD and J. SCOTT, eds., The Law of the Single European Market, Hart Publishing, 2002, 221; M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 41-42, available at www.espi.or.at/images/stories/dokumente/studies/espi%20report%2021.pdf. M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 5-6 and 43, available at www.espi.or.at /images/stories/dokumente/studies/espi%20report%2021.pdf. M. GERHARD, “National Space Legislation – Perspectives for Regulating Private Space Activities” in M. BENKÖ and K.-U. SCHROGL, eds., Essential Air and Space Law, Volume 2, Eleven International Publishing, 2005, 84. F. LYALL and P. B. LARSEN, Space Law: A Treatise, Ashgate Publishing, 2009, 68-69; M. GERHARD and K. MOLL, “The Gradual Change from “Building Blocks” to a Common Shape of National Space Legislation in Europe – Summary of Findings and Conclusions” in S. HOBE, B. SCHMIDT-TEDD, and K.-U. SCHROGL, eds., Towards a Harmonised Approach for National Space Legislation in Europe, Cologne, 2004, 9-11. M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 5, available at www.espi.or.at/images/stories /dokumente/studies/espi%20report%2021.pdf.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

If done well, this minimises further issues regarding interpretation and de facto constitutes a form of ‘soft’ harmonisation by means of consistency in the formulations.60 With regard to technical safety evaluation, there are two distinct interests to reconcile: states want to elaborate procedures in order to prevent any damage and being internationally liable, while the industry claims for less regulation to avoid disproportionateness with possibly less regulated foreign industries. It is nonetheless important that a proper, adequate assessment of technical safety is put in place, given the inherent risks of space activities. Regulatory competition can possibly be dangerous for safety and environmental standards if races to the bottom would occur.61 As this assessment should ideally be done in the authorisation process, quality standards could be elaborated with standardisation organisations (such as the European Cooperation of Space Standardization) in order to agree on common goals in technical safety. These standards can be used when harmonising and when drafting national space laws, like it has been done in the UK.62 Another critical point in the discussion of regulatory competition vs. harmonisation may prove to be the insurance question. Ideally, national space laws should include the obligation for private undertakings to take up insurance before they are granted authorisation. This may be a crucial part in the financial assessment of aspirant space operators and will probably be considered thoroughly before the state of incorporation is decided. Differences in insurance requirements can possibly be decisive in the contemplation which state will be chosen. So, to avoid forum shopping, some harmonisation can reduce such behaviour.63 One aspect that would definitely benefit from harmonisation is the registration of space objects. It is in the interest of all that space activities are adequately registered in national space registers, as well as in the registers on the

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B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 311-312. Cf. supra Regulatory competition. Report on the Legal Aspects of the Privatisation and Commercialisation of Space Activities, INTERNATIONAL LAW ASSOCIATION, 2004, 18-19, available at www.ilahq.org/download.cfm/docid/A6D5FB43-DC67-4A15-A08F13A01BEE1CBB; M. GERHARD and K.-U. SCHROGL, “A Common Shape for National Space Legislation in Europe – Summary of Findings and Conclusions of the Project 2001 Plus Workshop”, Proceedings of the Forty-seventh Colloquium on the Law of Outer Space, 2004, 82-85; M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 42, available at www.espi.or.at/images/stories/dokumente/studies/espi%20report%2021.pdf. M. GERHARD and K. MOLL, “The Gradual Change from “Building Blocks” to a Common Shape of National Space Legislation in Europe – Summary of Findings and Conclusions” in S. HOBE, B. SCHMIDT-TEDD, and K.-U. SCHROGL, eds., Towards a Harmonised Approach for National Space Legislation in Europe, Cologne, 2004, 28-30.

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international level. Harmonisation should oblige states to have all necessary information and parameters of their space activities contained in their national register. Additionally, states should make sure that the register is promptly updated when there are changes in the characteristics of their space objects.64 The prospect of building a competitive and competent European space sector can be an argument in favour of harmonisation. A competitive space sector serves the intent of Europe having independent access to space and may also contribute to the objective of having an innovation-based economy.65 In an early Communication, the European Commission mentioned the shift to a market-based approach, the importance of developing a competent industry, the capability of having sustained independent access to space, and the need to create conditions for a space industry to compete worldwide. It saw the EU as the coordinator of authorisation conditions and procedures.66 An argument could be made that strong and far-reaching forms of harmonisation would not be welcome when taking the differences between EU member states and their industries in their involvement in space endeavours into account. For example, while a centralised single market authorisation or licensing system may seem attractive when keeping simplicity and transparency in mind, it ignores the major discretionary state powers of licensing, export control, and other regulatory aspects such as monitoring, which are currently exercised by the states themselves as part of their sovereign powers.67 Following this, harmonisation should be understood in a looser way, to ensure compatibility between national space laws, rather than to create uniformity or similarity. However, fundamental principles of the EU (e.g. free movement of goods and services and the freedom of establishment) should be guaranteed in any event.68 In line with these principles, it would be beneficial to create mutual cross-border recognition of authorisations of space activities, as

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Cf. G.A. Res. 62/101 Recommendation on enhancing the practice of States and international intergovernmental organizations in registering space objects, A/RES/62/101 (10 January 2008); S. HOBE, B. SCHMIDT-TEDD, and K.-U. SCHROGL, eds., Cologne Commentary on Space Law, Volume III, Carl Heymanns Verlag, 2015, 415-462; S. MICK, “Project 2001 Plus Workshop on “Current Issues in the Registration of Space Objects” – Summary of Findings and Conclusions” in S. HOBE, B. SCHMIDT-TEDD, and K.-U. SCHROGL, eds., Current Issues in the Registration of Space Objects, Cologne, 2005, 11-12 and 35. Cf. COM(2013) 108 passim. COM(2003) 673, 26. L. J. SMITH, “EU Competition Law and Issues of National Authorisation of Private Space Activities” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 333. J. F. MAYENCE, “Granting Access to Outer Space: Rights and Responsibilities for States and their Citizens – An Alternative Approach to Article VI of the Outer Space Treaty, Notably Through the Belgian Space Legislation” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 116.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

has been done in Australia’s and the UK’s national space laws.69 Authorisation should not be required for activities authorised by another state, granted that the other state has a comparable, adequate, and qualitative authorisation procedure in place. It would simplify national procedures and lessen the administrative burden.70 This mutual acceptance of licences would in turn create a favourable environment for international cooperation and for the private space industry.71 Mutual recognition is a technique to eliminate trade barriers and also leaves room for regulatory competition between member states. However, it is not an adequate alternative when cross-border externalities or races to the bottom are present.72 Harmonisation in the EU has a particular meaning in that it aims to abolish market barriers when basic principles of the internal market, such as the principles of free movement, ‘common recognition’, and workable competition, do not succeed in doing so.73 However, this meaning seems difficult to consolidate with the association of space activities with state responsibility in the international space law treaties. In any event, history shows that this strict state responsibility is no obstacle for international cooperation. Additionally, with space being a specific strategic domain for states, they wish to strongly control space activities. In this regard, the internal market approach of the EU (e.g. through harmonisation) may not be the best approach for space activities.74 Additionally, all space activities do not have the same market characteristics. For example, launch services belong to a particular and restricted market strongly linked to security concerns, where harmonisation with the traditional market-oriented concept would not fit in. By contrast, satellite and space-based

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Space Activities Act 1998 (Cth) section 11, 13, and 15; Outer Space Act 1986, c.38, s.3 (3). M. GERHARD and K. MOLL, “The Gradual Change from “Building Blocks” to a Common Shape of National Space Legislation in Europe – Summary of Findings and Conclusions” in S. HOBE, B. SCHMIDT-TEDD, and K.-U. SCHROGL, eds., Towards a Harmonised Approach for National Space Legislation in Europe, Cologne, 2004, 17-20. B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 313. Cf. supra Regulatory competition vs. harmonisation; M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 42, available at www.espi.or.at/images/stories/dokumente/studies/espi%20report%2021.pdf. M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 9, available at www.espi.or.at/images/stories/dokumente/studies/espi%20report%2021.pdf. B. SCHMIDT-TEDD, “Authorisation of Space Activities after the Entry into Force of the EU Reform Treaty” in F. G. VON DER DUNK, ed., National Space Legislation in Europe, Martinus Nijhoff Publishers, 2011, 313-315.

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services belong to very competitive markets with an increasing need for common standards. Here, harmonisation seems more at place.75 In a more general way, harmonisation may not be feasible or practicable due to the peculiarities of space activities. On a factual basis, there are a lot of differences in the actual territories where space activities are conducted: from thinly populated launch areas such as in Australia to more densely populated areas such as in the UK. Also differences in the interests of promoting (specific) space endeavours and differences in the legal systems can mean that states would rather want to have discretion regarding the way they implement international obligations nationally.76 Vertical competition, when available, can de facto amount to harmonisation if private undertakings would opt for the centralised rules of the EU.77 However, such regulation does not seem to fit the space sector. This becomes apparent when taking the example of the liability and insurance obligations. It would be illogical if private firms could choose the (possibly more beneficial) regime on EU level instead of the regime of their home state, because it is the member state that would be internationally responsible and liable in such a case, not the EU. Evaluation during the authorisation process is another example of the undesirability of this form of regulation. National authorities are often in a better place to assess and know the space activities being performed on their territories than authorities on the centralised level. It would be against safety and national interests to give space operators the choice to have this done at Union level. In short, national stakes are too prominent at this moment to justify vertical competition in the field of space. III.

Conclusion

The international corpus iuris spatialis prompts state parties to enact national space legislation in order to cope with their obligations under these space law treaties and to organise their (non-)governmental space activities. Another reason for the adoption of national space legislation is the increasing participation of private actors in the commercialising space sector. Due to the increasing adoption of (diverging) national space laws, the possibility for regulatory competition arises. The discussion of regulatory competition vs. harmonisation is relevant on both the doctrinal and pragmatic level for national space legislation. The EU’s explicit space competence in article 189 TFEU prohibits the harmonisa-

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76 77

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M. SANCHEZ ARANZAMENDI, “Economic and Policy Aspects of Space Regulations”, European Space Policy Institute, 2009, 9, available at www.espi.or.at/images/stories /dokumente/studies/espi%20report%2021.pdf. F. G. VON DER DUNK, “Towards ‘Flags of Convenience’ in Space?”, Space and Telecommunications Law Program Faculty Publications, Paper 76, 2012, 16. Cf. supra Practice.

THE IMPACT OF NATIONAL SPACE LEGISLATION ON PRIVATE SPACE UNDERTAKINGS

tion of laws and regulations of its member states, but the particular wording of the article seems to leave enough possibilities to embrace other initiatives. These include the use of different legal bases, non-binding measures, the ‘enhanced cooperation’ mechanism, the ‘approximation of laws’ basis, the flexibility clause ex article 352 TFEU, and the OMC. Focusing on the (different forms of) harmonisation of national space legislation, several benefits are identified. Reducing differences in legal and administrative requirements prevents the flags of convenience and forum shopping phenomena. Mutual cross-border recognition of authorisations would also be useful in this regard (given certain conditions are met). In the same way, the importance of liability and insurance questions may prove crucial if the goal is to avoid forum shopping. Another benefit is that the interpretation of international space law would be more consistent, which minimises interpretation issues. With the focus on the technical evaluation during the authorisation process, it would not be unfavourable to have some form of harmonisation of quality standards as well. The harmonisation of the registration of space objects is more straightforward: this should be applauded as to ensure that all necessary information and parameters of space activities are transparently available. On a more political level, harmonisation could assist the prospect of building a competitive and competent European space sector. Contrarily, other aspects of space activities contradict strong forms of harmonisation. Currently, states have discretionary powers with regard to licensing, export control, and other regulatory aspects. Space activities are also still (politically) sensitive on a national level, which is evident from the exclusion of harmonisation in the EU’s space competence. Another argument against harmonisation is the diversity in market characteristics in the space sector: some of these markets would not profit from harmonisation.

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Sustainable Space Exploration and Use Space Mining in Present and Future Perspectives Rishiraj Baruah and Nandini Paliwal∗

Abstract The article aims to discuss the legal challenges that the nascent industry of space mining has to overcome. This article firstly deals with relevant concepts of existing international space law which promote exploitation activities in outer space. The principle of ‘national appropriation’ is discussed which forbids public and private property rights in outer space. However, it is opined by jurists that it does not impede the ownership of ‘natural resources’, but only ‘areas’. The Moon Agreement holds more significance with mining endeavors. The principle of Common Heritage of Mankind would be discussed with a dynamic industry-oriented interpretation. Then, the article discusses the lessons that can be learnt from other regimes for sustainable mining activities in outer space. Lastly, the article discusses the international regime divorced from the Moon Agreement keeping in view that investments demand returns and safeguards to be taken to make mining in outer space a profitable prospect.

I.

Introduction

During the launch of Sputnik I in 1957, the law on outer space was rather a speculative matter. The activities in outer space, since has been far-reaching, so has the laws on outer space. The outer space is Res communis omnium. This basic principle is enshrined in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter referred as ‘OST’) which clearly indicates that the extraterrestrial realm is open for access to all states on the basis of equality. Under res communis, the property is owned by the

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Rishiraj Baruah, International Institute of Air and Space Law, Leiden University, Netherlands [email protected]. Nandini Paliwal, International Institute of Air and Space Law, Leiden University, Netherlands [email protected]. The authors would sincerely thank Mrs. Drs. Tanja Masson-Zwaan, Deputy Director (International Institute of Air and Space Law, Leiden University) and Mr. V. GopalaKrishnan, Policy Analyst (ISRO HQ) for their valuable comments on this paper.

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community and every member can use the property without exclusive ownership rights. Space, the final frontier for mankind has vast opportunities regarding the exploitation of extraterrestrial resources which can be tapped. One of them is ‘Mining’ in outer space, which, if carried on sustainably can benefit mankind in innumerable ways. The relevance of this article is increased by recent international events. Recently, Planetary Resources Inc. and Deep Space Industries have announced plans to mine asteroids for water and rare earth metals.1 In furtherance of the same, the US has passed the historical U.S. Commercial Space Launch Competitiveness Act, Title IV of which recognizes the rights of U.S. citizens to own resources obtained from asteroids and promotes commercial exploration and utilization of asteroidal resources.2 In 2013, China landed their spacecraft Chang’e on Moon to assess mineral resources using the rover Yutu.3 India (Chandrayan and Mangalyan) and Japan have also done similar assessments from orbit.4 Humankind’s thirst for consumption of resources will invariably land them on celestial bodies, which follows the exploitation of extraterrestrial resources For example, it is speculated that there are one million metric tons of Helium-3 in the lunar regolith that has been deposited over time due to solar winds.5 It would be in strategic interest of any nation to mine Helium-3 from the lunar regolith and return them to Earth. The present article will analyze the various legal challenges that mining activities in outer space might encounter and envisage future perspectives for creation of a robust legal regime for mining activities in outer space. Presently, the lack of an acceptable legal framework for space mining impedes commercial mining activities. Therefore, this paper proposes a balanced and workable framework for the regulation of such mining activities with due regard to the interests of various stakeholders.

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2

3

4

5

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Mike Wall, ‘Asteroid-Mining Projects Aims for Deep-Space Colonies’, Space.com (January 22, 2103), available at: www.space.com/19368-asteroid-mining-deep-spaceindustries.html (accessed on 20th September 2015). H.R. 2262 – 114th Congress (2015-2016), available at: https://www.congress.gov/bill/114th-congress/house-bill/2262/all-info (accessed on 26th November 2015). Sarah Pruitt, ‘Chinese Spacecraft lands on Moon’, History in the Headlines (December 16, 2013), availaible at; www.history.com/news/chinese-spacecraft-lands-onmoon, (accessed on 19th September 2015). National Space Society, 6 To the Stars International Quaterly (January 2014), 34, availaible at; www.nss.org/tothestars/ToTheStars_006_2014jan.pdf, (accessed on 20th September 2015). Richard S Lewis, Space in 21st Century, 89 (1990).

SUSTAINABLE SPACE EXPLORATION AND USE

II.

Analysis of Legal Challenges to Mining in Outer Space

II.1.

National Appropriation Principle

The national appropriation principle is unique to Space Treaties. Although similar terminologies have been used with reference to the same in the Antarctica Treaty and the UNCLOS 1982, the exact phrase has not been mentioned in any other law in force.6 It is clear from the literal interpretation of Art. II of OST that any property title over outer space, including moon and other celestial objects by use or occupation or any other means is prohibited.7 Such interpretation is also supported by the travaux of the OST8 and state practice as evidenced in U.S.9 and China.10 A statement issued by the Board of Directors of IISL also reaffirms the principle of non-appropriation strictu sensu by stating that there can be no private property rights in outer space, including the moon and other celestial bodies.11 The fact that a State retains jurisdiction and control over its installations and facilities till they exist in outer space does not mean that it gains ownership over the said “area”. It is because under international law, things which are owned by the public, like the seashore or the global commons, cannot be the property of one State based on prescription or adverse possession.12 The right to use an area exists till the state abandons its installation or it is demolished, subsequent to which another State can establish its installations on that area. The former state cannot argue henceforth that it had acquired a prescriptive right by being in that area by continuous possession of the same. This is the freedom of access and use in the commons regime.

______ 6

7

8

9 10

11 12

Stephan Hobe, Adequacy of the Current Legal and Regulatory Framework Relating to Extraction and Appropriation of Natural Resources in Outer Space, 32 Annals of Air and Space Law (2007). F.G. von der Dunk, E. Back-Impallomeni, S. Hobe, R.M. Ramirez de Arellano, Surreal Estate: Addressing the Issue of Immovable Property Rights on the Moon, 20 Space Policy 2004, 149 at 152. Soviet Proposal, UN Doc A./AC.105/C.2/E.1; UN Doc A/AC.105/C.2/L.6; US Representative Mr. Goldberg, UN Doc A/AC.105/C.2/SR.58; Austrian Delegation, UN Doc. A/AC.105/C.2/SR 58; Belgian Representative, UN Doc. A/AC.105/C.2/SR.71; French Representative, UN Doc. A/c.1/PV.1492. Nemitz v N.A.S.A., 126 Fed Appx. 343 (9th Cir. (Nev.) (10 Feb. 2005). Xinhua News Agency, ‘Court rejects lunar embassy’s right of moon land selling’, (March 17, 2007) available at: www.china.org.cn/english/China/203329.htm; (accessed as on 16th September 2015). Statement of the Board of Directors of the IISL, International Institute of Space Law (2009). Hugo Grotius, The freedom of seas, or the rights which belongs to the Dutch to take part in the East Indian Trade (1608).

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II.2.

Exploration and Use

The OST principally emphasises the importance of free access to outer space by all states on the basis of equality for exploration and use.13 Article I is a general clause which affirms the right to freedom of exploration and use for all states. It is to be noted that by reference to all states, the freedom of exploration and use is not only restricted to states, but extends to international organizations, nongovernmental organizations and individuals.14 However, states will have to bear responsibility for national activities of their nongovernmental organizations and individuals.15 ‘Exploration’ is a scientific endeavour while ‘use’ may be scientific or commercial. It is of common understanding that commercial use of outer space is allowed by the OST.16 The term ‘use’ is of more importance with respect to mineral resource mining in outer space. Scientific ‘use’ of space resources is largely free; however the pivotal question is whether commercial ‘use’ of outer space resources is envisaged under OST. Or to put it simply, is “exploration and exploitation” of outer space resources envisaged by the OST? ‘Use’ in legal sense refers to enjoyment of property which is often result of exercise of such property and includes an element of profit or benefit.17 The term ‘province of all mankind’18 is not defined in the space treaties. ‘Province’ according to Blacklaw’s Dictionary means sphere of an activity related to profession.19 A co-joint reading of ‘use’ and the ‘province of all mankind’ would mean a sphere of activity20 which involves an element of profit or benefit by enjoyment of property. As the OST prohibits any establishment of ownership rights, a State may still accrue benefit out of use of certain area of outer space, including moon and other celestial bodies, owing to the right of usufruct, discussed later in this article. A right of usufruct arises upon de facto possession of a property owned by another. The United Nations General Assembly Resolution (UNGA) 1348 (XIII) of 1958 establishing the Ad Hoc Committee on the Peaceful Uses of Outer Space (COPUOS) includes the word ‘exploration and exploitation’21 which was later changed to ‘exploration and use’ in UNGA Resolution 1721 (XVI)

______ 13 14 15 16 17 18 19 20 21

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O.S.T., art. I (10 Oct. 1967), 18 U.S.T. 2410, 610 U.N.T.S. O.S.T., art. VI; Stephen Gorove, Studies in Space Law: Its Challenges and Prospects 82-84 (1977). O.S.T., art. VI. K-H. Bockstiegel, Legal Implications of Commercial Space Activities, 24 I.I.S.L. Proc. 1 (1981). Gorove, supra note 14 at 54. O.S.T., art. I. Bryan Garner, Black’s Law Dictionary 1240 (1999). Manfred Lachs, The Law Of Outer Space: An Experience In Contemporary LawMaking 41-42 (1972). UNGA Res. 1348, Question of the peaceful use of outer space, U.N. Doc. A/Res/13/1-A/ Res 1348 (XIII)(13 December 1958).

SUSTAINABLE SPACE EXPLORATION AND USE

of 1961, preceding the OST.22 This indicates that term ‘use’ was originally intended to encompass ‘exploitation’. State practice also suggests that term ‘use’ includes exploitation of space resources.23 The question whether extraction of mineral resources from the moon and other celestial bodies can be considered as ‘exploitation’ is answered by referring to the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter referred as ‘Moon Agreement’) which envisages the exploitation of natural resources of the moon and other celestial bodies in Article 11(5). If the Moon Agreement includes the exploitation of natural resources, a fortiori the OST should also allow the exploitation of resources. Moreover, the res communis regime involves the idea of exploration, exploitation and use of the community area and its resources.24 Property Rights in Outer Space vis-à-vis Appropriation of Mineral Resources

II.3.

For promoting mining in outer space, the distinction between appropriation of an area or part thereof by claim of sovereignty must be distinguished from appropriation of particular resources existing in that area.25 The national appropriation principle discussed prohibits any public or private property rights in outer space. Now, any interpretation of a treaty has to be done by reference to its context and object and purpose.26 Article I literal 1 of OST read with Article I literal 2 OST forwards a view that as the exploration and use of outer space should be carried out for benefit and in interests of all countries, any claim of sovereignty in outer space would run contrary to Article I literal 1.27 Hence, the purpose of Article II is to prevent exclusive claims to outer space due to its res communis nature.28 The resources present in a commons regime can be exploited by all. For example, fisheries wherein the area is a common pool and the resource i.e. the fishes can be utilized by everyone.29 Just as the mineral resources in the High Seas are open to all, subject to international regulations, outer space mineral resources are open to all.30 Freedom of exploration and use is the fundamental principle of space law and has no express prohibition on exploitation of

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UNGA Res. 1721, International Co-operation in the peaceful uses of outer space, U.N. Doc. A/Res/1721(XVI) (Dec. 20, 1961). Carl Q. Christol, The Modern International Law of Outer Space 40 (1982). Ibid. D.S. Myers, Common Interest and Non-appropriation in Outer Space, International Relations 529, 538 (1977). Article 31 (1), Vienna Convention of the Law of Treaties, 1155 U.N.T.S. 331. Nandasiri Jasentuliyana, Article 1 of the Outer Space Treaty revisited, 17 JSL (1989) at 129. Hobe, supra note 6 at 123. Richard Barnes, Property Rights and Natural Resources 372 (Hart 2009). James E. W. Fawcett, Outer Space: New Challenges to Law and Policy 11-14 (1984).

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mineral resources. As a corollary to the freedom of exploration and use in the OST, the residuary rule of presumptive freedom of action as a principle of international law, permits what is not prohibited.31 Jurists like Professors Gorove32 and Jenks33 opine that the non-appropriation principle applies only to landed areas of the moon and other celestial bodies and does not extend to mineral resources. Keeping in view the aforementioned contentions, it can be said that the national appropriation principle only prohibits appropriation of ‘areas’ in outer space including the Moon and other celestial bodies, however does not prohibit the appropriation of mineral resources in outer space. The Space Benefits Declaration34 can be considered as an interpretation of Article 1 of the OST.35 While the Declaration expands the OST with regard to apportionment of benefits, it does not prohibit the appropriation of resources. In presence of express prohibition of public and private property rights in Article II of OST, if the appropriation of natural resources was also to be prohibited, then such stipulation should have been included. Hence, it can be concluded that appropriation of natural resources are not prohibited under the OST, while the amount of international cooperation in benefit sharing that a state is willing to do is at its own discretion in accordance with the Space Benefits Declaration.36 II.4.

The Usufructuary’s Rights of Enjoyment

The concept of usufruct is a civil law concept derived from Roman jurisprudence. In Roman law, “usufructus is [...] the right of using and enjoying property belonging to another provided the substance of the property remained unimpaired [...] A usufruct may be in land or building, a slave or beast of burden, and in fact, in anything except things which were destroyed by use”37

The holder of such right is called the usufructuary. Usufruct consists of two elements: the right to use a thing (jus utendi) and the right to draw its fruits (jus fruendi).38 The usufructuary does not have ownership rights, only the

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Hersch Lauterpacht, International Law: Collected Papers 220 (1975). Gorove, supra note 14. Wilfred C. Jenks, Space Law 275 (Frederick A. Praeger 1965). U.N.G.A. Res. 51/122 (13 Dec. 1996); XXI-II An. Air & Sp. L 556 (2006) [hereinafter Space Benefits Declaration]. See M. Benko, K.-U. Schrogl, The 1996 UN-Declaration on “Space Benefits” Ending the North-South Debate on Space Cooperation, 39 I.I.S.L. Proc. 183 (1996). Space Benefits Declaration, para. 2. R.W. Leage, Roman Private Law, 181-182 (Macmillan 1964). La. Civil Code arts. 533, 535 (1870); French Civil Code art. 578; B.G.B. §§1030, 1068(2); Greek Civil Code art. 1142.

SUSTAINABLE SPACE EXPLORATION AND USE

right to use and draw benefits from the subject matter of usufruct. The principle of usufruct is a national law principle and its extension to outer space can be termed as instant customary law. Extension of national laws to the regime of outer space is not uncommon as evidenced by State Practice. For example, United States Patents Act extends to a spacecraft in outer space.39 This recent state practice although limited is evidence of opinio juris.40 Hence, by analogy, we can term the rule of usufruct to be instant customary law. The principle of usufruct can also be termed as a general principle of law recognized by civilized nations.41 The principle of usufruct can be imported to extraterrestrial law as outer space law is an extension of international law. Space law is lex specialis and international law is lex generalis. Now, as the OST prohibits ownership rights of areas in outer space, but allows the appropriation of resources, the exploiter can be termed as a usufructuary. The principle of usufruct is vital as it embodies the tenets of space law. A usufructuary acquires the ownership of resources upon separation.42 Mines on earth may be subject to usufruct provided such a right to mine is granted by the State.43 Similarly, States may be granted Mining Rights by the international community as outer space is res communis. The State does not gain any title in the area to be mined, but only the protection of law regarding usufruct.44 This allows orderly development of minerals prospecting and extraction. As the term ‘mankind’ is a vague terminology, there is an urgent requirement to create an international regime which represents ‘all’ countries for granting of mining rights to space faring nations. II.5.

The Dynamism of CHM Principle: Promoting Space Commercialisation

The Moon Agreement is said to the most poorly drafted of the five United Nations Treaties on space law45 and has practical problems of application. The specific reference to present and future legal processes in the Moon Agreement is designed in such a way that it offers optimum utilization and

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45

35 U.S.C. §105. Anouar Boukhars & Jaques Roussellier, Perspectives on Western Sahara 231 (Rowman and Littlefield 2014). Statute of the International Court of Justice, art. 38(c) (26 June 1945), 33 U.N.T.S. 993. German Civil Code, B.G.B. §594. A.N. Yiannopoulos, Rights of Usufructuary: Louisiana and Comparative Law, 24 Louisiana L. Rev. 4 (1967). L.F.E. Goldie, Title and Use (and usufruct) – An ancient distinction too often forgot, 79 American J. of Intl. L. 689, 705 (1985); M.L. Smith, The Commercial Exploitation of Mineral Resources in Outer Space, Space Law View of the Future 49-55 (1988). Bin Cheng, The Moon Treaty: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies within the Solar System other than the Earth. December 18, 1979, 33 Current Legal Problems 223 (1980).

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exploitation of the Moon and its natural resources.46 The precise stipulation in Article 4 of the Moon Agreement states that ‘exploration and use of the Moon’ shall be in benefit of all mankind and that due regard to economic and social progress should be given. Therefore, it can be suggested that Moon Agreement promotes the idea of economic exploitation of resources. Article 11 (1) declares that the Moon and other celestial bodies to be the Common Heritage of Mankind (CHM). The CHM principle has also been applied to the deep seabed and to some extent to the Antarctic Regime.47 However, the CHM principle in Moon Treaty is qualified by the phrase, ‘which finds its expression in the provisions of this treaty’, and such qualification sets it apart from the CHM provision in UNCLOS 1982. The CHM principle which involves the non-appropriation principle and the socialist principle of equitable benefit sharing has been the obstacle for the treaty.48 There is no consensus on the basic premise of the principle and that is the primary reason for the reluctance of States who were involved in the negotiating process actively, to ratify the Moon Agreement.49 The CHM is a dynamic concept50 and keeping in view the internal inconsistencies in the Moon Agreement and the practical difficulties of implementation of non-appropriation principle in accordance with the treaty, it is desirable to divorce the concept of non-appropriation from the CHM for better workability of the treaty provisions. Henceforth, it is desirable to interpret the CHM as a ‘functional concept’, rather than a ‘territorial concept’ divorced from the independent international law principle of non-appropriation.51 The International Law Association Resolution No. 1/2002 at New Delhi, India which is a major breakthrough in interpretation of space law declared that the CHM has evolved for allowing commercial uses of outer space for the benefit of mankind.52 The inapplicability of the non-appropriation element of CHM is more evident in cases where the object of this principle is a resource

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50 51 52

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Carl Q Christol, The Moon Treaty and Allocation of Resources, 22 Annals of Air & S. L. no. 2, 37 (1997). Rudiger Wolfrum, The principle of Common Heritage of Mankind, 43 Zao. R.V. 312, 330 (1983). Fabio Tronchetti, The Exploitation of Natural Resources of the Moon and other Celestial Bodies (2009). UN Doc A/AC.105/917, Report of the Legal-Subcommittee of its Forty Seventh Session, 18 April 2008; UN Doc A/AC. 105/935, Report of the Legal-Subcommittee of its Forty eighth Session, 20 April 2009; UN Doc A/AC. 105/942, Report of the LegalSubcommittee of its Forty ninth Session, 16 April 2010. Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrol (ed.), Cologne Commentary on Space Law, vol. 1, 393 (2013). L Hanniken, Preemptory Norms (Jus Cogens) in International Law 562 (1988). Stephan Hobe, ILA Resolution 1/2002 with regard to the Common Heritage of Mankind Priciple in the Moon Agreement, 47 I.I.S.L. Proc. 236 (2004).

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rather than spatial.53 Exploitation of natural resources in outer space is general practice among states and private entities. The consideration of the Geostationary orbit is required for a moment. The orbital spectrum resource (OSR) in the GEO is an exhaustible natural resource involving a set of frequencies, coverage areas and orbital positions needed for the operation of any satellite communication system.54 The International Telecommunication Union (ITU) constitution refers to these OSR as natural resources and access to the orbits shall be made available on an equitable basis. The purpose of the ITU is to allocate bands of radio frequencies and orbital positions in the GEO to countries55 and to promote extension of the benefits of telecommunications to all the world inhabitants.56 The allocations of so called slots are basically allocation of natural resources in space for its sustainable exploitation. The state practice and opinio juris (in form of ITU Constitution and Regulations) suggest the existence of an international custom in furtherance of the legality of exploitation of natural resources in outer space. Hence, international practice suggests that states now intend to interpret the CHM principle in a manner which promotes commercialization of outer space, rather than restricting commercialization. This change in interpretation of this principle with respect to the Moon Agreement is grounded on Article 31(3)(b) of the Vienna Convention on Law of Treaties, 1969 which articulates that subsequent state practice may change the interpretation of a treaty.57 II.6.

Equitable Sharing of Benefits: Responsible Space Exploration and Use

The other challenge that commercial mining faces in the Moon Agreement is the equitable sharing of benefits clause and the express wording in Article 11(7)(d) of the Moon Agreement. The CHM concept philosophically supports the idea of common trusteeship of resources in contrast to common ownership concept of Res communis. Trusteeship does not negate existence of propriety appropriation.58 This means that the benefits derived should be used for betterment of humanity by removing inequalities in wealth distribution among nations.59

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58 59

Leslie Tennen, Outer space: A Preserve for all Humankind, 1 Houston Journal of International Law 152-153 (1979). International Telecommunication Union Constitution, art. 44(2) A.T.S. (1994) 28; B.T.S. 24 (1996) [hereinafter I.T.U.]. I.T.U., art. 1(2a). I.T.U., art. 1(2d). ICJ Advisory Opinion, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) 1971 94 (June 21). Kemal Baslar, The Concept of Common Heritage of Mankind in International Law (1998). Ibid.

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The term used in Article 11(7d) is ‘equity’ and not ‘equality’ which means that a balance of interests between the developing countries and the developed countries is intended by the treaty. However, there is no specific mention about the methods of equitable sharing. The best way would be to negotiate an agreeable specific manner in which benefits will be shared as it will remove the discrepancy and mistrust of developed countries which fear that equitable distribution may be construed as free lunch by developing countries and other non-space faring nations. The Moon Agreement does not specify what types of benefits are to be shared under Article 11(7d). The term ‘benefits derived from resources’ indicate that indirect benefits may also be provided. Such benefits for example, may include the grant of right to developing countries to participate in exploration of outer space through bilateral agreements etc.60 Non-discrimination and reasonable profit is the key element for effective and balanced implementation of the equity clause. Hence, exploiters must be allowed to maximise their profits, but at the same time levies or quotas can be imposed upon economic benefits derived by market access. Collection from levies may be then utilized for fulfilling the obligations under the treaty creating a rational and orderly development of space resources. A good example is the United States Deep Seabed Hard Minerals Resources Act which established a Trust fund; wherein levies were to be collected from the benefits derived from deep seabed exploitation and deposited at the Trust Fund.61 The provisions of the Moon Agreement deal extensively with exploitation of natural resources contra-distinct to the OST. The OST does not contain any mention of exploitation which is open to interpretation differently by different States. In light of the same, some states who believe that developed nations may act unilaterally under the expansive scope of OST and might interpret it narrowly to create chaos to the well established law of space. In light of the same, Moon Agreement seems more favourable to the states intending to exploit the natural resources of the Moon and other celestial bodies, subject to certain reasonable restrictions. II.7.

Is There a Moratorium to Start the Exploitation of Mineral Resources in the Moon Agreement?

The answer is in negative as evident from drafting history of the Moon Agreement. A clarification was issued by the United Nations General Assembly regarding the Moon Agreement that it was not intended to result in pro-

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V. Leister, South to South Cooperation in Outer Space: The Brazil China Agreement, 32 I.I.S.L. Proc. 15-17 (1989). 30 U.S.C. §1441 (1980), sec. 403.

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hibiting the exploitation of natural resources which may be found on celestial bodies other than the Earth.62 II.8.

Ownership of Natural Resources: ‘in-situ’ and ‘Extracted’

In Article 11(3) of the Moon Agreement, it is stated that neither the surface nor the subsurface of the Moon or other celestial bodies or natural resources ‘in place’ shall become property of any State, international organization or NGO or natural person.63 Article 6 of the Moon Agreement refers to in-situ scientific utilization of resources and is subject to the re communis regime while commercial exploitation of resources under the Moon Agreement will be subject to the CHM principle. This is the dichotomy in the Moon Agreement.64 It is to be noticed that the natural resources are qualified by the term ‘in place’. The provision read as whole suggests that Article 11 (3) intends to prevent creation of ownership rights over natural resources in-situ by establishment of installations, or structures, etc.65 Rather than acting as an obstacle to the right to appropriate mineral resources, it promotes the same by implication that ownership of resources which have been displaced or removed from the Moon and other celestial bodies may be subject to territorial law of the state which has caused the collection of the mineral resources.66 So, exploiters cannot have ownership rights over the surface or subsurface over the Moon and other celestial bodies, but they can have property rights over the mineral resources that have been extracted.67 The travaux also supports the view that the whole purpose of inserting the term ‘in place’ was to create ownership rights over the resources once they have been removed from their original location.68 The Soviet draft,69 the U.S. draft,70 the Austrian draft of 1978 all reiterated the same interpretation. The Argentine proposal of ‘all substances originating in’71 was rejected and the term ‘in place’ was used. The term ‘in place’ neutralizes the CHM qualification for recovery and retaining

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63 64 65 66 67 68 69 70 71

UN Doc. A/34/20, Report of the Committee on the Peaceful Uses of Outer space, General Assembly Official Records, Thirty-fourth Session, Supplement No. 20, 14 August 1979, para. 65. Moon Agreement art. 11(3) (Dec. 18, 1979) 1363 U.N.T.S. F.V. Der Dunk, The Moon Agreement and the Prospects of Commercial Exploitation of Lunar resources, 32 Annals Air and Space L. 103 (2007). James E.W. Fawcett, Outer Space: New Challenges to Law and Policy (1984). Christol, supra note 23. Elleine Galloway, Status of the Moon Treaty, Space News, 3-9, 21 (1998). COPUOS, UN Doc. A/AC.105/P.V.203, 22 (16 July 1979). COPUOS, art. 8, UN Doc A/8391, Annex (4 June 1971). UN Doc A/AC. 105/C.2/SR. 205, 116. COPUOS, UN Doc A/AC.105/C.2/L.69.

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of resources. The lack of moratorium is also evidence of the fact the Moon Agreement does not prohibit appropriation of minerals in outer space.72 III.

Lessons from Other Global Commons

III.1.

Convention on the Regulation of Antarctic Mineral Resource Activities, 1988 (CRAMRA)

The Antarctic Treaty System (ATS) is a complex collection of legal instruments one which has flourished as a result of international cooperation and effective demilitarization. The Antarctic Treaty consists of the elite club called the Antarctic Treaty Consultative Parties (ATCPs)73 which practically ‘run the show’. ATCPs have special interests in the region and have allocated responsibilities in furtherance of the same. The CRAMRA74 is an Antarctic Treaty System Convention which dealt with prospective mineral exploitation regime in Antarctica. The CRAMRA was also a compromise between States, like the Moon Agreement, which failed to receive the requisite number of signatories to come into force.75 Nevertheless, investigating the working of the CRAMRA will inexorably provide insight into a mineral extraction regime that might be helpful for establishing the international regime for exploitation of natural resources as mandated in the Moon Agreement. The CRAMRA is a sui generis compromise agreement which balances the competing claims of sovereignty and those states which do not accept those claims in Antarctica. The Agreement is a neutral document which neither promotes nor prohibits mineral development in Antarctica. The Convention is not a mining code; rather it is a guiding framework stating specific positive and negative obligations of States regarding mineral resource development and contains provisions for authorizing and administration of the mineral resources regime. CRAMRA has strong environment protection provisions which demand high standards to be fulfilled.76 CRAMRA regulates minerals prospecting, exploration and development activities, although mining can be

______ 72 73

74 75

76

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B. Larschan & C.B. Brennan, The Common Heritage of Mankind Principle in international law, 21 Colombia J. of Transnational L. 305, 330 (1983). Donald Rothwell, The Polar Regions and the Development of International Law, 54 Sydney Law Review (1996), at 86-7. The ATCPs consists of States Parties who have fulfilled the requirements of Art. IX(2) of the Antarctica Treaty. 27 ILM 868 (1988), opened for signature June 2, 1988 (not yet in force). Antarctica New Zealand Information sheet, Mining Issues in Antarctica, available online at: http://antarcticanz.govt.nz/images/downloads/information/infosheets /mining.pdf, (accessed 17th September, 2015). France and Australia refused to sign the Convention. France, Australia and New Zealand advocated that Antarctica be considered as a ‘natural reserve’ and the ‘land of science’. U.S. Congress, Office of Technology Assessment, Polar Prospects: A Minerals Treaty For Antarctica, OTA-O-428 (1989), at 58-59.

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done only after proper authorization to the project. The authorization will be granted only if significant adverse impact is not caused to the atmospheric, terrestrial and marine environments.77 Regarding liability, Operators are ‘strictly liable’ for all environmental damage arising from mineral resource activities, including clean-up and restoration costs.78 At the outset, CRAMRA seems like an interesting model for the international regime in outer space. Although, the ATS is a sui generis system, it might be an inspiring tale for the regime in outer space because the success of the ATS is based on international cooperation and the maturity of States in understanding the importance of protecting the environment of Antarctica. III.2.

The Inter-Agency Consultative Group (IACG)

The search for international cooperation might be answered by an umbrella organization in line with the likes of IACG. Multilateral organizations fail due to bureaucratic obstacles and the ensuing fear among nations that they might lose control over their own projects.79 The IADG is a multinational group which overcame these obstacles. The IACG was formed for building, launching and tracking of the GIOTTO spacecraft prior to the passage of Halley’s Comet in 1986 to coordinate national efforts to observe the comet.80 The organizational structure of IACG was simple and it acted as an advisory body to the member agencies. The international effort of the ICAG was a success example of international cooperation. The success of the IACG was attributed to its simple management interfaces.81 Moreover, the IACG did not require exchange of funds and involved minimal technology transfer. International cooperation is necessary to provide synergy to a space project.82 Unfortunately, after the demise of the Roger Bonnet, who was instrumental in promoting the IACG, the organization also disappeared. Its last meeting was at Moscow, Russia in 2002.83 Unlike the IACG, an umbrella organization for commercial mining of space resources requires fulfilling the condition of equitable benefit sharing.84 It can be formalized through an inter-governmental agreement or terms of reference

______ 77 78 79

80 81 82 83 84

CRAMRA, art. 4, (2 June, 1988) (not in force). CRAMRA, art. 8, (not in force). U.S. Congress, Office of Technology. Assessment, Exploring The Moon and Mars: Choices For The Nation, OTA-ISC502, (1991). J. Johnson-Freese, A Model for Multinational Space Cooperation, 5 Space Policy 288 (1989). Kenneth S. Pedersan, Molly Macaulay (ed.), The Global Context: Changes and Challenges in Economics and Technology in U.S. Space Policy 286 (1986). Ibid. ISAS, JAXA, available at: www.isas.jaxa.jp/e/about/ic/iacg.shtml, (accessed 18th September, 2015). Moon Agreement art. 11(7)(d).

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for compliance with international law and an operating agreement for regulating the relationship between public and private entities. The Agreement may be formed by a ‘club’ of developed States and some developing states which can provide major contribution to prospecting, exploration and development of resources. III.3.

Deep Seabed Regime

States are unwilling to replicate the Law of Seas mechanism for outer space due to its specificity. More specifically, due to the provisions related to transfer of technology, an economic model against the tenets of free market economy, due to the Authority’s control over level of production and prices and equal voting rights irrespective of States’ technological capabilities or contributions to development of seabed resources.85 Hence, it is opined by the author that the Deep seabed regime mechanism cannot be replicated in outer space in the future. IV.

Proposed International Framework

Sustainable utilization of Minerals contribute to progress and development to ensure high living standards, create a competitive market for resources at the national and international level and most importantly are of strategic value to any nation. Keeping in view the benefits of space mining and its importance to mankind as a whole, it is important to create an international regime which facilitates market access to benefits of outer space and protects the interest of investors at the same time. Here it is noteworthy that an international regime need not be created exclusively under the Moon Agreement i.e. an international regime can also be created by States without being party to the Moon Agreement. Considering the poor performance of the Moon Agreement, it would be futile to expect an international regime under its mandate of Article 11(5). However, an international regime to govern exploitation of mineral resources is indispensable for sustainable exploitation of space resources. The process in which the regime harmonises the basic tenets of space law with a beneficial economic model for investors is of vital consideration. The failure of the UNCLOS to cater to investor’s interests under the deep seabed regime is required to be kept in mind while establishing an international regime for outer space. IV.1.

‘Hard Law’ Regime for Mining Activities in Outer Space

A Convention on Mining Activities on the Moon and other Celestial Bodies (Mining Convention) is required to be negotiated by like-minded states. The reference to like-minded states is important because agreement reached by

______ 85

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Glenn Harlen Reynolds, Space Law in the 21st Century: Some thoughts in Response to the Bush Administration’s Space Initiative, 49 Air Law and Commerce 416 (2004).

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states which are directly affected by space mining can provide a general foundation on which further integration could be done.86 The Convention may be in furtherance of the Moon Agreement designed on the lines of CRAMRA, however with prominence to the principle of non-appropriation. The CRAMRA evades the question of sovereign claims by States which undermines its effectiveness; the Mining Convention should give prominence to the national appropriation principle and the non-weaponization principle. No property rights would be recognized by the State Parties, instead mining slots are to be provided to applicant States, similar to the ITU mechanism of providing orbital slots in GEO to States. This will ensure freedom of access of Article I of OST. However, the mining slots do not confer ownership rights; rather it confers the right to usufruct. The right to usufruct will give proper safeguards to the entities engaged in mining activities from interference by other States in their activities. The mining slots can be renewed periodically. Mining Rights may be granted to private entities provided authorization and continuing supervision is done by the appropriate State Party. Conformity to the OST and general international law is a prerequisite for Mining Activities in Outer space. States will bear international responsibility for the conduct of their non-governmental entities pursuant to Article VI of OST. The Mining Convention should establish four organs which will carry out the objectives and functions of the Convention: 1. The Commission: The Highest Decision making body, consisting of all State Parties and engaged in formulation of a ‘Mining Code’. The Mining Code should promote investor returns keeping in mind protection of outer space environment. The voting procedure in the Commission will be based on ‘one State, one vote’. Veto powers should be provided to the States which have special interests in mining. 2. The Regulatory Committee (RC): The RC will be the implementing body which means that it will award mining slots and mining contracts on prospected areas. Prospecting should be largely free pursuant to Article I of OST; however exploration and developmental activities will require the approval of the RC. Pursuant to RC approval, Mining contracts shall be awarded to the applicants. 3. The Scientific Advisory Committee and Secretariat shall have well defined roles as decided by the State Parties to the Convention. 4. Establishment of Trust Fund for equitable sharing of benefits. The ownership of ‘extracted’ minerals shall belong to the entity which has the Mining Contract with the RC, as the appropriation of resources is allowed by the OST and also by the Moon Agreement. Apportionment of resources in case of joint usufruct rights over mining slots can be done through Partner-

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This approach is inspired by the Antarctic Treaty system and ATCPs.

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ship Agreements between the entities themselves. The Mining Convention should be without prejudice to any such agreement between Parties. The States shall compulsorily have to adhere to the other agreements and conventions applicable in outer space. The definition of ‘launching state’ has to be revamped keeping in view the participation of non-governmental entities. The Mining Contracts should be for a limited period of time to prevent any assertion of ownership claims which can be periodically renewed and non-renewal will amount to termination of the contract. Termination of the Contract can also be possible in case of any violation of the Mining Code. Pollution is a corollary of mining activities. Hence, to mitigate the same, Mining Pollution Control (MPC) guidelines shall have to be formulated along with the Mining Code by the Commission. ‘Safety zones’ have to be designated for areas which are sensitive for the scientific research; such areas cannot be used for commercial mining purposes. The RC shall impose levies on any entity which does not adhere to the MPC guidelines. Mining Credits similar to Carbon Credits should be awarded to entities which control their pollution levels. Carbon credits are tradable commodities; similarly mining credits can also be traded between the entities. Now, the most controversial of all is the principle of equitable sharing of benefits. Any convention on Mining will have to include the issue as the concerns of the developing nations and non-space faring nations have to be given special consideration in accordance with Article I of OST and the Space Benefits Declaration (also the Moon Agreement). A Trust Fund will have to be established for furtherance of equitable sharing of benefits accrued from exploitation of resources in outer space. Mining entities (Contributors) will have to contribute a percentage of their profits to the Fund. The Fund will use those profits to provide space-based applications, knowledge sharing and exposure to space-based benefits like remote sensing and satellite communications to the developing nations. The percentage share of the contributors will be based on the proposal of a new principle of ‘Equitable Responsibility for Global Commons’ in space law which means that every entity involved in mining activity has a common responsibility towards the mankind as a whole; however the responsibility will be equitably shouldered in accordance with differing financial and technological capabilities. This idea is similar to the principle of Common But Differentiated Responsibility (CBDR) recognized under International environmental law.87 Each entity involved in Mining activities should shoulder differential

______ 87

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The concept of Common but Differentiated Responsibilities (CBDR) was enshrined as Principle 7 of the Rio Declaration at the first Rio Earth Summit in 1992, which defines CBDR as: ‘In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global envi-

SUSTAINABLE SPACE EXPLORATION AND USE

burden based on their investment levels. This will lead to equitable sharing of benefits in its truest sense, wherein benefits as well as the burden shared is based on the notions of equity. The Post mining activities like transfer, sale criteria, etc. of space mineral resources should be based on the market principle of laissez faire i.e. minimum government interference is expected in such areas for ensuring maximum returns for investors. There should be less regulation over post mining stage because once the principle of equitable sharing of benefits is adhered by the parties, further regulation over the mining regime would be detrimental to investment concerns. The prime purpose of the Mining Convention should be to promote sustainable exploitation of resources on the moon and other celestial bodies rather than regulation of profit incentives for investors. Effective commercialisation of the space resources would be only possible if investors are allowed autonomy over the ‘extracted minerals’ as if vesting them with property rights over the ‘extracted minerals’. Vesting of property rights over ‘extracted’ mineral resource is not prohibited by the national appropriation principle in OST or the CHM principle of Moon Agreement. In order to resolve the disputes between the states parties under the Mining Convention, the Commission should also establish a dispute settlement body where Arbitration could be resorted to for effective resolution of disputes. IV.2.

‘Soft Law’ Alternatives

The question of space mining is a contentious and sensitive issue for states, and political considerations mat act as clog for the formation of new treaties. There may be the possibility of a treaty falling dead during the negotiation process due to political reasons or may be rendered ineffective due to lack of participation. This calls for analyzing alternative approaches of developing a regulatory regime for space mining. Long-term sustainable space exploration and use requires broad stakeholder support through consultations.88 These consultations can be done in a transparent, non-binding and trustworthy ambience through establishment of norms of behavior. Norms of behavior are soft law instruments which constitute recommendatory guidelines for standard practices established through shared understandings of responsible behavior within the international community.89 With the influx of time, as hard law has become unpopular, development of international norms of behavior supported by national legislation for regulation of mining activities would lead to sustainable space exploration and use.

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89

ronment and of the technologies and financial resources they command.’ CBDR is an internationally recognised principle. Laura Delgado Lopez, Beyond The Moon Agreement: Norms of responsible behaviour for private sector activities on the moon and celestial bodies, 33 Space Policy (2013), 2. Ibid.

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Such standard-setting endeavors may include the development of TCBMs which have been considered by the international community as pragmatic approach to initiate international dialogue on sensitive issues.90 TCBMs are voluntary, non-legal measures which involve multiple levels of dialogue and interaction for broader understanding of shared commitments by reducing misperceptions, political wariness and miscalculations.91 Norms of behavior provide the much required political flexibility.92 They should encourage international cooperation, consultative mechanisms, outreach and coordination among relevant actors involved in mining activities.93 Basic principles of OST like national appropriation and peaceful use of outer space, information sharing and peaceful settlement of disputes should be reiterated by the standard practices established by the international community.94 Once, a consensus on the shared understanding of responsible behavior has been reached among states, national legislation can be effected to implement such standards according to the commitments of the states. This would lead to implementation of common standards at a global level, thus gradually creating a common ground for developing the much required international regulatory regime for space mining. V.

Concluding Remarks

With the outstanding technological advancement, space mining has become a reality now for space faring nations and private entities. However, there is no clarity on the international legal regime dealing with exploitation of the resources in outer space. Since commercial mining venture will involve huge financial investments, it cannot be performed in an environment of legal uncertainty and therefore, creates the need for having an international legal framework covering the same. During the drafting of the OST, the commercialisation of the outer space and its resources was not anticipated. However, under the Moon Agreement, the principle of Common Heritage of Mankind developed, thus allowing the commercial use of outer space and its resources. The application of the Moon Agreement is not only to Moon itself, but to other celestial bodies, thus potentially covering the planets and asteroids where the mining potential is considered to be infinite.

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92 93 94

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Christopher Johnson, The UN group of governmental experts on space TCBMs, Secure World Foundation Factsheet (april 2014), 1-2. Rajeshwari Pillai Rajagopalan, Role of TCBMS for a sustainable Outerspace, Observer Research Foundation, available online at: www.unidir.ch/files/conferences/pdfs/tcbms-for-outer-space-activities-what-is-theiradded-value-for-sustainable-activities-in-outer-space-en-1-888.pdf, (accessed on 18th September 2015). Lopez, supra note 88 at 3. Johnson, supra note 90, at 2. Lopez, supra note 88 at 3.

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With the analysis of principles like national appropriation, the usufructuary rights of enjoyment and CHM, it can be concluded that it is possible to have property rights over the mineral resources that have been extracted. As suggested, a Convention between the like-minded states to govern mining activities in outer space will help to clear the unsettled position of the legal mechanism and will provide a regulatory mechanism as well. In the alternative, norms of behaviour will also hold strong influence in setting up international rules along with national legislations for regulation of mining activities.

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The International Regime Governing Exploitation of Natural Resources in Outer Space Potential Process of Formulation Yangzi Tao and Guoyu Wang*

Abstract With the development of space technology, the commercialization of space activities have brought urgent needs for international space law, one of which is the establishment of the international regime for the exploitation of natural resources in outer space. This paper focuses on two key issues. First, to what extent could the virtue of the Moon Agreement, i.e. the ideology of “common heritage of mankind” influence the formulation of the international regime? Second, what approaches could be adopted to establish such a regime? On one hand, this paper presents the legal ambiguity of the Moon Agreement and the Outer Space Treaty in this field, especially the former which articulates in its Article 11 that “States Parties ... to establish an international regime ... to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible”, while there is no explicit provisions further interpreting the term “feasible”. On another, this paper analyzes the ideology of “common heritage of mankind” under the context of the Moon Agreement while trying to point out its significance in the establishment of an international regime governing the exploitation of natural resources in outer space. The paper then presents legal recommendation for the formulation of such an international regime, mainly on three perspectives: one, clarifying rights, obligations and responsibilities through amending the Moon Agreement; two, founding the Authority to authorize and supervise the exploitation of natural resources in outer space, the detailed regulations of which could be mirrored from Part XI of the United Nations Convention on the Law of the Sea, in correspondence with the term “common heritage of mankind”; three, developing international norms of exploiting natural resources.

I.

Introduction

As for the exploitation of natural resources in outer space, the Outer Space Treaty contains regulations merely in principle without detailed interpretation,

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Yangzi Tao, Beijing Institute of Technology, China, [email protected]. Dr. Guoyu Wang, Beijing Institute of technology, China, [email protected].

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not to mention the continuing controversy. In this respect, the Moon Agreement provides significant guidance. However, as pointed out in academic community, with respect to the exploitation and use of the Moon and other celestial bodies, there is no clause addressing problems concerning whether if it fall into the scope of “exploration and use”, concerning the establishment of legal mechanisms for it and concerning its international management, etc.1 Therefore, the discussion on establishing an international regime for the exploitation and use of natural resources in outer space requires more attention. Since the exploration and use of outer space made its first move, it has become undoubtedly a consensus of the international society that the rule of law must prevail in outer space activities.2 With the pace of space industry development, there have been many researches on the issues of the applicability, jurisdiction, authorization, and international liability of space law concerning the use of space resources. Based on visible practices, these researches have been predominantly carried out from the perspective of the exploration and use of outer space for scientific use, such as the component analysis of lunar soil. However, “the rule of law” not only rules available space exploration technology, but also foresees future space activities in every possible aspect. The Moon Agreement has started off by articulating in its Article 11 “...to establish an international regime ... to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible”. Despite of the fact that with 11 signatories including no countries capable of managing manned space flight, the Moon Agreement has not been widely acknowledged yet, it is noteworthy that by further interpreting Article 11, the Moon Agreement can lead to a prototype of an international regime governing the use of outer space resources under the framework of the Outer Space Treaty. II.

The International Regime in the Moon Agreement

The Moon Agreement has put forward the conception of an international regime on the exploitation and use of celestial bodies, mainly providing in Article 11. As paragraph 5 of this Article states, “States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.”3

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Shouping Li, Yun Zhao, Introduction to the Law of Outer Space, Sunshine Daily Press 2009, 99. Stephan Hobe, Gerardine Meishan Goh and Julia Neumann, Space Tourism Activities-Emerging Challenges to Air and Space Law? 33 J. SPACE. L. 373 (2007). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, opened for signature 27 December 1979, entered into force 11 July 1984) UNGA Res 34/68 art 11 para 5.

THE INTERNATIONAL REGIME GOVERNING EXPLOITATION OF NATURAL RESOURCES IN OUTER SPACE

An international regime is the foundation of effective exploitation of natural resources in outer space. Under the circumstance that any disputes concerning such exploitation occur, the adjudicatory body shall rely on existing clauses and international norms to decide the elements of law contained in space activities. Assuming that a national space agency of a signatory to the Outer Space Treaty has successfully captured a metallic asteroid (which may very well happen), discussion of its use would arise. For one thing, the use of outer space, in light of the Outer Space Treaty, shall be the province of all mankind. If other space agencies not involved in this activity could still claim rights to exploit the asteroids or not remains negotiable. For another, private sectors participating in this activity at any stage might get involved in this legal issue, such as the claim to commercial use, the character of private sector in space activities and the validity of unilateral commitment from the national space agency. The adjudicatory body, if any by then, would have to face the question that what law could be applied to a case in such condition. The international regime conceived in the Moon Agreement reveals in four stages: theoretical basis, main objectives, concrete contents and establishing procedures. II.1.

Theoretical Basis: The Principle of Common Heritage of Mankind

There are scholars arguing that the international regime conceived in the Moon Agreement is not necessarily based on the principle of common heritage of mankind, which could be challenged in two aspects.4 First, the principle of common heritage of mankind is substantially the cornerstone of the Moon Agreement. The concept of “common heritage of mankind” was first proposed in the field of the law of the sea. On December 17th 1970, the United Nations General Assembly passed Resolution 2749, acknowledging that the seabed and its resources are the common heritage of mankind.5 Earlier in the same year, the representative of Argentina had proposed in the meeting of the Legal Subcommittee of UNCOPUOS to introduce the concept of “common heritage of mankind” to international space law, asserting that resources of the Moon and other celestial bodies should be defined as the common heritage of mankind.6 The Moon Agreement did not articulate specifically on the detailed legal implication of common heritage of mankind. However, it is reasonable to interpret in the first place that the exploitation and use of the Moon and other celestial bodies, including their natural resources, shall be conducted under certain restrictions. The natural resources in outer space deserve no completely unconstrained exploitation. In other words, any unilateral exploiting activities are faced with the risk of violating this principle. Even though there have

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S Hobe, et al., Cologne Commentary on Space Law, Vol. II. 416. United Nations Documentation: A/RES/2749(XXV). United Nations Documentation: A/AC.105/C.2/L.21.

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been loads of controversies towards the legal interpretation of common heritage of mankind, the wording of “common” reveals inherent tendency of international cooperation. In the second place, the implementation of this abstract principle relies on other concrete provisions of the Moon Agreement, such as specific clauses concerning the international regime. Therefore, the establishment of such an international regime should comply with the principle of common heritage of mankind. With these premises, this principle requires States parties of the Moon Agreement to conduct self-restraint and make transfers of right to the international community on the exploitation and use of the Moon and other celestial bodies including natural resources. Being a State Party of the Moon Agreement means the very nation makes a commitment to treat the Moon and other celestial bodies including natural resources as the common heritage of mankind, and thus put necessary restrictions on its own space activities. In a sense, the Moon Agreement is an agreement that sets right for a third party. Secondly, as paragraph 2 and 3 of Article 11 provides, the Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article.7 The wording of “foregoing provisions” in paragraph 3 should literally refer only to the content of paragraph 2, but not exclude the application of the principle of common heritage of mankind in paragraph 1. Namely, the international regime could be established on the basis of acknowledging ownership of natural resources of the Moon and other celestial bodies, while the principle of common heritage of mankind does not have to be violated, but rather interpreted by state practices and consensus in light of its spirit. In short, the principle of common heritage of mankind should be the theoretical basis and fundamental principle of building the international regime governing the exploitation and use of the Moon and other celestial bodies, while its interpretation would be revealed by constructing such international regime.

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See supra note 3, art 2 & art 3.

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II.2.

Main Purposes and Principles

For “the main purposes of the international regime to be established”, the Moon Agreement provides in its paragraph 7 of Article 11 as “(a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the Moon, shall be given special consideration”.8 Apparently, the international regime should include principles that reflect order, security, rationality and equity during the exploitation of natural resources in outer space, three of which are principles that directly relate to international cooperation, or that must be achieved through international cooperation: order, rationality and equity. It should be noted that, according to its wordings in paragraph 7(d), only between States Parties could benefits derived from those resources be equitably shared, which is inconsistent with the spirit of the common heritage of mankind as a matter of fact, because “common heritage of mankind” does not refer to “common heritage among States Parties”. From another perspective of view, it reflects the importance of applicability of the Moon Agreement, which is based on the active participation of space faring nations. The principle of common heritage of mankind in outer space is nowhere to be implemented without be widely recognized by the international community. II.3.

Concrete Contents: The Informing Obligation and the Right to Disposal

Article 11 has made specific statement of two concrete aspects: the informing obligation and the right to disposal. As paragraph 6 provides, in order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the Moon.9 Meanwhile, paragraph 8 provides that all the activities with respect to the natural resources of the Moon shall be carried out in a manner compatible with the purposes specified in paragraph 7 of this article and the provisions of article 6, paragraph 2, of this Agreement.10 Correspondingly, paragraph 2 of Article 6 has set the right to disposal, which provides that in carrying out scientific investigations and in furtherance of the provisions of this Agreement, the States Parties shall have the right to collect

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See supra note 3, art 11 para 7 See supra note 3, art 6. See supra note 3, art 8.

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on and remove from the Moon samples of its mineral and other substances. Such samples shall remain at the disposal of those States Parties which caused them to be collected and may be used by them for scientific purposes. States Parties shall have regard to the desirability of making a portion of such samples available to other interested States Parties and the international scientific community for scientific investigation. States Parties may in the course of scientific investigations also use mineral and other substances of the Moon in quantities appropriate for the support of their missions.11 II.4.

Establishing Procedures: Review Conference

Article 18 of the Moon Agreement articulates that ten years after the entry into force of this Agreement, the question of the review of the Agreement shall be included in the provisional agenda of the General Assembly of the United Nations in order to consider, in the light of past application of the Agreement, whether it requires revision. However, at any time after the Agreement has been in force for five years, the Secretary-General of the United Nations, as depositary, shall, at the request of one third of the States Parties to the Agreement and with the concurrence of the majority of the States Parties, convene a conference of the States Parties to review this Agreement. A review conference shall also consider the question of the implementation of the provisions of article 11, paragraph 5, on the basis of the principle referred to in paragraph 1 of that article and taking into account in particular any relevant technological developments.12 This provision has stipulated the establishing procedures of the said international regime, i.e. to build and improve the international regime governing the exploitation of the Moon through the form of review conference among State Parties.13 The Moon Agreement came into force from July 11th 1984. According to Article 18, UNCOPUOS initiated the review of the Moon Agreement during its 37th meeting in 1994. It turned out that the General Assembly was recommended not taking into account temporarily the amendment of the Moon Agreement.14 The General Assembly adopted the recommendation. In addition, the Review Conference among States Parties has not been convened insofar, probably in consideration of the number of State Parties. After all, countries with advanced space technology such as the United States, Russia and China have not yet joined the Moon Agreement. In recent years, with the growing attention on the exploitation and use of the Moon from the international commu-

______ 11 12 13 14

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See supra note 3, art 6 para 2. See supra note 3, art 18. S Hobe, et al., Cologne Commentary on Space Law, Vol. II. 415. See supra note 13, para 415-416.

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nity, several State parties had made proposal to the UNCOPUOS in 2008 for amending legal rules concerning the exploitation of the Moon.15 In conclusion, the provisions above have been serving as procedural guidelines for the construction of the international regime on the exploitation of natural resources in outer space. The establishment of such an international regime would certainly not be limited among States Parties of the Moon Agreement. III.

The Conception of the International Regime in Outer Space

III.1.

The Necessity of Establishing an International Regime on the Exploitation of Natural Resources in Outer Space

The Moon Agreement provides in paragraph 5 of Article 11 that States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible.16 However, the criteria for determining “feasible” have not been clearly defined. An international regime should be built on the basis of technical capacity and market demand. Some countries, inter-governmental organizations and private entities with advanced space technology may have already obtained the technical capacity to carry out the exploitation of natural resources in outer space. Particularly, private entities have been showing increasing exploiting needs for these resources, which has in reverse proved the existence of strong market demands, irrespective of whether such market demands contain commercial interests or political strategy. Neither international space law nor general international law contains prohibitive provisions about the exploitation, mining or even commercial use of natural resources in outer space. Meanwhile, as stated, the existing provisions of international space law are very limited on adjusting future space activities including exploitation and use of natural resources in outer space. From an international perspective, in order to ensure the orderly exploitation and use of natural resource in outer space, the antecedence of law is required on the establishment of an appropriate international regime. From a national perspective, the exploitation of natural resources in outer space is closely related to political concerns and the competition for strategic resources. Unilateral space activities may very well lead to an exploitation race of natural resources in outer space, creating no long-term benefit for either party. Establishing a rational international regime is a pragmatic approach to guarantee effective exploitation and use while preventing negative consequences. Moreover, according to Article 6 of the Outer Space Treaty,

______ 15 16

United Nations Documentation: A/AC.105/C.2/L.272 See supra note 3, art 11 para 5.

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States Parties shall bear international responsibility for national activities in outer space being carried on by non-governmental entities,17 which are also under the jurisdiction of domestic rules and regulations. The creation and amendment of such rules and regulations call for prerequisites, i.e. they should be acknowledged by the international community in the first place, otherwise the related space activities would surely face increasing political risks. Therefore, to avoid potential risks, it is essential from the national perspective to establish an explicit international regime for domestic rules and regulations to make reference. III.2.

Approaches for Establishing an International Regime on the Exploitation of Natural Resources in Outer Space

Undoubtedly, it is an ideal method to adjust the exploitation and use of natural resources in outer space through treaties and conventions. However, it may not be practical at this stage. The number of countries and organizations with the capacity of exploiting natural resources in outer space remains limited. In addition, differing from past general space activities, the exploitation of natural resources in outer space is limited due to the non-renewable nature of exploitation object. Therefore, the process of reaching a convention would face enormous resistance. Hence, for achieving this goal, three indirect paths can be stepped on to establish an international regime on the exploitation of natural resources in outer space. Firstly, rights and obligations could be clarified through bilateral or multilateral agreements, especially in the case of the exploitation and use of the same celestial bodies. This approach is mainly recommended for countries and international organizations that currently own space exploitation capacity or could be reasonably foreseen to obtain such capacity. Secondly, the Moon Agreement could be amended under appropriate conditions to attract more signatories. The fact is that countries with capacity to exploit natural resources in outer space are outnumbered by States Parties to the Moon Agreement at this moment. By encouraging these countries to join the Moon Agreement, relations between space faring nations and developing countries could be coordinated within its framework which would become more stable and authoritative. As for developing countries, limited resources could be put into cooperation with countries that are willing to or obligated to share advanced space technology, through which they would be able to obtain more benefits from the exploitation of natural resources in outer

______ 17

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 19 December 1966, opened for signature 27 January 1967, entered into force 10 October 1967) UNGA Res 2222 (XXI) art 6.

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space.18 The United Nations Convention on the Law of the Sea can be well used for reference to set up an implementing agency mirroring the Authority, for instance to be named as Space Resources Authority. According to Part XI of the Convention on the Law of the Sea and the Agreement relating to the implementation of Part XI of the Convention, the principles governing international seabed area are formulated in order to organize and control the activities of member states in the deep seabed beyond the limits of national jurisdiction.19 The International Seabed Authority was thus created as an organization in charge of managing mineral resources in the international seabed area. According to the Convention on the Law of the Sea, the Authority is an independent inter-governmental international organization with authority to make regulations on the basis of the Convention and the Implementing Agreement above. In activities concerning existing and potential commercial exploitation of deep seabed, the Authority performs to have a fair share of the benefits of deep seabed exploitation contractors, while its subsidiary bodies – the Enterprise – may authorize activities directly involved in mineral exploitation in deep seabed area.20 The constitution of the Authority is detailed articulated in the Convention on the Law of the Sea, mainly containing contents of its structure, functions and subsidiary bodies. Procedures for subsidiary bodies to make respective decisions are also stipulated. The Convention on the Law of the Sea has made explicit regulations on the rights, obligations and responsibilities of member States in each part of the ocean from coast to deep seabed. Maritime activities are limited in certain scopes such as fisheries, shipping, resource exploitation and environmental protection, etc. According to this Convention, the international seabed area and its resources are the “common heritage of mankind”, where natural resources including mineral resources are certainly included herein.21 These practices could be taken as direct reference for implementing the international regime on the exploitation and use of natural resources in outer space under the framework of the Outer Space Treaty. Thirdly, rights and obligations could be gradually clarified by customary norms of international law. Most of the fields in commercial space activities are in need for international customary law,22 such as commercial launch, commercial remote sensing and satellite navigation in addition to the exploitation of natural resources. Due to historical and technical restrictions, international customary law had not been formed under the framework of international space law, especially the lack of decisions from the International

______ 18 19 20 21 22

Virgiliu Pop, Who Owns the Moon? Extraterrestrial Aspects of Land and Mineral Resources Ownership, Springer, 2008.155. United Nations Convention on the Law of the Sea, Part XO. Ibid. Ibid. B Cheng, Studies in International Space Law, Clarendon Press, Oxford. 1997.665.

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Court of Justice or international tribunals. The clarification of specific rights, obligations and responsibilities and the settlement of disputes call for effective precedents. Therefore, from an evolutionary point of view, customary norms of international law in the field of space resources will arise to meet the demand from the disputing parties and from the convergence of domestic law and international law. IV.

Conclusion

An international regime is the guidance for an adjudicatory body to reach the decision. However, it is merely in the Moon Agreement that the establishment would be carried out when the exploitation of natural resources in outer space is about to become feasible. Thus, on the basis of existing international space law, it is important to realize what extent could the virtue of the Moon Agreement influence the formulation of such an international regime. By analyzing the deficiency of the Moon Agreement and reference of the Convention on the Law of the Sea, the ideology of “common heritage of mankind” could be taken as the fundamental principle in implementing the regime. For governing the exploitation of natural resources in outer space, various approached should be taken as long as state practices can be well expected.

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The Effects of the Fragmentation of International Law on Aerospace Regulation Charles Stotler*

Abstract In 2006, the International Law Commission published a report entitled, “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law.” The ILC Report addresses the functional differentiation of international law into specialized regimes, such as trade law, environmental law, and law of the sea. The ILC defined fragmentation as “the rise of specialized rules and rule-systems that have no clear relationship to each other,” and attributes to globalization the emergence of technically specialized regimes and specialized intergovernmental organizations. The ILC notes that C. Wilfred Jenks – a legal pioneer who produced one of the earliest treatises on space law – sketched the background of fragmentation over a half century ago. For Jenks, the problem of conflicts between apparently autonomous treaty regimes can be likened to conflicts of laws arising between autonomous domestic legal regimes, typically resolved through the application of private international law principles. Working under this analogy, the ILC described principles of systematic integration that have developed for the resolution of apparent conflicts between treaty regimes. Jurists have long commented on disparities between international air law and international space law as a source of potential conflict. Specific areas of discord include sovereignty, vehicle classifications, passenger and third party liability and registration of aircraft and space objects. Proposed suborbital activities, including tourism, launch of orbital payloads and point-to-point transportation, bring these disparities to the fore. They involve the use of aerospace planes employing rocket technology, traveling on a suborbital trajectory through airspace and outer space – hybrid air and space activities that evade the direct application of either legal regime. While scholars have examined issues of fragmentation pertaining to other specialized regimes, there is a notable absence of analysis of air and space law under fragmentation rubric. This paper examines the extent to which these specialized regimes epitomize the fragmentation of international law. It will be illustrated how fragmentation at

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McGill University Institute of Air and Space Law (LL.M. Candidate), Montreal, Canada, [email protected]. This paper is a condensed version of a thesis submitted to McGill University in partial fulfilment of the requirement of the degree of Master of Laws (LL.M. in Air and Space Law).

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the international level is necessitating the creation of hybrid regulatory regimes at the domestic level. These regulatory schemes will be analyzed in light of the ILC’s principles of systematic integration in an effort to determine whether States are properly implementing these specialized regimes. The rise of global administrative law in the form of highly specialized technical bodies, such as ICAO and COPOUS, will also be considered in a discussion of institutional fragmentation.

I.

Introduction: Air and Space Law and the Fragmentation of International Law

During the Fifty-Eighth Session of the UN General Assembly in 2006, the International Law Commission (ILC) issued a report entitled, “Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law.”1 The ILC Report explained that, “It is a well-known paradox of globalization that while it has led to increasing uniformization of social life around the world, it has also led to its increasing fragmentation – that is, to the emergence of specialized and relatively autonomous spheres of social action and structure.”2 In the field of law, this has translated into the emergence of specialized, autonomous rule complexes and legal institutions, such as trade law, human rights law, environmental law or the law of the sea.3 According to the ILC Report, lawyers have identified the problem with this phenomenon as “such specialized law-making and institution-building tends to take place with relative ignorance of legislative and institutional activities in adjoining fields [...]. The result is conflicts between rules or rule-systems [and] deviating institutional practices [...].”4 In a paper critiquing the ILC Report, Sean Murphy, a member of the ILC, noted that the Report has already been applied in studies and papers relating to conflicts between human rights and humanitarian law and between trade and environmental law, as well as to other subjects more generally, including international criminal law, international counter-terrorism law, cultural diversity, history and philosophy.5 Murphy emphasized that the ILC Report may have practical value, particularly as “new issues arise that straddle different areas of international law, often driven by the emergence of new technologies.”6

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2 3 4 5 6

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International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, UNGA ILC, 58th Sess, A/CN.4/L.682 (2006) [hereinafter “ILC Report”]. Ibid. at 11. Ibid. Ibid. Sean D. Murphy, “Deconstructing Fragmentation: Koskenniemi’s 2006 ILC Project” (2013) 27 Temp Int’l & Comp LJ 293, 297-299 [hereinafter “Murphy”]. Ibid. at 299.

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New and emerging technologies, developing mainly through commercial endeavors for the provision of suborbital flight, are operating in both airspace and outer space and exacerbating tensions over ever-blurring boundaries between the regimes of air and space law. In 1992, Tanja Masson-Zwaan described the aerospace plane as, “an object at the cross-roads between air and space law.”7 She called for a hybrid approach of the two regimes based upon functionality of the vehicle.8 Likewise, Stephan Hobe treated the subject of the applicability of air and/or space law to suborbital vehicles in a series of articles, indicating that both air and space law apply to different portions of the flights based upon functionality of the vehicle.9 These emerging technologies render the ILC Report particularly relevant to actual and potential conflicts between air and space law, as well as to international and domestic institutions that administer to these regimes. II.

The ILC Report on the Fragmentation of International Law

The ILC Report notes that C. Wilfred Jenks first sketched out the background of fragmentation over a half century ago.10 Jenks did not use the term ‘fragmentation’ but described the phenomenon as “conflicts of law-making treaties”. For Jenks, conflicts are an unavoidable incident of international law.11 He noted that, “law-making treaties are tending to develop in a number of historical, functional and regional groups which are separate from each other and whose mutual relationships are in some respects analogous to those of separate systems of municipal law.”12 Building upon this analogy, Jenks sought to identify the nature and scope of conflicts in law-making treaties, as well as to outline ways in which they can be either avoided or resolved in the vein of private international law.13 The ILC Report begins with the conclusion that there is little to add to Jenks’

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8

9

10 11 12 13

Tanja Masson-Zwaan, “The Aerospace Plane: An Object at the Cross-Roads between Air and Space Law” in T.L. Masson-Zwaan and P.M.J. Mendes de Leon (eds), Air and Space Law: De Lege Ferenda, 247-261 (The Netherlands: Kluwer Law International, 1992). Tanja Masson-Zwaan & Rafel Moro-Aguilar, “Regulating private human suborbital flight at the international and European level: Tendencies and suggestions” (2013) 92 Acta Astronautica 243-254. Stephan Hobe, “Aerospace Vehicles: Questions of Registration, Liability and Institutions – A European Perspective” (2004) XXIX Annals of Air & Space L 377; Stephan Hobe, “Legal Aspects of Space Tourism” (2007-8) 86 Nebraska L R 439; Stephen Hobe, “The legal regime for private space tourism activities – An overview” (2010) 66 Acta Astronautica 1593. C. Wilfred Jenks, “The Conflict of Law-Making Treaties” (1953) 30 Brit. Y.B. Int’l L. 401 [hereinafter, “Jenks”]. Jenks at 402. Ibid. at 403. Ibid. at 405.

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analysis, but adds that “present fragmentation contains many new features, and its intensity differs from analogous phenomena in the past.”14 Thus, the ILC continues to examine the phenomenon, seeking to understand, “What is the nature of specialized rule-systems? How should their relations inter se be conceived? Which rules should govern their conflict?”15 Jenks defined a conflict as a direct incompatibility where a party to two treaties cannot simultaneously comply with its obligations under both instruments.16 In addition, he identified the phenomenon of ‘divergence’ – a situation where two law-making treaties with a number of common parties deal with the same subject from different points of view; are applicable in different circumstances; or embody obligations more far-reaching than, but not inconsistent with, one another.17 For Jenks, such divergences, although not leading to a direct incompatibility, can nevertheless defeat the object of one or both of the instruments and are as serious as direct conflicts.18 The ILC embraced Jenks’ approach by describing a spectrum of conflicts.19 At one end of the spectrum, laws invalidate each other. At other times their priority is relative: one is set aside temporarily while often still influencing the interpretation and application of the other law. At other times, the laws act concurrently, supporting each other. Finally, at the other end of the spectrum, there is no conflict or divergence. The ILC Report notes that the question of ‘what is a conflict’ can be approached from the perspectives of the subject-matter of the relevant rules or the legal subjects bound by them.20 The ILC identifies the employment of the subject-matter criterion as only an initial step, which is fulfilled where “two different rules or sets of rules are invoked in regard to the same matter or [...] seem to point to different directions in their application by a party.”21 The ILC Report elaborates this concept of pointing in different directions by embracing Jenks’ distinction between direct conflicts and divergences. Of the former, the ILC notes that, “conflict exists if it is possible for a party to two treaties to comply with one rule only by failing to comply with another rule.”22 Of the latter, the ILC Report states, “A treaty may sometimes frustrate the goals of another treaty without there being any strict incompatibility between their provisions.”23 Thus, the ILC defines a conflict as “a situation where two rules or principles

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ILC Report at 15. Ibid. at 245. Jenks at 426. Ibid. at 425-426. Ibid. at 426. ILC Report at 16. Ibid. at 17. Ibid. Ibid. at 19. Ibid.

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suggest different ways of dealing with a problem,” effectively condensing Jenks differentiation into one broad definition.24 The foregoing pertains to conflict ascertainment – an initial assessment of applicable rules and principles – which the ILC describes as the first step in conflict resolution.25 The next step builds on what Jenks described as a general presumption against conflict.26 Jenks explained that this presumption is really an application the fundamental principles of treaty interpretation: the principle of reasonableness, the principle of good faith and the presumption of consistency with international law.27 The ILC described this step as harmonization or the interpretation of apparent conflicts so as to render obligations as compatible.28 Where harmonization is not plausible, conflict-solution techniques (e.g.: lex specialis principle or lex posterior principle) are employed to establish definitive relationships of priority between norms: the norm that is set aside remains in the background, “continuing to influence the interpretation and application of the norm to which priority has been given.”29 This process of resolution, however, is not as linear as described above. The ICL noted that, “Interpretation does not intervene only once it has already been ascertained that there is a conflict. Rules appear to be compatible or in conflict as a result of interpretation.”30 Thus, even in ascertaining whether a conflict exists, classic conflict resolution tools are employed.31 Where a definite priority needs to be established, then the principles of lex specialis and lex posterior come into play.32 These are applied as guidelines, however, and not mechanically, in order to suggest “a pertinent relationship between the relevant rules in view of the need for consistency of the conclusion with the perceived purposes of functions of the legal system as a whole.”33 This the ILC Report identifies as the ‘principle of systematic interpretation,’ which does not “merely restate the applicability of general international law in the operation of particular treaties. It points to the need to take into account the normative environment more widely.”34 Thus, the ICL Report set forth a method for conflict resolution and a process for systematic interpretation. The first step is conflict ascertainment, which entails examining two different rules or rule sets to determine whether they apply to the same subject-matter and, if so, whether they suggest different

______ 24 25 26 27 28 29 30 31 32 33 34

Ibid. Ibid. at 24. Jenks at 427. Ibid. at 428. ILC Report at 207. Ibid. at 25, 207. Ibid. at 207 (emphasis in the original). Ibid. at 208. Ibid. Ibid. at 25, 208. Ibid. at 208-209.

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ways of dealing with a problem. Where provisions of specialized regimes cannot be brought into harmony, conflict resolution tools are applied to prioritize the conflicting norms. The norm that is off-set remains in the background, influencing the interpretation of the prioritized norm. An example of this process is illustrated through a hotly contested area of potential conflict between air and space law: the requirement of vehicle certification under the Chicago Convention and the requirement of a license under the Outer Space Treaty.35 Article 31 of the Chicago Convention requires all aircraft engaged in international navigation to carry a certificate of air worthiness. Thus, the aircraft must go through a process of certification. Article VI of the Outer Space Treaty, on the other hand, requires authorization of activities in outer space. States have implemented this provision by requiring a license or permit for spacerelated activities. Because these rules indicate different ways to deal with a problem, they are in conflict according to the terms of the ILC Report.36 This conflict can be harmonized: the rules are not mutually exclusive. A State could require a certificate of airworthiness for an aerospace plane, as well as a launch license. Nevertheless, it should be noted that these are fundamentally different processes: the former, the certification of a vehicle; the latter, the licensing of an activity. Thus, States have chosen different modes of regulation in two separate and distinct legal regimes. To apply one mode of regulation of one regime could frustrate the object and purpose of the other regime. III.

State Resolutions of Conflicting Norms in Air and Space Law

Having identified the process for conflict ascertainment and conflict resolution, two legal regimes – one existent and the other proposed – will be examined to illustrate that States are at times following this process, and at other times making decisions based upon considerations other than rights and obligations arising out of international law. III.1.

US Commercial Space Law

Most of the progress in the development of commercial suborbital vehicles has occurred in the US over the last decade. To support this development, the US has put into place a comprehensive legal and regulatory framework for these activities, codified under its domestic, commercial space law.37 As will

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36 37

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See, e.g.: George Nield, et al. “Certification Versus Licensing for Human Space Flight in Commercial Space Transportation” 63rd International Astronautical Congress (2012) IAC-12-D6.1.3, online: www.faa.gov/about/office_org/headquarters_offices /ast/programs/international_affairs/media/Certification_vs_Licensing_Nield_FAAIAC-Naples-Oct-2-2012.pdf [hereinafter, “Nield, ‘Certification’”]. ILC Report at 19. Commercial Space Launch Act, Pub. L. No. 98-575, 98 Stat. 3055 (1984); Commercial Space Launch Act section 3, 98 Stat. 3055-56, Commercial Space Launch Act Amendments of 1988, Pub. L. No. 100-657, 102 Stat. 3900; Commercial Space

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be illustrated below, it incorporates aspects of both air and space law, harmonizing the regimes and creating a hybrid air and space law system for the regulation of suborbital flight. In regards to the launch and reentry of vehicles, the US has implemented the international space law treaties through its Commercial Space Launch Act (CSLA) and amendments thereto.38 Under US law, launch means “to place or try to place a launch vehicle or reentry vehicle and any payload, crew or space flight participant from Earth – (A) in a suborbital trajectory; (B) in Earth orbit in outer space; or (C) otherwise in outer space.”39 With these definitions, the US has embraced the meaning of launch as an attempted launch, in accordance with Article VII or the Outer Space Treaty and Liability Convention, as well as the meaning of launch as a successful launch, in accordance with Article VIII of the Outer Space Treaty and Registration Convention. Moreover, the geographic scope of the application of US space law is outer space, including Earth orbit and beyond, and includes suborbital trajectories. Thus, US domestic space law encompasses the activities and geographic scope of international space law. Suborbital vehicles are defined by the CSLA as ‘launch vehicles.’40 For the following reasons, however, it is not clear whether US space law classifies suborbital vehicles as space objects subject to international space law. ‘Reentry’ is defined as “to return or attempt to return [...] a reentry vehicle [...] from Earth orbit or from outer space to Earth.”41 Likewise, ‘reentry vehicle’ is defined as “a vehicle designed to return from Earth orbit or outer space to Earth [...].”42 Through deduction, it could be concluded that, because suborbital trajectories are not included in these definitions, the US does not consider suborbital vehicles to be reentry vehicles. Thus, under US space law, suborbital vehicles are launch vehicles but not reentry vehicles. If suborbital vehicles are not considered to be reentering when they return following a launch, then it could also be concluded that US law does not consider them to have entered outer space. Thus, it could be that the US has implemented international space law in a manner that renders it inapplicable to suborbital vehicles, although domestic US space law still applies. Supporting this conclusion is the US national register for object launched into outer space. SpaceShipOne flew for the first time on 17 December 2003. No

______ 38 39 40 41 42

Launch Amendments Act of 2004, Pub. L. No. 108-492, 118 Stat. 3900 [hereinafter “CSLA”]. The CSLA is codified in Title 51 of the United States Code (USC). Ibid. 51 USC §50902 (4). Ibid. at §50902 (8). Ibid. at §50902 (13). Ibid. at §50902 (16).

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entry in the US national register appears on that date.43 Likewise, the US did not communicate information regarding this launch to the international register. The nature of suborbital vehicles is such that they do not enter orbit. Therefore, it makes sense that this object would not appear on the international register, as it is not required under the Registration Convention. Because it does not appear on the US national register, it indicates several possible and non-mutually exclusive possibilities: the US does not consider that SpaceShipOne reached outer space (notwithstanding the fact that it achieved 100 km) thereby rendering Article VIII of the Outer Space Treaty inapplicable; the US does not consider suborbital vehicles to be space objects, likewise rendering Article VIII of the Outer Space Treaty inapplicable; or the US may interpret the provisions of the Registration Convention, requiring launch to Earth orbit or beyond, as a modification of the term ‘outer space’ in Article VIII of the Outer Space Treaty, thereby rendering national registration requirements inapplicable. All of these indicate the possibility that the US does not consider suborbital vehicles to be subject to international space law. At times, SpaceShipTwo is treated like an aircraft. US domestic air law, requires a special airworthiness certificate,44 and ‘N’ tail number,45 which are consistent with Articles 31 and 20 of the Chicago Convention, respectively. Special airworthiness certificates are designated for experimental aircraft, however, so the analogy to Article 31 airworthiness certificates is not perfect. The FAA does not, however, use a certification regime for spacecraft as is required for aircraft.46 Instead, it issues experimental permits and launch and reentry licenses.47 The FAA claims that a certification regime is neither practical nor necessary and that it would be an expensive and overwhelming burden on the burgeoning commercial space transportation industry.48 If air law applies to suborbital flight, then this is a curious conclusion. That the FAA is even considering an aircraft certification process – as opposed to believing it an obligation under the Chicago Convention or under US domestic air law – seems to indicate a policy choice: a weighing of costs and benefits as the rationale for choosing a licensing regime over a vehicle certification regime. Issuing a license for this activity, however, is consistent with the requirements of Article VI of the Outer Space Treaty. The fact that the US issues licenses

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45 46 47 48

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US Registry of Object Launched in Outer Space, online: https://usspaceobjectsregistry.state.gov/Pages/Browse-Decade.aspx. Annual Compendium of Commercial Space Transportation: 2013, US Federal Aviation Administration Office of Commercial Space Transportation, (Washington, D.C., February 2014) at 86. Tail number N339SS. See: Airliners.net (Online: www.airliners.net/search/photo .search?regsearch=N339SS&distinct_entry=true). Nield “Certification”. 51 USC §50904. Nield “Certification” at 2, 4.

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and permits for suborbital launches indicates that the US interprets the Outer Space Treaty as applicable to suborbital vehicles. The US defines a ‘spaceflight participant’ as an “individual, who is not crew, carried within a launch vehicle of reentry vehicle.”49 These participants are not passengers in the normal sense, and domestic and international passenger liability regimes are considered not to apply. The FAA requires spaceflight participants to execute a waiver of liability against the US government based upon informed consent.50 It is curious that the US government would want spaceflight participants to waive liability claims against the US government. The US government is not liable for aviation accidents under either domestic or private international air laws. It is liable, however, for damages under the Outer Space Treaty and Liability Convention, at least when accidents occur outside of US territory or in outer space. The FAA claims that the waiver process gives the fledgling industry “room to grow and develop.”51 Again, this expresses a policy choice rather than harmonization and prioritization of obligations. The FAA has signed Memoranda of Cooperation (MOCs) with the UK CAA and UK Space Agency, as well as with Italy’s Ente Nazionale per l’Aviazione Civile (ENAC) for cooperative enhancement in the compiling of safety data, in the recovery of persons and vehicles involved in space transportation, and in the development of safety regulations for commercial space transportation.52 The MOCs call for enhancement in the free movement of space transport vehicles between the respective countries, including commercial transatlantic space travel. This indicates a willingness to be flexible about the implementation and application of international missile technology control regimes. These MOC’s also indicate that the US is promoting its style of regu-

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51 52

51 USC §50902 (17). See, George Nield, et al. “Informed Consent in Commercial Space Transportation Safety” 64th International Astronautical Congress (2013) IAC-13-D5.1.4, online: www.faa.gov/about/office_org/headquarters_offices/ast/programs/international_affair s/media/Informed_Consent_paper_IAC_Sept_2013_FAAfinal.pdf at 1-2. Ibid. at 5. See: Memorandum of Cooperation in the Development of Commercial Space Transportation Between: the Federal Administration, Department of Transportation, USA; the Department of Transport, UK; the UK Space Agency; and the UK Civil Aviation Authority (2014, NAT-I-4012) online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/34455 6/memorandum-of-cooperation.pdf; Memorandum of Cooperation in the Development of Commercial Space Transportation Between the Federal Administration, Department of Transportation, USA and the Ente Nazionale per l’Aviazione Civile, Italy (2014) (Online: https://www.faa.gov/about/office_org/headquarters_offices/ast /programs/international_affairs/media/Memorandum_of_Cooperation_FAA_and_Ital y_ENAC_signed_March-12-2014.pdf).

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lation, which is to say, its manner of implementation of international space law obligations. Recently the US entered into a similar MOC with France.53 This section serves to illustrate that the US has implemented a hybrid air and space law regime for vehicles traveling on suborbital trajectories. In doing so, it appears to have harmonized international obligations, as well as prioritized certain aspects of air law and space law over others. Such prioritization, particularly in regards to the issue of certification versus licensing, seems to be based not on legal analysis, but on economic concerns over the development of commercial space transport. The FAA is attempting to export this regulatory scheme through the execution of MOCs. As will be illustrated below, the UK is proposing a hybrid air and space law regime that in some ways incorporates FAA objectives while harmonizing and prioritizing international obligations in equally creative ways. III.2.

The UK Proposal for Spaceplane Certification and Operation.

In 2014, the UK Space Agency, Department for Business Innovation & Skills and Department for Transport, published a report drafted by the UK Civil Aviation Authority (CAA), entitled, “UK Government Review of commercial spaceplane certification and operations.”54 The CAA Report outlined how the UK could accommodate and support future spaceplane operations. The CAA defined a spaceplane as a “[rocket-powered], winged vehicle that acts as an aircraft while in the atmosphere and as a spacecraft while in space.55 The report pertains mainly to horizontal take-off, horizontal landing vehicles, including those that take off from a runway and those that are ferried to a higher altitude by a carrier aircraft, but it also considers vertical take-off, vertical landing suborbital vehicles.56 Like the US, the UK has ratified all of the international space law treaties, save the Moon Agreement. It has implemented international space law through its Outer Space Act of 1986.57 The CAA Report acknowledges UK obligations under international space law for ensuring that activities carried out by its nationals in outer space are consistent with those treaties and with

______ 53

54

55 56 57

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FAA, “US and France Sign Memorandum of Cooperation to Share Commercial Space Transportation Research and Development Activities” Press Release (16 June 2015) online: www.faa.gov/news/press_releases/news_story.cfm?newsId=19075 &omniRss=press_releasesAoc&cid=102_P_R. UK Civil Aviation Authority, UK Government Review of commercial spaceplane certification and operations, (July 2014) online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/32975 8/spaceplanes-tech.pdf [hereinafter, “CAA Report”]. Ibid. at 11. Ibid. at 29. Ibid. at 61; UK Outer Space Act of 1986, Chapter 38, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/29576 0/outer-space-act-1986.pdf.

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international law, generally.58 Likewise, the CAA acknowledges that the UK is bound by the Chicago Convention and the definition of an aircraft under its Annexes.59 In this regard, the Report states, “[S]paceplanes clearly meet this definition, and so the existing body of aviation safety regulation would apply to them.”60 The report states, “As they are vehicles that act as aircraft while in the atmosphere and as a spacecraft while in space, both space law and aviation law are applicable to spaceplane operators.”61 Thus, the UK appears to treat suborbital vehicles as aircraft and space objects. The Report continues, however, stating that neither regime is wholly appropriate to the nature of spaceplane operations.62 This is a curious statement. It could indicate a direct incompatibility between the regimes, in which case the rules of one would have to be prioritized while the other rule is off-set and placed in the background, influencing the interpretation of the prioritized regime.63 Or it could mean a divergence, wherein the two regimes simply affect the same subject-matter and suggest different ways to deal with spaceplanes, thereby requiring an attempt to harmonize the rules before they are prioritized.64 Finally, it could indicate a lacuna in both regimes in regards to spaceplanes, and thus, the necessity to revert to general international law and/or lege ferenda. It turns out to be none of these. As is illustrated below, the CAA Report seems to indicate that the applicable law is simply impracticable, and therefore decides that it should be set aside. The UK has delegated many of its regulatory powers for aviation to the European Aviation Safety Agency (EASA), which now implements the provisions of the Chicago Convention and its Annexes through such delegation of authority.65 This means that spaceplanes would have to comply with EASA standards for vehicle certification and air transport.66 As with the FAA, the UK balances its priorities through a risk-based analysis, seeking regulation that provides “an acceptable level of safety without being so burdensome that it stifles the development of this emerging industry.”67 For this reason, UK does not want to comply with EASA standards. The CAA Report proposes a “ring-fence” around commercial spaceplane operations to render them entirely separate from EASA regulations.68

______ 58 59 60 61 62 63 64 65 66 67 68

CAA Report at 60-61. Ibid. at 63. Ibid. Ibid. at 59. Ibid. ILC Report at 25, 207. Ibid. CAA Report at 63. Ibid. Ibid. at 77. Ibid. at 65.

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The CAA Report identifies four ways to create this ring-fence.69 First, the UK could assert that spaceplanes are not aircraft. The Report characterizes this as a difficult proposition, given ICAO’s definition of aircraft. Second, the Report suggests that the UK could assert that sub-orbital transportation is not air transport. This understanding of air transport, the Report claims, is inconsistent with both suborbital tourism as well as proposed intercontinental, high-speed travel, as both are in fact air transport. Thus, this option is equally not viable. Third, the UK could classify spaceplanes as space objects, rendering them subject to international space law, as implemented through the Outer Space Act of 1986. The Report claims this option is not viable because the EU, although the EU has yet to exercise its competence to regulate the commercial space market, may do so and thereby create regulations that conflict with the space regulations that the UK would develop, thus disrupting operators. This entire analysis is remarkable. The UK seems to treat its obligations arising under both international space law and international air law as options from which it can choose for the regulation of spaceplanes. The UK appears to skip an attempt at harmonization and to start by prioritizing regimes and the rules within the regimes according to its economic and political objectives. This is not unlike the FAA’s stance on certification versus licensing, described above. The UK ultimately endorses a fourth option: to classify the vehicles as experimental aircraft pursuant to Annex II of the EASA Basic Regulation, thereby removing them from the ambit of EASA jurisdiction and subjecting them to national regulation.70 The CAA Report notes that experimental aircraft are not typically allowed to conduct public transport operations because the payment of money for transport triggers higher safety standards, and suggests waivers of liability based upon informed consent, similar to the FAA process.71 Thus the UK has proposed a system for regulation somewhat similar to US commercial space law. It differs in its classification of suborbital vehicles as aircraft and proposes to regulate these vehicles as experimental aircraft as opposed to launch vehicles. Nevertheless, it appears the UK is trying to harmonize and prioritize its international obligations, while at the same time, setting some aside based upon economic and policy interests. This approach is not unlike that of the US.

______ 69 70 71

64

Ibid. Ibid. Ibid. at 67-69.

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IV.

Institutional Fragmention and the Effects of Global Administrative Organizations

The ILC Report recognized a positive side to fragmentation, noting that, “New types of specialized law do not emerge accidentally but seek to respond to new technical and functional requirements.”72 International space law is an excellent example of this phenomenon. In a speech before the 15th UN General Assembly in 1960, US President Dwight Eisenhower stated: “The emergence of this new world poses a vital issue: will outer space be preserved for peaceful use and developed for the benefit of all mankind? Or will it become another focus for the arms race – and thus an area of dangerous and sterile competition? The choice is urgent. And it is ours to make”.73

When novel technologies opened up a new international space for national activities, the international community responded by recognizing the applicability of international law to outer space and by creating new norms to ensure its peaceful uses. These laws deviated significantly from older, general international law and from the law of other specialized branches, for instance by prohibiting the acquisition of new territory in outer space. In this way, “Each rule-complex or ‘regime’ comes with its own principles, its own form of expertise and its own ‘ethos’, not necessarily identical to the ethos of neighbouring specialties.”74 Thus, differences between regimes cannot be trivialized, nor can provisions of one regime be set aside based upon whim or expediency, for to do so threatens the very purpose – the ethos – of the regime. This part explores tensions between the necessity for cooperation between global administrative organizations in order to avoid or minimize the effects of fragmentation and the dangers inherent in such cooperation. The ILC Report did not address problems of institutional fragmentation, which it defined as having to do with, “[...] the competence of various institutions applying international legal rules and their hierarchical relations inter se.”75 The notion of institutional fragmentation calls into question the nature and structures of the institutions that are called upon to administer to specialized branches of international law. In a 2005 article, Benedict Kingsbury, Nico Krish and Richard B. Stewart addressed, “The Emergence of Global Administrative Law,” by building up-

______ 72 73 74 75

ILC Report at 14. US State Department, “Address by President Dwight Eisenhower to the UN General Assembly” (22 September 1960) online: www.state.gov/p/io/potusunga/207330.htm ILC Report at 14. Ibid. at 13.

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on the efforts of the Global Administrative Law Project of New York University School of Law.76 The authors recognized that: “[...] many of the international institutions and regimes that engage in ‘global governance’ perform functions that most national public lawyers would regard as having a genuinely administrative character: they operate below the level of highly publicized diplomatic conferences and treaty-making, but in aggregate they regulate and manage vast sectors of economic and social life through specific decisions and rulemaking”.77

These activities include “rulemaking, not in the form of treaties negotiated by states, but of standards and rules of general applicability adopted by subsidiary bodies.”78 In this regard, the authors identify several types of global administration, some of which are described as follows. The first type of global administration is ‘international administration’, entailing formal inter-governmental organizations established by treaty or executive agreement.79 The authors cite as an example of this type of arrangement, “the UN Security Council and its committees, which adopt subsidiary legislation [and] take binding decisions related to particular countries [...].”80 The International Civil Aviation Organization (ICAO), established by the Chicago Convention, appears to fit this description. Unlike the Security Council, however, it has only quasi-legislative and quasi-judicial powers. The Committee on the Peaceful Uses of Outer Space (COPUOS), however, was not established by treaty, but by UNGA Resolution and, as a committee under the General Assembly, has no legislative powers. As discussed below, this distinction is crucial when examining the effects of global administration on the progressive development of air and space law. The second and third types of global administration identified by the authors appear to be somewhat related. They are ‘transnational networks and coordination arrangements’, on the one hand, and ‘distributed administration’ on the other. The former are “characterized by the absence of binding, formal decision-making structure and the dominance of informal cooperation among state regulators.”81 The authors describe this arrangement as a “horizontal form of administration [that] can, but need not, take place in a treaty framework.” ‘Distributed administration’, on the other hand, occurs where

______ 76

77 78 79 80 81

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Benedict Kingsbury, Nico Krisch & Richard B. Stewart, “The Emergence of Global Administrative Law” (2005) 68(3&4) L & Contemporary Problems 15 [hereinafter “Kingsbury”]. Ibid. at 17. Ibid. Ibid. at 21. Ibid. Ibid.

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“domestic regulatory agencies act as part of the global administrative space: they take decisions on issues of foreign or global concern.”82 As an example of ‘transnational networks and coordination arrangements,’ the authors offer bilateral arrangements for the mutual recognition of national regulatory standards or conformity of procedures, executed by national regulatory authorities.83 The space-related MOCs executed between the US FAA-AST and civil aviation regulatory agencies of the UK, Italy and France are examples of this type of administrative organization. It is in this regard that the second and third types of global administration appear to overlap, for both the second category (transnational networks and coordination arrangements) and the third category (distributed administration), seem to describe the current status of the participation of domestic regulatory agencies in the administration of, and thereby, the progressive development of, space law. These categorizations are not absolute and merely represent ways to conceive the entities that administer to the regimes of air and space law. Their utility stems from the differentiation of the various types of global administration. From these categorizations, it can be seen that States have embraced different types of administrative organization for air law and space law. For air law, States have created a formal, treaty-based type of global administration, embodied for the most part by a single international administrative organization: ICAO. On the other hand, States have embraced more fluid and disembodied types of global administration for space law. Although the fragmentation of air and space law into separate and distinct regimes may have been an historical accident, the types of administrative organization that grew up around these specialized regimes were not accidental and, at least in regards to space law, they resulted out of debates over the nature of public international law itself. These debates and their outcome are described in the next section. A Critique of the Evolution of Space Law: Jenks v. McDougal

IV.1.

According to S.G. Sreejith, Jenks was instrumental in laying the foundation for space law, framing it within positivist notions that international law should develop into a ‘common-law of mankind’ and thereby charting a course for space law’s progressive development.84 In order to illustrate this, Sreejith contrasts Jenks’ approach with that of American jurist Myers McDougal.85 The contrast is explained as follows.

______ 82 83 84 85

Ibid. Ibid. S.G. Sreejith, “Wither International Law, Thither Space Law: A Discipline in Transition” (2007-8) 38 Cal. W. Int’l L.J. 331 [hereinafter, Sreejith]. Ibid. at 348.

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In an address to the International Institute of Space Law (IISL), Jenks stated, “Space law, like air law, is not a substantive branch of the law [...]. It consists of an angle of preoccupation with a wide range of diverse problems rather than a well-defined area demarcated by the substance of the problems which it embraces.”86 For Jenks, “[S]pace law had to be integrated into the development of the common law of mankind.”87 He advocated, “a holistic approach toward space law, asserting that space law is not a self-sufficient discipline distinct from international law.”88 This approach involved the formulation of a robust, international legal framework of comprehensive treaties and principles.89 Thus, Jenks sought “to develop rules of universal applicability through comparative study and synthesis of various legal systems.”90 Implicit in this approach, however, is a classical, State-centric view of the international legal order. McDougal, on the other hand, advocated a ‘policy-oriented jurisprudence’ of an individual-centred world.91 In order to bring about what he referred to as a ‘space commonwealth,’ McDougal sought to shift the focus from the sovereignty of nation-States to a ‘world social process’ in which individuals participated directly.92 Based upon his realization that officials of nation-States “will manipulate doctrines and principles for the realization of preferred values,” McDougal found objectionable Jenks’ faith in legal doctrines and “eschews [Jenks’] traditional positivist approach of laws as rules and rules as binding.”93 He linked law with the “‘patterns of effective and authoritarian decisions concerning the distribution of values in [a] social system’ and thereby provided a social spectrum for evaluating legal relationships.”94 Sreejith concisely summarizes the difference between these two approaches: “Whereas Victorian positivists like Jenks stood for a legal order based on doctrines, rules, and equity and compromising treaties, international custom, and general principles of law, American scholars held an instrumentalist view that law is an apparatus to balance societal interests and that any further action should be directed in terms of this conception of law”.95

______ 86 87 88 89 90 91 92 93 94 95

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Ibid. at 349 (quoting: C. Wilfred Jenks, “Seven Stages in the Development of Space Law” (1968) 11 Proc. Colloq. Outer Space 246, 262-263). Sreejith at 350. Ibid. at 354. Ibid. Ibid. Ibid. at 350-351. Ibid. at 351. Ibid. at 355. Ibid. at 356 (citing: Oran R. Young, “International Law and Social Science: The Contributions of Myers S. McDougal” (1972) 66 Am. J. Int’l L 60, 63). Sreejith at 356.

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He points to the divide between American instrumentalists and Victorian positivists as the real source of impasse in the progressive development of international space law, rather than the divide between two superpowers locked in a bi-polar battle over capitalist and communist ideologies.96 Nevertheless, at the international level, Jenks’ view was embraced, for “[...] space law scholars vigorously pursued the positivist strategy by regulating state conduct through treaties and rules; most of the time they ignored the societal dimension of space activities.”97 Ironically, rather than brining about Jenks’ common law of mankind, the Victorian-positivist sensibilities of space law jurists contributed to the creation of a fragmented, specialized regime, somewhat disassociated from other branches of international law. Moreover, States’ sensitivities to national security concerns, implicit in outer space affairs, appear to have frozen international space law within Jenks’ positivist scheme – the progressive development of space law is dominated by formalistic State-to-State diplomacy within COPUOS, the Conference on Disarmament or ad hoc meetings of States.98 In a further twist of irony, the inability of States to come to any kind of agreement over binding norms within these frameworks has led to only minor breakthroughs in the progressive development of space law in the form of ‘soft law’ – guiding principles, recommendations and non-binding codes of conduct that are not unlike public policy at the domestic level and, arguably, similar to the policy-oriented jurisprudence of McDougal. The US is somewhat responsible for this phenomenon, as today it generally opposes the formulation of binding international norms for outer space.99 US domestic policies have followed suit: in terms of export controls, the notion of static, formulaic laws has given way to authoritarian, ad hoc decisionmaking, much in line with the description of McDougal’s policy-oriented jurisprudence.100 Witness further in this regard, the rise of the George Washington Space Policy Institute as the focal-point of US academic endeavors for the

______ 96 97 98

Ibid. Ibid. See, e.g.: “Multilateral Negotiations on International Code of Conduct for Outer Space Activities” EU Delegation to the UN – New York (27-31 July 2015) online: http://eu-un.europa.eu/articles/en/article_16615_en.htm. 99 See, e.g.: Bill Gertz, “US Opposes New Draft Treaty from China and Russia Banning Space Weapons” The Washington Free Beacon (19 June 2014) online: http://freebeacon.com/national-security/u-s-opposes-new-draft-treaty-from-chinaand-russia-banning-space-weapons/. 100 See, e.g.: Mike Gold, “Lost in Space: A Practitioner’s First-Hand Perspective on Reforming the U.S.’s Obsolete, Arrogant, and Counterproductive Export Control Regime for Space-Related Systems and Technologies” (2008) 34(1) J Space L 163, 168, fn. 17; Mike N. Gold, “Thomas Jefferson, We Have a Problem: The Unconstitutional Nature of the U.S.’s Aerospace Export Control Regime as Supported by Bernstein v. U.S. Department of Justice” (2009) 57 Clev. St. L. Rev. 629.

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progressive development of space law,101 or the launch of The Journal of Astrosociology, with its inaugural edition published in 2015.102 Thus, McDougal’s policy-oriented jurisprudence, particularly in the US, may have won out in the long-run. The globalization of space is prompting States to seek a relaxation of export controls in order to allow the operation of US-developed suborbital vehicles within foreign territories. These developments are coming by the way of ad hoc executive agreements. Moreover, concerns over safety, driven largely by the increase in commercial suborbital launch providers, has hastened the involvement of ICAO – a global administrative body that is breaking down the inherent character of international space law as a largely State-centric diplomatic process and replacing this process with bureaucracy driven largely by technical experts balancing interests. Thus is the landscape of the global administration of space law evolving. IV.2.

Koskenniemi on the Fate of Public International Law

In an article published subsequent to the ILC Report, Martti Koskenniemi again addressed the subject of fragmentation.103 Although the article does not expressly address institutional fragmentation, it casts problems with institutional fragmentation within larger debates over constitutionalism and legal pluralism in international law, as well as within discourse regarding the relationship of international law to the substantive field of international relations. Koskenniemi wrote, “Some 60 to 80 years ago, a small group of cosmopolitan-minded lawyers translated the diplomacy of States into the administration of legal rules and institutions.”104 He identifies the work of Oppenheim and Lauterpacht as leading the way toward a “political realist reading of statehood with a strong anti-sovereignty ethos [...].”105 He explained that this ‘cosmopolitan ethos’ found a home in the UN, prompting scholars such as Jenks and Friedmann to identify it as “the transformation of international

______ 101 See, “About the Space Policy Institute” George Washington University, online: https://www.gwu.edu/~spi/about.cfm; See also, Benjamin Soloway, “Lawyers in Space” Foreign Policy (15 April 2015) online: http://foreignpolicy.com/2015/04/15/lawyers-in-space-legal-international-spacestation/ (Explaining that Henry R. Herztfeld, a space policy expert at George Washington University Space Policy Institute, was a private sector advisor to the US delegation at the 2015 meeting of the UN COPUOS Legal Subcommittee). 102 Astrosociology Research Institute, Journal of Astrosociology, volume 1(2015), online: www.astrosociology.org/Library/PDF/Journal/JOAFinal/JournalOfAstrosociology-Vol1.pdf. 103 Martti Koskenniemi, “The Fate of Public International Law: Between Technique and Politics” (2007) 70 (1) Modern LR 1, 2-3 [hereinafter, “Koskenniemi”]. 104 Ibid. at 2. 105 Ibid.

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law from a law of co-ordination to a law of world-wide co-operation to further shared ends.”106 Rather than a common law of mankind, however, a fragmented international law began to emerge. Koskenniemi explained: “Specialization [...] started to reverse established legal hierarchies in favour of the structural bias in the relevant functional expertise. Even though this process was often organised through intergovernmental organizations, the governmental delegations were composed of technical [...] experts in a way that transposed the functional differentiation at the national level onto the international plane.”107

It may be that the success of highly technical international intergovernmental organizations such as the International Telecommunications Union (ITU) and ICAO, both of which preceded the creation of the UN, lead the way toward this transposition, as they routinely employ functional experts and create highly specialized and technical rules for the global governance of particular functionally-organized activities. Returning to Koskenniemi’s article, he explained that “The point of the emergence of [a specialized regime] is precisely to institutionalise the new priorities carried within such fields. As a result, political conflict will often take the form of conflict of jurisdiction,” wherein jurisdictional competence will be determined by how a matter is described.108 He cites the 1998 Beef Hormones case as an example of a legal principle of one regime being determined as inapplicable by an administrative institution – in this case, a quasijudicial body – of another regime.109 He explained that the Appellate Body of the World Trade Organization determined that the Precautionary Principle of international environmental law was not binding on the WTO.110 Naturally, this example raises the questions as to whether there are principles of international space law that may be determined to be inapplicable by ICAO in its regulation of space-related activities. Koskenniemi echoes some of the statements in the ILC Report on the importance, or lack thereof, of the subject-matter criterion. He wrote, “If legal principles that emerge in certain fields may be inapplicable in others, the crucial question will be to determine under which regime they should be decided.”111 And further, “A standard way to go about this would be to try to find

______ 106 Ibid. at 3 (citing, W. Jenks, The Common Law of Mankind (London: Stevens, 1958); W. Friedmann, the Changing Structure of International Law (London: Stevens, 1964). 107 Koskenniemi at 4. 108 Ibid. at 5. 109 Ibid. (citing: European Communities – Measures Concerning Meat and Meat Products (Hormones) 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R at 123-125). 110 Koskenniemi at 5. 111 Ibid.

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the regime that is most relevant, or specific, to a matter.”112 He points out the weakness of this approach, stating: “The choice of one among several applicable legal regimes refers back to what is understood as significant in a problem. And the question of significance refers back to what the relevant institution understands as its mission, its structural bias.”113

Thus, the choice of the relevant institution tends to predetermine the choice of regime, and thereby, predetermine which principles will be applicable. Koskenniemi points out a further difficulty: even where an institution is called upon to apply another legal regime – for example, the case of ICAO applying principles of space law to regulate suborbital vehicles – the institution would apply the principles of the other legal regime according to that institution’s object and purpose.114 It stands to reason that this phenomenon – somewhat akin to an institutional bias – could undermine the object and purpose of the regime being applied. Koskenniemi postulates that the danger of a world of plural regimes (i.e.: a fragmented international order) is that, “political conflict is waged on the description and re-description of aspects of the world so as to make them fall under the jurisdiction of particular institutions.”115 Thus, “fragmentation becomes struggle for institutional hegemony.”116 The problem, he noted, is that, “If there are no regime-independent ways of describing an issue, the door is open to the unilateral assumption of jurisdiction by experts who feel themselves powerful enough to have the last word.”117 Rather than conceiving themselves as part of the Lauterpacht tradition of global federalism, these experts “may work for private or publicprivate institutions, national administrations, interest groups or technical bodies, developing best practices and standardized solutions [...] as part of the management of particular regimes.”118 By “recasting problems of politics as problems of expert knowledge [...] traditional international law is pushed aside by a mosaic of particular rules and institutions, each following its embedded preferences.”119 This phenomenon seems to describe current trends in the regulation of suborbital vehicles, as is explored in more detail in the following section.

______ 112 113 114 115 116 117 118 119

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Ibid. Ibid. at 6. Ibid. at 7. Ibid. Ibid. at 8. Ibid. Ibid. Ibid. at 8-9.

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IV.3.

The Fate of Public International Air and Space Law

The divergent mandates and processes of ICAO and COPUOS offer an interesting example of the phenomena described above. For instance, COPUOS works under State-to-State dialogue and consensus decision-making. Although experts contribute to the development of new guidance materials in working groups and expert groups under the Subcommittees of COPUOS,120 State-to-State consultations are the norm whereby these materials are developed and adoption of principles and guidelines takes place via consensus decision-making in the plenary sessions of the Committee and its Subcommittees.121 Moreover, in order to amend the UN treaties on space law, a diplomatic conference with State-to-State negotiations would have to be convened. Thus, notwithstanding its characterization as a specialized regime that typifies the phenomenon of fragmentation, by functioning under consensus decision-making and employing State-to-State dialogue, the legal regime for outer space, as well as the Committee responsible for the progressive development of space law, exhibits many of the political decision-making processes of traditional international law – the Victorian-positivist sensibilities advocated by Jenks and described by Sreejith, above. ICAO, on the other hand, does not employ consensus decision-making and its constitutive instrument, the Chicago Convention, can be amended much more easily. The ICAO General Assembly, which is composed of all Contracting States to the Chicago Convention, takes decisions and adopts resolutions by majority vote and can amend the Chicago Convention by decisions taken by a qualified majority.122 New Standards and Recommended Practices (SARPs) and Procedures for Air Navigation Services (PANS) are formulated with input from technical experts – often representatives of industry stakeholders – in Working Groups and Panels formed under the ICAO Air Navigation Commission (ANC).123 The ANC is composed of 19 members, who are appointed by the ICAO Council on the basis of professional expertise.124 According to Diederiks-Verschoor, “The members of the [ANC] carry out their task in accordance with personal technical and professional expertise rather than by virtue of a mandate of a State.”125 Proposed SARPs and PANS are presented for adoption to the ICAO Council, which is composed of 36 States elected by the ICAO General

______ 120 See, e.g.: UNOOSA, “Long-term Sustainability of Outer Space Activities” online: www.unoosa.org/oosa/en/ourwork/topics/long-term-sustainability-of-outer-spaceactivities.html. 121 Nandasiri Jasentuliyana, International Space Law and the United Nations (The Hague: Kluwer Law International, 1999) 23-29 [hereinafter, “Jasentuliyana”]. 122 I. H. Ph. Diederiks-Verschoor, An Introduction to Air Law, 9th revised ed by Pablo Mendes de Leon (Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2012) 33 [hereinafter, “Diederiks-Verschoor”]. 123 Ibid. at 34. 124 Ibid. at 35. 125 Ibid.

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Assembly based upon geographic and professional qualification criteria.126 Generally, ICAO Council decisions are taken by majority vote.127 Thus, in ICAO, State-to-State dialogue and consensus-based decision-making are not employed. Instead, new measures are developed by technical experts and adopted by majority voting. Jansentuliyana identifies the separation of technical and political aspects civil aviation as the source of ICAO’s success in law-making.128 ICAO’s involvement in the regulation of space-related activities is being spear-headed by a space learning group. ICAO is compiling regulatory materials relative to the commercial space sector and plans to outline a work program for consideration by the ANC.129 The ICAO secretariat administering to the learning group has recognized the legal short-comings of ICAO’s mandate for the regulation of space-related activities, but nevertheless has recommended moving forward by addressing technical aspects of the regulation of such activities – a presumption that the law will follow. In this vein, the ICAO secretariat has recommended the formulation of language pertaining to suborbital flights to be included in future iterations of ICAO’s Global Air Navigation Plan (GANP) and Global Aviation Safety Plan (GASP).130 The GANP and GASP are essentially long-term policy statements approved by the ICAO General Assembly and updated periodically to take account of evolving circumstances in global aviation. Thus, ICAO is attempting to lay to the side issues of conflicts between air law and space law and to address technical considerations presented by suborbital flight, related to global air navigation and global aviation safety. It is unclear whether this process is positive or negative for the progressive development of space law. On the one hand, Jenks noted the importance of conflict avoidance and recommended procedural safeguards for avoiding the creation of conflicts when creating new norms.131 One of the safeguards he recommended was inter-agency cooperation in the formulation of new norms by intergovernmental bodies.132 In this regard, the participation of UN Office of Outer Space Affairs (UNOOSA) – the secretariat to COPUOS – in the ICAO space learning group offers some promise, as inputs from UNOOSA could avoid the creation of new conflicts or could lead to the harmonization of

______ 126 127 128 129

Ibid. at 34. Ibid. at 33. Jansentuliyana at 379. Survey on Commercial Space Transportation and Airspace Integration, ICAO State Letter (6 June 2014) AN1/64-1441, online: http://www4.icao.int/space/Documents/041e.pdf. 130 Respectively: ICAO Global Air Navigation Plan, online: www.icao.int/sustainability/pages/GANP.aspx; ICAO Global Aviation Safety Plan, online: www.icao.int/safety/safetymanagement/pages/gasp.aspx. 131 Jenks at 429-433. 132 Ibid. at 429.

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apparent conflicts between air and space law. UNOOSA, however, does not have a mandate to formulate policy on behalf of COPUOS member States. Thus, the extent of its participation in the ICAO space learning group may be limited. On the other hand, by including suborbital flights in the GANP and GASP, ICAO is applying its own norms – its own ethos – to suborbital flights without first determining the extent to which air law or space law is the applicable regime. Furthermore, by focusing on technical aspects only, ICAO is doing this without attempting to harmonize the legal regimes. This process bypasses the first steps in conflict resolution – conflict ascertainment and harmonization – and moves directly to a prioritization of norms. Because of the autonomous operation principle, which indicates that ICAO should apply its constitutional framework – its procedures and rules – there exists a danger that ICAO will prioritize air law over space law.133 Or similarly, as described by Koskenniemi and discussed above, ICAO may grant priority to norms of space law, but it will do so according to its own administrative objectives and purposes, thus risking the subjugation of the object and purpose of the space law regime to ICAO’s ethos. In regard to the autonomous operation principle, Jenks is careful to note that, “[...] organizations governed by or responsible for the administration of conflicting instruments must [...] operate provisionally on the basis of their own instruments until the conflict can be dealt with by negotiations [...].”134 Given ICAO’s internal process for the development of SARPs and PANS by technical experts, it is unclear when such negotiations would take place. For space law, States have retained the Victorian-positivist sensibilities of traditional international law. This was made abundantly clear during the EU Multilateral Negotiations on an International Code of Conduct (ICOC) for Outer Space Activities, wherein much of the State-to-State dialogue was spent in advocating for the appropriate forum for the development of an ICOC. States vied for COPUOS, the Conference on Disarmament or the UN General Assembly, with their choice of forum dependent upon their prioritization of space law and disarmament law norms.135 This debate is not happening in regards to ICAO’s involvement in the regulation of space-related activities. Indeed, ICAO appears to be acting sua sponte. If nothing more, by including language pertaining to suborbital flights in the GANP and GASP, ICAO undermines the political processes of State-to-State dialogue and consensusbased decision-making employed by the member States of COPUOS and replaces these with its own rule-making preferences.

______ 133 Ibid. at 448. 134 Ibid. 135 Ibid. See also, Summary of the Chair, Multilateral Negotiations on an ICOC for Outer Space Activities (31 July 2015) online: http://papersmart.unmeetings.org/media2/7650931/chairs-summary-corrected-1-.pdf.

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As described above, COPUOS is not a global administrative body in the same sense as ICAO: it has no quasi-legislative powers. Global administration of space law is done largely by domestic regulators functioning on the international plane. Koskenniemi also recognized that national administrations can be a hegemonic force in the determination of the application of a regime and in its interpretation.136 Eyal Benvenisti and George W. Downs have characterized this, as well as the use of informal government-to-government coordination – such as the MOCs executed by the FAA – as stronger States exploiting fragmentation to maximize their own gains at the expense of weaker States.137 Although this seems nefarious, it may simply be that the US prefers not to have to remake the wheel by further conforming its already existent regulations to a new aviation regime for space promulgated at the international level by ICAO. It must be considered, however, that it is domestic regulators via bilateral intergovernmental agreements, that are jockeying with an international administrative organ for institutional hegemony in the regulation of suborbital vehicles. The self-perpetuating nature of a specialized regime that is administered by a global body with quasi-legislative powers could present serious problems for domestic regulators in their efforts to shape international space governance according to their domestic space law regimes.138 Thus, the choice of organization for the administration of air and space law vis-à-vis suborbital flight seems to fall to the poles of the types of global administration: an international administrative organ (ICAO) on the one hand; domestic regulators (US FAA, UK CAA, Italy’s ENAC, etc.) on the other. There is, however, a third alternative: the creation of global administrative body dedicated to space-related activities and endowed with quasi-legislative authority. Jansentuliyana recommended the establishment of such an entity, empowered with the quasi-legislative powers to promulgate SARPs for outer space.139 This option seems to be the best, as it avoids the potential that ICAO will apply air law to suborbital flights, or apply space law but under ICAO rules and procedures. It also avoids the potential institutional hegemony of administration by domestic regulatory agencies. A global regulatory body dedicated to space-related activities could apply which ever regime States choose for the regulation of suborbital flight, or even a hybrid of air and space law, but in a manner that avoids the sacrifice of the object and purpose of one regime for that of another.

______ 136 Koskenniemi at 8-9. 137 Eyal Benvenisti and George W. Downs, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law” (2007) 60(2) Stanford L R 595, 618. 138 Alexandra Khrebtukova, “A Call to Freedom: Towards a Philosophy of International Law in an Era of Fragmentation” (2008) 4(1) J Int’l L & Int’l Rel 51, 63.64. 139 Jansentuliyana at 381.

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It should be recognized, however, that the creation of such organization would not eliminate the problem of fragmentation itself or its effects on the regimes of air and space law, but would actually be a step toward further calcification of space law as a specialized regime, separate and distinct from other branches of international law. Thus, the process to avoid the effects of fragmentation – such effects being, in this case, the potential sacrifice of the object and purpose of one regime for those of another regime – further enhances derisive forces – in this case, specialization and managerialism implicit in the dominance of technical expertise – thereby further exacerbating the problems of fragmentation, which have been visited upon the regimes of air and space law by globalization and the advancement of norm-cross-cutting technologies. V.

Conclusions

Global administrative organization has expanded at pace with globalization and fragmentation, and it appears that these trends are linked. The entities administering to international law can take various forms, each with a genuinely administrative character regulating and managing increasingly greater areas of economic and social life. The types of organizations administering to air and space law have grown out of the innately unique characteristics of those substantive fields of law, thus endowing these administrative organizations with the ethos of their respective substantive regime. Where globalization and advancements in technology cause specialized regimes of international law to overlap and conflict, their administrative organizations also can have overlapping competencies. In the case of air and space law, this has resulted not only in ICAO moving toward the regulation of space-related activities, but also in domestic regulators making hegemonic ovations to secure the success of their type of organization and their domestic substantive regimes. The danger is that one administrative organization may, by its structure and/or influence, be more powerful and, through its bureaucracy and level of technical expertise, come to impose its ethos within the sphere of another specialized regime, thereby undermining that regime’s object and purpose. This phenomenon can be avoided by the establishment of an appropriate organization for the administration of the most relevant international regime, in particular for suborbital flight, but also for space-related activities generally. A hybrid of two or more regimes could also be employed, where the organization is specifically tailored to administer to such hybrid regime. In the case of the application of air and space law to suborbital vehicles, it is not yet clear which regime is most appropriate, but both appear to apply. Likely, the most appropriate administrative organization for the regulation of spacerelated activities would be a new entity endowed with the quasi-legislative authority for such regulation.

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The Legal Implications of Erroneous GNSS Signal, Resulting from Harmful Interference Simona Spassova and Andreas Loukakis*

Abstract There are two Global Navigational Satellite Systems (GNSS) in operation: The United States’ Global Positioning System (GPS), the first GNSS structure which became operational and the Global Orbiting Navigation Satellite System (GLONASS) operated under the auspices of the Russian Federation. In the future, two other structures will start to function as well: Galileo which will operate under the auspices of the European Union and the Chinese system Beidou (Compass). From a technical perspective these navigational satellite systems transmit navigational data (signals) via the use of electromagnetic waves, thus serving many civilian applications on Earth connected to navigation, timing and positioning. Although certain spectrum frequencies have been specially reserved and allocated for GNSS communication, the low strength of the GNSS signal makes it very susceptible to Harmful Interference (HI). The sources of HI can be either intentional or unintentional. The basic underlying idea of the present paper is to demonstrate the close interaction between the phenomenon of HI on the one hand and the provision of GNSS signal-services on the other. Particular attention will be paid to the issue of liability caused by GNSS signal loss resulting from HI. Excluding any other sources of GNSS signal malfunction, this paper will focus on the legal consequences of HI to GNSS systems. To this end, several questions will be asked, particularly from a legal perspective: Could the GNSS operator be held accountable for not being able to manage the harmful interference resulting in GNSS signal loss? Could the causing agent of HI be held accountable? Would there be a difference if the source of the interference was intentional and the causing agent denied any wrongdoing? What are the possible fora to address the question? Which legislation would be applicable when it comes to potential liabilities? The present paper aims at addressing the above questions by examining the current legal framework and illustrating the complex interrelations between different players.

______ *

Simona Spassova (main author), Faculty of Law, Economics and Finance, University of Luxembourg, Luxembourg, [email protected]. Andreas Loukakis (coauthor), Faculty of Law, Economics and Finance, University of Luxembourg, Luxembourg, [email protected].

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I.

Introduction and Background

A noteworthy international legal document was signed in December 2012 – a Memorandum of Cooperation (MOC) between the International Civil Aviation Organization, based in Montreal, Canada and the International Telecommunications Union, with its seat in Geneva, Switzerland. The agreement concerned a framework for enhanced cooperation regarding the protection of the Global Navigation Satellite System (GNSS) from Harmful Interference with a potential impact on aviation safety.1 Both the ICAO and the ITU are specialized agencies of the United Nations. ICAO’s mandate is to codify principles and techniques of international air navigation as well as to promote the development and sustainable growth of international air transport.2 The ITU, on the other hand, is responsible for issues related to information and communication technologies – it coordinates the global use of the radio spectrum and the assignment of satellite orbits. Following these elements, the question which must be asked is as follows: what is the connection between the two organizations and why the need for such a MOC? ICAO is the global agency responsible for developing Standards and Recommended Practices for the use of GNSS by international civil aviation including such on resistance to interference. The ITU, on the other hand is at the forefront of communication efforts to eliminate harmful interference between stations of different countries – this includes, but is not only limited to GNSS signals.3 Indeed, ever since its creation in 1947, ICAO’s operations, goals and mission have been interdependent on the work of the ITU – the demands of civil aviation on aeronautical telecommunications services were always there and ever-increasing.4 Even though this paper does not deal specifically with the particular problems of the aviation industry and GNSS, this MOC is a relevant demonstration of the increasing problems that GNSS operators are facing, together with the attempted legal solutions on an international level. The problematics that are examined in this paper deal with the broader legal framework surrounding the issues of GNSS and Harmful Interference. Granted, this MOC serves

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2 3

4

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Memorandum of Cooperation between ICAO and ITU providing a framework for enhanced cooperation regarding the protection of the Global Navigation Satellite System from Harmful Interference with a Potential Impact on Aviation Safety, December 2012. Available at www.itu.int. Accessed on 20 August 2015. ICAO website, Available at www.icao.int. Accessed on 20 September. Memorandum of Cooperation between ICAO and ITU providing a framework for enhanced cooperation regarding the protection of the Global Navigation Satellite System from Harmful Interference with a Potential Impact on Aviation Safety, December 2012. Available at www.itu.int. Accessed on 20 August 2015. ICAO, The Postal History of ICAO, ICAO and the International Telecommunication Union. Available at www.icao.int/secretariat/postalhistory/icao_and_the_ international_telecommunication_union.htm. Accessed on 10 September 2015.

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as an illustration of the pertinence and importance of the subject, but it does not put forward legally binding obligations to States, public or private users. And it is exactly these binding and enforceable legal commitments that this article is concerned with. More specifically, the article addresses the potential scenario whereby a GNSS system malfunctions as a direct result of Harmful Interference – who could be held liable and how? Therefore, the paper outlines and explains the basic technical concepts and then provides the relevant legal framework. Building on this, follows the examination of the possible scenario where a GNSS signal fails as a result of Harmful Interference. Can someone be held responsible in such a situation and if so, who and how? II.

Definitional and Technical Considerations

To answer the above questions and before examining the relevant legal documents and the resulting consequences, the paper begins its analysis by providing a brief introduction to the technical terms and processes. II.1.

GNSS

In 2011 the British Royal Academy of Engineering published a report on the reliance and vulnerabilities of GNSS systems, raising important questions on society’s increasing dependence on such systems for position, navigation and timing data.5 According to the chairman of Royal Academy “we have become almost blindly reliant” on the data and information thereby provided.6 GNSS is the generic term for satellite based operations that broadcast electromagnetic signals used to provide position, navigation and timing services – collectively known as PNT. The best known such system in operation is the US military GPS (Global Positioning System), but the Russian GLONASS (Global Orbiting Navigation Satellite System) should also be considered. In addition, concomitantly, there are two other systems in development – the European Galileo and the Chinese Compass Navigation System. In brief, the functioning of the GNSS systems can be divided into three segments: ground, space and user segments. The ground one is used to uplink data to satellites, to track them, to synchronize the time across the constellation of satellites and enable orbit determination. It is used for uploading navigation data and for monitoring the signals transmitted across the globe. The space component consists of a multitude of satellites in various orbital planes, which carry signal generation units, amplifiers, antennas and clocks. Lastly, the user segment is made up of receivers or antennas that obtain the signal

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6

Satellite Alert. We've become increasingly reliant on global navigation systems. So what would happen if they disrupted by jamming of bad weather in space? In Professional Engineering Magazine, April 2011, Vol 24:4, pp. 40-46. Ibid.

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and decode it to provide PNT information.7 This last segment is rather diverse and uncoordinated, which means that certain problems affecting the signal could be felt by some users, but not by all. II.2.

Applications of GNSS

The applications of GNSS are multiple and growing. Satellite navigation actually builds upon terrestrial-based navigation, which had been used by the shipping industry for more than 100 years8 – and even nowadays – the industry continues to make use of that for navigation, port approach and harbour entrance for example. Aircraft use PNT signal for in air steering, approach and departure manoeuvres. In addition, PNT is used in the rail sector for speed profile calculations, train location information, level crossing protection and power supply control. Car navigation is something almost most of us have taken advantage of, as have transport companies for their logistic operations. In addition, GNSS is also used even in the agricultural sector for yield and plot mapping.9 II.3.

Potential Problems with GNSS

Although the GNSS technology is advantageous, GNSS signals transmission is very weak. In an attempt to comparatively illustrate this to non-engineers, scientists equate it to a light bulb shining thousands of miles away. Typically, the signal is less than 100W and is delivered from a distance of about 20,000 to 25,000km. Upon reception on the Earth’s surface, the signal could be more than ten times weaker. Thus, very little is needed to interfere with this signal – be it on purpose or unintentionally.10 Such interference could “easily defeat the signal recovery of overload the receiver circuitry.”11 One example of an unintentional interference with GNSS happened on the Isle of Man, when a poorly installed CCTV camera caused the GPS system to malfunction with a radius of 1 kilometre.12 Commercial high-power transmitters, ultrawideband radar and personal electronic devices can cause similar problems. In 2004, the GPS system encountered a problem, which led to position errors up to 40 kilometres in Europe and the maritime automatic identification

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9 10

11 12

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Ibid. Camacho-Lara, Sergio, International Committee on GNSS, in Pelton, Joseph, Madry, Scott, Camacho-Lara, Sergio, Handbook of Satellite Applications, Springer: New York, 2013, pp. 603-615. Ibid. Satellite Alert. We've become increasingly reliant on global navigation systems. So what would happen if they disrupted by jamming of bad weather in space? In Professional Engineering Magazine, April 2011, Vol 24:4, pp. 40-46. Ibid., p. 43. Ibid.

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system actually showed ships faring on land.13 Interference could also be malicious and intentional. Special devices, jammers are easily available and have already been used by criminals when it comes to theft of expensive vehicles or simply avoidance of road charges.14 Numerous journalists have also warned of the threat of terrorist activities, aided by the use of GNSS jamming. II.4.

Harmful Interference

Having illustrated the potential grave impact that Harmful Interference could have on the GNSS systems, the following paragraphs will examine in more detail the phenomenon of HI. In brief, it can occur along the lines of any of the three GNSS segments: ground segment, space segment as well as at user’s level. To reiterate, the problem of Harmful Interference is of particular significance when it comes to GNSS, because the particular signal strength is very low and thus, disruption is more likely to occur. In order for the GNSS signals to be received and processed accurately, they need to travel at a specific frequency through space. Thus, the radio spectrum is one of the most important requirements for the safe operations of a system – communications, navigation, position reports and datalinks could not function without an uninterrupted and interference-free access to spectrum frequencies. The Radio spectrum is a limited resource and it needs to be shared and coordinated with other users. It is also a non-exhaustible resource simultaneously requiring a fixed position for the satellite in space and an interference-free electromagnetic signal transmission.15 Most broadly, interference can be defined as an alteration to the reception of the signal, which makes it unacceptable. The international organization, whose function is the coordination of the use of the spectrum and frequency resources, whereby this interference can occur, is the International Telecommunications Union. It is an active organization on a technical as well as policy – creation level. Technically, the ITU defines ‘Interference’ as “the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio-communication system, manifested by any performance degradation, misinterpretation, or loss of information which could be extracted in the absence of such unwanted energy.”16 Further on, in addition to Harmful Interference, technicians use terms such as permissible interference and accepted interference. This article is, however, concerned

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15 16

Last DavId., GNSS: The Present Imperfect, GNSS Forum, Available at www.insidegnss.com/auto/may10-Last.pdf. Accessed on 15 September 2015. Satellite Alert. We've become increasingly reliant on global navigation systems. So what would happen if they disrupted by jamming of bad weather in space? In Professional Engineering Magazine, April 2011, Vol 24:4, pp. 40-46. Rothlblatt, Martin A., Satellite Communication and Spectrum Allocation, The American Journal of International Law, 76:1, 1982, pp. 56-77. ITU, Radio Regulations, art 1.166. Available at www.itu.org. Accessed 1 August 2015.

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with Harmful Interference only, which is legally defined as that which “endangers the functioning of a radio-navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations.”17 III.

ITU, GNSS and HI

III.1.

ITU

The ITU is made up of three big sectors, with different responsibilities and lines of activity: The Radio-Communication Sector (ITU-R), the Telecommunication Standards Sector (ITU-T) and the Telecommunication Development Sector (ITU-D). The mission of the ITU-R is of particular importance here:” to ensure the rational, equitable, efficient and economical use of the radiofrequency spectrum by all radio-communication services, including those using satellite orbits.18 No legal analysis on HI can be undertaken without a reference to the ITU, its Radio-communications Sector and the process through which frequencies are assigned for a particular use – such as navigation, mobile services, broadcasting etc. To put it succinctly, the ITU reserves certain frequencies for use by GNSS services with the aim to protect these from Harmful Interference. Thus, it is important to understand how these frequencies are allocated and what is the legal significance of this process. What do ITU’s powers derive from? As a UN agency, the International Telecommunication Union is made up of 193 Member States that have subscribed to its Constitution and Convention.19 Thereby, these two documents have the legal status of International Treaties, enforceable in International courts and tribunals. The preamble to the Constitution recognizes the “sovereign right of each State to regulate its telecommunications”, while article 1 of the said document expressly states the purpose of the Union as that of maintaining international cooperation for the “rational use of telecommunications of all kinds”.20 States have recognized the need for enhanced cooperation in the field and for a centralized technical frequency allocations body, which would be able to put forward legally enforceable and valid technical decisions. These technical decisions are mostly contained in the Radio Regulations (RRs) of the ITU, which comple-

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ITU, Convention, Annex, art 1003. Available at www.itu.org. Accessed 1 August 2015. Restrepo, Joaquin, ITU-R: Basics; Available at www.itu.int/en/ITUR/seminars/rrs/Documents/Intro/IUT-R-Basics.pdf. Accessed on 10 September 2015. ITU, About Us; Available at www.itu.org/about. Accessed on 15 September 2015. ITU Constitution; Available at www.itu.org. Accessed on 14 September 2015. ITU, About Us; Available at www.itu.org/about. Accessed on 15 September 2015.

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ment the Constitution and the Convention of the organization. The RRs have the same legal status – of an International Treaty. III.2.

Frequency Allocations and GNSS

The process of frequencies allocation by the ITU is twofold. First, certain portions of the spectrum are allocated to specific services. These are published in a Table of Allocations.21 From then on, different frequency channels are assigned to Member States for terrestrial or space communication services.22 All this information is put together in a Master International Frequency Register. Once an assignment is granted and entered in the said register, legally, it is deemed protected from Harmful Interference. Article 5.28 of the Radio Regulations reminds that stations of secondary service “shall not cause harmful interference to stations of primary services to which frequencies are already assigned or to which frequencies may be assigned at a later date.”23 In addition assigned services can claim protection from harmful interference.24 Within the ITU system, GNSS25 falls under the definitions of a radionavigation-satellite service: A radio determination-satellite service used for the purpose of radio-navigation. This service may also include feeder links necessary for its operation.26 In addition, radio-navigation as such is also defined – as radio determination used for the purposes of navigation, including obstruction warning.27 Thus, it is rather clear that GNSS services fall within the scope of application of the ITU treaties. Further than that even, Member States recognize that the safety aspects of radio navigation require special measures to ensure their freedom from harmful interference; it is necessary therefore to take this factor into account in the assignment and use of frequencies.28 III.3.

ITU and Harmful Interference

Having illustrated the importance of the GNSS segment within the ITU framework, the paper proceeds to point out the relevant provisions that legally protect the frequencies against Harmful Interference. In this context, the first provision that needs to be examined is article 45 of the ITU Constitu-

______ 21 22 23 24 25

26 27 28

ITU, Master International Frequency Register, Available at www.itu.org. Accessed on 15 September 2015. Bender, R., Launching and Operating Satellites, Legal Issues. The Hague: Kluwer, 1998. ITU Radio Regulations, art. 5.29. Available at www.itu.org. Accessed 14 September 2015. Ibid., Art. 5.31. GNNS is a primary service in the ARNS/RNSS frequency band 1559-1610 MHz. The other frequency bands used by GNSS are co-primarily allocated between radio navigation and other services. ITU Radio Regulations, art 1.43. Available at www.itu.org. Accessed 14 September 2015. ITU Radio Regulations; Available at www.itu.org. Accessed 14 September 2015. Ibid., art. 4.10.

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tion.29 It provides that “All stations, whatever their purposes must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States [...] which operate in accordance with the provisions of the Radio Regulations.” In other words, once a frequency allotment has been made for GNSS at the international level within the ITU framework, this service should have the enforceable legal right to be protected against Harmful Interference. Having said that, we need to clarify that the ITU does not have any enforcement powers, nor does it provide for sanctions in cases of violations. Article 56 of the Constitution puts forward a dispute resolution procedure of “negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon.”30 If none of these methods is adopted, then there can be recourse to arbitration or to the Optional Protocol31 on the Compulsory Settlement of Disputes.32 In practice, however most disagreements pertaining to harmful interference are settled pursuant to art. 15 of the Radio Regulations. Section VI of the respective article outlines the appropriate coordination and notification procedures that parties need to undertake in order to resolve cases of HI. This is a procedure entirely based on good will and amicable cooperation, and there is no mention of responsibility, liability or compensations. An obvious, but important last clarification needs to be made before we examine the possible real life scenarios, pertaining to liability, GNSS and HI. It pertains to the applicability of the ITU rules. It is sovereign Member States that have subscribed to the Convention that bear the responsibility for observing the provisions. The Radio Regulations stipulate that “no transmitting station may be established or operated by a private person or by any enterprise without a license issued in an appropriate form and in conformity with the provisions of ` by the Government of the country to which the station in question is subject.”33 The ITU Regulations and Recommendations, however, are further implemented into national law. Different countries additionally impose civil or criminal penalties for interference or sometimes even stricter guidelines or control mechanisms. These penalties can and have included monetary forfei-

______ 29 30 31 32

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ITU Constitution; Available at www.itu.org. Accessed on 14 September 2015. ITU Constitution; Available at www.itu.org. Accessed on 14 September 2015. This protocol is applicable only for Member States that have acceded to it; it has never been used until now. Jakhu, Ram, Dispute Resolution under the ITU Agreements, available at http://swfound.org/media/48115/JakhuDispute%20resolution%20under%20the%20ITU%20agreements.pdf. Accessed on 20 May 2014. ITU Radio Regulations; Available at www.itu.org. Accessed on 1 May 2015.

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tures or other civil and even criminal penalties for certain types of violations. In addition, governments have often also opted to prohibit the manufacture, importation, marketing, and/or use of devices causing harmful interference.34 It is in this indirect way that many of the ITU rules are being enforced within Member States IV.

International Legal Framework on GNSS and Harmful Interference – Focus on Liability

One of the specificities of the GNSS technique is its inherent international dimension. Consequently, when a GNSS dispute or problem arises, this will certainly have global effects with international dimension.35 We have already outlined the basic ITU regulations pertaining to GNSS and HI. As such, in this section, we examine other possible applicable legislation with a focus on potential liability claims. IV.1.

Space Law Perspective

Presently, all states providing GNSS services are parties to the Outer Space Treaty,36 the Liability Convention37 and the Registration Convention.38 Hence, the general conclusion which can be reached from an international space law perspective is that the field of GNSS will be subjected to the normal rules as to the use of Outer Space.39 In a general context, international space law is comprised of five United Nations Space Treaties which essentially provide the legal framework for the exploration and exploitation of Outer Space. Nonetheless, not all of the abovementioned Treaties would be pertinent when examining issues of damage and dispute resolution. More substantially, only two of the abovementioned Treaties encompass provisions with respect to responsibility, liability and dispute resolution mechanisms in the possible scenario that a space related dispute arises, in other words the Outer Space Treaty and the Liability Convention. More substantially:

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37 38 39

National Coordination Office for Space-Based Positioning, Navigation and Timing (US), Spectrum Allocation Assurance, Available at www.gps.gov/governance/advisory /meetings/2014-06/wg1.1.pdf. Accessed on 20 September 2015. Schubert, Francis. An International Convention on GNSS liability: When does desirable become necessary?, XXIV Annals of Air and Space Law, 1999, p. 245, esp. p. 248-251. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (hereinafter Outer Space Treaty) 1967, 610 UNTS 205, 18 UST 2410, TIAS 6347. Convention on International Liability for Damage Caused by Space Objects 1972, 961 UNTS 187, 24 UST 2389, TIAS 7762. Convention on Registration of Objects Launched into Outer Space, 1975 1023 UNTS 15, 28 UST 895, TIAS 8480. Lyall, Francis and Paul Larsen, “Space Law: A Treatise”, Ashgate, 2009, esp. pp. 402-406.

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IV.1.1.

Outer Space Treaty

When it comes to responsibility and liability under the provisions of the Outer Space Treaty, articles VI and VII would be of importance. Articles VI and VII of the Outer Space Treaty provide for the principles of international responsibility and international liability of states for their national activities carried out in Outer Space. Given that GNSS will be subjected to the normal rules as to the use of Outer Space, as well as considering the fact that the field of satellite navigation would qualify as a space activity, the principles of international responsibility and liability of states as provided for by the Outer Space Treaty would also be applicable to the field of satellite navigation. However, it should be noted that there is one major deficiency within the aforementioned provisions; these principles as provided by the Outer Space Treaty are general in nature. In other words, they are further elaborated by other legal instruments which contain more detailed and specific provisions compared to those contained within the Outer Space Treaty. Whereas according to the Outer Space Treaty, there is a general principle of responsibility and liability of states, there are no specific provisions relevant for the attribution of liability, monetary compensation, plus specific dispute settlement mechanisms.40 Hence, recourse should be made to other legal instruments which elaborate further on these issues. One example worth to mentioning in this regard is the Liability Convention for Damage Caused by Space Objects. In particular, the said instrument further elaborates the principle of liability as provided under article VII of the Outer Space Treaty.41 An additional aspect which should be noted is that concerning the judicial settlement of disputes relating to Outer Space recourse can, inter alia, be made based upon other international mechanisms i.e. judicial settlement under the competence of the International Court of Justice would be an example. In a general context, apart from the particular lex specialis provisions under the international space law perspective, recourse can also be made to other international law instruments in light of the fact that general international law would be applicable in the general context of space activities. Finally, and given the fact that public international law is characterized by the principle of subsidiarity to national legal systems, national-domestic legal provisions may have a certain relevance and applicability as well.

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Von der Dunk, Frans, Evaluating Regulatory Instruments, in 3rd Workshop of Satellite Communications on Harmful Interference, University of Luxembourg, May 2014, esp. slide number 4, www.en.uni.lu/media/files/evaluating_regulatory_instruments_von_der_dunk, last accessed on 29.06.2014; “Evaluating Regulatory Instruments”, in 3rd Workshop of Satellite Communications on Harmful Interference, University of Luxembourg, May 2014, esp. slide number 4. Ibid.

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In the context of the subject of Harmful Interference and the OST, an important side remark needs elaboration. In its article IX, the Treaty mentions the exact term “harmful interference” twice, but in relation to such interference with the activities of other State Parties. A very broad and contemporary interpretation of the text, could lead to an association of this term with that of electromagnetic interference, discussed in the previous part of this article. In light of the exact formulation and historical situation at the time of signature, the intentions of the contracting parties was simply to extend the accepted international law principle of non-interference into the domestic affairs of another state to Outer Space. Having described the most pertinent provisions of the OST, it would be now opportune to examine more thoroughly the Liability Convention for Damage Caused by Space Objects. IV.1.2.

Liability Convention for Damage Caused by Space Objects

The Liability Convention for Damage Caused by Space Objects further elaborates the principle of liability of States as provided under article VII of the Outer Space Treaty. More precisely, the Liability Convention addresses issues of damage – and dispute resolution – caused by space objects. In short, under this Convention there is the adoption of a two tier system for the attribution of liability. First, in relation to damage caused on the surface of the Earth or to aircraft in flight, there is the provision of an absolute liability system, irrespective of fault.42 Secondly, for situations of damage occurred in other places rather than the surface on Earth or on aircraft in flight, the Liability Convention stipulates for a fault based liability system i.e. cases of collision of satellites.43 Alongside the two different tiers of liability, it is important to underline that the Convention also foresees a specific dispute settlement mechanism to be activated upon the occurrence of a dispute among the parties in relation to the application of the Convention’s provisions (the so called Claims’ Commission44). One that note, then, the following question appears especially from a GNSS perspective: Is there any probability for the dispute settlement mechanism as provided for by the Liability Convention to be used for the resolution of disputes caused during the provision of navigational services? Most importantly, would the liability convention cover damage scenarios caused by harmful interference, causing erroneous broadcast navigational signals? According to the prevailing views of legal scholars until today, the Liability Convention does not cover all the types of space related disputes but only those that meet the definition of “damage caused by a space object”. In other words, the majority of legal scholars suggest a strict and literal interpretation of the term space object. Although some attempts have been initiated for a

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Article II of the Liability Convention. Article III of the Liability Convention. Article XXII of the Liability Convention.

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broader interpretation of the notions “damage” and “space object”,45 most of the legal scholars advocate for a strict – literal – interpretation of these terms.46 Hence, they advocate the view that the Convention only applies to situations of damage caused directly by satellites and liability therefore (i.e. collisions of navigational satellites could be a possible example); in other words, it applies only to cases of direct damage, attributable to a crashing space object or a collision between space objects in Outer Space. However, it is worth bearing in mind that the language of the Liability Convention does not specifically dictate such a narrow interpretation only. Some scholars are of the opinion that the Convention could also be applicable to direct and indirect damage caused by a space object.47 Moreover, quite recently, during the proceedings of the 56th International Institute of Space Law Colloquium on the Law of Outer Space, two young scholars also drew attention to the fact that the literal interpretation of the Liability Convention is not the only way of interpreting the Convention, but in contrast, there are also possibilities of applying other interpretation criteria that may ultimately lead to different interpretation results, for instance a possible broader interpretation of the notions of “damage” and “space objects” under the Liability Convention.48 IV.1.3.

ITU Law

Although highly specialized the ITU legal order constitutes an important branch of public international law and it complements the aforementioned Space Law treaties. As such an examination of these legal documents becomes necessary. As already delineated, the documents upon which the Union is based – the Convention, Constitution and Regulations have the legal status of International Treaties. The ITU regime is particularly relevant to issues concerning GNSS and Harmful Interference, but also rather weak when it comes to liability and responsibility. It is article 36 of the Convention that exempts State parties of international liability: “Member States accept no responsibility towards users of the international telecommunication services, particularly as regards claims for damages.” Even though, the specific term liability is not utilized as such, the specification of ‘responsibility for claims for damages’ purports exactly to international liability. Thus, pursuant to the ITU mecha-

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47 48

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B.D.K Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System, 1998, p. 221. Vienna Convention on the Law of Treaties (hereinafter VCLT), done at Vienna on 23rd of May 1969 and entered into force on 27th of January 1980, United Nations Treaty Series, vol. 1115. B.D.K Henaku, The Law on Global Air Navigation by Satellite: An Analysis of Legal Aspects of the ICAO CNS/ATM System, 1998, p. 221. Carpanelli, Elena and Brendan Cohen, The Notion of Damage caused by a Space Object under the 1972 Liability Convention, 56th International Institute of Space Law Colloquium on the Law of Outer Space, 64th International Astronautical Congress, Beijing, China, 2013, esp. pp. 3-10.

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nisms, it would be difficult to seek redress or compensations. In addition to that, although ITU law could be enforced at various international fora, the organization itself relies rather on cooperation and coordination procedures for the settlement of disputes based on its legal order. Article 56 of the Constitution puts it forward that “Member States may settle their disputes (..) by negotiation, through diplomatic channels, or according to procedures established by bilateral or multilateral treaties concluded between them for the settlement of international disputes, or by any other method mutually agreed upon.” Additionally, the ITU framework also provides an option to accede to a Protocol for the Compulsory Settlement of Disputes, but not only have very few Member States signed it, nor has this Protocol ever been used in practice. Thus, practically speaking even in cases where damage has been caused by Harmful Interference, the ITU legal order would hardly be useful for damages claims or enforcement proceedings. IV.2.

International Law Perspective

At this point, a few remarks are worth mentioning about other international law instruments. As indicated already, several instruments from other branches of international law may play a role as long as a GNSS related dispute occurs; the fields of air law or maritime law are two examples. Additionally, traditional instruments coming from the field of general public international law may be important as well. At the present period of time, there is no uniform legal mechanism for a global liability regime for damages caused by global navigational satellite systems under any international convention. But still, if the malfunction of the GNSS technique causes loss, other branches of international law might be activated. For example, if the use of erroneous broadcasted navigational signals causes the loss of lives following an aircraft crash or pollutes the environment through a shipwreck, air and maritime law conventions may come into play. In the worst case scenario such as that of a nuclear accident resulting from a GNSS failure, nuclear conventions might come into play as well.49 It suffices to say that these legal instruments will – most likely – not address damage scenarios from a GNSS failure in a sufficient manner. They have been drafted in so as to address potential liabilities of the air carrier, of the ship owner or the operator of a nuclear installation. As such, they are not expected to address GNSS liability risks.

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From the field of Air Law See for example: “Convention on International Civil Aviation” Chicago, December 7th, 1944. From the field of Maritime Law See in more detail “The United Nations Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels” Geneva, October 10th, 1989. See also “the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea”, London, May 3rd, 1996 (Hereinafter the HNS Convention).

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In diverting from other specific branches of public international law, it should be noted that disputes in relation to satellite navigation and Harmful Interference more particularly may also be resolved under traditional dispute settlement mechanisms as provided under general public international law instruments; negotiations, enquiry mediation, arbitration and judicial settlement are just to name a few. The relevance of these mechanisms in the context of Outer Space activities is explicitly recognized by article III of the Outer Space Treaty. Under this particular provision, general public international law becomes directly applicable also in the context of Outer Space activities. Satellite navigation is qualified as a space activity and as such the applicability of Article III of the Outer Space Treaty may be brought to light. It suffices to say that the efficacy of general international law provisions is expected to be rather moot point for the resolution of GNSS related disputes. Although general international law instruments would be pertinent within the context of the provision of navigational services, to date, practice has revealed states’ tendency to be reluctant to accept adversarial forms of disputes such as judicial settlement. In addition, it is worth mentioning that the International Court of Justice has never been asked so far to intervene for the resolution of a dispute relating to Outer Space activities. IV.3.

National Law Perspective

Finally, a few remarks are mentionable concerning domestic dispute settlement mechanisms (i.e. mainly national tort law or third party liability provisions). A clear indicator for the possible applicability of national legal provisions for the field of Outer Space is explicitly recognized under the Liability Convention. In particular, under article XI, the Convention clearly stipulates the possibility to exploit domestic legal mechanisms as an alternative to its own dispute settlement mechanisms.50 Therefore, national contract and tort law provisions could be applicable as soon as a GNSS liability law incident occurs. At this point, it should be highlighted the fact that due to the inherent international dimension of GNSS, recourse should be made to the rules of private international procedural law and private international law before any substantive national tort and contract law to be applied. The general rule – with certain exceptions – under private international law dictates the application of the law of the country where the incident occurred, the so called lex loci delicti.51 Given that GNSS will have global dimension and will be used worldwide, GNSS loss can be sustained in every country of the world, thus, making the national laws of every country potentially relevant.

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See Article XI (2) of the Liability Convention. See in more detail Regulation EC No 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations of 11th of July 2007. The Rome II Regulation, esp. Article 5.

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V.

Case Study

In order to practically illustrate the abovementioned issues and problems related to liability for wrong and erroneous GNSS signals ultimately caused by Harmful Interference, at this stage we consider an imaginary, but highly possible scenario. Given the complex nature technical nature of the phenomena in question and the possible involvement of both private and public actors, a number of assumptions are also necessary. In the fictional case study, we have a large private cargo ship, Hermes, carrying goods of high material value. In dark and foggy weather, the ship relies on GNSS signal to find its course. As a result of Harmful Interference, however, the GNSS signal malfunctions and Hermes crashes into rocks. This leads to huge material damages. What are the possible recourse mechanisms that Hermes’ proprietors could invoke in this case? The relevant actors would thus be: • Hermes’s owner company and the State of its domicile and registration – State A. • The provider of the GNSS signal. While no particular existing service provider is considered, given the current reality where public entities (mainly states) provide GNSS services, we assume that this a public entity – State B. It is this state that has holds the relevant frequency allocations. • The source of the Harmful Interference – a private broadcasting company, integrated in and operating from State C. Further to that, we also take for granted that the interference was not directed or intentional52 and that the GNSS operator has traced it to the activities of the broadcaster.53 Two perspectives are examined – that of the GNSS operator and the ship owner. It is noted that in cases, where private parties are involved, it would be the relevant State that could invoke the ITU and Space Law provisions. Article VI and VII would be the strongest grounds for actions as they provide for the principles of international responsibility and international liability of states for their national activities carried out in Outer Space. Even if the broadcaster that transmitted the signal that cause the Harmful Interference, still the responsibility for its actions would fall upon the State that authorized and regulated its activities. The ITU legal order would certainly come in handy as to classifying the Harmful Interference as unauthorized and illegal, but it would not be possible

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53

Actually, the ITU provisions do not differentiate between intentional and nonintentional Harmful Interference and thus, within this framework intent is not a matter of consideration anyhow. From a technical perspective, Harmful Interference can often be traced, with a reasonable amount of certainty, but legally speaking, this is highly unlikely, mostly impossible.

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to go further than that in assigning liability or demand damages. This is also one of the biggest shortcomings, ascribed to the Union as it does not have any monitoring or enforcement capabilities. In recent years, the ITU has intensified efforts on that front, but these still remain to be developed and integrated within the legal order. Thus, especially when it comes to claims for damages, the likelihood of success for the GNSS operator when invoking ITU rules is negligible. The same goes for ship operator. In addition, the Liability Convention will not be applicable either given the fact that the damage was caused by the navigational signal (indirect damage) and not from the navigational satellites directly (direct damage). Moreover, if the victims choose general international law instruments, they will be obliged to prove fault and causation; this task will certainly be quite challenging, not to say even impossible, for the case of satellite signals. Lastly, other international conventions from the field of maritime or air law may also come into play but still their relevance remains questionable. Given the fact that these instruments address issues of liability for the ship owner, they do not have many chances of success in addressing liability issues for the GNSS operator or the broadcaster of the signal that caused the Harmful Interference. At the disputes in question, the error was introduced at the level of the GNSS provider/operator and thus, these instruments will not be relevant as such. VI.

Conclusions

This article has aimed to demonstrate the increasing relevance and need for enforceable international legal provisions in relation to GNSS and Harmful Interference. A specificity of both subjects is their close connection to technological advancements. The latter, however are not always linked to a simultaneous development of the associated legal order. The issues pertaining to GNSS and Harmful Interference are in their nature international and can thus, be covered by a variety of international legal provisions. At the same time, however, these are very technical and closely regulated within the auspices of the ITU, which provide a multitude of scientific definitions and procedures for GNSS operations and for avoidance of Harmful Interference. At the same time, however, the legal order of the ITU is not equipped with sufficient enforcement mechanisms or liability provisions in cases of violations. Other international treaties – such as the OST and the Liability Convention do put forward provisions and mechanisms for dealing with potential disputes, but their applicability to electromagnetic signals is not particularly straight-forward. This gap needs to be addressed either through additions to the existing internationally enforceable framework in relation to liability or by updating the ITU treaties so as to introduce State responsibility for violations of the basic regulations.

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The Intellectual Property Rights Regime for the Development Phase of Galileo Caroline Thro*

Abstract The European Union is increasingly aware of the strategic, political and economic importance of space activities. Despite the early absence of an explicit competence in such domain, the European Commission started at the end of the 1990s to carry on two space-related flagship programmes: Galileo, the upcoming European global navigation satellite system, and GMES/Copernicus, a complex set of structures aimed at achieving autonomous, multi-level operational Earth observation capacity. The great complexity of these programmes requests the involvement of a high number of entities – such as the European Space Agency, the National Space Agencies and companies from the European space industry – and the implementation of a clear and comprehensive legal framework. Being the owner of the programmes, the European Union is the entity principally responsible for the deployment of such legal framework, both for the development and the exploitation phase of the programmes. One of the most relevant legal issues in the current development phase is the management of the intellectual property rights (IPR) regime among the involved entities. According to the main principle, provided for Galileo by Art. 6 of Regulation (EU) No. 1285/2013 and for Copernicus by Art. 28 of Regulation (EU) No. 377/2014, the Union is the owner of all tangible and intangible assets created or developed under the programmes. Given the complexity of the contractual relations and of the economic interests involved, the aim of the paper is to point out the legal issues that might arise from this construction, such as the potential conflict with the ESA procurement rules specific to IPR and the consequences of such conflict on the contractual relations with third parties.

I.

Introduction

After having been dependant on the United-States and their GPSconstellation, Europe started developing a global navigation satellites system (GNSS) providing a highly accurate, guaranteed global positioning service

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France, [email protected].

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under civilian control,1 called Galileo. The already existing European Geostationary Navigation Overlay System (EGNOS)2 monitors and corrects signals of existing GNSS, but is thus per definition extremely bound by the availability of these signals; whereas the Galileo constellation’s aim is to provide its own signals in five different types,3 on top of ensuring interoperability with the American GPS and the Russian GLONASS.4 The Galileo programme was initiated by the European Union (EU) and the European Space Agency (ESA) with an official common agreement dated 26th May 2003 and is divided in different phases: definition, development, validation (IOV), deployment (FOC) and exploitation. Galileo constitutes of a constellation of 30 satellites in Medium Earth Orbit (MEO) at an altitude of 23 222 kilometres.5 Throughout the several phases of the programme, different procurement rules apply. The three first steps (definition, development and validation) being considered together as the development phase in its broad definition have been co-financed by the EU and ESA. The Agency received a mandate from the EU to place the contracts of this phase with industry, but using special procurement rules of ESA. Starting from the FOC phase, the activity is exclusively financed by the EU. For this last phase it has been decided that the EU procurement rules apply,6 i.e. the EU Regulation on public procurement.7 To keep the article short and understandable, we made the choice to focus on the IPR issues in the Galileo programme, pointing out the several potential issues at stake with this unique IPR scheme. II.

The Opposite Rationale of the EU Procurement and the ESA Procurement for IPRs

As ESA is an independent intergovernmental organisation, despite the potential confusion brought by its denomination (ESA is not an EU body), it has its

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4 5 6

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www.esa.int/Our_Activities/Navigation/The_future_-_Galileo/What_is_Galileo. www.esa.int/Our_Activities/Navigation/The_present_-_EGNOS/What_is_EGNOS. Article 1 and Annex of the Regulation (EC) 683/2008 of the European Parliament and of the Council of the 9th July 2008 on the further implementation of the European satellite navigation programmes (EGNOS and Galileo), OJ L 196 of 24th July 2008, p. 1. www.esa.int/Our_Activities/Navigation/The_future_-_Galileo/What_is_Galileo. www.esa.int/Our_Activities/Navigation/The_future__Galileo/Galileo_a_ constellation_of_30_navigation_satellites. Article 6 of the Regulation (EU) No 1285/2013 of the European Parliament and of the Council of the 11th December 2013 on the implementation and the exploitation of the European satellite navigation systems. Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC.

THE INTELLECTUAL PROPERTY RIGHTS REGIME FOR THE DEVELOPMENT PHASE OF GALILEO

own Procurement Regulations8 defining ESA’s procurement processes and principles and reflecting the principles established by the ESA Convention. Moreover, ESA settled a booklet of clauses applicable to all contracts ESA places with industry or other public partners. These General Clauses and Conditions for ESA Contracts9 have one dedicated Chapter on intellectual property rights (IPR).10 This Part II is organised in two sub-parties, one applying to the R&D Contracts (option A) representing the general applicable regime to IPR for ESA Contracts, and the other sub-party (option B) ruling partly ESA funded contracts. Of course, ESA had to adapt its rules to the very particular market in the space sector. Therefore ESA can choose to make a restrictive call for Tenderer rather than going for an open competition, which in other words means that ESA can restrict from the very beginning of the issuing of the call some Tenderers, but has still the duty to ensure fair competition. Moreover, procurement activities at ESA are ruled by the geographical return, meaning in simple words that the percentage of contracts placed in a Member State participating in the programme shall reflect the financial contribution to the specific programme of that State. This results sometimes in restrictive competition due to national consideration. It is, for ESA, not unusual practices to state in the call for tenderer that only companies from determined States can response. In summer 2012, ESA placed a contract with the company Orolia, a group created in 2006 issued of a spin-off of the group Temex, to procure for an approximately amount of 20 Million Euros an atomic clock needed on each satellite of the Galileo constellation. “Galileo’s highly-accurate clocks are at the heart of the system. Each satellite emits a signal containing the time it was transmitted and the satellite’s orbital position. Because the speed of light is known, the time it takes for the signal to reach a ground-based receiver can be used to calculate the distance from the satellite.”11

The IPR issue arising of the development of the atomic clock recalls the highly sensitive technology which is behind. IPRs are a possibility for companies to protect their knowledge and prevent the concurrent company to steel, develop and sell the other’s invention. But IPR in fact represent for the company a real

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11

ESA Procurement Regulations and related Implementing Instructions, ESA/REG/001, rev. 3, Paris, 20th December 2012. General Clauses and Conditions for ESA Contracts, ESA/REG/002, rev.2. Part II Conditions concerning Intellectual Property Rights for ESA study, Research and Development Contracts, General Clauses and Conditions for ESA Contracts, ESA/REG/002, rev.2. www.esa.int/Our_Activities/Navigation/The_future_-_Galileo/Galileo_s_clocks.

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business tool. The registration of an IPR is only considered if it can bring in return revenues through the licencing.12 ESA’s general rule is to make the Contractor the owner of the IPR it has produced as part of the work performed under a Contract,13 as ESA is not a company and has no intend to make profit of IPR. This means that the Contractor can chose to register them or not.14 In the case the Contractor would chose not to do so, the company still needs to inform the Agency as in this case ESA could decide to register this IPR. The Contractor should however grant a free licence with the right to sub-licence on the use to the Agency for any IPR developed under an ESA Contract,15 as ESA is paying for the procurement. The EU regulation on public procurement is an integral part of the common market (meaning principle of free movement of goods, of establishment, the freedom to provide services and the principle of mutual recognition16) and is aimed to eliminate non-tariff barriers. This main objective of the EU is justified by the economic reasons of liberalization, integration and competition of markets from the Member States.17 Regarding specifically the procurement processes and the related IPR regime, the EU is the owner of the IPR developed under EU-contracts.18 This means practically speaking for Orolia that its registered technology developed under the Galileo contract on the atomic clock can be transferred to competitors in case the EU chooses a competitor for the resupply and not Orolia. Even though ESA is only partly and indirectly bound by the EU procurement and financial rules, these rules become of high importance for co-funded (EU – ESA) programmes, as it is the case for Galileo.

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www.wipo.int/edocs/mdocs/arab/en/wipo_ip_mct_apr_04/wipo_ip_mct_apr_04_ 5.pdf. Clause 39 General Clauses and Conditions for ESA Contracts, ESA/REG/002, rev.2. Clause 39.1 General Clauses and Conditions for ESA Contracts, ESA/REG/002, rev.2. Clause 40.3 General Clauses and Conditions for ESA Contracts, ESA/REG/002, rev.2. Hobe S., Hofmannova M., Wouters J., A coherent European Procurement Law and Policy for the Space Sector, Towards a Third Way, Cologne Studies in International and European Law, vol. 22, Berlin 2011, p. 108-112. Hoffmann H., Turk A., Legal challenges in EU Administrative Law: Towards an integrated administration, Edward Elgar Publishing, January 2009, p. 288; Trionfetti F., Public Procurement, Market Integration and Income Inequalities, Review of International Economics, 9 (1), 29-41, 2001, p. 1. I.e. Article 6 Regulation (EU) No 1285/2013 of the European Parliament and of the Council of 11 December 2013 on the implementation and exploitation of European satellite navigation systems.

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III.

The Galileo IPR System and Issues at Stake

Thirty satellites will constitute de Galileo constellation. OHB, a German company, has been awarded the contract for at least 22 satellites19 – Thales Alenia Space procured the four satellites of the in-orbit validation (IOV).20 On each of the satellites, one atomic clock must be part of the payload. Once the full-operational capability achieved, even the satellites built by Thales Alenia Space will be the property of the EU. For good operational reasons it could be assumed that the EU will need elements, at least an overview on the work performed during the development phase procured through ESA contracts. The prevailing rule is that the EU is the owner of all IPR registered on work performed under Galileo Contracts (development phase and exploitation phase). Thus the development contracts foresee a transfer of all IPR to the EU at, in general, the end of the contract or on the date of the launch, for flying items. This scheme has been put in place to ensure the interests of the future Galileo Service Provider(s). In fact, the Providers should have an unlimited access to the IPRs produced under the Galileo contracts. With the actual scheme this could be guaranteed as the EU is the owner of the IPRs. Moreover, the EU wanted to avoid the technology developed and registered through IPRs to be uncontrolled exportable out of the EU which can only been avoided by having an exclusive control over them. This IPR scheme between the actors involved in the Galileo programme is as of today unique and raises some fundamental issues. EU rules related to IPR are motivated by EU willingness to guarantee and ensure re-supply of all or parts of a satellite through competition (e.g. for completion of the constellation or for the management of obsolescence). Implementing competition implies to be able to transmit the related IPR to all potential re-suppliers, regardless of the initial supplier, as it would be the case in the ESA system. It is true that once the last of the thirty satellites of the Galileo constellation launched, the first one will already have to be replaced as they have an approximately lifetime of 6 years – the resupply is this a very current issue. Nevertheless, as said previously, IPRs are a business tool with which companies ensure investments. They have per se a commercial aim for the company. This goal is however therefore at stake with the situation in Galileo programme, as companies won’t be able to make use of the IPR and therefore to generate revenues out of those IPR. Therefore, here, the IPR principles are biased and the ESA scheme would have been better suitable. This is even truer considering that nothing prevents the EU to address open competition for the re-supply of

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https://www.ohb-system.de/galileo.html. https://www.thalesgroup.com/fr/node/25851.

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the satellites and leave it to the bidding companies to organise among them the IPRs through licences. Moreover, no future exploitation of the protected items can really been expected for the EU, as only very limited IPR has been registered (i.e. the signal in space shapes). This results also from what has been said before: the IPR regime chosen for the Galileo Programme does not encourage companies to register their IPR developed through the work performed under the Galileo Contracts as at the end of the day EU is the owner and could licence their developed technologies to competitors on the market. Also, one rationale of the EU by choosing this IPR scheme was to ensure that the high sensitive technology would not be uncontrolled exported outside the EU. In fact, the protected items could potentially be bought by non EU Member States and could then been copied; or transferred to a non-EU Member State should an EU company be merged with a non-EU company. The EU absolutely wanted to avoid being blocked by ITAR restrictions, should an EU company be merged with an American one. This reflection is however abusing and biasing the initial aim of IPR to implement export control for which dedicated rules exist. In any case, mergers or acquisition do not impact IPRs as the IPRs are excluded from the scope and continue to be protected as they used to be. IV.

Conclusion

This having been said, as a concluding remark it could been pointed out that with such a scheme companies are not benefiting from the revenues associated to invention they are generating and may be incited to use already existing technologies rather to be supported in innovating. For sure, the intellectual property rights issue is one of the most crucial for this programme, due to the involvement of many actors, and due to the high complexity of the project where the responsibilities and roles seem sometimes confusing.

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Extraterrestrial Extraterritoriality Enforceability of Patents from the Earth to the Moon Brendan Cohen and Elena Carpanelli*

Abstract As technological developments make it increasingly possible to conduct activities in areas once regarded as inaccessible, including outer space, the boundary, scope and application of national patent law become uncertain. This paper will analyze some of the legal issues related to the enforcement of patent rights with respect to rocket launches. It will also look at the question of whether a patent awarded by an individual country may be enforced with respect to a rocket travelling through the airspace above international waters, in outer space, or on the high seas. More specifically, it will demonstrate the difficulty of enforcing domestic patent law where steps of the patented method are practiced outside the jurisdiction of the patent, which would arise, for example with respect to launch and re-entry technologies employed by spacecraft or methods for safely deorbiting satellites. It will also consider the role of Article VIII of the Outer Space Treaty in determining where and how to apply the law of the State of registration of a space object, especially prior to and after a return from orbit.

I.

Introduction

In 2014, there were 92 rockets launched into outer space worldwide and that number is steadily growing.1 Additionally, innovative private launch companies looking to reduce costs and improve efficiency are investigating new launch methods, including launching from sea or from airplanes.2 While the

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1

2

Brendan Cohen, Cleary Gottlieb Steen & Hamilton LLP, United States, [email protected]. Elena Carpanelli, University of Milan-Bicocca, Italy, [email protected]. Stephen Clark, 2014’s:Launch Tally Highest in Two Decades, SPACEFLIGHT NOW (Jan. 4, 2015), http://spaceflightnow.com/2015/01/04/2014s-launch-tally-highest-intwo-decades/. Virgin Galactic, for example, is attempting to launch from airplanes, while Sea Launch launches from movable barges. See, e.g., Your Flight to Space, VIRGIN GALACTIC, www.virgingalactic.com/human-spaceflight/your-flight-to-space/ (last visited Sept. 18, 2015); Launch System – Marine Segment, SEA LAUNCH, www.sealaunch.com/launch/11142 (last visited Sept. 18, 2015).

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cartoon view of a rocket taking off shows a perfectly vertical ascent from the launch pad to space, the reality is that in order to achieve the requisite tangential velocity to remain in orbit, a rocket quickly changes course once it clears the launch pad and directs much of its thrust downrange. As it lifts off toward orbit or descends during its return to Earth, the rocket has the potential to pass through multiple regions during its travels, including areas outside the reach of any State’s jurisdiction. Thus, a rocket may traverse the territory of the country of launch, the airspace over a neighboring country (with permission),3 and the airspace over international waters, before entering outer space. On its return journey, the rocket may pass through several of these same regions, before splashing into the ocean. And the complexities could further increase when the launch occurs from a ship or airplane. While the technical challenges of determining the rocket’s precise flight path and trajectory, clearing the relevant airspaces, and ultimately ensuring a successful lift-off are no doubt carefully considered by engineers and flight operations managers, one aspect of this process that is likely not considered carefully is whether a third party has patented certain aspects of the launch or the rocket itself, and whether such patents are applicable to the rocket’s flight. The question of infringement becomes complicated when it comes to space activities because of the fact that “the national or territorial concept of intellectual property rights [...] clashes with the trans-boundary or international”4 nature of space activities.5 Clearly intellectual property rights and obligations will have an influence on the commercial exploitation of outer space.6 Less clear, however, is what specific intellectual property regime will apply. A considerable number of legal scholars have focused on the rules governing inventions made in outer space or on the International Space Station.7 Some

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See, e.g., Bernhard Schmidt-Tedd & Stephan Mick, Article VIII, in COLOGNE COM146, 161 (Stephan Hobe, Bernhard Schmidt-Tedd, & Kai-Uwe Schrogl eds., 2009) (noting that countries currently avoid flying through foreign airspace during launch and instead execute passes over their own territory or over the high seas) [hereinafter COLOGNE COMMENTARY]. Ruwantissa Abeyratne, The Application of Intellectual Property Rights to Outer Space Activities, 29 J. SPACE L. 1, 2 (2003). As has been noted, “it seems only logical that inventions made in the course of producing space-utilized hardware are treated in accordance with the regulations and procedures that are adopted within the jurisdiction where the inventions are made or applications are filed for the patent. However, the nexus to outer space may complicate otherwise clear situations.” Catherine Doldirina, Intellectual Property Rights in the Context of Space Activities, in HANDBOOK OF SPACE LAW 949, 980 (Frans von der Dunk & Fabio Tronchetti eds., 2015). Hanneke van Traa-Engelman, The Commercial Exploitation of Outer Space: Issues of Intellectual Property Rights and Liability, 4 LEIDEN J. INT’L L. 293 (1991). See, e.g., SA’ID MOSTESHAR, Issues Arising in Determining the Legal Regime Applicable to Intellectual Property Rights in Outer Space, in RESEARCH AND INVENTION IN MENTARY ON SPACE LAW, VOLUME 1: OUTER SPACE TREATY

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of them have also proposed new international or space patent regimes to address issues related to the application of intellectual property law to outer space activities.8 Little consideration, however, has been given to questions of enforceability of patents as rockets are launched into and return from outer space. Yet as launch and landing methods improve and become more complex, companies will look to familiar legal protections to try to maintain their monopolies over the techniques and technologies they have worked hard to develop and these questions will become all the more important. The enforcement of patent rights raises issues of appropriate jurisdiction any time the potential infringement occurs in outer space or in other areas beyond the territory of the issuing State.9 For example, can domestic patent law be infringed where certain steps of a patented launching method are practiced outside the jurisdiction of the State issuing the patent, for example, when a rocket is launched from a platform on the high seas? Can Article VIII of the Outer Space Treaty (“OST”)10 be used to apply the jurisdiction of the State of registration of a rocket that is intended to be launched into outer space (as opposed to a suborbital rocket), even before the rocket reaches space? And what if a space object is not registered with any State party to the OST or is registered with a State party different from the one in which the patent has been granted? After briefly introducing patent law and its relevance to outer space activities (section II), this article will analyze the current international legal regime in order to provide a framework for addressing some of these questions. In particular, section III will focus on whether and to what extent domestic patent law might be applied extraterritorially. To focus our analysis, we will consider

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OUTER SPACE: LIABILITY AND INTELLECTUAL PROPERTY RIGHTS 133 (Sa’id Mosteshar ed., 1995) [hereinafter RESEARCH AND INVENTION]; Sandeepa B. Bhat, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. Space L. 1, 1-18 (2010). See generally O. VOROBIEVA, Intellectual Property Rights with Respect to Inventions Created in Space, in RESEARCH AND INVENTION 179; L.B. Malagar & M.A. Magdoza-Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 17 B.U. INT’L L. J. 311-364 (1999). See, e.g., Y. Zhao, Protection of Intellectual Property Rights in Outer Space, 49 PROC. COLLOQ. L. OUTER SPACE 160, 166 (2006). Cf. Comm. on the Peaceful Uses of Outer Space, Questions on the Definition and Delimitation of Outer Space: Replies from Member States, U.N. Doc. A/AC.105/889/Add.6 (Mar. 4, 2010) at 3 (although discussing liability regimes, the statement made by the representative of the United Kingdom is equally applicable to patent law: “the development of space transportation systems functioning seamlessly between airspace and outer space, relying on lift to fly through the air for part of their flight profile, will create uncertainties about the legal regime applicable to them”). 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 Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. 6347, 610 U.N.T.S. 205.

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a hypothetical patent consisting of method claims, where different steps occur in each extraterritorial region (e.g., a method for reaching a particular orbit and returning the rocket safely back to Earth for re-use, which involves firing thrusters on the rocket at precise times, for specified burn lengths and at the proper angle). Finally, in light of the importance of State practice in determining the current status of international law,11 section IV will analyze how some States have found ways, both legislatively and judicially, of applying patent law extraterritorially in the context of certain space activities. In section V, we conclude that the application of domestic law to method patents in which the patented steps occur in multiple regions during the rocket’s ascent and descent is problematic, unless one can prevail over the strong presumption against the extraterritorial application of patent law. And even if such territoriality limitations are overcome, flags of convenience may easily allow a would-be infringer to avoid liability by carefully selecting the location of launch, and therefore the launching state. II.

Brief Overview of Patent Law and Its Relevance to Space Activities

Intellectual property (“IP”) refers to creative works, for example, of an inventor or author, which can be protected for the creator’s exclusive use for a limited period of time. Typically divided into industrial property (covering inventions and trademarks) and copyright (covering literary and artistic works), an IP right grants the owner the exclusive right to benefit from the IP during the applicable term of protection. Upon expiration of the term of the IP right, the limited monopoly ends and the invention or work enters the public domain, free for all to use. The monopoly granted to the IP rights-holder is usually justified on policy grounds as being a quid pro quo: exclusivity provides incentives to creators to encourage the development of new works or inventions and disclosure and dedication to the public domain allows others to benefit at the end of that monopoly period. Patents are a form of IP right that grant the patentee exclusive rights to an invention, product or process that provides a new means of doing something. One fundamental aspect of patent protection, however, is that it is territorial.12 A patent only gives the patentee the rights, for example, to prevent a third party from making, using or selling a patented invention, within the jurisdiction in which the patent has been granted. Thus, a company that

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See, e.g., Int’l L. Comm., Third Report on Identification of Customary International Law by Michael Wood, Special Rapporteur, U.N. Doc. A/CN.4/682 (Mar. 27, 2015). See, e.g., Paris Convention for the Protection of Industrial Property, of 20 March 1883, as revised at Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958, and at Stockholm on 14 July 1967, and as amended on 2 October 1979, Art. 4bis(1), 21 U.S.T. 1538, 828 U.N.T.S. 305 [hereinafter Paris Convention].

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makes and sells its products primarily in the United States and China might seek patent protection in those two countries. Such patents, would not, however, prevent a competitor from manufacturing the patented article in Germany and selling it in France. The national focus of patent protection results from concerns regarding national sovereignty. In general, each country only has the authority to govern activity that occurs within its borders. Although the Paris Convention and the TRIPS13 Agreement have implemented certain minimum standards with respect to patents, each country is free to pass its own specific laws regarding patentable subject matter, requirements for registration and the exact protections afforded against infringers. From advances in robotics to aeronautics, materials science to communications and computers to biotech, the space industry is characterized by rapid developments in technology. Many of these advances require large research and development costs, and often results in spin-off technologies that can be used in a number of terrestrial applications. Experiments conducted in the microgravity environment of the International Space Station (“ISS”) lead to technological breakthroughs and allow for the development of products that cannot be produced on Earth. In each of these cases, the inventor may wish to use patents to secure a limited monopoly and recoup the initial investment of resources.14 The Intergovernmental Agreement establishing the ISS (“IGA”), for example, has clear rules regarding jurisdiction over inventions made or used in outer space.15 Additionally, recognizing the importance of the patent rights resulting from such activities, NASA often waives its statutory right to take title to inventions in favor of the contractor that created it,

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Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 183, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement]. See Statement of James E. Denny, Acting Assistant Commissioner for Patents, U.S. Patent and Trademark Office, before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, Comm. on the Judiciary, U.S. House of Representatives, H.R. 2946 (“Patents in Space Act”), Oct. 4, 1989. Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station (Washington, 29 January 1998; entered into force on 17 March 2001), Art. 21 (stating that “for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element’s registry except that for ESA-registered elements any European Partner State may deem the activity to have occurred within its territory”) [hereinafter IGA].

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in order to more quickly and efficiently commercialize the invention and allow the public to benefit therefrom.16 III.

The Application of Domestic Patent Law to Space Activities: The International Legal Framework

In light of the territoriality principle of patent law and the inherent transboundary and international nature of space activities, there is an open question as to whether a patent with method claims relating to achieving a certain orbit is enforceable outside the strict physical bounds of the State in which the patent is held. The rocket that is practicing the patent will necessarily traverse areas governed by different legal regimes on its journey from Earth to space. This section will thus explore whether, under the current international legal landscape, a patent granted in one country can be infringed by activities taking place in any of the multiple regions described above. III.1.

Outer Space Treaties

When the space law treaties were negotiated in the 1960s and 1970s, the commercialization of outer space activities was far from being a reality. The government programs of two superpowers dominated the space arena, and as a result, IP issues were not perceived as an urgent problem in need of regulation. The only provisions explicitly dealing with IP rights in the corpus juris spatialis are contained in soft-law instruments: the 1982 Direct Broadcasting Principles17 and the 1996 Declaration on Space Benefits.18 Principle 11 of the DBS Principles encourages States to work together to protect copyright and Principle 2 of the Declaration on Space Benefits says that States are free to determine how they participate in cooperative space ventures and that contractual terms “should be fair and reasonable and they should be in full compliance with the legitimate rights and interests of the parties concerned, as, for example, with intellectual property rights” (emphasis added). It has been noted that this provision of the Declaration on Space Benefits recognizes the

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R. Locke Bell, Intellectual Property in an Emerging Commercial Spaceflight Market: Taking Advantage of Other Transaction Authority to Keep Pace with Changing Commercial Practices, 43 PUBLIC CONTRACT L. J. 715, 733 (2014). Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting, G.A. Res. 37/92, U.N. GAOR, 37th Sess., 100th plen. Mtg., U.N. Doc. A/Res/37/92 (December 10, 1982) [hereinafter DBS Principles]. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, G.A. Res. 51/122, U.N. GAOR, 51st Sess., 83d plen. Mtg., U.N. Doc. A/Res/51/122 (Dec. 13, 1996) [hereinafter Declaration on Space Benefits]. For a discussion of the legal value of this Declaration, See, e.g., Elena Carpanelli and Brendan Cohen, A Legal Assessment of the 1996 Declaration on Space Benefits on the Occasion of its Fifteenth Anniversary, 38 J. SPACE L. 1 (2012).

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importance of IP and encourages States to cooperate and share expertise and technology,19 but neither this Declaration, nor any of the treaties relating to outer space contain any provision specifically addressing the application of national IP rights in the context of international outer space activities. Although there is no mention of IP in the treaties, Article VIII of the Outer Space Treaty is nonetheless relevant to the application of IP law in space. This provision reads in part: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body” (emphasis added). In many ways an artifice to prevent space objects from “pass[ing] into a legal vacuum during their sojourn in the extra-terrestrial zone,”20 Article VIII provides a means by which the State of registry can extend the reach of its national law (including IP law) to objects in outer space or on a celestial body on a quasi-territorial basis.21 This provision, however, is far from a magic formula capable of addressing all issues that might arise with respect to the enforceability of patents related to space activities.22 It is certainly true that as a result of Article VIII, a State of registry may choose to extend its national patent laws to spacecraft in outer space or on a celestial body, for example, to protect a patented feature of a telecommunications satellite. Many other scenarios exist, however, which are likely outside the scope of Article VIII. Assuming the relevant countries are even party to the OST,23 the patented invention may be used on a space object for which the State of registry differs from the State in which the patent issued, or may be used on an object that is not registered to any State (because such State is not party to the Registration Convention24 or has just ignored its obligations thereunder). It is also not clear whether Article VIII would apply to objects constructed in space and initially launched from a space station or from the surface of a celestial body. All these issues make

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Anna-Maria Balsano & Bradford Smith, Intellectual Property and Space Activities: A New Role for COPUOS?, in OUTLOOK ON SPACE LAW OVER THE NEXT 30 YEARS 363, 366 (Gabriel Lafferranderie & Daphné Crowther eds., 1997). K.H. Böckstiegel, P.M. Krämer & I. Polley, Patent Protection for the Operation of Telecommunication Satellite Systems in Outer Space?, 47 Zeitschrift für Luft und Weltraumrecht 3, 15 (1998). See, e.g., Carla Sharpe & Fabio Tronchetti, Legal Aspects of Public Manned Spaceflight and Space Station Operations in HANDBOOK OF SPACE LAW, 618, supra note 5, at 627; Bernhard Schmidt-Tedd & Stephan Mick, supra note 3, at 159. On the potential issues that may arise with respect to OST and modern patent practice See, B.L. Smith & E. Mazzoli, Problems and Realities in Applying the Provisions of the Outer Space Treaty to Intellectual Property Issues, 40 PROC. COLLOQ. L. OUTER SPACE 169 (1998). As of Aug. 31, 2015, the OST has been ratified by 94 States. Convention on Registration of Objects Launched into Outer Space, opened for signature Jan. 14, 1975, 28 U.S.T. 695, T.I.A.S. 8480, 1023 U.N.T.S 15.

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clear that the OST (or any of the other existing space treaties, for that matter) does not provide all of the answers. Even in the scenario where the State of registry and the issued patent is the same, there are still questions that Article VIII does not seem to address. The provision says that the State of registry retains jurisdiction over space objects “while in outer space or on a celestial body.” Pursuant to the Vienna Convention on the Law of Treaties, one should interpret a treaty using the ordinary meaning of the terms, in context and in light of its object and purpose, and should consider other factors, including subsequent State practice.25 Considering just the ordinary meaning of the text of Article VIII, the registration State’s law would be applicable only to the extent the space object is actually in outer space. During its trajectory from the Earth to space, the OST could not be used as a hook for the application of domestic patent law. On the other hand, a holistic approach that takes into consideration the object and purpose of the OST, which was intended to set forth a comprehensive set of principles and rules governing the activities of States in the exploration of the moon and other celestial bodies, provides an argument for a broader interpretation of Article VIII. Such a reading could extend the scope of national law (including domestic patent law) to the space object during the entire space operation, from the moment of launch to the final return of the spacecraft. This general view that a determination of whether space law applies depends solely on the nature of the activity is in line with what has been deemed the “functionalist approach”26 and has been developed by certain States in connection with the issue of the definition and delimitation of outer space.27 At its core, this position assumes that: (a) space law covers the area of transport through airspace; (b) all vehicles not falling in the definition of “aircraft” in Annex 7 of the Chicago Convention and passing through and beyond the atmosphere should be classified as spacecraft; and (c) given the absence of a clear demarcation in the OST and the lack of a definition of spacecraft in other space treaties, the OST should be considered a functional

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Vienna Convention on the Law of Treaties, Art. 31(1), May 23 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679. See generally Bin Cheng, International Responsibility and Liability for Launch Activities, 20 AIR & SPACE LAW, 297, 299 (1995). This view has been put forward from the beginning of the space era. See, e.g., The Question of the Definition and/or the Delimitation of Outer Space (background paper prepared by the Secretariat), Comm. on the Peaceful Uses of Outer Space, Legal Subcomm, 8th Sess., § 13, U.N. Doc. A/AC.105/C.2/7 (May 7, 1970). See also M. Benko & W. de Graaff, Questions related to the Definition/Delimitation of Outer Space and Outer Space Activities and the Character and Utilization of the Geostationary Orbit, in SPACE LAW IN THE UNITED NATIONS 121, 129 (M. Benko, W. De Graaff & G.C.M. Reijnen eds. 1985).

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treaty.28 Therefore, pursuant to this approach, the legal regime provided for in OST would apply to all space activities, including activities performed on Earth, but directed towards space, as “outer space is to begin where space activities can be said to have begun.”29 One advantage that this “functionalist approach” has is that it provides one clear legal regime that governs the entire flight path of the space object. Additionally, as the definition and delimitation of outer space is still under debate,30 this interpretation would sweep in any object that was intended to be launched into outer space, regardless of whether it actually made it (though the applicability to suborbital flights remains murky),31 and would apply to traditionally launched rockets, as well as those launched from ships or airplanes. As nice as a clean legal framework would be, however, whether such an interpretation is consistent with the scope and object of the OST remains unsettled. Furthermore, the functionalist approach is anything but unanimous: several States have rejected the view and stressed the need for a clear delimitation between airspace and outer space.32 As a result, there is not the kind of consistent State practice necessary for the purposes of interpretation under Article 31(3)(b) of the Vienna Convention to establish “agreement of the parties.”33

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See G. Oduntan, Sovereignty and Jurisdiction in the Airspace and Outer Space: Legal Criteria for Spatial Delimitation 294 (2012). Id. at 293. See, e.g. H. Qizhi, The Problem of Definition and Delimitation of Outer Space, 10 J. SPACE L. 157, 157-163 (1982); B. CHENG, The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, 11 J. SPACE L. 89, 89-105 (1983); O. de Olivera Bittencourt Neto, The Elusive Frontier: Revisiting the Delimitation of Outer Space, 55 PROC. COLLOQ. L. OUTER SPACE 23, 23 (2012); J. Su, The Delimitation between Air Space and Outer Space and the Emergence of Aerospace Objects, 78 J. AIR L. & COMM. 355-378 (2013). SEE also O.O. OGUNBANWO, INTERNATIONAL LAW AND OUTER SPACE ACTIVITIES 50 (2013) and O. DE OLIVERA BITTENCOURT NETO, DEFINING THE LIMITS OF OUTER SPACE FOR REGULATORY PURPOSES (2015). See e.g. Frans von der Dunk, International Space Law, in HANDBOOK OF SPACE LAW 29, 63 n. 126 (Frans von der Dunk & Fabio Tronchetti eds., 2015). See U.N. Doc. A/AC. 105/C.2/7, supra note 27, at §§28-33 (analyzing both pronouncements and practice of States with regard to the question of delimitation of outer space). For the views of states on whether a formal definition and delimitation of outer space is needed, See Questions on the Definition and Delimitation of Outer Space: Replies from Member States, Comm. on the Peaceful Uses of Outer Space, Legal Subcomm, 46th-54th Sess., A/AC.105/889 (2007), along with addenda 1-16 (2008-2015) and Questionnaire on Possible Legal Issues with Regard to Aerospace Objects: Replies from Member States, Comm. on the Peaceful Uses of Outer Space, Legal Subcomm, 35th-48th Sess., A/AC.105/635 (1996), along with addenda 1-17 (1996-2009). See Int’l L. Comm., Second Report on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties by Georg Nolte, Special Rapporteur,

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III.2.

General Rules of International Law

In light of the uncertainties surrounding the application of the current corpus juris spatialis to the non-space-based aspects of space activities, this section will look at relevant general rules of international law and discuss various internationally-recognized principles on which a State may exercise its jurisdiction extraterritorially, in order to assess whether the country in which the patent issued has the ability to extend its patent laws to space activities taking place outside its borders. Depending on the nature and location of the alleged patent infringement, several different legal regimes may be applicable. It is an established principle of international law that a State has exclusive and absolute authority over persons, things and activities within its territory and, therefore, may exercise jurisdiction over them.34 Territorial jurisdiction involves the exercise of legislative, executive and judicial power over a specific territory and generally derives from territorial sovereignty. This means that any activity that takes place in the territory (including the airspace) of a State is subject to its jurisdiction.35 There are, therefore, no issues when the relevant activity takes place within the territory of the State where the patent has issued. Domestic law clearly applies there and the patent will receive protection against third-party infringement. The reverse situation occurs when the rocket practicing the patented method crosses into the territory of another State that is not the one issuing the patent, including its airspace. In that case, jurisdiction over the activity will lie exclusively with the territorial State, rendering the patent unenforceable in that location. Less clear is whether a State may exercise any form of jurisdiction over a launching activity taking place in the exclusive economic zone (“EEZ”),36 the region extending up to 200 nautical miles from the baseline of the territorial sea, on the high seas or in the airspace above such regions.37 With the recent increase in off-shore drilling in portions of the EEZ, the scope of patent enforcement in this region has come up in national legislation and in domestic case law in a number of countries, including Australia, the United Kingdom,

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U.N. Doc. A/CN.4/671 (Mar. 26, 2014), paras. 44-48 (concluding that “[s]ubsequent practice under article 31(3)(b) can take a variety of forms and must reflect a common understanding of the parties regarding the interpretation of a treaty. Its value as a means of interpretation depends on the extent to which it is concordant, common and consistent.”). See generally Christopher Staker, Jurisdiction, in INTERNATIONAL LAW 309 (Malcolm D. Evans, ed. 2014). J. Crawford, Brownlie’s Principles of Public International Law 456 (8th ed. 2012). Third U.N. Convention on the Law of the Sea [hereinafter UNCLOS III], Arts. 55, 57, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397. Id. at Art. 86 (defining the high seas as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the international water of a State, or in the archipelagic waters of an archipelagic State”).

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South Africa and the United States.38 The results are mixed, with some courts in these countries, and some interpretations of the relevant patent acts, finding that patent law does extend through portions of the EEZ, while others finding it does not. Article 56 of UNCLOS III, however, limits the coastal State’s sovereign rights to the purpose of exploration and exploitation of the natural resources in the area or any economic exploitation and exploration of the zone.39 Furthermore, pursuant to the same provision, the coastal State retains jurisdiction solely with regard to artificial islands, installations and structures, marine scientific research and the protection and preservation of the marine environment. Thus, while this legal framework may provide grounds on which to extend patent law with respect to oil-drilling activities, provided the State has chosen to do so40 it seems less likely that space activities would fit in this framework. With respect to the high seas, this is an area that does not fall under any State’s territorial jurisdiction. As a result, unless the “functional interpretation” of Article VIII is applied, any activity taking place there is, in the absence of any other reason to extend national law, outside the reach of any State’s jurisdiction. If certain of the activity occurs, however, on a ship or on an aircraft in flight (e.g., from which the launch takes place), the principle of quasi-territorial jurisdiction would apply. Pursuant to this principle, vessels are subject to the jurisdiction of the State whose flag they bear.41 Similarly, aircraft are subject to the jurisdiction of the State where they have been registered. Still, if the flag State is not the one issuing the patent, the patent would not be enforceable with respect to that part of the launching method taking place on the ship or the aircraft while on the high seas or in the airspace above it.42

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See Elizabeth I. Winston, Patent Boundaries, 87 TEMPLE L. REV. 501, 509-512 (2014); G. Matthew McCloskey, Hiroshi Sheraton and Ashley Tarokh, The extent of patent coverage in offshore waters: a comparison, LEXOLOGY (Apr. 5, 2012), www.lexology.com/library/detail.aspx?g=4fd8f8b9-b426-4307-abb2-6d8a24ee136c. Supra note 36, at Art. 56. A court in the United Kingdom found that certain sections of the EEZ were subject to the UK Patents Act of 1977 and that a patent covering a pipelaying ship was infringed there. See Winston, supra note 38, at 509-10. In the United States, a court in Texas held that the United States’ EEZs were “not U.S. territories or possessions for purposes of the Patent Act,” but this was because Congress has not chosen to extend U.S. patent law there. See WesternGeco v. Ion Geophysical Corp. et al., 876 F.Supp. 2d 857, 907 (S.D. Tex. 2012). See, e.g., B. Simma & A.T. Müller, Exercise and Limits of Jurisdiction, in THE CAMBRIDGE COMPANION TO INTERNATIONAL LAW 134, 138 (J. Crawford & M. Koskenniemi, eds 2012). See, e.g. WesternGeco, 776 F.Supp. at 367 (finding on jurisdictional grounds that activities conducted on a Norwegian flagged ship on the high seas could not infringe a U.S. patent).

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In spite of the general rules established above, there are still instances in which a country may seek to exercise its jurisdiction extraterritorially to influence activities that are, strictly speaking, outside of its territorial boundaries. Such an act, however, is highly controversial43 because of “the presumption that jurisdiction (in all its forms) is territorial, and may be not exercised extraterritorially without some specific basis in international law.”44 There are only a few exceptional circumstances, under which international law expressly compels States to exercise extraterritorial jurisdiction. Specific international treaties and, arguably, international customary law, impose a duty on States to establish jurisdiction over the most heinous of crimes, such as war crimes, genocide, and crimes against humanity, even when such crimes are committed abroad.45 This leaves open the question of whether a State is allowed, under international law, to exercise its jurisdiction over acts taking place outside its territory, even if the States has no specific obligation to do so. The 1927 decision by the Permanent Court of International Justice (“PCIJ”) in the Lotus case46 is generally seen as the starting point for any analysis related to the exercise of extraterritorial jurisdiction. According to the Court: “[T]he first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. [...] Far from laying down a general prohibition to the effect that States may not extend the application of their law and the jurisdiction of their courts to persons, property and acts outside their territory, [international law as it stands at the present] leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”47 (emphasis added).

Following the guidance of the PCIJ, the first step should be to determine whether a prohibitive rule limiting the exercise of a State’s extraterritorial jurisdiction exists.48 While some scholars have argued that State sovereignty

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See, e.g., H.G. Maier, Jurisdiction Rules in Customary International Law, in EXTRA(K.M. Meeseen, ed. 1996). CRAWFORD, supra note 35, at 456. See also Wade Estey, The Five Bases for Jurisdiction and the Failure of the Presumption against Extraterritoriality, 21 HASTINGS INT’L & COMP. L. REV. 177 (1997). On the topic See O. de Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, at 12 (Dec. 22, 2006), available at http://cridho.uclouvain.be/documents/Working.Papers/ExtraterrRep22.12.06.pdf. The Case of the S.S. “Lotus” (France v. Turkey), PCIJ Series A no. 10, judgment of 26 July 1927 [hereinafter “Lotus”]. Id. at 18-19. Some authors have noted, however, that this traditional reading of the PCIJ’s decision would not reflect what the Court actually meant to say, as this would mean that TERRITORIAL JURISDICTION IN THEORY AND PRACTICE 64

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and the principle of non-intervention could be a basis on which to limit a State’s extraterritorial jurisdiction,49 this argument seems contradicted by the language from the Lotus case that international law does not create such a general prohibition. Furthermore, while the foregoing principles could certainly constitute prohibitive rules with respect to activities taking place in other States’ territories, they should not prevent the exercise of extraterritorial jurisdiction with respect to areas beyond the reach of any State’s territorial jurisdiction. With regard to space activities, some scholars have argued that certain provisions of the OST, including the right to free exploration, the prohibition on non-appropriation, and the duty to share the benefits of space exploration could be considered prohibitive rules. The World Intellectual Property Organization (“WIPO”) has even noted that these fundamental principles enshrined in the OST might go so far as to be at odds with the monopoly that comes from an IP right.50 The problem with these arguments, however, is twofold. First, unless a very broad functional interpretation were adopted, these provisions of the OST deal only with activities taking place in outer space, so they could not act as prohibitive rules to prevent a State from exercising extraterritorial jurisdiction over activities that occur in other nonouter space regions, such as the airspace over the high seas. Second, even though the OST provisions do curtail a State’s rights with respect to some outer space activities, none rises to the level of a prohibitive rule. The nonappropriation principle prohibits national appropriation of outer space or celestial bodies, but does not prevent a State from exercising some sort of authority over space objects; to the contrary, as discussed above, Article VIII makes it clear that there is actually an affirmative obligation to maintain such jurisdiction (and control).51 With respect to the principle of free exploration and the duty to share benefits, these provisions mainly require States to share information (which includes establishing effective knowledge-transfer and

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the burden of proof would rest with those objecting the exercise of extraterritorial jurisdiction. See Staker, supra note 34, at 315. R. Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Law, 33 BRITISH Y.B. INT’L L. 153 (1957). See Patent Expert Issues: Inventions in Space, WIPO, www.wipo.int/patents /en/topics/outer_space.html (last accessed Aug. 15, 2015). The possible tension between the duty to share benefits and the application of patent rights have also been noted with respect to the debate around bio-prospecting in marine areas beyond national jurisdiction. See, e.g., A. Jorem and M.W. Tvedt, Bio-prospecting in the High Seas: Existing Rights and Obligations in View of a New Legal Regime for Marine Areas Beyond National Jurisdiction, 29 INT’L J. MARINE & COASTAL L. 321-343 (2014). Isabelle Bouvet, Certain Aspects of Intellectual Property Rights in Outer Space 20 (1999) (unpublished L.L.M. thesis, McGill University) (on file with the McGill University Library, available at http://digitool.Library.McGill.CA:80/R/-?func=dbinjump-full&object_id=30289&silo_library=GEN01).

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cooperation mechanisms).52 The 1996 Declaration on Space Benefits provides another argument that benefit sharing cannot constitute a prohibitive rule. Principle 2, which says that cooperative ventures relating to space exploration should take into consideration the legitimate rights of the parties concerned, including IP rights, implicitly acknowledges the compatibility between the duty to share benefits and the protection of IP rights. In the absence of any rules prohibiting extraterritorial jurisdiction, States are “free to adopt the principles which [they] regard as best and most suitable.”53 Traditionally, several different principles have provided a basis for States to exercise jurisdiction extraterritorially.54 Under the “nationality principle,” for instance, either the nationality of the person engaging in the regulated activity (“active personality principle”) or the nationality of the person directly affected by it (“passive personality principle”) may serve as the basis for the exercise of extraterritorial jurisdiction.55 Additional principles include the “protective principle,” under which a State is allowed to exercise jurisdiction beyond its borders when this is necessary to protect its security or other vital interests,56 and the “universality principle,” according to which a State may prosecute certain offenses based on their nature, regardless of where they occurred and whether the State has any other link to them.57 Finally, States have exercised extraterritorial jurisdiction based on the “effects doctrine” (or “objective territoriality” principle), in which a State may apply its national laws to activities taking place outside its borders when these activities have a substantial, direct and foreseeable effect in its territory. The United States and the European Union have both applied the effects doctrine in economic matters (especially antitrust and competition).58 Depending on the circumstances, the jurisdictional principles discussed above might be used to extend domestic patent law to areas that are otherwise out-

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Id. at 19. “Lotus”, supra note 46, at 19. CRAWFORD, supra note 35, at 456. Id. at 459. See Dapo Akande, Protective Principle (Jurisdiction), in THE OXFORD COMPANION OF INTERNATIONAL CRIMINAL JUSTICE 474 (Antonio Cassese, ed. 2009). See, e.g., Naomi Roht-Arriaza & Menaka Fernando, Universal Jurisdiction, in RESEARCH HANDBOOK ON INTERNATIONAL CRIMINAL LAW 359 (Bartram Brown, ed. 2011). As to the U.S. exercise of extraterritorial jurisdiction with respect to antitrust laws, See, e.g., J. M. Raymond, A New Look at Jurisdiction in Alcoa, 61 AM. J. INT’L L. 558-570 (1967). Concerning the EU, See, in particular, the decisions of the European Commission in the cases Dyestuffs (decision 69/243/EEC of July 24, 1969) and Wood Pulp (decision 85/2002/EC of Dec. 19, 1984). See also Florian Wagner-von Papp, Competition Law and Extraterritoriality, in RESEARCH HANDBOOK ON INTERNATIONAL COMPETITION LAW 21, 42 (Ariel Ezrachi, ed. 2012). See also J.J. Friedberg, The Convergence of Law in an Era of Political Integration: The Wood Pulp Case and the Alcoa Effects Doctrine, 52 U. PITTSBURGH L. REV. 289-326 (1991).

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side a State’s territorial boundaries. In the case of extraterritorial enforcement of patent rights, the effects doctrine might be the most suitable basis on which to assert jurisdiction, yet it remains highly controversial. One scholar has commented that “accepting an excessive ‘cause and effect’ approach could bring almost everything within the ambit of this principle and creat[e] the risk of a ‘jurisdictional butterfly effect.’”59 Other principles could also provide the requisite hook, namely, the passive personality principle (so long as the person or company affected by the infringement is a national of the State) and the protective principle (but only to the extent that one can argue that the protection of IP rights constitutes a general interest of the State). Each of these, however, is controversial and has mainly developed as a means of addressing the commission of crimes and offenses against the security of the State or fundamental governmental functions. Overall, protection of patent rights can thus hardly be seen as appropriate subject matter under these various principles to justify the exercise of extraterritorial jurisdiction. IV.

State Practice

Despite the fact that the various principles for the extraterritorial application of domestic law are controversial, some States have nonetheless found ways of extending their domestic patent law to certain activities taking place outside the traditional borders of the State issuing the patent. This section will analyze some of these State practices, as a way of understanding the contours of the law. IV.1.

United States

The United States Supreme Court has repeatedly maintained that it is a “longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’”60 This presumption applies equally to patent law, as the Supreme Court discussed in Deepsouth Packing Co. v. Laitraim Corp.,61 as to all other forms of domestic legislation. Courts grappling with these boundary issues must keep in mind the will of Congress in order to determine the precise limits of

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Christina Voigt, Up in the Air: Aviation, the EU Emissions Trading Scheme and the Question of Jurisdiction, 14 CAMBRIDGE Y.B. OF EUROPEAN LEGAL STUDIES 475, 49798 (2011-2012). EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). 406 U.S. 518, 531 (1972) (finding that U.S. patent laws are territorial and that activities that would be infringing if conducted in the U.S. are not infringing if conducted abroad); See also Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007) (noting that “[t]he presumption that United States law governs domestically but does not rule the world applies with particular force in patent law.”).

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the United States’ “territorial jurisdiction,” especially in light of changing technology and an ever more interconnected world. The section of the U.S. Code dealing with infringement of patents, states that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent”62 (emphasis added). On the face of the statute, it is not immediately clear what “within the United States” means, but over the years, courts have considered this language with respect to a range of activities in a variety of locations in order to sketch the bounds of the territorial reach of United States patent law. Early patent infringement cases extended U.S. patent laws to ships that were flying the U.S. flag.63 Other cases held that U.S. patents could be protected in non-U.S. territories, as long as the U.S. otherwise had certain jurisdiction (for example, in a U.S. embassy).64 These cases were based on language in the old patent statute that gave the inventor rights “throughout the United States, and the territories thereof,” but which provided no further definition of what the “United States” included.65 In 1952, the U.S. Code was amended and the “United States” was explicitly defined to be “the United States of America, its territories and possessions.”66 In light of this clarified definition, later courts have generally been less willing to rely on these earlier cases when considering how to extend the reach of U.S. patent laws,67 though a recent decision by a federal court in Minnesota noted that the floating island doctrine had been criticized, but never overruled, and clearly used the principle as affirmative grounds to find that the U.S. Patent Act did apply on a U.S. flagged ship in international waters.68

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35 U.S.C. §271(a). See Gardiner v. Howe, 9 F. Cas. 1157, 1158 (C.C.D. Mass. 1865) (No. 5219) (finding that U.S. patent protection “extends to the decks of American vessels on the high seas, as much as it does to all the territory of the country”). See Marconi Wireless Tel. Co. v. United States, 99 Ct. Cl. 1, 67-68 (Ct. Cl. 1942), aff’d in part and vacated in part on other grounds, 320 U.S. 1 (1943) (finding that U.S. patents were infringed by a group of receivers made and used at the United States Naval Radio Station at the American Legation in Peking, China, where the U.S. had extraterritorial rights). Rev. Stat. §4884. See also Decca Ltd. v. United States, 544 F.2d 1070, 1073 (Ct. Cl. 1976) (per curiam) (noting that, in contrast to the present language, the older patent laws “did not define their own scope in a manner that so plainly confined them to states, territories and possessions”). 35 U.S.C. §100(c). See, e.g., Decca at 1073 (“[W]e think a decision founded on the fiction that for purposes of the Patent Laws, United States ships and planes wherever found, are United States territory, would be founded on water.”). M-I Drilling Fluids UK Ltd. v. Dynamic Air Inc., No. 14-4857, 2015 WL 1608403, at *8 and *15 (D. Minn. Apr. 10, 2015) (“The doctrine of the flag must be saluted under the facts of this case.”).

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One of the critical, post-1952 examples of the attempt to find grounds other than flag jurisdiction by which to extend U.S. patent laws extraterritorially was Decca Ltd. v. United States. In that case, the Court of Claims considered the question of whether the United States Government’s worldwide Omega system for positioning ships and aircraft infringed a patent held by Decca.69 The Omega system consisted of radio-emitting broadcast stations located in the United States and Norway (with stations in other countries planned). These signals could be used by U.S. ships and aircraft to triangulate their positions. The Court declined to find jurisdiction on the basis of what it called the “juridical prop” of the flag state of the ships receiving the signals,70 and instead looked to the location of the “master” station which was in Washington, D.C. The “master station” was used to monitor and synchronize the other stations, which were merely slaves that could be located anywhere.71 Thus, the Court of Claims held that U.S. patent law applied and the Government infringed, even though portions of the system were outside the U.S. As the Court noted, its analysis agreed with that of the Patent Office Board of Patent Interferences, which had previously held that “an invention concerning space satellites was reduced to practice in the United States because of the location of control stations [there].”72 Following similar reasoning to the court in Decca, the Court of Federal Claims in Hughes Aircraft Co. v. United States, refused to find liability for patent infringement when the “master station” for the infringing system was not located in the United States.73 In Hughes, the allegedly infringing Ariel 5 spacecraft was funded by, built in and registered to the United Kingdom, and was launched by a team of Italian engineers from Kenya. After the launch, the United States only provided tracking and data acquisition services; the “control point” or “master station” for the spacecraft itself was in England.74 For this reason, the Court held that U.S. patent laws did not apply to the spacecraft.

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Note that the Court in Decca was considering whether the U.S. government was infringing under 28 U.S.C. §1498, but the underlying question of infringement is still based on 35 U.S.C. §271. Decca at 1072 (recognizing the “not unchallengeable proposition, that the territorial requirements of the United States Patent Laws are met simply because United States flag vessels or aircraft, receiving Omega signals while on or over the high seas, are ambulatory portions of United States territory”). Id. at 1074. Id., citing Rosen v. NASA, 152 U.S.P.Q. 757, 768 (1966) (“[W]e are inclined to view the operation of the integrated instrumentality including parts of the satellite and its control point, the latter being in the United States [Goddard Space Center], as not removed from the United States by reason of the satellite being necessarily distant from the several states of the United States.”). 29 Fed. Cl. 197, 242 (Fed. Cl. 1993). 29 Fed. Cl. 197, 242 (Fed. Cl. 1993).

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U.S. courts again considered the question of whether a defendant could be liable for infringement when the activity straddles jurisdictions in two cases involving the BlackBerry handheld device. In the BlackBerry cases, the technology at issue was a means for “pushing” email to mobile devices. When a message was received on a U.S. user’s computer, it would be encrypted and routed to a “relay” located in Canada, which would then wirelessly transmit the message to the user’s BlackBerry.75 In the first BlackBerry case, the U.S. Court of Appeals for the Federal Circuit relied on Decca to find that, because all parts of the BlackBerry system (apart from the relay) were located in the United States, the “control and beneficial use of” the BlackBerry system occurred in the United States, establishing territoriality.76 In the second BlackBerry case, the Court distinguished the system claims at issue in the first BlackBerry case from a patent written using method claims. With respect to the latter, the Court held that a method “necessarily involves doing or performing each of the steps recited,” and refused to find infringement under U.S. law “unless each of the steps is performed within this country.”77 While cross-border and multi-jurisdictional infringement questions require courts to think carefully about how Congress intended U.S. patent law to apply, when it comes to activities occurring solely in outer space, Congress explicitly legislated for the expansion of U.S. patent law through bills introduced in the U.S. House of Representatives78 and the U.S. Senate in 1989. Adopted into law in 1990, 35 U.S.C. §105 provides that inventions made, use or sold on U.S. spacecraft or other space objects under its jurisdiction or control “shall be considered to be made, used or sold within the United States for the purposes of this title,” except to the extent the U.S. is party to any international agreements specifying otherwise. This legislation provides some clarity as to applicable protections available to an inventor who plans to perform experiments in a U.S. spacecraft, and it allows a telecommunications company to seek appropriate patent protection on the novel antenna technology it plans to incorporate into its satellite that will be placed in geosynchronous orbit. But unless one relies on the functional approach, described in Section III.1 above, the general expansion of U.S. patent law to space-related activities that cross territorial boundaries prior to and after their entry into outer space relies largely on the line of cases discussed above. While we have shown that there is precedent for U.S. law to apply on the decks of American ships, in light of the strong presumption that

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NTP Inc. v. Research in Motion, Ltd., 392 F.3d 1336, 1342 (Fed. Cir. 2004), withdrawn and substituted, 418 F.3d 1282 (Fed. Cir. 2005), cert. denied, 546 U.S. 1157 (2006). Id. at 1370. NTP Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1318 (Fed. Cir. 2005), cert. denied, 546 U.S. 1157 (2006) [hereinafter RIM]. The Patents in Space Act, H.R. 2946, 101st Cong., 1st Sess. (1989).

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U.S. law does not apply in the EEZ or on the high seas themselves, it would be difficult to make an argument that U.S. law applies to the airspace above either of these. Thus, any argument that U.S. patent law should protect multijurisdictional system patents would have to rely on a control test that considers where the beneficial use or the control is. While one could argue that a rocket launched from Cape Canaveral, Florida is “controlled” or would ultimately benefit users in the United States (for example if the rocket is launching a television satellite that will broadcast into the U.S.), the automated nature of most rockets’ operations means that it would be hard to say that the control is within the United States. Even if certain self-destruct or other emergency signals could be sent to the rocket, system claims would likely only be infringed if the patented technology is used in or over the landmass of the United States or its territorial sea. With respect to the hypothetical method patent we described earlier, it would be extremely difficult to show that every step occurs within the territorial bounds of the United States, as required under RIM. IV.2

Other Countries

The United States is not the only country to provide specific provisions in their national legislation related to the application of IP rights for inventions made or used in outer space. Article 22 of the 2008 French Space Operations Act,79 for instance, modified France’s Code de la propriété intellectuelle so that it applies to “inventions made or used in outer space, including on celestial bodies and into or onto space objects placed under national jurisdiction according to article VIII [of the OST].”80 Like the U.S. Patents in Space Act, this provision ensures that France’s national patent law applies in outer space on French flagged spacecraft, but is similarly silent on the application of French patent law to launch methods that are performed across multiple jurisdictions. Article 16 of the Law of the Russian Federation “About Space Activity”81 provides a further example of an ad hoc regime for IP rights related to inventions used or made in outer space. Pursuant to this provision, “the use and transfer of space technology shall be effected with respect to the rights of

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Loi n° 2008-518 of June 3, 2008. Art. L611-1, unofficial English translation, available at http://download.esa.int/docs/ECSL/France.pdf (last visited Aug. 15, 2015). Original text available at http://legifrance.prod.vdm.ext.dila.fr/affichCodeArticle.do? cidTexte=LEGITEXT000006069414&idArticle=LEGIARTI000006279392&dateTe xte=&categorieLien=cid: “[L]es dispositions du présent article s’appliquent aux inventions réalisées ou utilisées dans l’espace extra-atmosphérique y compris sur les corps célestes ou dans ou sur des objets spatiaux placés sous juridiction nationale en application de l’article VIII du traité [OST].” Decree no. 5663-1 of the Russian House of Soviets, unofficial English translation, available at www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw /russian_federation/decree_5663-1_E.html (last visited Sept. 23, 2015).

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intellectual property that are protected by the legislation of Russian Federation.”82 Article 16 specifically refers to inventions or information products created in outer space or as a result of a space activity.83 Like the French Space Operations Act, the Russian Law “About Space Activity” extends the application of domestic IP legislation to inventions made in outer space, but does not provide any indication as to its possible extraterritorial application with regard to inventions used in regions different from outer space. Nevertheless, it is important to note that, like the U.S., certain other countries and the European Union are trending towards creating exceptions to the exercise of jurisdiction solely within their territorial boundaries. An interesting example of this is the European Court of Justice’s (“ECJ”) ruling in the case Air Transport Association of America v. Secretary of State for Energy and Climate Change,84 which seems to suggest an additional possible ground for applying domestic laws extraterritorially: the “territorial extension” principle.85 Applied to our present question, the ECJ’s reasoning be extended to suggest that the existence of a “territorial connection” between the State and the spacecraft would suffice to extend domestic patent law to activities taking place outside the borders of the State.86 Under the logic used by the court in ATA, however, the question remains as to whether a spacecraft that departs (or re-enters) the territory of the State would result in a sufficient territorial link to allow the extension of national patent law to the entire space activity (including those segments of the journey occurring in regions beyond the territorial borders of the State). That said, the ECJ’s “territorial extension” doctrine has also been heavily criticized as being incompatible with general international law.87 While this trend toward extraterritorial expansion of certain laws is not specific to IP (ATA, for example, dealt with environmental law issues), IP is nonetheless an area of law in which these issues frequently arise. While a case-by-case analysis of all the instances in which various European countries have applied domestic patent law beyond their borders88 would be beyond

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Id. at Art. 16(1). Id. at Art. 16(4). Case C-366/10, Air Transp. Ass’n of Am. (ATA) v. Sec’y of State for Energy & Climate Change, 49(3) C.M.L.R. 1113 (2011) [hereinafter ATA]. See generally Kati Kulovesi, Unilateral Extraterritorial Action or ‘Minilateralism’ within Territorial Jurisdiction? The EU Emissions Trading Scheme for Aviation Emissions and International Law, 11 QUESTIONS OF INTERNATIONAL LAW 3, 14-15 (2015), available at www.qil-qdi.org/wp-content/uploads/2015/01/02_Aviation_Kulovesi.pdf. ATA, 49(3) C.M.L.R. 1113 at §125. See, e.g., Jed Odermatt, Case C-366/10 Air Transport Association of America and Others v. Secretary of State for Energy and Climate Change Case Law, 20 COLUM. J. EUR. L. 143, 158 (2013). See, e.g., A. Peukert, Territoriality and Extraterritoriality in Intellectual Property Law, in BEYOND TERRITORIALITY: TRANSNATIONAL LEGAL AUTHORITY IN AN AGE OF

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the scope of the present paper, it suffices here to stress that, like in the U.S., there are arguments that one could make for the broader enforcement of national patents to activities crossing territorial boundaries in their path from Earth to space. V.

Conclusion

Space activities and the associated research and development efforts are time intensive and costly, but often result in significant advances in technology. Companies engaged in this business must have a way of protecting these advances from competitors in order to recoup the resources they invested. Traditional domestic patent law doctrines are applicable to activities conducted entirely in outer space under Article VIII of the OST. For space activities that are conducted in multiple regions before or after the rocket enters or leaves outer space, the applicability of a particular nation’s patent law is not obvious. This article has analyzed certain grounds on which States might argue for the extraterritorial enforceability of domestic patent law and has reviewed certain related State practices. As we have shown, the results are far from clear and certainly do not provide the sort of legal clarity that an innovative company, wishing to protect its large research and development costs, would want to rely on for protection. Additionally, most of the analysis assumes that the patentee holds a patent in the country from which the launch occurs (or that is plausibly related to the launch).89 An enterprising company, however, aware of a relevant patent in the United States, could instead conduct its launch from the Baikonur Cosmodrome in Kazakhstan or the Centre spatial guyanais in French Guiana. And as more and more countries become involved in space activities and achieve the capability of

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GLOBALIZATION 189-227 (G. Handl, J. Zekoll, P. Zumbansen, eds. 2012); Marketa Trimble, Extraterritorial Intellectual Property Enforcement in the European Union, 18 SW. J. INT’L L. 233-244 (2011). If the rocket is registered to a country that is different from the one in which the launch takes place (for example, registered in the U.K. and launched from India, and the rocket is practicing a technology that is patented in India, the launch company may be able to rely on the temporary presence defense in Art. 5ter of the Paris Convention. If the patented article is essential for the needs of the vessel and it is temporarily in the territory in which it would otherwise be infringing, this article could provide a defense. Importantly, however, the text of Art. 5ter does not explicitly mention “space objects,” so such craft may not be automatically exempted. See Intellectual Property and Space Activities, WIPO (Apr. 2004) at § 74, available at www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf. Article 21(6) of the IGA establishing the ISS explicitly addresses this point and states that the temporary presence of articles, “including the components of a flight element, in transit between any place on Earth and any flight element of the [ISS] registered by another Partner State or ESA shall not” for the basis of patent infringement. IGA, supra note 15 at Art. 21(6).

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conducting rocket launches on their own, the possible choices of a launch center to avoid otherwise interfering patents, only grows. While the payload may be registered to the State that procures the launch of that particular satellite, the rocket itself would likely be registered in the country from which the rocket is launched. This problem is akin to the flags of convenience in maritime law, in which a ship operator registers its ship under the flag of a country other than that of its owners in order to avoid certain regulations.90 The patentee, wishing to protect its patented method or technology, would have to file for its patent in every possible jurisdiction in which a launch could take place. Under Article 4 of the Paris Convention, a patentee has one year from the date of first filing of a patent in any Paris Convention country to file in others and take advantage of his original priority date. In the United States, for example, the patentee’s own foreign-filed patent may be used as prior art against him, if he files in the United States more than a year after the first filing.91 In light of these issues, the territorial scope of patents and the ease of launching from any location means that a patentee must consider carefully which countries might gain launch capabilities during the roughly 20-year term of the patent.92 It is also worth considering that certain countries have relatively weak intellectual property laws.93 Especially in light of the fact that the mere process of applying for a patent discloses the unique and novel features of the invention to the world, companies considering patenting technology used on rockets that cross a number of regions on their trip from the Earth to space may wish to consider other forms of protection, like relying on trade secrets94 instead. In the rocket context, patents directed to aspects of the launch and landing might be features of the rocket that must either be disclosed in order to comply with international obligations or they may be easily visible in video footage of the launch itself (e.g., when certain thrusters fire). As more companies become involved in commercial space activities and seek innovative and ever more efficient ways of reaching outer space and returning to Earth, these patent enforcement issues will continue to grow in importance, begging for a clearer legal regime.

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See Matthew J. Kleiman, Patent rights and flags of convenience in outer space, THE SPACE REVIEW (Feb. 7, 2011), available at www.thespacereview.com/article/1772/1. 91 35 U.S.C. §102. 92 TRIPS, Art. 33 (“The term of protection available [for patents] shall not end before the expiration of a period of twenty years counted from the filing date.”). 93 For example, in the Marshall Islands, there is inadequate protection for patents and other forms of IP; “[t]he only intellectual property-related legislation relates to locally produced music recordings.” Bureau of Economic and Business Affairs, 2012 Investment Climate Statement – Marshall Islands, U.S. DEP’T OF STATE (June 2012), www.state.gov/e/eb/rls/othr/ics/2012/191946.htm (last visited Sept. 23, 2015). 94 Trade secrets are generally thought of as non-public information that has value because it is not generally known.

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NASA’S Transactional Approach to Commercializing Space Systems Activities A Novel Way Forward Brian M. Stanford*

Abstract This paper will discuss NASA’s novel, hybridized transactional approach to facilitate development of space systems with private sector entities. Specifically, this paper will discuss NASA’s strategic alignment and execution of transactional instruments in order to implement a program which builds upon itself and stimulates the commercialization of space, while also working to improve the competitive environment for the traditional government procurement market. In effect, NASA’s approach incentivizes companies to develop commercial solutions for complex space systems. NASA then utilizes a more streamlined procurement strategy to purchase services from these commercial vendors using these systems, despite the fact that they have yet to be fully developed and certified. This paper will discuss this innovative procurement design as a proven mechanism for a national space agency to help lead the way forward in the commercialization of space, while also pursuing its own exploratory and scientific mission goals.

I.

Introduction

One morning, a few years from today, NASA astronauts will board a crew capsule atop a launch vehicle on Pad 39A at NASA’s Kennedy Space Center, bound for the International Space Station (ISS). The astronauts will depart from U.S. soil for low-Earth orbit for the first time since NASA ceased Space Shuttle operations in 2011. To those unfamiliar with this launch, it will appear no different from NASA’s prior operations dating back to the Mercury

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Attorney-Advisor, Office of the General Counsel, National Aeronautics and Space Administration, United States ([email protected]). This author is an employee of the Government of the United States which precludes the work from being subject to copyright in the United States, so no copyright is asserted in this country. The United States Government has a royalty-free license to exercise all rights under the copyright for governmental purposes. The views expressed in this paper are personal to the author and do not necessarily represent either the views of NASA or the United States Government.

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program – a partnership with and reliance upon private industry to achieve mission success. But the similarities end here. Rather, this morning’s launch, a programmatic goal over thirty years in the making, will be nothing short of revolutionary in NASA’s more than half-century history of human spaceflight. It will represent the successful application of a novel acquisition model, and a significant departure from the traditional “old space” paradigm of government-owned and operated transportation systems that has served as NASA’s operating posture for over fifty years.1 NASA will have achieved two independent programmatic goals: safe transportation of NASA personnel to and from ISS; and the enabling of the development of non-NASA commercial markets for human spaceflight transportation services to and from Low Earth Orbit (LEO). From the launch vehicle and crew capsule hardware, to the launch and mission support services, NASA will be significantly more “out of the loop” than in previous missions. Neither the launch vehicle nor the crew vehicle belong to NASA. Nor will NASA undertake mission control, support systems, and operations activities previously reserved for civil servant and contractor personnel at Johnson Space Center in Houston, Texas. Rather, responsibility for such tasks will be within the purview of NASA’s vendor providing these transportation services. It will be the contractor’s mission to complete. NASA will be a customer, and its astronauts, passengers on this transportation service. But perhaps most interesting, this morning’s launch will represent a sort of market debut – a first day of business for these service providers – in what represents the most robust endeavor to date by a governmental space agency to foster commercialization of complex space activities. When the crew transportation vehicle successfully docks with ISS and retrieves the flag left by the crew of STS-135,2 it will mark the capstone of a multi-layered, interdependent web of programs designed to achieve safe, reliable, and cost effective means to access LEO. Engagement with commercial partners has forced NASA to re-think the way it does business.3 And a forward-leaning business model has required equally

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See Joel Achenbach, Which Way to Space?, Wash. Post, Nov. 23, 2013 (describing the characteristics of both “New Space” and “Old Space” philosophies), available at www.washingtonpost.com/sf/national/2013/11/23/which-way-to-space/. The crew of Space Shuttle Atlantis’s final flight brought with it an American flag that resides on ISS until an American commercial company launches astronauts to the Space Station. See Robert Z. Pearlman, collectSPACE.com, President Obama Reveals Astronauts’ Secret Souvenir on Final Shuttle Mission, (July 15, 2011), at www.space.com/12309-obama-space-astronauts-secret-american-flag.html. See The International Space Station: Hearing of Comm. on Science, Space, and Technology, Subcomm. on Space and Aeronautics, 157 Cong Rec. D1084-01 (Oct. 12, 2011) (statement of William H. Gerstenmaier) available at www.hq.nasa.gov/legislative/hearings /2011%20hearings/10-12-11_GERSTENMAIER.pdf (summarizing NASA’s “new way of doing business” whereby “an overall hybrid structure over the lifecycle of the program”

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

forward-leaning legal support in order to create the framework necessary to commit parties to these endeavors while doing so within the confines of NASA’s congressionally mandated authority. This paper will discuss the evolution of NASA’s novel, hybridized transactional approach to complex space systems development and purchase from its traditional procurement model. This approach has been legally validated under U.S. law and has provided NASA with the toolset to interact with and participate in a growing commercial space environment, while also still meeting the Agency’s own needs to accomplish mission objectives and preserving its preeminence in space exploration. In particular, this paper will examine the evolution of and the procedures associated with this transactional model and will explore its successful application in LEO for NASA’s needs pertaining to the International Space Station. Changing the paradigm has not been easy and it is not without programmatic risk. Moreover, application of this model of doing business necessarily realigns NASA’s role from sole customer with a traditional aerospace contractor community and nationalized leader in human spaceflight to one of a pool of customers for spaceflight services. But it also opens the door to cost-effective solutions for not only NASA’s present transportation needs, but also for those of a potential pool of other customers in this fledgling spaceflight market. This paper will also suggest the continued applicability of this model not only for NASA, but also for other space agencies as well in the next generation of human spaceflight. II.

The Evolution of Nasa’s Authority to Further the Commercialization of Space

NASA’s original charter, the National and Aeronautics and Space Act of 1958 (Space Act), created an agency with a stated policy and purpose to advance space activities for peaceful purposes and for the benefit of all humankind.4 However, the political backdrop of the time fueled NASA’s unstated authorization to be a nationalized organization to “make and maintain [the United States] preeminent in outer space activities.”5 Indeed, NASA’s involvement in the commercialization of space activities was not one of its original stated purposes. Rather, NASA’s authority and the implementation of this authority so as to fuel advancement in this realm has taken a circuitous route and it has developed incrementally over time.

______ 4 5

would build upon previously awarded development agreements and then “transition […] into a series of competitively awarded contracts.”). National Aeronautics and Space Act of 1958 (Space Act), Pub. L. No. 85-568, 72 Stat. 426 (current version at 51 U.S.C. §20101-20164 (2012). Paul G. Dembling, The National Aeronautics and Space Act of 1958: Revisited, 34 J. Space L. 203 (2008).

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The era of commercialized space began during President Reagan’s administration – which undertook the most substantial overhaul of NASA’s organizational structure since its creation in 1958 under its National Space Policy platform.6 The President’s Cabinet Council on Commerce and Trade (CCCT) became the center of discussion regarding space commercialization.7 While President Reagan believed in NASA’s place as the nationalized aegis of America’s dominance in space, his Administration saw opportunities for NASA to begin cultivating and participating in space commerce. Seeing a place for NASA in this economic philosophical shift, Reagan himself noted that with “NASA’s help,” his new initiatives on privatization of in space could be carried out.8 This power to influence the advancement of space commercialization was officially granted to NASA by modification of the Space Act.9 President Reagan’s 1984 State of the Union Address set the stage for a program that would become the epicenter of NASA’s dual roles of advancing a space economy while advancing its scientific and exploratory goals – the International Space Station.10 NASA immediately responded, issuing its first Commercial Space Policy later that year.11 Nevertheless, at the time these lofty policy goals were beginning to be implemented, there simply was no commercial space industry in the way we conceive of it today. The commercialization ISS became an even more pronounced policy goal with the Commercial Space Act of 1998, which Congress passed before the Station was even completed. Title I of the Act named the priority goal of ISS as being the economic development of low-Earth orbital space and to study the potential opportunities for commercial providers to play a role in ISS activities.12 Congress continued to nudge NASA towards taking a more commercialized customer role under Title II of the Act (entitled Federal Acquisition of Space Transportation Services), which required that NASA acquire its space transportation services from United States commercial providers as commercial items, unless NASA found that the payload required the unique capabilities of the Space Shuttle.13 However, while Congress continued to

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12 13

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Edythe Weeks, Outer Space Development, International Relations and Space Law: A Method for Elucidating Seeds at 67 (2012). W.D. Kay, Defining NASA: The Historical Debate over the Agency’s Mission at 136 (2005). See id. at 137. National Aeronautics and Space Administration Authorization Act of 1985, Pub. L. No. 98-361, 98 Stat. 426 (amending the Space Act). See Ronald Reagan, Address Before a Joint Session of the Congress on the State of the Union (Jan. 25, 1984). NASA Historical Data Book Volume VI: NASA Space Applications, Aeronautics and Space Research and Technology, Tracking and Data Acquisition/Support Operations, Commercial Programs, and Resources 1979-1988 358 (1994). Pub. L. No. 105-303, 112 Stat. 2845 (1998). Id. at 2854-2856.

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

provide NASA with the statutory “green light” to implement a more commercialized approach to space transportation, once again, no viable commercial enterprises existed at this time with any hope of providing NASA with such services. Specifically, no commercially available ISS construction-related, cargo, or human transportation services were available to procure. But this obligation provided an impetus for NASA. If no commercially available services existed, NASA would have to play a larger role in the fostering of such services in line with its Commercial Space Policy established more than a decade earlier.14 Congress continued to recognize NASA’s value as facilitator of a burgeoning commercial space transportation industry in 2000, and in 2004, President George W. Bush’s Vision for Space Exploration directed NASA to pursue commercial opportunities for providing transportation and other services supporting ISS.15 In line with this goal, NASA’s 2005 Authorization Act directed NASA to contract with private sector entities for crew and cargo services, including those to the ISS to all extent practicable.16 But just as was the case six years earlier, private commercial space transportation was still relatively nascent, and no ready-for-flight commercial alternatives existed. So NASA decided to focus its consideration on how to best use its authority to help grow a solution. However, while Congress bestowed upon NASA the authority to act, like any other federal agency, NASA may only do so within its authority to transact. As discussed below, re-configuring NASA (a national space agency with decades of direct development, purchase, and ownership of transportation systems) to behave more commercially required a complete overhaul the manner in which NASA conducted business with industry and a creative re-thinking of NASA’s transactional tools to implement such an overhaul. III.

Key Aspects of NASA’s Transactional Authorities

III.1.

NASA’s Contract Authority

NASA, like every other federal agency, is governed by United States law which establishes the use of procurement contracts when the agency’s principal purpose is the acquisition of “property or services for the direct benefit or use of the United States Government.”17 Additionally, NASA’s Space Act bestows upon the Agency specific authority to enter into contracts for such

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That policy championed “establishing new links with the private sector to stimulate the development of private businesses in space.” George W. Bush, A Renewed Spirit of Discovery: The President’s Vision for U.S. Space Exploration (Jan. 14, 2004). Pub. L. No. 109-155, 119 Stat. 2898 (2005). 31 U.S.C. §6303 (2012).

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property or services.18 NASA’s use of procurement contracts to purchase goods and services is essential to its mission success. Approximately 80% of NASA’s budget is obligated in some way to contracting.19 NASA’s procurement regime is governed by federal statute (principally, the Competition in Contracting Act20) and regulation (the Federal Acquisition Regulation (FAR),21 as well as agency-specific regulation) – meaning that NASA is obligated to conduct procurements in a manner that promotes competition where applicable and in strict compliance with the procedures prescribed.22 Federal law also establishes an independent procurement review system (also known the bid protest process) wherein an unsuccessful offeror or dissatisfied prospective offeror may challenge the procuring agency’s actions (or omissions).23 NASA’s procurement regime is loosely analogous (with some notable exceptions) with those established by both the European Space Agency and the Japanese Aerospace Exploration Agency.24 Within this regulatory framework, NASA has some flexibility in the type of procurement approach it utilizes, as well as with the type of contract vehicle to be entered into by the parties. Nevertheless, most of NASA’s large-scale procurements are undertaken either as “negotiated” procurements25 or by means of a slightly more streamlined approach of acquiring commercial items.26 The latter of these procedures adopts many of the same evaluation techniques of the former. In accordance with the procedures set forth in the FAR and the NASA FAR Supplement, the Agency typically issues a Request for Proposals (RFP) inviting offerors to submit responsive proposals.27 The Agency convenes a Source Evaluation Board (SEB), which consists of experts from various relevant disciplinese. The SEB then evaluates submitted proposals and provides their evaluation findings to a Source Selection Authority

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20 21 22 23

24

25 26 27

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51 U.S.C. §20113 (2012). NASA Annual Procurement Report Fiscal Year 2014 (noting a slightly decreasing trend from FY10 through FY14 with FY14’s budget comprised of 78.6% of NASA’s budget committed to procurement obligations), available at https://prod.nais.nasa.gov/pub/pub_library/annual2014.pdf). 41 U.S.C. §253; 10 U.S.C. §2304 (2012). Title 48, Chapter 1, Code of Federal Regulations (2015). 41 U.S.C. §3306 (2012). See 4 C.F.R. Part 21 (describing the rules governing the United States Government Accountability Office’s (GAO’s) bid protest regulations. Disappointed offerors may also file a lawsuit before a federal judge challenging a procurement. 28 U.S.C. §1491(b) (conferring bid protest jurisdiction to the United States Court of Federal Claims). See generally Keisuke Shimizu, Procurement Systems of the Japanese Space Agency: A Comparative Assessment, 44 Pub. Contract L. J. 37-40 (2014) (discussing the governing procurement law and policies of these agencies). See 48 C.F.R. Part 15; 48 C.F.R. Part 1815 (2015). See 48 C.F.R Part 12; 48 C.F.R. Part 1812 (2015). See 48 C.F.R. §15.208; 48 C.F.R. 1815.208 (2015).

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

charged with making the ultimate selection decision.28 The typical outcome of the source selection process is the award of a contract that is generally structured on either a firm-fixed price or one of several cost-reimbursement bases. In firm-fixed price contracts, the offeror’s proposed price is fixed at the time of award and will typically not be modified; whereas, under costreimbursement contracts, the contractor may recoup all reasonable, allowable, and allocable costs associated with performing the Government’s requirement, in addition to profit or a fee. These costs are governed by sophisticated government contractor cost accounting standards. Traditionally, NASA’s acquisition of complex space transportation systems have been relegated to a relatively small number of large defense and aerospace contractors and their cadres of subcontractors.29 These contracts have typically been cost-reimbursement in nature, which places the risk of cost overruns on NASA. Additionally, many of NASA’s traditional major space systems acquisitions are without the benefit of full and open competition.30 NASA has traditionally developed stringent requirements and redundancies for transportation systems (often with the assistance of these contractors under research and development contracts) and NASA’s technical personnel have been substantially involved in engineering and technical activities throughout each system’s development. Through the terms of the contract, NASA has traditionally taken ownership of the space transportation system in question, along with its accompanying operating infrastructure. This contracting model has been seen as the most appropriate because of space transportation development’s obvious extreme risky nature, given its complexity and the paramount importance of human safety. This is intended to keep NASA deeply involved in the process during the administration of the contract in order to produce more failsafe results. However, invariably, this model has resulted in significant additional cost to the Government over a schedule that is prone to elongation and dependent upon incremental Government funding streams.31 This contracting model has produced an environment that is not always conducive to participation for commercial companies without significant government procurement experience. For one, a favorable evaluation requires a record of past performance previously fulfilling Government requirements,

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29 30 31

See generally NASA, Source Selection Guide: Source Evaluation Boards §2.5.3 (NASA Source Selection Guide) available at ftp://jwocky.gsfc.nasa.gov/pub/tmp/herman /Sandy%20Source_Selection_Guide_final.pdf. NASA, Annual Procurement Report Fiscal Year 2014, supra note 19 at 13 (showing a breakdown of NASA’s largest contractors by contract value). See Shimizu, supra note 24 at 36. See John Tierney, NASA, We’ve Got a Problem. But It Can Be Fixed, N.Y. TIMES, Apr. 12, 2010, at D2 (opining that the “cost-plus approach encourages aerospace companies to find the most expensive way to do something and drag it out as long as possible”).

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which many smaller firms simply do not have.32 Firms may also not have the accounting systems necessary to track costs incurred under these contracts.33 Moreover, NASA’s heavy oversight, as well as the intellectual property rights legal regime imposed by both statute34 and the regulatory terms of the contracts themselves,35 disincentivize smaller companies from innovative design and development of space systems in the confines of a contractual relationship with the Agency.36 Finally, even at their most streamlined, U.S. Government commercial-type acquisition procedures are governed by the FAR’s complex and voluminous regulatory regime, which creates an intensive process for NASA’s purchase of goods and services.37 This has been recognized as a both an actual and a perceived barrier to entry for commercial entities. III.2.

NASA’s Space Act “Other Transactions” Authority

Under the Space Act, and unlike the vast majority of other federal agencies, NASA also has the unique authority to enter into “other transactions as may be necessary in the conduct of its work.”38 While not expressly defined, Congress recognized at the time that this grant of authority was “broad” in nature.39 As such, NASA’s Space Act authority provides the ability to establish legally binding agreements in which NASA can commit resources in order to accomplish the stated objectives of a joint undertaking with a partner entity, including an Agency mission. Space Act Agreements (SAAs) are not considered traditional government contracts40 and therefore, can operate outside the bounds of procurement statutes and regulations.41

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34 35 36 37

38 39 40 41

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See NASA, Commercial Orbital Transportation: A New Era in Spaceflight 14 (2014) (hereinafter “COTS”). See Philip McAlister, Commercial Crew Program Status for the NAC, Aug. 2, 2011 available at https://www.nasa.gov/sites/default/files/files/McAlister_COTS_ CRSNAC_508.pdf (noting concerns about cost accounting system as a deterrent for small businesses). See 51 U.S.C. §§20135(a)(1); (b) (2012); See also 35 U.S.C. §210(a)(7) (2012); 14 C.F.R. §1245.107(b) (2015). See 48 C.F.R Part 27.300 (2015) (discussing patent rights) and 48 C.F.R. Part 27.400 (2015) (discussing rights in technical data first produced under a contract). See COTS, supra note 32, at 14. Surya Gablin Gunasekara, “Other Transaction” Authority: NASA’s Dynamic Acquisition Instrument for the Commercialization of Manned Spaceflight or Cold War Relic?, 40 Pub. Con. L. J. 896 (2011) (referring to the FAR as inefficient and cumbersome). 42 U.S.C. §2473(c)(5) (2012). See H.R. No. 1770, at 19 (1958), reprinted in 1958 USCCAN 3160, 3178; See also H.R. No. 1758, at 50 (1958). David S. Schuman, Space Act Agreements: A Practitioner’s Guide, 34 J. Space L 277, 278-79 (2008). One major discriminator between the two instruments is the lack of a bid protest review system to challenge NASA’s actions concerning selection of a Space Act Agreement partner except in very limited cases, discussed infra. See Schuman at 280.

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

There are different types of Space Act Agreement structures, but by far the most novel type are known as “funded” SAAs.42 In such cases, NASA actually transfers funds to an entity.43 Known as a “catch-all” authority of last resort, funded Space Act Agreements are only utilized when NASA’s objectives cannot be achieved by means of any other agreement type, including procurement contracts, and when the Agency is not otherwise required to use a procurement instrument (i.e., the direct acquisition of a good or service).44 Nevertheless, Space Act Agreements cannot be used a substitutes for procurements conducted under the FAR and cannot be used simply for the purpose of circumventing the associated procurement statutory and regulatory framework.45 Free from the burdens imposed by highly-regulated government contracting, these SAAs provide distinct benefits that have afforded NASA a “commerciallike freedom” to engage in a new business model with commercial entities, as well as the ability to tailor these agreements to best fit both the Agency’s and its respective partners’ needs.46 Doing so has allowed NASA the opportunity to attract and work with entities outside the traditional government contractor sphere to, among other things, engage in development of space transportation capabilities.47 Indeed, it has been noted that these agreements represent a “powerful tool to facilitate the commercialization of space.”48 As discussed below, NASA has been able to harness the complementary transactional authorities provided by the Space Act and by the more commercialized format of procurement as prescribed by regulation to achieve its complementary goals of stimulating a commercial spaceflight market while innovatively procuring spaceflight services.

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44

45 46 47

48

See COTS, supra note 32, at 20 (discussing NASA’s provision of payments to a commercial partner). See NASA Office of the Inspector General, NASA’s Use of Space Act Agreements, IG14-020, (2014) at 2 available at https://oig.nasa.gov/audits/reports/FY14/IG-14020.pdf. See NASA Office of the General Counsel, Space Act Agreements Guide (effective Aug. 15, 2008) available at www.nasa.gov/pdf/289016main_Space%20Act%20 Agreements%20Guide%202008.pdf; See also Schuman at 280-281. Schuman, supra note 40, at 280-281. See Gunasekara, supra note 37 at 897; See also COTS, supra note 32, at 24. See Shimizu, supra note 24, at 43-44; See also Gunasekara, supra note 37, at 899900 (discussing the benefits of NASA’s Space Act Agreement authority to permit the agency to work with commercial firms that refuse to, or are unable to, enter into agreements with the Agency using traditional procurement instruments). Shimizu, supra note 24, at 44.

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IV.

NASA’s Use of Transactional Authority to Stage a New Business Model for Cargo and Crew Transportation Services

IV.1.

Commercial Orbital Transportation Services Agreements

In 2005, NASA Administrator Mike Griffin delivered a speech in which he once again highlighted LEO (and specifically, ISS) as the focal point for future space commerce.49 Administrator Griffin unveiled NASA’s approach to furthering that vision – establishing a commercial cargo and commercial crew program office (later referred to as C3PO), tasked with stimulating commercial enterprise to meet the growing need for transportation services to ISS.50 The way forward, in Griffin’s mind, was by setting performance goals for industry as it developed these complex space systems, instead of the typical process that NASA had previously utilized when contracting with large aerospace contractors.51 Drawing from a venture capital philosophy, NASA determined that facilitation of commercial spaceflight capabilities for both humans and cargo would necessarily involve the injection of NASA funding to bolster the resources to be committed by the industry partner. However, as discussed below, NASA’s involvement would not conclude with a direct subsidization by means of capital injection. Rather, NASA would need to work with industry partners to create a development program that would provide initial “seeding” by NASA funding, but would also require partners to substantiate their own source of funding, as well as demonstrate the continuing maturation of their capabilities designs. This method of partnership was established with the goal of developing a reasonable sharing of financial, schedule, and technical risks associated with the program. The first step in this direction was NASA’s establishment of the Commercial Orbital Transportation Services (COTS) program.52 This program, conducted over two rounds of awards, tasked industry to propose various capabilities to deliver cargo and crew into LEO. With the programmatic goal in place, NASA’s legal team was tasked with the initial challenge of assembling the legal framework to execute COTS. Because the program’s intended endgame was the stimulation of development in the private spaceflight industry in a manner that would be consistent with NASA’s mission, but wherein, NASA would not be receiving a resulting direct and immediate benefit from industry, NASA legal advisors determined that funded Space Act Agreements (and not procurement contracts) would be the appropriate legal instrument to use in this context.53

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Michael Griffin, Administrator, NASA, Speech to the American Astronautical Society (November 2005). See id. See id. (referring to this approach as not government “business as usual”). NASA, 2006 Human Spaceflight Transition Plan, at 23. See NASA Office of the Inspector General, supra note 43 at 2 (discussing requirement that no other appropriate instrument is available).

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

NASA’s legal community also needed to structure the terms and conditions of COTS SAAs in a manner that was conducive to a more commercial-type partnership. As such, the SAAs were much more streamlined than a FARregulated procurement contract, and the parties were freed from the imposition of contract clauses such as intellectual property rights in data and inventions that would be typically required in a contract environment.54 Specifically, the SAAs were structured to grant NASA only minimally necessary intellectual property rights.55 Likewise, the FAR clauses concerning termination of a contract were not applied in NASA’s COTS SAAs. Rather, both parties were permitted to end the relationship if progress was not made or if the partner was unable to demonstrate a sharing of cost risk by failing to secure needed private capital.56 NASA realized that without the rigid, regulated competition and evaluation methodology prescribed by the Federal Acquisition Regulation, the Agency would need to devise some way of vetting potential industry partners by use of a common, consistent, and comprehensive system of evaluation. Borrowing guiding principles of NASA’s SEB process for selecting a procurement contract awardee, NASA established a Participant Evaluation Panel (PEP) to evaluate submissions.57 NASA charged itself with evaluating not only a potential partner’s technical capability, but also its financial capability to supplement NASA’s funding in order to continue development.58 The PEP evaluated submissions to determine the level of confidence in executing the submitters’ plans, not only to deliver a capability, but also to capture a share of the commercial marketplace.59 Nevertheless, companies were free to propose creative spaceflight solutions, untethered from NASA’s restrictive requirements, along with technical milestones which would be tied to NASA’s incremental funding. NASA did offer ISS as the environment to demonstrate capabilities,

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55 56

57 58 59

See R. Locke Bell, Intellectual Property in an Emerging Commercial Spaceflight Market: Taking Advantage of Other Transaction Authority to Keep Pace with Changing Commercial Practices 43 Pub. Cont. L.J. 715, 724-725 (noting the value of being able to freely negotiate data rights-related terms of SAAs as a “terrific opportunity” to develop commercial-friendly terms that “optimize the parties’ mutual gain”). For a comprehensive discussion of the intellectual property terms and conditions set forth in NASA’s commercial space SAAs, See Bell, supra note 54 at 725-731. See e.g., NASA, Space Act Agreement Between NASA and Kistler Aerospace Corporation and Rocketplane Limited, Inc. For Commercial Orbital Transportation Services Demonstration (COTS) Art. 17 (Termination), available at https://www.nasa.gov/centers/johnson/pdf/189226main_kistler_nnj06ta27s.pdf. Incidentally, NASA eventually exercised its termination rights in its SAA with Rocketplane Kistler after the firm did not meet its financial and subsequent technical milestones. COTS, supra note 32 at 27. Id. at 27-28. Id. at 28.

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but did not include a requirement that a commercial entity do so as a condition of participating in COTS.60 After a comprehensive evaluation, NASA chose to enter into a first round of COTS SAAs with Space Exploration Technologies Corp. (SpaceX) and Rocketplane Kistler Ltd. Inc. (RpK), awarding $ 485M in NASA funds to these two firms ($ 278M and 207M, respectively).61 After NASA’s first round of selection, its SAA approach met with an initial legal challenge before the United States Government Accountability Office (GAO) – the more common of two fora for review of federal procurements. A firm that had not been selected as a SAA partner, Exploration Partners, LLC, protested NASA’s decision and demanded that the GAO review NASA’s rationale.62 NASA prevailed in this administrative proceeding, successfully arguing that the Agency’s selection process was not governed under federal procurement law, and therefore, not subject to review.63 This marked the first time that an outside authority reviewed the legality of NASA’s Space Act mechanism and determined that its actions under COTS were not tantamount to the award of a contract for services.64 This legal decision in a sense legitimized NASA’s bifurcated transactional strategy for commercial space transportation services. NASA announced a second round of COTS in October 2007 and eventually awarded another SAA to Orbital Sciences Corporation (Orbital) in 2008.65 Nevertheless, challenges to NASA’s transactional authority under the COTS program did not end with GAO’s first decision. After NASA’s termination of RpK’s first round SAA,66 the company protested NASA’s second COTS announcement, alleging that NASA had erred in choosing to utilize its Space Act authority rather than procure services directly from industry.67 RpK argued that the eventual purpose of the COTS SAAs was for NASA to utilize

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62 63 64 65 66 67

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Rather, interested firms were required to include Operational Readiness Plans that would explain how they would plan to offer services to the ISS. NASA, Announcement No. COTS-01-05, Commercial Orbital Transportation Services Demonstrations 2 (Jan. 18, 2006 (as amended Feb. 17, 2006)). NASA later added milestones to SpaceX’s COTS SAA, as well as added associate funding, bringing the total funding amount to $396M. See NASA’s Commercial Cargo Providers; Are They Ready to Supply the Space Station in the Post-Shuttle Era?: Hearing before the Subcommittee on Space and Aeronautics, United States House of Representatives, 112th Cong., 1st sess., May 26, 2011 (statement of William H. Gerstenmaier, Assoc. Adm’r for Space Operations) (discussing award amounts) (hereinafter, “NASA’s Commercial Cargo Providers”). See Protest of Exploration Partners, LLC, B-298804, Dec. 19, 2006, 2006 CPD §201. See id. See id. See NASA’s Commercial Cargo Providers, supra note 61. See id. See Protest of Rocketplane Kistler, B-310741, Jan. 28, 2008, 2008 CPD §22.

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

such services.68 On the other hand, NASA’s position emphasized the principal purpose of COTS, which was to encourage the growth of a space transportation services market in which government and private customers would participate.69 While GAO understood NASA’s eventual benefit in the way of future capabilities for use, NASA again prevailed and the COTS model was once again determined to be a legally sound application of its authority.70 IV.2.

Commercial Resupply – Completing the Crossover from Seeded Development Venture to Acquisition of Service

NASA’s C3PO intended to utilize COTS as a first phase development and demonstration effort, before undertaking a second phase – a procurement for resupply services for ISS termed Commercial Resupply Services (CRS).71 Given the flexibility provided by Congress to consider spaceflight transportation services as “commercial items,” as well as NASA’s initial progress in stimulating a commercial market under COTS, NASA was able to rethink its approach to procurement. What would have traditionally been a costreimbursement development contract with an aerospace contractor could now be transformed into a fixed-price agreement for services.72 NASA issued its CRS RFP exclusively for cargo transportation services to ISS in April 2008, while COTS was still in its infancy. NASA’s decision to do so hinged upon an urgent and compelling need for supplies on ISS.73 However, procuring a service prior a successful system demonstration is a risky strategy for NASA in the event technical problems do arise and schedule slips on account of these issues.74 The FAR’s streamlined procedures for evaluation and award of contracts for commercial supplies and services afforded NASA with the flexibility previously unheard of when procuring services of this type. Orbital and SpaceX both submitted proposals concurrent with their COTS work, however, NASA undertook strict measures to firewall the two programs.75 NASA awarded resupply contracts to both firms in December

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73 74

75

See id. See id. See id. See Gerstenmaier, supra note 3, at 4. Indeed, the CRS contracts themselves express disclaim NASA’s title to either the launch vehicle or the orbital vehicle providing the services. See, e.g., NASA Contract with Space Exploration Technologies, LLC, Contract NNJ09GA04B, Dec. 22, 2008, at 23, available at https://www.nasa.gov/centers/johnson/pdf/418857main_sec_nnj09ga04b.pdf (hereinafter, “SpaceX CRS Contract”). See COTS, supra note 32, at 81 (discussing the risk of a potential ISS servicing gap). See NASA Office of the Inspector General, Commercial Cargo: NASA’s Management of Commercial Orbital Transportation Services and ISS Commercial Resupply Contracts, Report No. IG-13-016 (2013) at 3 available at https://oig.nasa.gov/audits/reports/FY13/IG-13-016.pdf). See COTS, supra note 32, at 82.

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2008.76 Nevertheless, COTS and CRS were programmatically intertwined as the CRS contractors were able to (but were not required to) leverage the capabilities cultivated during COTS and converting their capabilities into successful service providing mechanisms to meet NASA’s requirements. As such, CRS’s success was dependent upon COTS progress.77 This allowed NASA the ability to creatively structure its CRS contracts in a manner that fixed payment to the contractors upon demonstrated completion of milestones – the accomplishment criteria for which would be proposed by the contractors themselves.78 This feature, borrowed from COTS, entailed a “pay-forprogress” and “pay-for-performance” model of procurement which differed significantly from payment on a continual basis, as is customary in costreimbursement contracts. This approach was unprecedented in NASA’s history of complex space systems acquisitions. And by implementing it, NASA was better prepared to share financial risk with its supply contractors as they progressed from development to delivery.79 IV.3.

Commercial Crew – Extending the Collaborative Transactional Model from Cargo to People

With COTS and CRS in place and underway, but far from actual delivery of cargo services to ISS, NASA continued to actualize its ultimate goal to acquire human transportation services to and from ISS and to do so by leveraging commercial participation. On the heels of a comprehensive evaluation of U.S. human spaceflight plans,80 commercial involvement in human spaceflight programs, NASA decided to implement a transactional model that was

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78 79

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NASA’s selection rationale was challenged by a third unsuccessful offeror, PlanetSpace, Inc., but survived scrutiny by the GAO. See Protest of PlanetSpace, Inc., B-401016, B-401016.2, Apr. 22, 2009, 2009 CPD §103. See NASA’s Commercial Cargo Providers, supra note 61 (noting that COTS partners’ developments efforts needed to succeed in order for these firms to provide services to ISS); See also NASA Office of the Inspector General, supra note 74 at iii (noting that when a firm’s COTS progress slipped, there was an impact on the launch dates for CRS missions). See, e.g., SpaceX CRS Contract, supra note 72 at 23-25. CRS and COTS have not been immune from schedule delays and technical setbacks from both providers, which brought with them associated financial risk to NASA, particularly if performance-based milestone payments were made to contractors while the firms were delayed in meeting COTS milestones, which would impact CRS contract performance. See NASA Office of the Inspector General, supra note 74 at 19; See also NASA’s Commercial Cargo Providers, supra note 61 (discussing anticipated startup challenges associated with such a technologically-ambitious endeavor). See Review of U.S. Human Spaceflight Plans Committee (also known as the “Augustine Commission”), Seeking a Human Spaceflight Program Worthy of a Great Nation (2009) 113 (advocating for NASA’s continued opportunities to procure systems innovatively, including by use of commercial purchases of systems derived from Space Act Agreements).

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

substantially similar to the one put into place for COTS/CRS – strategically deploying its transactional authorities to support efforts for the full spectrum of private industry’s development of transportation systems capable of eventually providing human spaceflight services. Following on from this initial development effort, and only when those transportation systems were sufficiently matured (in part, through NASA’s monetary and technical input), the Agency envisioned the purchase of crew transportation systems to ISS by competitive procurement.81 NASA began in late 2009 by utilizing $ 50M of funding to establish SAAs with industry under the first round of a proposed development partnership, entitled Commercial Crew Development (CCDev). Using another PEP selection process, with review of whether interested firms’ proposals would meaningfully advance crew transportation technology, NASA ultimately entered into agreements with five firms – Sierra Nevada Corporation (Sierra Nevada), Boeing, United Launch Alliance (ULA), and Paragon Space Development Corp. (Paragon).82 NASA’s intent was to stimulate the development of any number of systems, concepts and capabilities that could ultimately be implemented to further a commercially available human spaceflight system.83 When compared to the amount of funding typically required to develop a human-rated capability, the amount of funds at issue in the first round of CCDev agreements were miniscule. Nevertheless, these SAAs provided the initial increment necessary to stimulate development groundwork and signaled NASA’s commitment to advancement of these capabilities. Using new congressional authority in 2010,84 NASA established the Commercial Crew Program (CCP) and set about funding a second round of CCDev agreements with industry – this time with $ 270M to fund the further development of fledgling human transportation capabilities. In April 2011, NASA divided these funds among Sierra Nevada, SpaceX, Boeing, and Blue Origin.85 In August 2012, NASA issued a final round of funded SAAs to three of these four companies – Sierra Nevada, SpaceX, and Boeing. Entitled Commercial Crew Integrated Capability (CCiCap), these SAAs provided an

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82 83 84

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See Gerstenmaier, supra note 3, at 6-7 (discussing the strategy of “building on the progress made” under the predecessor Space Act Agreements and eventually “transitioning into a series of competitively awarded contracts”). See NASA, Selection Statement for Commercial Crew Development (Announcement Number JSC-CCDev-1) 20 (Dec. 8, 2009). See COTS, supra note 32, at 88. See NASA 2010 Authorization Act, Pub. L. No. 111-267, 124 Stat. 2820 (Sections 401 and 402) (2010) (directing NASA to continue supporting COTS and formally authorizing a “Commercial Crew Development Program” in fiscal year 2011). See NASA, Selection Statement for Commercial Crew Development Round 2 (Announcement Number NASA-CCDev-2) (Apr. 4, 2011) available at www.nasa.gov/sites/default/files/files/508_CCDev2_SelectionStatementFinal_Signed.pdf.

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additional $ 1.1B of funding for advancing a complete crew transportation system.86 IV.4.

Commercial Crew Transportation Services Acquisition

Following in the footsteps of its ISS Commercial Resupply Services acquisition, NASA proposed an acquisition strategy that would build upon the benefits provided by its commercially-leveraged development model and that would ultimately result in the award of competitively-bid contracts for crew transportation services. Once again, these contracts would be fixed-price and payment would be tied pre-negotiated payment milestones for high-level performance goals and objectives in an effort to shift some cost and performance risk from NASA to industry. It was presumed that NASA’s reduced level of oversight for programmatic activities could result in decreased cost and minimize schedule impact previously experienced in the typical procurement model. Much like the case of CRS, a fixed price model for human spaceflight operations was virtually unheard of for NASA. However, while this approach provided a more streamlined acquisition approach, it also presented unique and difficult challenges for the Agency. Foremost, due to the above-described legal restrictions on NASA’s authority,87 NASA could not (and did not) dictate specific systems concepts, nor mandate compliance with Agency technical and safety requirements during the development phase of the program. Instead, CCDev/CCiCap participants were free to determine capabilities that they believed would be most attractive to their target markets (which could, but might not necessarily include NASA). While NASA would be the most obvious and viable anchor customer for such capabilities, and partners were assumed to have considered it in their best interests to design and develop capabilities with NASA’s requirements in mind, there was no obligation on the SAA partner companies (or any other potential offeror) to do so. This limited oversight model begged the question of whether commercial partners would actually in a position to provide NASA such services when the time came. It also raised questions of how to keep the CCDev program separated from the services acquisition to avoid the appearance of a conflict of interest NASA’s part in favor of the CCDev/CCiCap partners. Finally, concerns lingered as to how NASA would be purchasing such services on systems for which cost and risk were not fully determined, especially in a firm-fixed price environment. NASA attempted to reconcile these issues by proposing a “sweet spot” model of insight and oversight to help ensure that commercial partners could demonstrate the ability to meet NASA’s human spaceflight certification requirements

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See NASA, Selection Statement for Commercial Crew Integrated Capability (Announcement Number NASA-CCiCap) (July 31, 2012). Logically, NASA cannot dictate such technical requirements as it would in the case of a purchase of goods or services vis-à-vis its Space Act Agreement Authority.

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

and to safely transport U.S. astronauts to ISS without their being directed “how” to do so from the Agency. NASA also worked with industry in an iterative fashion to develop the requirements for certification of vehicle for delivery of crew transportation services and CCDev/CCiCap partners retained the ultimate freedom to align their requirements and capabilities to NASA’s developing requirements for services acquisitions. To begin the daunting process of aligning commercial industry’s requirements with NASA’s certification requirements, NASA began a two-phased acquisition approach. The first phase of this undertaking was the Certification Products Contract (CPC), a relatively small-value firm-fixed price contract conducted under full and open competition. These CPC contracts were awarded to Boeing, Sierra Nevada, and SpaceX.88 The contract required these firms to deliver certification plans for meeting NASA’s crew transportation requirements and permitted NASA to provide the contractors feedback. The CPC procurement was undertaken in order to provide NASA with validation as to exactly how close the SAA partners’ designs were to meeting NASA’s requirements.89 CPC also provided the contractors with needed insight as to the risks associated with certification prior to the partners’ completion of their integrated CCiCap designs, as well as more oversight on NASA’s part. As CPC progressed on one track, NASA then moved to its second step acquisition – Commercial Crew Transportation Capability (CCtCap). Also conducted under full and open competition, CCtCap required full crew transportation systems to meet NASA’s human spaceflight requirements for safely transporting astronauts to and from ISS, and provided for the purchase of fixed-price missions to do so once certification is achieved. Offerors’ approaches to meeting certification were evaluated for their realism, quality and feasibility, as well as their overall approaches to plan, produce, integrate, and execute postcertification missions to ISS.90 Offerors were also evaluated for their approaches to permit NASA insight into the certification process, as well as their programmatic management approaches and their plan lifecycle cost management when juxtaposed with a schedule for performance milestone payments.91 NASA also evaluated each offeror’s past performance and their proposed fixed prices for certification and ISS missions.92

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89 90

91 92

See NASA, Source Selection Statement for the Certification Products Contract (CPC) (Solicitation Number NNJ12ZBT002R) (Dec. 5, 2012) available at https://prod.nais.nasa.gov/eps/eps_data/153061-OTHER-002-001.pdf. See id. See NASA, Source Selection Statement for Commercial Crew Transportation Capability Contract (CCtCap) (Solicitation Number NNK14467515R) (Sept. 15, 2014) available at www.nasa.gov/sites/default/files/files/CCtCap-Source-SelectionStatement-508.pdf. See id. See id.

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NASA awarded the CCtCap contracts in September 2014 to Boeing and SpaceX, concluding that these two offerors provided the best value to the Government after consideration of all evaluation factors.93 NASA’s cleared its final transactional hurdle when its source selection was upheld after Sierra Nevada, the unsuccessful offeror, filed a bid protest with the GAO.94 NASA’s commercial crew providers continue to make progress under contract to provide NASA critical astronaut transportation services in the coming years. V.

NASA’s Commercialized Approach as a Model for Future Endeavors within and outside the Agency

NASA’s forward-thinking application of its transactional powers, implemented by dedicated program management, has demonstrated a legitimate model enabling the ability to meet a commercial space industry on its own terms in order to assure mutual success.95 NASA has been able to demonstrate a legally supportable progression of assisted development carried through to an eventual purchase of services from private sources. In doing so, NASA has been able to take advantage of a more commercialized business model in which NASA relinquishes some technical control, thereby permitting flexibility for private industry to determine the optimum approach for NASA’s transportation needs. It is NASA’s hope that industry will be able to leverage this untapped market potential to spread the costs of continued development and operations across this customer base so that NASA will not bear the full burden of these costs. But perhaps most interestingly, this validated model also opens the door to a plethora of potential future programmatic uses.96 Indeed, NASA has already begun to consider how to capitalize on this model to not only grow the emerging LEO market, but also to conceptualize markets which do not even exist yet, while at the same time, furthering its own mission goals. In June 2014, NASA issued a Request for Information (RFI) designed to facilitate a discussion concerning the way forward for evolving ISS into a commercial LEO market platform.97 Such a marketplace would obviously be dependent upon the crew and cargo transportation services

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See id. See Protest of Sierra Nevada Corporation, B-410485, et al., Jan. 5, 2015, 2015 CPD §23. NASA Aerospace Safety Advisory Panel, Annual Report for 2013 at 19 (Jan. 15, 2014) (discussing the success of NASA’s use of its Space Act authority, coupled with the input of well-qualified technical assistance from NASA, as key determiners of success of COTS and CRS) available at http://oiir.hq.nasa.gov/asap/documents /2013_ASAP_Annual_Report.pdf. See id. (recommending consideration of adopting similar approaches where possible). NASA, Evolving ISS into a LEO Commercial Market – Request for Information NNHXXZCJ001L, (Apr. 28, 2014) available at https://prod.nais.nasa.gov/eps/eps_data/160471-OTHER-001-001.pdf.

NASA’S TRANSACTIONAL APPROACH TO COMMERCIALIZING SPACE SYSTEMS ACTIVITIES

previously developed, but NASA is also asking bigger questions, including: whether there are certain types of ISS payload integration that would be best suited for fulfillment by a commercially-provided service and whether ISS would be useful as a demonstration for COTS-based or other assisteddeveloped systems.98 NASA also stated that it wishes to leverage other commercial capabilities in LEO that could later be applicable to deep space exploration.99 While continued commercialization of ISS-related activities seems to be the logical progression in this endeavor, there is little reason why tested development-cum-acquisition model should be relegated to LEO and may eventually be expandable for use in other contexts. Specifically, NASA’s previous models of commercial cargo and crew transportation were built upon a presumption that NASA’s preceding exploratory and science-focused presence with ISS had created the basis for a marketplace for the provision of more “routine” recurring services. Put simply, what was once pioneered would eventually become supplanted by more routinized commercial efforts. But the dominant paradigm may well continue to shift in coming years as commerce and exploration converge and cross-use of new capabilities fosters new market expansion. Indeed, NASA has already begun to consider these models for continued applicability. For instance, NASA established its Lunar Cargo Transportation and Landing by Soft Touchdown (Lunar CATALYST) program last year.100 This program is intended to explore the possibility of spurring partnerships with commercial providers to develop capabilities for delivering payloads to the lunar surface for a plethora of potential uses, while potentially enabling new science and exploration missions of interest to NASA.101 NASA’s intent is to seek partners who will demonstrate a likelihood of completing development of a commercially-viable lunar surface cargo transportation capability with achievable approaches lunar lander development and realistic financial strategies to support eventual commercial application.102 These early partnerships will take the form of unfunded SAAs with industry.103 NASA also recently

______ 98 See id. 99 See id. 100 NASA, Lunar Cargo Transportation And Landing bY Soft Touchdown (Lunar CATALYST), Pre-Proposal Conference (Jan. 27, 2014) available at www.nasa.gov/sites/default/files/files/Lunar-CATALYST-Pre-ProposalConference_27Jan2014.pdf. 101 See id. 102 See id. 103 See id. NASA made these awards in April 2014 to: Astrobiotic Technology, Inc., Masten Space Systems, Inc., and Moon Express, Inc. See Press Release, NASA Selects Partners for U.S. Commercial Lander Capabilities (Apr. 30, 2014) available at www.nasa.gov/press/2014/april/nasa-selects-partners-for-us-commercial-landercapabilities/#.VgRLaRFViko.

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funded an independent study analyzing the potentiality of leveraging commercial space technologies in establishing a lunar human presence.104 Whether or how any of these capabilities fit with NASA’s continuously evolving deep space exploration mission profile remains to be seen. But regardless, this transactional model is available for use in any number of customizable ways. NASA’s innovative use of its transactional authority has turned the “old space” model of direct acquisition of contractor-built systems on its head and in doing so, has cemented NASA’s place as an influencer in “new space.” Indeed, NASA’s commercialization efforts have helped to facilitate the beginning of a culture shift, both inward at the Agency and outward. NASA has been able to demonstrate the initial feasibility of its “market participant” role alongside its traditional nationalized approach to space activities. Doing so has given the Agency the freedom to leverage its public funding to foster new ways to achieve programmatic goals in a leaner, more cost-effective commercial environment. Finally, this adaptable model may prove useful to other national space agencies, many of which operate by a direct acquisition similar to NASA’s.105 In particular, these agencies could consider this approach as a tool to align themselves and their missions with a growing commercial space industry.106 Nevertheless, these programs bring with them questions concerning which direction the commercial space market will eventually take. These include: space tourism, research opportunities, and resource exploitation. They also raise the significant question of how NASA’s role as a national space agency changes in response to and because of this commercialization. Whatever the future holds, NASA’s legal advisors will be ready to employ the same “cautious innovation”107 that permitted the Agency to structure and execute its first major commercial space transportation services endeavor in order to meet the Agency’s needs within the confines of its legal limits.

______ 104 See Nex Gen Space, Economic Assessment and Systems Analysis of an Evolvable Lunar Architecture that Leverages Commercial Space Capabilities and Public-Private Partnerships (July 13, 2015) available at http://science.ksc.nasa.gov/shuttle/nexgen/Nexgen_Downloads/NexGen_ELA_Report _FINAL.pdf. 105 See generally Shimizu, supra note 24 (advocating for modernization of JAXA’s procurement system in an effort to achieve more flexibility). 106 See generally Shimizu (advocating for a more flexible procurement regime for JAXA); See also Peter B de Selding, How ESA’s Next Director-General Got the Job, SpaceNews, December 23, 2014 (quoting ESA’s Director-General Johann-Dietrich Woerner as discussing a paradigm shift in the role of industry in space program development and recommending looking to the United States as the lines of responsibility between government and private industry continue to shift). 107 See COTS, supra note 32, at 19 (quoting NASA’s attorneys).

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Identifying Elements of lex mercatoria in the Space Domain Anja Nakarada Pecujlic*

Abstract Discussions of a lex mercatoria date back to medieval Europe and refer to the customs, practices and informal dispute resolution mechanisms adopted by merchants as a means of self-regulating their overseas trade. In its modern incarnations lex mercatoria has come to mean a body of law outside of or independent from state law, created and administered by and for commerce. The conceptual basis and validity of lex mercatoria, in particular its claim to autonomy from state law, has been a longstanding point of contention in legal scholarship and it is not within the scope of this paper to revisit or add to the debate. However, even without assuming the existence and validity of a fully-fledged corpus lex mercatoria, the existence of at least some transnational legal rules corresponding to the needs of international commerce is an undisputable fact (e.g. the UNIDROIT Principles). Furthermore, commercial necessity has on occasion resulted in improvisation by non-state actors to create pockets of norms, procedures and institutions in certain domains (e.g. cyberspace). We can therefore identify a possible mechanism for the creation of binding norms that supplements the established mechanisms in international and national law. This paper shall first examine the factors that prompt merchants to ‘self-govern’ including: rapid growth in a transnational trade setting; new technologies or commercial activities; the absence or inefficacy of state norms and institutions and a preference for informal mechanisms for dispute resolution. We then consider the presence of these factors in the space domain and look for empirical evidence that the new generation of space merchants are creating their own norms, procedures and institutions to govern their commercial activities rather than relying purely on statebased systems. Rapid progress in the space domain has left the prevailing legal regime looking tired and incomplete. The five space treaties struggle to be reinterpreted in accordance with new private sector initiatives. National law is limited, principally responding to the international responsibility of states for activities of their non-governmental entities through authorisation and supervision. When it comes to space commerce there are gaps in the existing legal regime and thus spheres of commercial uncertainty. Soft law instruments have arisen as one means of guiding conduct but essentially lacks binding force. The importance of this research is to examine whether commercial actors in the space domain are moving towards the sort of an independent mechanism for the creation of binding norms, procedures and institutions as discussed above.

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Mag. iur., University of Vienna, Austria, [email protected].

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I.

Corpus of lex mercatoria

I.1.

What Is lex mercatoria?

To this day, the very origin of lex mercatoria is unclear. Some scholars think it already existed in Roman law, some go even further back to Egyptian times. At a minimum, it is safe to say that lex mercatoria as a legal mechanism existed in medieval Europe.1 The flourishing of international trade in the Western Europe influenced formation of cosmopolitan mercantile law, which was based upon customs and applied by informal disputes settlement bodies of the various European trade organisations for crossborder disputes. Simplicity and certainty were necessary for international trade and therefore, lex mercatoria was created as a response to meet the new needs of the international commerce that could not be resolved by obsolete national rules.2 A similar trend can be seen today. The complexity of private international law regulations and outdated domestic law norms do not satisfy the requirements of the international business community.3 On the one hand, treaty-making processes have become too complicated and ineffective. There are several reasons for this. The negotiating process can go on for many years, even decades due to different developing stages, economical, social and legal backgrounds of the participating states. Even when the treaty is finally negotiated, its ratification and implementation still remains highly questionable. All this leads to partial unification, to legal ambiguities where different interpretations of the same convention are possible, and to the practical obstacles of international trade. On the other hand, the supremacy of national law in international economic relations has been in decline since nineteen-sixties. Currently, there is a trend among contemporary traders to adopt alternative self-regulatory contracts in order to avoid the applicability of national law to their trades and transactions. Through commercial forms developed from this repeated transnational trade usage among private companies, such as standard clauses, self-regulatory contracts, and especially, choice of commercial arbitration for dispute resolution, “traders were creating their own regulatory framework independently from national law, the so-called new lex mercatoria”.4 Therefore, it can be concluded that the

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“Lex Mercatoria”, Ana M. L. Rodríguez, School of Law, Department of Private Law University of Aarhus; http://blogs.law.nyu.edu/transnational/2012/11/principles-ofcontract-law-a-compilation-of-lex-mercatoria/. “Lex Mercatoria”, Ana M. L. Rodríguez, School of Law, Department of Private Law University of Aarhus. “Lex Mercatoria”, Ana M. L. Rodríguez, School of Law, Department of Private Law University of Aarhus; http://blogs.law.nyu.edu/transnational/2012/11/principles-ofcontract-law-a-compilation-of-lex-mercatoria/. E.g. Schmitthoff, C.M., “Das neue Recht des Welthandels”, RabelsZ 28, 1964, pp. 47-77; Goldman, B., “Frontières du droit et lex mercatoria”, Arch.phil.dr. 9, 1964,

IDENTIFYING ELEMENTS OF LEX MERCATORIA IN THE SPACE DOMAIN

new lex mercatoria consists of four crucial elements: transnationality, standard forms of contract, international trade usage (which is the source of law) and arbitration. Debate on Existence of Independent lex mercatoria

I.2.

It is said that there are as many definitions of lex mercatoria as there are authors writing about it.5 One of the main debates surrounding the lex mercatoria is concerning its very existence. Can it even exist independently from international private law and national laws? Can there be a global law which does not emanate from States? Authors dealing with this subject, tried to resolve this matter in numerous different theories. For example, Schmitthoff wrote that lex mercatoria is the “expression of both spontaneous and official unification by means of general conditions, trade usages, customs and international conventions”6 and as such remains attached to national systems. On the other hand, Goldman’s approach to the definition of lex mercatoria had a profound impact. He stated that, “arbitrators and parties could detach legal relationships from applicable national legal rules and submit these relationships to the lex mercatoria”.7 There are similarities between Schmitthoff’s and Goldman’s definitions as both of them agree that this body of law is composed of general conditions, usages, customs and international conventions, however, Goldman added a new, revolutionary component: the general principles of law. Following Goldman’s approach, lex mercatoria is not dependent upon any national legal orders; it does not refer to any particular national jurisdiction, but is a self-governing set of rules within an international trade setting. However, the debate on the origin of lex mercatoria and its substantive force has been questioned by many authors. Hence, the very existence of lex mercatoria has been referred to as only a “myth”. The theory of legal pluralism successfully overcomes this objection on the lack of binding force. According to this theory, social groups, such as the community of traders, are also capable of producing legal rules.8 In comparison with the national regulations, which are enacted by the legislator and therefore have an immediate binding force, and customary rules, which require opinio iuris,

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8

p. 89 et seq.; Goldstajn, A., “The New Law Merchant”, J. Bus.L., 1961, p. 11; Kahn, Ph., La vente commerciale internationale, 1961; Fouchard, Ph., L’arbitrage commercial international, 1965; Stoufflet, J., Le credit documentaire, Paris, 1959. http://blogs.law.nyu.edu/transnational/2012/11/principles-of-contract-law-acompilation-of-lex-mercatoria/. “Clive M. Schmitthoff's Select Essays on International Trade Law”, Chia-Jui Cheng. “The Applicable Law: General Principles of Law – the Lex Mercatoria”, in Contemporary problems in international arbitration, Berthold Goldman (Julian Lew ed., 1986). “Contemporary Problems in International Commercial Arbitration”, Julian D.M. Lew (ed.), 1986, B. Goldman.

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(the feeling to be bound) trade usages are a product of party autonomy. “They are contractual practices generally observed and used as a proof of the will of the parties” and parties have an option to exclude their application by an express stipulation in the contract.9 As a result, commercial traders actually feel bound to take into the account the provisions of the lex mercatoria. Moreover, examples from practice are contrary to the above mentioned allegations that lex mercatoria does not exist. This mechanism of law is actually being increasingly applied between trade partners, especially in commercial arbitration, where parties have a freedom of choice to regulate themselves which law is going to be applicable to their dispute.10 In past years, arbitrators have applied the lex mercatoria, and national laws and in case law it has been recognized. Furthermore, international institutions and scholars have also reacted to the above criticism and they have taken on a role of unifying and standardising the general principles of this “transnational” law. In doing so, they have created law norms that are originating from model contracts, used as standard forms in commercial trade. As in medieval Europe, these standard forms gained popularity because of their flexibility and simplicity. International organisations that had a key role in this development and in the unification of international trade regulations are the International Chamber of Commerce (ICC), and the United Nations Commission for International Trade Law (UNCITRAL). For example: Article 17 ICC Arbitration Rules, Article 33 of the UNCITRAL Rules on International Commercial Arbitration, and Article 28 of the UNCITRAL Model Law on Arbitration, allow the arbitrator to apply nonnational law if the parties so chose or in the absence of choice of the applicable law. Furthermore, the International Institute for the Unification of Private Law (UNIDROIT) Principles of International Commercial Contracts (1994) are seen by many authors as a codification of lex mercatoria.11 These sets of principles contain norms that cover almost all aspects of contract law and it has been contested that “in view of the fact that the Principles represent a system of rules intended to enunciate principles which are common to the existing national legal systems and best adapted to the special requirements of international commercial contracts, they could be considered as a sort of

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“Théorie Générale des Usages du Commerce, Librairie Générale de Droit et de Jurisprudence”, Paris, 1984, A. Kassis. http://blogs.law.nyu.edu/transnational/2012/11/principles-of-contract-law-acompilation-of-lex-mercatoria/. “Uniform Law Review”, K. Boele-Woelki, 1996, v. 4; “On the quality as lex mercatoria of standard contracts and general clauses established under the auspices of an international organisation”, B. Goldman.

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modern ‘ius commune’ or what is commonly called ‘lex mercatoria’”12 This codification enhances the usefulness of lex mercatoria even further as it provides for the rules to be more predictable, uniform and comprehensive, thereby repelling the traditional undermining that it is vague, incomplete and unforeseeable. I.3.

In Any Case: Alternative Mechanism for Creating Binding Law Norms

Taking into account all the different theories and arguments elaborated above it is possible to conclude that the existence of lex mercatoria is supported by the practice of international commercial arbitration in isolation from any doctrinal debate. This is mainly founded on three elements: the principle of party autonomy, the principle of good faith and the use of arbitration.13 However, this paper isn’t going to come down on one side or other of the debate. Even so, and even without assuming the existence/validity of a fully-fledged corpus of lex mercatoria, there are certain elements as transnational non-state norms, prevalence of arbitration etc. that correspond to the needs of international commerce and that are indisputable. Furthermore, commercial necessity has on various occasions resulted in improvisation by non-state actors to create pockets of norms, procedures and institutions in certain domains (e.g. cyberspace). Therefore, we can identify a possible mechanism for the creation of binding norms that supplements the established mechanisms in international and national law. A law that supersedes national and international law, a law beyond the State.14 The appearance of these phenomena at least will be examined in relation to the space domain in the following chapters. II.

Factors That Induce Self-Governance

This paper will follow the above elaborated reasoning that commercial communities can also establish binding laws. Therefore, first it is necessary to examine factors that induce self-governing of the private sector. II.1.

Rapid Growth in a Transnational Trade Setting

One of the main features of today’s global economic landscape are transnational companies (TNCs). Trans-nationality signifies that a national based company has overseas operations in two or more countries. Nowadays, they are among the world’s biggest economic institutions. “A rough estimate suggests that the 300 largest TNCs own or control at least one-quarter of the

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“40 Am.J.Comp.L”, M.J. Bonell, 1992. “Internationale Schiedsgerichte und lex mercatoria”, Schulthess Polygraphischer Verlag AG, Zürich 1989, F. Dasser; “Festschrift für Clive M. Schmitthoff”, Athenäum Verlag, Frankfurt (M), 1973, A. Goldstajn. “The True Lex Mercatoria: Law Beyond the State”, R. Michaels.

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entire world’s productive assets, worth about 5 trillion US dollars”, which makes them the driving force of economic growth.15 This influenced five new developments in the world trade setting: the rise of the private sector, rapidly advancing technologies that are completely changing the way of international production and organization, the globalization of firms and industries, the rising importance of service in the world economy, and regional economic integration.16 At the very heart of these trends are TNCs, with their strongest contribution in the area of technology and trade. This allows them to set new policy agendas and to influence international politics. II.1.1.

In the Space Domain

In the space domain similar developments are also noticeable. In the past decade there has been a significantly higher level of involvement of the private sector in space activities. Some authors even state that the private sector has become the dominant actor in space.17 Furthermore, new technologies are being developed, which lower the costs of production and in that way change organization of firms. These private space companies are trying to scale their businesses to operate globally (e.g. Spire, a satellite company, which provides service in data collection, analysis for warning about elementary disasters and for fighting piracy, now has offices in San Francisco, Glasgow and Singapore). There are also prominent examples of regional economic integration in space sector. These highlighted examples are: European Space Agency (ESA) and Asia-Pacific Regional Space Agency Forum, (APRSAF). ESA is an international organisation with 22 Member States, which coordinates the financial and intellectual resources of its members and undertakes programmes and activities that go beyond the scope of any single European country. APRSAF consists of space agencies, governmental bodies, international organisations, private companies, universities, and research institutes from over 40 countries and regions. It organizes four working groups – Space Applications, Space Technology, Space Environment Utilization, and Space Education, in order to share information about the activities and future plans of each country and region in these respective areas.18

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“A Brief History of Transnational Corporations“, Global Policy Forum, 2000, J. Greer and K. Singh. “World Economic Issues at the United Nations: Half a Century of Debate”, p. 210, 2002, M. Rahman. “The Impact of New Developments on International Space Law (new actors, commercilazation, privatization, increase in number of “space-faring” nations, etc.)”, 2010, S. Hobe; Excerpt from a new Handbook on Space Law, F. Von der Dunk, “The Democratization of Space” in Foreign Affairs, May/June 2015, D. Baiocchi and W. Welser IV. www.aprsaf.org/about/.

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II.2.

New Technologies and Commercial Activities

Technological breakthroughs are often created by spontaneous and serendipitous discoveries and ideas, which expand fast as new realms of human activities open up, many times far in advance of governance mechanisms and institutions. To clarify how development of technology influences development of commercial activities, this paper will give an example relatively close to outer space technology. Evolution of internet and in turn evolution of cyberspace, had the same background as the beginning of space technology buildout. Initially, the system that we know now as internet was primarily for government and government body exclusive use. However, with the technological growth, in the late 1980s, the first internet service provider (ISP) companies were formed and nowadays ISPs are now exclusively private. Similarly, with the on-set of cyberspace (transnational) trade, the Internet Corporation for Assigned Names and Numbers (ICANN) was established. This is also a private corporation licensed under the laws of the U.S. State of California that exercises a regulatory authority of global reach, without an international treaty law specifying its jurisdiction.19 II.2.1.

In the Space Domain

In the first phase, space activities were carried out exclusively by governmental authorities (predominantly of the two major powers at the start of the Space Age – the US and Soviet Union). The main reason being that launching a rocket, deploying a satellite or sending manned missions into space were extremely costly projects and they could only be financed by states. Today, fifty years later, thanks to the technological development, lowering of cost of access to space and to the “availability of small, energy efficient computers, innovative manufacturing processes, and new business models for launching rockets”, the outer space environment has opened up to the private sector – even for start-ups.20 In other words, lowering the costs of manufacturing and launching of space objects has made the domination of private sector possible. For this new phase, the so-called ‘Second Space Race’, this decade could see expansive private sector growth, just as the late 1990s and early 2000s did during the internet bubble.21 Dozens of companies are in the running to secure contracts with national agencies and compete in the international market (e.g. NASA is increasingly open to working with the private sector in its human space exploration plans. Companies like SpaceX and OneWeb are big examples of satellite constellations that do not even

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ESPI Perspective 56, “Is there space for the Un? Trends in outer space and cyberspace regime evolution”, L. Martinez. “The Democratization of Space” in Foreign Affairs, May/June 2015, p. 98, D. Baiocchi and W. Welser IV. “10 Major Players in the Private Sector Space Race”, N. Gerbis.

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depend on the NASA funding. Also companies like PlanetLabs and DigitalGlobe, that are independent providers of earth observation data).22 II.3.

Preference for Informal Mechanisms for Dispute Resolution

Nowadays, the vast majority of international commercial disputes are settled through arbitration.23 International trade contracts, as well as standard contracts, usually contain the arbitration clauses. The reasons behind this are that national law sometimes is tied to overly formalistic and abstract legal rules, while arbitration bases its decisions on equity, taking into consideration the whole of the relationship between the parties and other requirements from equity, and has the freedom not to be bound by the previous interpretation of statutes and court decisions. Another advantage of arbitration is the great expertise of the arbitrators. They themselves were often merchants, who fundamentally understand/understood commercial considerations and practices, and they only consider the private interests of the parties before them; they do not allow public norms to trump the will of the parties.24 Furthermore, in arbitration parties alone can define procedure and arbitral decisions offer parties the much-needed privacy and secrecy; rulings of arbitrators are not publicly printed. II.3.1.

In the Space Domain

Up till now, there have not been any proper space disputes or they have been but they remain unknown to the public. The reason behind this is, that disputes that have arisen in the space arena have usually been dealt through diplomatic channels (Kosmos 954 dispute) and seldom through legal dispute resolution mechanisms. However, as private commercial interests became more important in space activities, space law (both domestic and international) has begun to incorporate other areas of law, such as property, contract, and intellectual property law.25 Apart from article XIV of the Liability Convention (LC), which offers parties an alternative dispute mechanism, there are no other provisions in treaties that deal with this subject. Therefore, the Permanent Court of Arbitration (PCA) answered to the burning need for specialized rules of arbitration for matters relating to the conduct of outer space missions and in 2011 adopted the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities (Rules). These Rules represents a formal mechanism that has been established to resolve space-related international disputes, not only between nations, but also disputes between private parties whose activities involve outer space

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“Exploration and the private sector”, The Space Review, 2014, J. Foust. Investment Treaty Arbitration as Public International Law, p. 52, E. De Brabandere. “The True Lex Mercatoria: Law Beyond the State”, p. 9, R. Michaels. “Patent Infringement in Outer Space in Light of 35 U.S.C. §105: Following the White Rabbit Down the Rabbit Loophole”, T. U. Ro, M. Kleiman and K. Hammerle.

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activities.26 Outer space activities can include disputes arising from acts taking place on Earth, and therefore, concerns all the disputes relating to the construction and launching of communications satellites together with the investments relating to that industry. II.4.

Inefficiency of State Norms and Institutions

The development of standard forms of contracts among commercial actors is evidence of the inefficiency of state norms and institutions. There are different type of standard contract forms: standard condition drafted by individual enterprises, standard conditions issued by trade associations (e.g. General Trade and Conditions for the Sale of Goods and for Machines FIDIC), and general conditions and standard form contracts drowned by international organizations (e.g. UNCITRAL).27 These standard forms exist between domestic law and foreign law. For example, the UNIDROIT Principles contain an important opening clause for supranational mandatory norms in Article 1.4. Arbitrators may frequently use UNIDROIT Principles, as one of many bodies of legal rules to which they look for guidance. II.4.1.

In the Space Domain

As stated above, we are currently in the midst of a Second Space Race, but instead of the states playing the primary role, the private sector has become the driving engine of technological development. At the same time, the legal framework (the five treaties: The Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, the Moon Agreement) governing all space activities, which was created forty years ago, has become to a large degree outdated and insufficient.28 Law is lagging far behind technological advancement, which is creating a dangerous legal vacuum. This means firstly, that there is a lack of binding regulations for new planned space missions. Secondly, that there is a lack of binding regulations concerning the role of private sector in these new planned space missions. Consequences thereof are that these legal uncertainties are slowing down possible technological advancement, preventing higher investments from the private sector and discourage states to sufficiently support private industries by issuing required licenses. States are often not interested in adopting new binding regulations and transcending legal gaps. The reason behind this lies in the fact that states do not wish to have more responsibility and liability. Although private actors do conduct space missions, the legal framework remains state-oriented according to Art VI of OST. Hence a state is

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A new paradigm for arbitrating disputes in outer space, The Space Review, 2012 M. Listner. “The True Lex Mercatoria: Law Beyond the State”, R. Michaels. “The Impact of New Developments on International Space Law (new actors, commercilazation, privatization, increase in number of “space-faring” nations, etc.)”, 2010, S. Hobe.

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internationally responsible for governmental as well as non-governmental activities in this realm. Therefore a tendency towards weaker normativity in the space field has developed. Soft law (debatable if it can be called law at all, but that is beyond the scope of this paper) is the only kind of regulations that has been created in the past thirty years. However, soft law is not enough. It diminishes the safety and sustainability of future space activities, it does not represent one of the sources of international law and it leaves important areas without binding norms, which allows for dangerous “grey areas” to arise. This is supported by the example of the Inter Agency Space Debris Coordination Committee (IADC) space debris mitigation guidelines. These guidelines are not legally binding and therefore pose no obligation for states or private companies to follow it, even though it is in the interest of the whole of humanity to preserve space as a unique natural source. Even if not binding, provisions contained in soft law can have various impacts. In some cases they may represent opinion juris, which may lead to creation of customary international law when it is combined with practice. However, in relation to contemporary activities that are undertaken by the private sector, actions of private sector actors cannot constitute state practice. This all leaves private sector with insufficient legal mechanisms to create binding law that will further encourage private investments in arena of space activities. Traces of lex mercatoria in the Space Domain

III.

Considering the necessary elements to constitute the law beyond states, created by the usage of the private sector, one can note that there are two cases in the space domain where this phenomenon is arguable. The first example is the cross-waiver clause in contracts among private. This clause is in line with general legal principle of liability in space (established by space treaties), however, it goes beyond the scope of the LC and regulates details that this convention does not cover, that are necessary for new space missions. Cross-waiver clause originates from commercial launch service contracts. Since 1988 Commercial Space Launch Act requires cross-waivers, to preclude liability of launchers.29 In the case Martin Marietta vs. INTELSAT the US district court decided that not only ordinary negligence but also gross negligence was precluded among contracting parties.30 This was established so that plaintiffs would not to be able to sue for damages on every imperfect space launch. This principle exceeded the liability regime under the LC. It

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§2615(a)(1)(c), Commercial Space Launch Act. Martin Marietta Corp. v. International Tele-communications Satellite Organization (INTEL-SAT), Civil Action No. MJG-90-1840 (D.Md. Nov. 19. 1991).

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developed from launch contracts and became an essential prerequisite for any cooperation between privates. In this way, partners are waiving liability between themselves for possible accidents in orbit, and are therefore, encouraged to work together. None of the partners will make any claim against the other or against their contractors, subcontractors, and employees of the other and each Party shall bear its own risk of loss.31 Private space industry needs a large degree of protection as long as the financial risks may threaten their existence.32 Commercial sector needs to advance and technology needs to be developed. In order for that, commercial companies need to have legal certainties to invest. Only way for them to invest is if they know that they can send their technology in space as a part of a bigger project, undertaken by someone else, and that they are not going to be held liable in the case that their piece caused damage. Therefore, cross-waiver clauses have become necessary in contracts among privates. Currently they have a wide spread use. For this reason it is arguable that this usage constitutes a different legal mechanism for creating binding law, one that is needed by private when states remain silent. The second example is the third-party liability clause. For any private wishing to launch a satellite, first a national license needs to be obtained. Part of that process involves showing that the private is at acceptably low level of risk of fault under the LC in the event of the orbital collision. This is primarily done by private company if it shows that it is complying with e.g. ISO standards, space debris mitigation guidelines etc. As a further prerequisite, they also need to take out third-party liability insurance for launch.33 This policy is designed to address liability arising from damage that occurred on Earth as a result of a launch failure, damage from the re-entering of a satellite and damage in space that occurred due to debris impact or collision with another satellite.34 Nowadays, third-party liability clause is usually included in every launcher service contract. Inspired and encouraged by this industry practice, states are now thinking of making it part of their national licensing process. UK is the first state that introduced third-party liability as a mandatory condition for obtaining a license under national law.35 Based on these two examples, it is even imaginable to solve space debris problem by using this method, an alternative legal method that derives from a commercial sector. States that do not wish to bind themselves further, national provisions that are dealing with debris problem are rarely adopted and soft law is not enough. However, private actors are the driving force of

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17.5.1 Martin Marietta and INTELSAT Contract. “The Martin Marietta Case or how to Safeguard Private Commercial Space Activities”, 1993, p. 6, T. L. Masson-Zwaan. “Space debris: On Collision course for insurers?”, Swiss Re. “Space debris: On Collision course for insurers?”, Swiss Re. Outer Space Act 1986.

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all space activities nowadays. If it would become a common practice among the private sector to have a compulsory clause in launching contracts that dictates for anybody that wishes to launch a satellite to have a detailed solution for its satellite at the end of its life, then we could actually move forward in mitigating the issue of space debris in a binding way. IV.

Importance of the New Approach

Today, when it is necessary to be quick and cost efficient in order to achieve new high-profile missions and to remain competitive on the market, it is essential to support private actors as the driving engine. The grounds behind the importance of commercial actors nowadays is that private organizations are, on balance, better managed, more agile, more innovative, and more market responsive than governmental agencies. The role of national agencies has decreased considerably as they are usually unable to fulfil on time set targets within the planned budget. Therefore, this Second Space Race concerns building innovative, competitive, sustainable and inspirational space enterprises that can secure a leading position in scientific, explorative and technological development. The technology and the cultural climate determined are “propitious for a new space age, the first real commercial space age”.36 For these reasons, the private actors also have a stake in finding ways in resolving the emerging legal issues and developing the missing legal framework. Just looking at the practice, private companies need to obtain national licenses in order to conduct their planned space missions, and states often refuse to issue them if their mission presents a step in the unexplored where a legal void exists. Therefore, they need new hard law norms. States are not inclined to adopt any new international space law binding norms. While in the nineteen-seventies, nations initially had a strong will to negotiate, sign and ratify the treaties, with every next treaty this will became weaker. The last treaty of the five, the Moon Treaty (1979), is seen as the first sign of the declining importance of the UN for space law drafting. Lack of states’ will (as abovementioned), lack of treaty-making climate and non-binding soft law created legal stalemate and uncertainties, which discourage commercial sector. This stalemate if prolonged may result in the slowing down of technological development and less number of break-through space missions. Therefore, it is important for private actors, the “traders of the space domain”, to have this alternative way of producing legal norms and creating among themselves necessary legal certainty.

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“Financing for commercial space: asset-backed financing, international space law and the Unidroit draft protocol on space assets”, 2010, p. 10, S. Johnson.

58th COLLOQUIUM ON THE LAW OF OUTER SPACE Session 2 THE RELATIONSHIP OF INTERNATIONAL HUMANITARIAN LAW AND TERRITORIAL SOVEREIGNTY WITH THE LEGAL REGULATION OF OUTER SPACE Co-Chairs: Ulrike M. Bohlmann Steven Freeland Rapporteur: Simona Spassova

The Applicability of the United Nations Space Treaties during Armed Conflict Steven Freeland and Ram S. Jakhu*

Abstract The principal United Nations (and some other) Space Treaties were concluded during the Cold War. The two space powers at the time, the United States and the Soviet Union, were also the leading protagonists in this geopolitical conflict. They had both realised very early on the strategic significance of outer space and were engaged in a fierce rivalry, with the result that much of the space-related technology developed during the 1960s-1980s (and beyond) was driven first and foremost by military and security considerations. Notwithstanding the context within which they were negotiated, however, the Space Treaties emphasise the peaceful use and exploration of outer space, and codify a number of fundamental principles that may have the effect of limiting any possibility of armed conflict involving space. However, it is unclear whether, and to what extent, the treaties would actually apply during times of armed conflict. Whilst, from a normative perspective, it is preferable that they should apply in such circumstances, this is not expressly provided for in the treaties themselves. This article will examine the relevant principles of general international law relating to the obligation of States Parties to comply with treaties during armed conflict and then proceed to apply those principles to critically analyse the express provisions of the Space Treaties, in order to determine the extent, if at all, of their applicability.

I.

Specifying ‘Peaceful Purposes’ during a (Cold) ‘War’

On 4 October 1957, the world’s first artificial satellite was launched – a Soviet space object called Sputnik I. It subsequently orbited the Earth over 1,400 times during the following three month period. This was, of course, a highly significant moment, heralding the dawn of the space age, the space race, and the legal regulation of the exploration and use of outer space. Since that time, the impact of international law as it relates to outer space has facilitated significant improvements in the standard of living for all humanity, for

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Prof. Steven Freeland, Western Sydney University, Australia, [email protected]. Prof. Ram S. Jakhu, Institute of Air and Space Law, McGill University, Canada, [email protected].

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example through satellite telecommunications, global positioning systems, remote sensing technology for weather forecasting and disaster management, and television broadcast from satellites. Ever newer technologies will continue to expand the horizons of what space might be able to offer. In this regard, space law has played a positive role, by allowing for – and not unduly restricting – the development of space-related technology and its commercial exploitation by international organisations, States and their private entities. The prospects for the future offer both tremendous opportunities and challenges for humankind, and law will undoubtedly continue to play a crucial role in this regard. At the same time, however, the existing legal regime has not prevented the development of military technology capable of utilising outer space for the conduct of armed conflict. Whilst there are some restrictions specified in the various United Nations Space Treaties on aspects relating to military activities, these were agreed in relatively general terms and have been subject to divergent interpretations as to exactly what they did (and did not) prohibit. This is not entirely surprising, since the development of space-related technology was, at least initially, inextricably related to military strength and positioning – both in reality and to influence the perception of others. It is no coincidence that the space race emerged at the height of the Cold War, when both the United States and the Soviet Union strove to flex their respective technological and geopolitical ‘muscles’. The early stages of human space activity and space law coincided with a period of considerable tension, with the possibility of large scale and potentially highly destructive military conflict between the (space) super-powers of the time always lurking in the background. Despite the tremendous prospects for humanity that it would open up, the successful launch of Sputnik this also generated unease in the West, since the technology used was treated as similar to that for ballistic missiles.1 To a large degree, this thinking still resonates, underpinning to a large degree the restrictions in relation to the transfer of such technology, as reflected in various national regulatory systems such as the United States ITAR regime.2 Within this highly sensitive geopolitical context, it was crucial from the outset that efforts were made by the international community to regulate this new frontier, in order to avoid both a build-up of weapons (in more modern parlance,

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See ‘NATO Update – 1957’ (accessed 26 February 2015). The International Traffic in Arms Regulations (‘ITAR,’ 22 CFR 120-130) issued under the United States Arms Control Act of 1976, (as amended) 22 U.S.C. 2778 and Executive Order 13637. (accessed 12 September 2015).

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referred to as the ‘Prevention of an Arms Race in Outer Space’ (PAROS)),3 and the outbreak of an armed conflict in space. It was important that the international community reacted appropriately, as it walked a fine balancing line between the wishes of these two superpowers on the one hand, and a general sense of uncertainty as to where exactly these military-driven achievements might ultimately lead on the other. It was not a coincidence, therefore, that, shortly after the Sputnik I launch, the United Nations established a new committee to take primary responsibility for the development and codification of the fundamental rules relating to the use and exploration of outer space with the name of United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). An ad hoc Committee on the Peaceful Uses of Outer Space, with 18 initial member states, was established in 1958 by the United Nations General Assembly,4 which subsequently converted it into a permanent body in 1959.5 UNCOPUOS is now the principal multilateral body involved in the development of international space law. The conventional obligations and restrictions that were eventually agreed and codified in the space treaties through the UNCOPUOS process addressed, in part, specific military and weapons-related aspects of space activities. However, they were neither entirely clear nor sufficiently comprehensive to meet all of these challenges. This suited the priorities of the two space powers of the time who, notwithstanding their ideological differences on many issues,

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Refer to the numerous United Nations General Assembly (UNGA) Resolutions, beginning with Resolution 36/97C, (9 December 1981), which have been directed towards the Prevention of an Arms Race in Outer Space’. Most recently, the UNGA adopted draft Resolution 69/438 (2 December 2014) (178 in favour, none against, and 2 abstentions (Israel and the United Sates)), which called on all States, in particular those with major space capabilities, to contribute actively to the peaceful use of outer space, prevent an arms race in space, and refrain from actions contrary to that objective: See United Nations Press Release, ‘General Assembly Adopts 63 Drafts on First Committee’s Recommendation with Nuclear Disarmament at Core of Several Recorded Votes’, 2 December 2014, GA/11593, (accessed 1 March 2015). See United Nations General Assembly Resolution1348 (XIII) (13 December 1958). The 18 States were Argentina, Australia, Belgium, Brazil, Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the Union of Soviet Socialist Republics, the United Arab Republic, the United Kingdom of Great Britain and Northern Ireland and the United States. See United Nations General Assembly Resolution 1472 (XIV) (12 December 1959). In addition to the original 18 States, Albania, Austria, Bulgaria, Hungary, Lebanon, and Romania were included at that time as member states of this permanent body. UNCOPUOS currently has 83 members, which, according to its website, makes it ‘one of the largest Committees in the United Nations’, (accessed 25 May 2015). In addition to States, a number of international organizations, including both intergovernmental and nongovernmental organizations, have observer status with UNCOPUOS.

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both realised that they were, for all practical purposes, the only States who would be impacted by such restrictions, at least at that point of time. Since those early days, and despite (or perhaps because of) the growing number of space participants, the situation has become significantly more complex, with potentially drastic and catastrophic consequences. Just as the major space-faring nations have already for decades been undertaking what might be termed ‘passive’ military activities in that domain, outer space is increasingly now being used as part of active engagement in the conduct of armed conflict.6 Not only is information gathered from outer space – through, for example, the use of remote satellite technology and communications satellites – used to plan military engagement on Earth, but space assets are now used to direct military activity, and represent an integral part of the military hardware of the major powers. It is not overstating the risks to conclude that it is now within the realms of reality that outer space may itself become an emerging theatre of warfare. More recently, several newspapers in the United States have published various stories asserting that outer space is no more pristine sanctuary, as war in space is closer than ever, though the general public remains largely unaware.7 Yet, somewhat ironically – though not surprisingly – outer space, at the time exclusively the domain of two protagonists engaged in a (Cold) ‘War’, was declared as to be used for peaceful purposes.8 The important treaty

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See, for example, Jackson Maogoto and Steven Freeland, ‘The Final Frontier: The Laws of Armed Conflict and Space Warfare’, (2007) 23(1) Connecticut Journal of International Law 165; ‘A New Arms Race in Space?’ The Economist, 25 January 2007, page 5; Thomas Ricks, ‘Space Is Playing Field for Newest War Game; Air Force Exercise Shows Shift in Focus’, The Washington Post, 29 January 2001, A1. Brian Weeden, ‘The End of Sanctuary in Space: Why America is considering getting more aggressive in orbit’, 7 January 2015, (accessed 12 September 2015); Ari Yashar, ‘US and China Gear Up for Space Combat,’ 26 April 2015, (accessed 12 September 2015); Marcus Weisgerber and Patrick Tucker, ‘Pentagon Rushing to Open Space-War Center To Counter China, Russia,’ 23 June 2015, (accessed 12 September 2015); Lee Billings, ‘War in Space May Be Closer Than Ever,’10August 2015, (accessed 12 September 2015); David Axe, ‘When it comes to war in space, U.S. has the edge,’ 10 August 2015, (accessed 12 September 2015). See also the U.S.-China Economic and Security Review Commission Sponsored Report: China Dream, Space Dream: China’s Progress in Space Technologies and Implications for the United States, released on 2 March 2015, (accessed 12 September 2015). 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the ‘Outer Space

THE APPLICABILITY OF THE UNITED NATIONS SPACE TREATIES DURING ARMED CONFLICT

instruments that were agreed – none of which would have come into existence had they been vigorously opposed at the time by either the United States or the Soviet Union – stressed the peaceful aspects of the exploration and use of outer space, simultaneously with a period where the real possibility of armed conflict on Earth was ever present. II.

Divergence between Treaty Requirements and Practice?

Whilst most space scholars would subsequently interpret the relevant treaty provisions – specifically the peaceful purposes doctrine – as prohibiting military space activities in outer space, this was, as noted, not followed by the practice of those States that actually had space capability. Indeed, with the benefit of hindsight, it is now clear that space was utilised for some form of military activities almost right from the commencement of the space age. In this regard, as the authors have previously suggested,9 if one were to adopt a hard-line pragmatic (and perhaps non-legal) view of the post treaty drafting process, one could suggest that the once popular ‘non-military v. nonaggressive’ debate regarding the meaning of ‘peaceful purposes’ ceased to have practical relevance, even though it represents an extremely important issue of interpretation of the principles set out in the Outer Space Treaty. Instead, the focus of the discussion has, as noted, shifted to the risks associated with the potential weaponisation of space, the possibility of the use of force, and their implications for international relations, particularly between the major powers. The subsequent practice of States in their application of the Outer Space Treaty (and other UN Space Treaties) also gives rise to questions as to how the provision should be interpreted in accordance with the customary international law principles enunciated in article 31 of the Vienna Convention of the Law of Treaties.10 These developments also raise another important threshold question – given the practice of States following the conclusion of the space treaties, particu-

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Treaty’), adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967, there are 103 ratifications and 25 signatures (as of 8 April 2015), 610 U.N.T.S. 205. It is interesting to note that article IV of the Treaty specifies that the moon and other celestial bodies must be used ‘exclusively for peaceful purposes.’ In addition, it also prohibits the ‘establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies.’ See, for example, Steven Freeland, ‘The Applicability of the Jus in Bello Rules of International Humanitarian Law to The Use of Outer Space’, (2006) 49 Proceedings of the Colloquium on the Law of Outer Space 338. 1969 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (VCLT). For elaboration, See Ram Jakhu and Steven Freeland, ‘The Relationship between the United Nations Space Treaties and the Vienna Convention on the Law of Treaties’, (2012) Proceedings of the International Institute of Space Law, 375.

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larly in the context of the use of space in the conduct of armed conflicts notwithstanding the terms of, in particular, the Outer Space Treaty, what can be concluded about the applicability of those instruments during such armed conflicts? Much has been written about the (possible) application of the current international laws of war (jus in bello) to the use of outer space,11 but the question raised in this article, which has not been considered in any detail in previous scholarship, relates to a different perspective – to what extent, and how, do the United Nations Space Treaties themselves continue to apply during an armed conflict? This article therefore now examines the relevant principles of general international law relating to the obligations of States Parties to comply with treaties during armed conflict, and then seeks to apply those principles to analyze the express provisions of the UN Space Treaties, in order to determine the scope of their applicability. III.

General International Law and the Applicability of Treaties during Warfare: A Case-by-Case Analysis?

As a general observation, most conventional rules under international law – with the obvious exception of the jus in bello instruments (which are, of course, specifically directed to the conduct of warfare), and also the human rights treaties12 – do not expressly extend to situations of armed conflict.13 Even the jus ad bellum, which are codified in the United Nations Charter and therefore expressly apply to activities in outer space,14 relate stricto sensu to action prior to and perhaps leading to the commencement of an armed conflict. There is no general or specific rule of international law that assumes that treaties will continue to operate during times of hostilities, and there is significant disagreement among commentators as to what the correct position may be.15 The VCLT is not particularly illuminative in this regard. Article 73 of

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See, for example, Steven Freeland, ‘The Law of War in Outer Space’, in Kai-Uwe Schrogl et al (eds), Handbook of Space Security (2015) 81. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, the International Court of Justice (par. 106) considered that ‘the protection offered by human rights conventions does not cease in case of armed conflict’. This repeats the view of expressed by the Court in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, par. 25. Françoise Hampson, ‘Other areas of customary law in relation to the Study’, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, (2007), 50, 51. See Outer Space Treaty, article III. See, for example, Silja Vöneky, ‘Peacetime Environmental Law as a Basis of State Responsibility for Environmental Damage Caused by War’, in Jay E. Austin and Carl E. Bruch (eds), The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (2000), 190, 193-4 and the corresponding footnotes.

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that instrument simply states that: ‘[t]he provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from [...] the outbreak of hostilities between States’.16 Regarding the possible applicability of multilateral environmental treaties (METs) during wartime, for example, there is ‘insufficient uniformity of opinion’ among States on the issue.17 Previously, it had traditionally been assumed that all treaties between the belligerents in a war terminated ipso facto upon the outbreak of hostilities; however, it is now more generally thought that the question will depend on the type of treaty itself.18 In 1993, a panel of experts was convened under the auspices of the International Committee of the Red Cross (ICRC) to draft ‘Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict’. Article 5 of that document provided that: ‘international environmental agreements and relevant rules of customary law may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict’.19 In the end, whether a specific MET applies during periods of armed conflict has generally been determined by reference to the express terms of the treaty itself. There have been several suggested methodologies as to how this question might be determined in practice. One well-known international law commentator has classified the applicability (or otherwise) of different MET treaties in times of armed conflict in the following ways: a. Treaties that expressly exclude their applicability in relation to damage that occurs as a result of war or armed conflict; b. Treaties that allow for total or partial suspension at the instigation of one of the Parties; c. Treaties that require the consequences of hostilities to influence subsequent decisions under the relevant treaty;

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VCLT, article 73. Iain Scobbie, ‘The approach to customary international law in the Study’, in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law, (2007), 15, 41. The author notes the differing submissions made by the four States that addressed the issue in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, also referred to in the International Committee of the Red Cross ‘Study on Customary International HumanitarianLaw’ (2005). Vöneky, supra note 15, 197 and the corresponding footnotes. International Committee of the Red Cross, ‘Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict’ (ICRC Guidelines), article II(5), (1995), (accessed 20 January 2015). See also Hans-Peter Gasser, ‘Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict’, (1996) 311 International Review of the Red Cross 230, appendix.

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d. Treaties that expressly exclude their applicability to any military activities, even during times of peace; e. Treaties that expressly apply to specific activities associated with the conduct of hostilities; or f. Treaties that expressly or impliedly apply at all times.20 In more general terms, another commentator asserts that State practice and legal doctrine commonly result in the following five categories of treaties continuing to bind States Parties even during times of international armed conflict:21 a. Treaties expressly providing for continuance during war; b. Treaties that are compatible with the maintenance of war; c. Treaties creating an international regime or status; d. Human rights treaties; and e. jus cogens rules and obligations erga omnes.22 When presented with the opportunity to do so, the International Court of Justice has chosen not to ‘categorize’ treaties in terms of their possible applicability to times of armed conflict, but has instead adopted a different approach. In the Legality of the Threat or Use of Nuclear Weapons Advisory

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See Philippe Sands, Principles of International Environmental Law (2nd ed, 2005), 309-10. Vöneky, supra note 15, 198. This is not an entirely accurate statement, since a jus cogens rule or erga omnes obligation is a principle of customary international law, although it may also be included as a term(s) of a treaty. The existence of identical conventional and customary rules was clearly recognized by the International Court of Justice in North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark and Federal Republic of Germany v. The Netherlands) (Judgment) [1969] ICJ Rep 3, par. 71: See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) (Judgment) [1986] ICJ Rep 14, par. 177-8. Article 53 of the VCLT defines a ‘peremptory norm’, and this is often used as a definition of a jus cogens rule. An obligation erga omnes has been described by the International Court of Justice as an obligation owed by a State ‘towards the international community as a whole … the concern of all States … [and that] all States can be held to have a legal interest in their protection’: Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (Judgment) [1970] ICJ Rep 3, par. 33. The International Court of Justice has also made reference to the issue of erga omnes obligations in the context of environmental concerns: See Nuclear Tests Case (Australia v. France) (Judgment) [1974] ICJ Rep 253, par. 50; Nuclear Tests Case (New Zealand v. France) (Judgment) [1974] ICJ Rep 457, par. 52. This article is concerned with the applicability of the outer space treaties during armed conflict. Relevant provisions of customary international law will apply during armed conflict – these will, once again, typically relate to the jus in bello and a number of human rights standards – although there may be some customary principles relating specifically to outer space that might also be applicable.

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Opinion,23 the Court heard conflicting arguments as to whether certain jus in bello treaties24 and METs were applicable in times of armed conflict in general, and to the use of nuclear weapons in particular. In response, the Court somewhat side-stepped the differing viewpoints, and instead concluded that: ‘the issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict’.25 Citing Principle 24 of the Rio Declaration on Environment and Development,26 the Court continued:‘[t]he Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of [...] obligations [that they specified]’.27 The International Law Commission (ILC)28 has also looked at the ‘Effects of Armed Conflicts on Treaties’. In his first report on the effects of armed conflicts on treaties, the then ILC Special Rapporteur, whilst acknowledging that there was no consensus among States on the specific legal question, suggested that the comments of the International Court of Justice: ‘provide general and indirect support for the use of a presumption that environmental [and other] treaties apply in case of armed conflict’.29 The ILC subsequently produced a set of draft articles on the topic,30 which was submitted to, and noted by the United Nations General Assembly in

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25 26 27 28

29 30

[1996] ICJ Rep 226. These included the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 1108 U.N.T.S. 151 (which does, in article II, make express reference to outer space) and the 1977 Protocol I Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 U.N.T.S. 3. 25 [1996] ICJ Rep 226, para. 30. [1996] ICJ Rep 226, par. 30. Declaration of the United Nations Conference on Environment and Development (14 June 1992) UN Doc A/CONF.151/26 (Volume 1), 31 I.L.M. 874. Ibid. The ILC was established following the adoption by the United Nations General Assembly of Resolution 174 (II) (21 November 1947), which approved the Statute of the International Law Commission (ILC Statute). Article 1(1) of the ILC Statute provides that the objects of the ILC are the ‘promotion of the progressive development of international law and its codification.’ ILC, First Report on the Effects of Armed Conflicts on Treaties, by Ian Brownlie, Special Rapporteur, (21 April 2005) UN Doc A/CN.4/552, par. 91. International Law Commission, ‘Draft Articles on the Effects of Armed Conflicts on Treaties’, adopted by the ILC at its sixty-third session in 2011 and submitted to the United Nations General Assembly as a part of its report covering the work of that session (A/66/10, par. 100) (ILC Draft Articles).

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2011.31 These draft articles, whilst not necessarily reflecting the current legal position, shed further light on the issue, reversing the earlier presumption about the non-applicability of treaties during hostilities. The ILC Draft Articles specify a ‘General Principle’ that: ‘The existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties: (a) as between States parties to the conflict; (b) as between a State party to the conflict and a State that is not’.32 The ILC Draft Articles then proceed to adopt a (somewhat unusual) ‘subject matter’ approach to the issue, by setting out: ‘[a]n indicative list of treaties [specified in the annex to the ILC Draft Articles] the subject-matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict […]’.33 Whilst some of these subject matter categories of treaties are obvious in their applicability to armed conflict, others are drafted in broader and more general terms and could certainly be interpreted to include (aspects of) the space treaties. However, on the assumption that this approach is a reflection of the correct current legal position on the applicability of treaties during armed conflict – an issue regarding which the authors have some reservations – it does not necessarily progress matters much further in the absence of a careful analysis of the relevant treaty on a case-by-case basis. It appears that the ‘implication’ in respect of such treaties, as indicated in Article 7 of the ILC Draft Articles, is not determinative of the issue, but rather is consistent with the (rebuttable) presumption of applicability (at least for the treaties covered in the list) in periods of armed conflict. After an historical and critical analysis of the provisions of the ILC Draft Articles, Lucius Caflisch, the Chairman of the ILC and the Special Rapporteur for this topic, deduces that: ‘[w]hile some of the Draft’s provisions reflect existing law, other rules have the character of lex ferenda’.34 As noted above, the ILC recommended its Draft Articles to the United Nations General Assembly for its adoption and, at a later stage, consideration in order to elaborate an international treaty on the basis of these Articles. The General Assembly deliberated on the ILC proposal and adopted a Resolution (A/RES/66/99) on 9 December 2011 and commended the ILC Draft Articles to the attention of Governments.35 There has been a mixed reaction from States. Generally agreeing with the importance of the ILC Draft Articles, some States believed that they were broad enough to ‘cover situations in

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See United Nations General Assembly Resolution 66/99 (9 December 2011). ILC Draft Articles, article 3. ILC Draft Articles, article 7 (emphasis added). Lucius Caflisch, ‘The Effect of Armed Conflict on Treaties: A Stocktaking’, in N. Boschiero et al. (eds.), International Courts and the Development of International Law (2013) 31, 53. United Nations General Assembly Resolution 66/99 (9 December 2011).

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which only one of the States parties to a treaty was a party to an armed conflict’ and others were concerned about the ambiguity in the definition of ‘armed conflict’, which is based on the Tadic decision.36 Similarly, there were concerns about the inclusion of the indicative list in article 7 of the ILC Draft Articles. It may be noted that the United States has expressed apprehension about the ILC Draft Articles, even before their adoption by the ILC, particularly with respect to the definition of ‘armed conflict’ and the article on selfdefence that, in its opinion: ‘might be misread to suggest that a state acting in self-defense has a general right to suspend treaty provisions that may affect its exercise of self-defense’.37 Though the United Nations General Assembly, at its sixty-ninth session in 2014, adopted again its Resolution on ‘Effects of armed conflicts on treaties,’38 without a vote, there remain several differences of opinion on the substantive issues of the ILC Draft Articles and as well as the future possibility of their transformation into an international treaty. However, one must not forget that several States agree with some of the key provisions of the ILC Draft Articles, particularly those that reflect lex lata. In its 2014 Resolution, the General Assembly has invited ‘Governments to submit written comments on any future action regarding the articles’ and decided to include this item in the agenda of its seventy-second session in 2017.39 Thus, because of the importance of this subject on international relations, the international community remains active in search for clear rules of international law determining the precise effects of armed conflicts on treaties. In one sense, it might be asserted that the conduct of war is opposite of treaty relations, which are carried out to establish peace and cordial dealings for mutual benefit. Therefore, traditionally, it was generally accepted that war ipso facto (automatically) terminates (or suspends) all treaties between the belligerent States. However, since outlawing war, particularly under the Kellogg-Briand

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United National General Assembly, Sixty-ninth session, ‘Effects of armed conflicts on treaties (Agenda item 84)’, (accessed 12 September 2015). It may be noted that definition of ‘armed conflict’ in article 2 of the Draft Articles is based on the decision by the International Criminal Tribunal for the former Yugoslavia (ICTY) in its Prosecutor v. Tadic (1995) decision. See, ‘Comments and Observations of the United States of America On The Draft Articles and Commentaries on the Effects of Armed Conflicts on Treaties as Adopted on First Reading By The International Law Commission at Its Sixtieth Session,’ 1 February 2010, (accessed 12 September 2015). Also See, ‘U.S. Statement to the International Law Commission concerning the Effect of Armed Conflict on Treaties and other topics (Nov. 29, 2005), (accessed 12 September 2015). See United Nations General Assembly Resolution 69/125 (10 December 2014). Id.

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Pact of 192840 and under article 2(4) of the UN Charter, the achievement and maintenance of stability of peaceful relations (through treaty negotiations, if and when possible) became of paramount importance to the international community. In this regard, Lucius Caflisch accurately asserts that:‘[t]he days of “war ends everything” are over and have been replaced by “armed conflict does not end everything”’.41 While the law on the subject is in transition and international debate continues, we believe that the final question regarding the (extent of any) applicability of a specific treaty can be determined by a close examination of the precise terms of that particular instrument. Accordingly, following on from this overview of the relevant general international law principles, this article now moves on to analyse of the terms the express provisions of the UN Space Treaties to determine whether, and to what extent, they may be applicable during armed conflict. However, one must be cognizant of the fact that it is very complex to determine what applies and what does not, especially when the law on the matter is still not fully developed. IV.

Applying the General International Law Principles to the United Nations Space Treaties

Applying the provisions of articles 3 and 4 of the ILC Draft Articles, which appear to reflect lex lata, to the UN Space Treaties, one can in principle say that; (a) none of these legal instruments contains provisions on their operation in situations of armed conflict; and (b) their complete (in toto) operation should not be considered ipso facto terminated or suspended between States Parties to the conflict or between a State Party to the conflict and a State that is not. However, in order to fully understand the status of UN Space Treaties, one should carry out a case-by-case analysis of each of them, taking into consideration its nature, terms and subject-matter. Pronto correctly states that ‘[o]nce it is established that an armed conflict has affected a treaty, the question arises as to the extent of such effect.’42 The conflict might affect the whole treaty or only part(s) of it. Thus there could be situations that would allow the termination or suspension of parts of these treaties. Article 11 of the ILC Draft Articles, which is based verbatim on the text of article 44 of the VCLT, allows for the ‘separability’ of treaty

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The text of the Pact (also known as the Pact of Paris), (accessed 12 September 2015). Lucius Caflisch, supra note 34, 39. Arnold Pronto, ‘The Effect of War on Law – What happens to their treaties when states go to war?’, 2(2) Cambridge Journal of International and Comparative Law, (2013) 227, 237.

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provisions as a consequence of an armed conflict, so as to allow for the termination or suspension of the operation of specific parts of a treaty.43 There is no provision in the 1967 Outer Space Treaty relating to its operation in a situation of armed conflict. Therefore, there is a presumption (though rebuttable) of its continuous applicability in periods of armed conflict, especially because the Treaty is a multilateral law-making instrument whose objective (subject-matter) is to create a general and broad legal regime for outer space, where exploration and use must be carried out for peaceful purposes and in the interest and benefit of all nations. Some of its provisions, especially those in articles II (non-appropriation), VI (international responsibility) and VII (international liability), are presumed certainly to continue to remain operative. However, one may make a case for termination or suspension of obligations related to other provisions, like articles IV (military uses), V (assistance to astronauts), VIII (registration of space objects), and X (opportunity to observe the flight of space objects). Of particular importance are the obligations regarding the peaceful use of outer space, specifically those under article IV. This is also so because of the application of a universally accepted principle of international law according to which, during an armed conflict, ‘political treaties (treaties of friendship, of alliance and of military cooperation) would 44

lapse’ between the belligerent States. It is interesting to note that the rules of international law related to the determination of precise effects of armed conflicts on treaties, including those that are contained in the ILC Draft Articles, need to be examined carefully with respect to their application to the UN Space Treaties, because of the unique nature and extent of space operations. For example, ‘armed conflict’ in the context of space operations might not involve the use of ‘armed force’ in the traditional sense; i.e. perhaps the dazzling or blinding of satellites, harmful interference with a satellite’s radio frequency caused by jamming,45 or damaging the functioning of a satellite with a cyber-attack might not be

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Article 11 of the ILC Draft Articles allows the termination, withdrawal from or suspension of the operation of parts of a treaty as a consequence of an armed conflict where: (a) The treaty contains clauses that are separable from the remainder of the treaty with regard to their application; (b) It appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other Party or Parties to be bound by the treaty as a whole; and (c) Continued performance of the remainder of the treaty would not be unjust. Lucius Caflisch, supra note 34, 39. In this regard, it should be noted that, according to the United States Space Policy, ‘Purposeful interference with [American] space systems, including supporting infrastructure, will be considered an infringement of a nation’s rights’: Office of the President of the United States National Space Policy of the United States of America, 28 June 2010, 3.

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fully compatible with the traditional meaning of ‘armed force’, but certainly could give rise to serious conflicts. However, during an armed conflict in space, the relevant rules of international humanitarian law (IHL) would continue to apply,46 as stated by the International Court of Justice: “With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons it stated that ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and “elementary considerations of humanity” [...]’, that they are ‘to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’ (I. C. J. Reports 1996 (I), p. 257, para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes character.”47

Of particular importance in this regard will be the continuation of the IHL principles related to necessity, proportionality, collateral damage, and distinction.48 The application of these principles during an armed conflict in space needs to be examined carefully because of the unique character of space operations. For example, the increasing use of dual purpose satellites for war would make it difficult to clearly identify the civilian or military status of a satellite that is being used for both purposes. More importantly, the same satellite might be used by belligerent and non-combatant domestic and foreign users. Use of kinetic force against an enemy satellite might create unexpectedly large amounts of space debris that might damage space assets of non-combatants, pose risks for space operations of all space faring-nations for a long time, damage the space environment,49 and deny the availability of services that were being provided by the destroyed satellite to the civilian population on the Earth.

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Dana J. Johnson, ‘The Impact of International Law and Treaty Obligations on the United States Military Activities in Space’, (1988) 3(1), Berkley Technology Law Journal 33, 56. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, [2004] ICJ Rep. 157. Michael N. Schmitt, ‘International Law and Military Operations in Space’, 10 Max Planck Yearbook of United Nations Law, (2006), 89, 114-124. According to Article 35(3) of Additional Protocol I to the Geneva Convention of 12 August 1949, adopted at Geneva on 8 June 1977, 1125 UNTS 17512, the Parties to any armed conflict are ‘prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’ In addition, article 55 of the Protocol specifies that ‘[c]are shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.’

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Therefore, there may be incompatibility between the rules of IHL, which is lex specialis, and the principles of law of outer space, which is also lex specialis. Normally, inconsistencies between specific law and general law are resolved through the application of doctrine of lex specialis derogat generali. Nevertheless, how should we resolve incompatibility between two rules when both are lex specilis? This matter, according to Yael Ronen, ‘is entirely context-dependent.’50 The 1968 Rescue and Return Agreement51 contains provisions relating to the search for, rescue of, rendering necessary assistance to, and safe and prompt return of astronauts in distress to representatives of the launching (authority) State/ It also focuses on the search for and return of space objects to the launching authority. Though astronauts are to be regarded as ‘envoys of mankind’ under article V of the Outer Space Treaty, the nature and subject matter of the Rescue and Return Agreement are such that it is to be regarded as suspended during an armed conflict between the warring States. The belligerent States, according to Michael Schmitt: “may capture or destroy the enemy’s space objects and target or capture astronauts as combatants. Captured combatant astronauts would be prisons of war, held until the ‘cessation of active hostilities’.”52 The 1972 Liability Convention53 elaborates the provisions of article VII of the Outer Space Treaty. It creates absolute liability to pay compensation for damage caused on the surface of the Earth or to aircraft in flight by the space object of launching State(s), with such liability is based on fault (negligence) if damage is caused elsewhere.54 The focus of the Convention is to determine liability of a launching State(s) for damage (injury, death or destruction) and to pay compensation to third parties. The definition of a ‘launching State’ includes; (i) a State which launches or procures the launching of a space object; and (ii) a State from whose territory or facility a space object is

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Yael Ronen, ‘Treaties and Armed Conflict’, (2003), International Law Forum, The Hebrew University of Jerusalem, Research Paper No. 01-13, 17. 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the ‘Rescue and Return Agreement’), adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968. There are 94 ratifications, 24 signatures, and 2 acceptance of rights and obligations (as of 8 April 2015). Michael N. Schmitt, supra note 48, 109. 1972 Convention on International Liability for Damage Caused by Space Objects (the ‘Liability Convention’), adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972. There are 92 ratifications, 21signatures, and 3 acceptances of rights and obligations (as of 8 April 2015). Liability Convention, articles II and III.

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launched.55 Therefore, depending on the circumstances, there could be more than one launching State of a particular space object that causes damage. Moreover, damage could be caused during peace time, or during conflict, by a military, civil or commercial satellite. During an armed conflict, the Liability Convention would not be automatically suspended56 between; (i) a State Party to the conflict and a State that is not; and (ii) between States Parties to the conflict, unless declared terminated or suspended by a State Party with respect to its application to other State Party to the conflict. However, Michael Schmitt is of the view that: ‘[b]elligerents generally incur no liability for lawful attacks on military objects; in other words, the convention’s liability provisions are suspended as between belligerents’.57 Outside these parameters (i.e. attacks on non-military objects and damage caused by illegal war activities), the Convention should be presumed to remain applicable between belligerents, unless declared otherwise. The 1975 Registration Convention58 has been elaborated on the basis of article VIII of the Outer Space Treaty. The main purpose of the Registration Convention is to achieve transparency in space activities by establishing an open international mandatory system of registration of space objects within the United Nations. States Parties to the Convention are required to furnish information about all (military, civil or commercial) their space objects to the United Nations, to be entered into the International Register of Space Objects. However, it is logical that belligerent States would not like to disclose the location of their military assets and thus cannot be realistically expected to register their space objects during an armed conflict. Thus, it is believed that the Registration Convention (at least its article IV) would be presumed to be suspended during the period of an armed conflict. The 1979 Moon Agreement59 is the last UN Space Treaty, and creates somewhat detailed provisions specifically for the exploration, and consequent exploitation, of natural resources of the Moon and other celestial bodies (including asteroids). So far it has attracted only 16 ratifications, mainly because no such activity has yet been undertaken seriously by any State or the private sector. The Agreement is a multilateral law-making treaty and contains no

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Liability Convention, article I(c). Dana J. Johnson, supra note 46, 56. Michael N. Schmitt, supra note 48, 110. 1975 Convention on Registration of Objects Launched into Outer Space (the ‘Registration Convention’), adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976. There are 62 ratifications, 4 signatures, and 3 acceptances of rights and obligations (as of 8 April 2015). 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the ‘Moon Agreement’), adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984. There are 16 ratifications and 4 signatures (as of 8 April 2015).

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provision relating to its operation during an armed conflict in outer space or on the Moon or any celestial body. Therefore, the presumption (though rebuttable) should be in favour of its applicability in a period of armed conflict. However, its provisions in article 3 (i.e. prohibition of any threat or use of force, placement of any kinds of weapons, establishment of military bases and conduct of military manoeuvres) should be considered suspended during the period of armed conflict for the same reasons as those relate to the suspension of article IV of the Outer Space Treaty, as discussed above. V.

Concluding Remarks

In this introductory article, we have attempted to highlight the importance of this subject, which would only increase as the likelihood of conflict in space becomes greater. This is certainly not intended by the authors to be a detailed analysis of the law applicable to the effects of armed conflict on the UN Space Treaties, but rather is the initiation of what we regard as necessary future research and debate within the international space law community. We believe that the rules of general international law related to the determination of effects of armed conflicts on treaties, including those that are contained in the ILC Draft Articles, would also apply to the UN Space Treaties. These rules in general are still in infancy, though some of them have been well recognised. The authors conclude that, although the space treaties appear to apply during armed conflict, the principles may not be specific enough to provide appropriate regulation – nor deterrence – for the increasingly diverse ways in which outer space is used during the course of armed conflict. There is therefore an urgent to reach a consensus on additional legal regulation directly application to the conduct of armed conflict that may involve the use of space technology conflict. In principle, the operation of UN Space Treaties is not ipso facto terminated or suspended during armed conflicts, perhaps with the possible exception of specific provisions of the Rescue and Return Agreement and the Registration Convention. However, in some situations some parts of these treaties would be considered terminated or suspended during the period of armed conflicts, between the States Parties to these treaties. In the end, therefore, the UN Space Treaties, as they stand, whilst providing some important principles in relation to the conduct of armed conflict involving space assets, do not ‘cover the field’ in relation to such activities. We therefore urge the international community, in addition to further considering the issues addressed in this article, to seriously negotiate and ultimately agree additional binding instruments that will help to avoid scenarios that do not bear contemplation.

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Practical Application of jus in bello and jus ad bellum to the Legal Regulation of Outer Space Environment Olusoji Nester John, Victoria Morenike John-Olorioke, Ololade OlateruOlagbegi and Olaposi Adedolapo Olaseeni*

Abstract Soon after the World Wars – at the time when the use of force was lawful and nations were not prohibited from waging war (jus ad bellum) – the international community developed a continuing interest in regulating the conduct of warfare through prescribed rules of behaviour (jus in bello). Although, the use of force between States is prohibited by peremptory rules of international law today, certain exceptions, like self-defence (individual or collective), Security Council enforcement measures and right to self-determination exist. More so, despite the existence of the prohibitions, armed conflicts still take place. Today, nations have “development programs in directed energy and hit-to-kill mechanisms” and other space-related warfare technology, to engage terrestrial targets from space. This is for the purposes of protecting their territories, sovereignty and superiority. The legality of fighting an armed conflict through outer space is a matter to be examined in this work, having regards to international space law. The core focus of the paper is on these International humanitarian law rules which govern the legality of the use of force by nations (jus ad bellum) and regulate the actual conduct of war once the use of force begins and has attained a reasonable level of intensity (jus in bello), and their practical application to the unique environment of outer space. It gives a brief discussion on jus ad bellum and jus in bello. It talks about the legal regulation of outer space as it relates to armed conflict and its intersection with the two principles. The duties of space-faring belligerent nations towards non-combatant civilians and civilian objects in outer space and on Earth are also analyzed. The work concludes with some recommendations.

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Olusoji Nester John, African Regional Centre for Space Science and Technology Education in English (ARCSSTE-E), Nigeria, [email protected]. CoAuthors: Mrs. Victoria Morenike John-Olorioke, Obafemi Awolowo University, Nigeria, [email protected], Mrs. Ololade Olateru-Olagbegi, Adekunle Ajasin University Akungba-Akoko, Nigeria, Nigeria, [email protected], Mr. Olaposi Adedolapo Olaseeni, Obafemi Awolowo University, Nigeria, [email protected].

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“We will engage terrestrial targets someday – ships, airplanes, land targets – from space. We will engage targets in space, from space. [...] [The] missions are already assigned, and we’ve written the concepts of operations”.1 General Joseph W. Ashy, (1996)

I.

Introduction

The outbreak of the World War I put an end to the advances in living standards of the people and the industrial and technological revolution of the period. The War witnessed the use of methods of warfare that were deployed on an unprecedented scale. It depicted the bombardment from the air of undefended town and cities, and the use of poison gas, leaving several millions of people dead and others wounded. However, the horrors of the War and its devastating effects, and the international legislation against the use of certain means of warfare, did not stop the breaking out of another war in 1939 – the World War II. The World War II became the most lethal international armed conflict in the history of the world.2 Non-combatant civilian population was also an intended target in this War; the attacks on London and Coventry, the bombing of Dresden and the atomic-bombing on Hiroshima and Nagasaki, caused the death of several non-combatant civilians. The horrors of this War, however, inspired a stream of important developments of general International Law as well as International Humanitarian Law (IHL).3 It led to the establishment of the United Nations Organization (UNO) and the adoption of its Charter in 1945. Between 1945 and now, the world has experienced incredible advances in technology and means of warfare. This has, today, changed the nature of military forces of States and the execution of armed conflicts. Outer space is more frequently being used during the course of armed conflict, as well as for the purposes of the protection of, and threats to, territorial integrity and sovereign independence.

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Scott W. B., 1996, “USSC Prepares for Future Combat Missions in Space”, 145:5 AV. WK. & SPACE TECH., Aug. 5, 1996, at 51. See Kaarbo J. and Ray J. L., 2011, Global Politics, 10th edn, United States: Wadsworth Cengage Learning, p. 43. See Kalshoven F. and Zegveld L., 2001, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 3rd Edn, Geneva: International Committee of the Red Cross, p. 25.

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II.

International Humanitarian Law and Armed Conflicts

II.1.

International Humanitarian Law

International Humanitarian Law (IHL) has been defined by Sassoli and Bouvier (1999)4 as that branch of international law limiting the use of violence in armed conflicts by: a. Sparing those who do not or no longer directly participate in hostilities; b. Limiting the violence to the amount necessary to achieve the aim of the conflict, which can be – independently of the causes fought for – only to weaken the military potential of the enemy. International Humanitarian Law, also known as the law of armed conflict or the law of war, is the body of rules that, in war time, protects persons who are not or are no longer participating in the hostilities.5 It limits the methods and means of warfare. Its central purpose is to limit and prevent human suffering in times of armed conflict. The rules are to be observed not only by governments and their armed forces, but also by armed opposition groups and any other parties to a conflict.6 This definition leads to the following basic principles: • The distinction between civilians and combatants; • The prohibition to attack those hors de combat; • The prohibition to inflict unnecessary suffering; • The principle of necessity; and • The principle of proportionality.7 The four Geneva Conventions of 1949, their two Additional Protocols of 1977 and the third Additional Protocol of 2005 dealing with Emblem, are the principal instruments of international humanitarian law. Other texts include the 1925 Geneva Protocol Banning the Use of Gas, the 1980 Convention on Certain Conventional Weapons and the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines.8 II.2.

Armed Conflicts

Neither the Geneva Conventions nor the Additional Protocols contains a real definition of the expression ‘armed conflict’. Additional Protocol I to the Geneva Convention of August 12, 1949, relating to the Protection of Victims of

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Sassoli M. and Bouvier A. A., 1999, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Geneva: International Committee of the Red Cross, p. 67. See International Committee of the Red Cross, 2005, Discover the ICRC, Geneva, Switzerland: ICRC, p. 15. Ibid. Ibid. Ibid.

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International Armed Conflicts, merely includes an article on ‘Definitions’,9 as well as on ‘Terminologies’.10 Despite this, Additional Protocol I do not define the term ‘armed conflict’. Pictet provides some guidance by explaining that ‘any difference arising between States and leading to the intervention of members of armed forces is an armed conflict’.11 For Bartels, the phrase applies to international armed conflicts only.12 The International Criminal Tribunal for the former Yugoslavia (ICTY) similarly considered a ‘resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ as an armed conflict.13 The ICTY’s definition of an armed conflict is all-embracing, in that, it applies to both international armed conflicts and non-international armed conflicts. Basically, two types of armed conflicts exist – international armed conflict and non-international armed conflict. II.2.1.

International Armed Conflict

Simply put, this is fighting between the armed forces of at least two States. Wars of national liberation have been classified as international armed conflict; II.2.2.

Non-International Armed Conflict

This means fighting on the territory of a State between the regular armed forces and identifiable armed groups, or between armed groups fighting one another. To be considered a non-international armed conflict, fighting must reach a certain level of intensity and extend over a certain period of time. III.

Jus ad bellum and jus in bello

III.1.

Jus ad bellum

Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed force in general.14 Contemporarily, jus ad bellum prohibits the use of force, with the exception of right to individual or collective

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13

14

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See Article 1. See Article 2. Pictet J., 1958, Commentary on the Geneva Conventions of 12 August, 1949, relating to the Treatment of Prisoners of War, ICRC, Geneva, p. 23. Bartels R., “Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts”, in the IRRC, Vol. 91, No. 873, March 2009, p. 38. Ibid. See the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadiq, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-I-A, 2 October, 1995, para. 70. International Committee of the Red Cross, 2004, International Humanitarian Law: Answers to your Questions, Geneva: ICRC, p. 8.

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self-defence and Security Council enforcement measures.15 In this regard, the provisions of Articles 2(4), 51 and 42 of the Charter of the United Nations, 26 June 1945, are worthy of consideration. Article 2(4) provides: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ The above provision is the principal source of jus ad bellum.16 However, Articles 42 and 51 make provision for certain exceptions. If there is an armed attack against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security, individual or collective self-defence right is inherent and allowed.17 More so, when the Security Council determines the existence of any threat to peace, breach of peace, or an act of aggression,18 and calls upon the parties concerned to comply with some provisional measures as it deemed necessary or desirable and such parties fail to comply,19 the Council may decide measures not involving the use of armed force to be taken to effect its decisions;20 and should such measures proved inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.21 Jus in bello

III.2.

Jus in bello, on the other hand, regulates the conduct of parties engaged in an armed conflict. It has as its aim the conciliation of “the necessities of war with the laws of humanity” by setting clear limits on the conduct of military operations.22 In this regard, the wordings of St Petersburg Declaration and International Court of Justice (ICJ) Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons is worth discussing.

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16

17 18 19 20 21 22

See Moussa J., 2008, “Can jus ad bellum override jus in bello? Reaffirming the Separation of the two Bodies of Law”, International Review of the Red Cross, Volume 90 Number 872, December 2008. See Greenwood C., “The Relationship between ius ad bellum and ius in bello” in: Weiler J. and Nissel A. T. (eds), 2011, International Law: Critical Concepts in Law, Volume V International Law in and of War, New York: Routledge, pp. 360-376. See Article 51. Article 39. Article 40. Article 41. See Article 42. See Moussa (supra).

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III.2.1.

1868 St Petersburg Declaration23

This Declaration fixed technical limits at which the necessities of war ought to yield to the requirements of humanity, by declaring the following: • That the progress of civilization should have the effect of alleviating as much as possible the calamities of war; • That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; • That for this purpose it is sufficient to disable the greatest possible number of men; • That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; • That the employment of such arms would, therefore, be contrary to the laws of humanity. It further renounced the employment of any projectile of a weight below 400 grams, which is either explosive or charged with fulminating or inflammable substances. Interestingly, the Declaration made a provision for a case of “future improvements which science may effect in the armament of troops.” The Contracting or Acceding Parties reserve to themselves to come together to an understanding whenever a precise proposition is drawn up, in order to maintain the principles which they have established, and to conciliate the necessities of war with the laws of humanity. III.2.2.

ICJ Advisory Opinion on the Legality of the Use of Nuclear Weapon24

On the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, the Court noted that, although, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict do not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. A clear interpretation of this is that jus in bello regulates all weapons used in armed conflict and the entire conduct of the belligerents.

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Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles. Saint Petersburg, 29 November/11 December 1868. ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996.

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Jus in bello (law in war, as sometimes called) is related to IHL, for it seeks to address the reality of an armed conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the armed conflict which are of humanitarian concern. Its provision applies to the warring parties irrespective of the reasons for the armed conflict and whether or not the cause upheld by either party is just. IV.

Regulation of Outer Space in Relation to Armed Conflicts

In treating this subject, a division has to be made between those United Nations space treaties that have tangential relationship to the regulation of space warfare and those that do not have on one hand, and those treaties that are not among the known United Nations Space Treaties. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies 1967 (hereinafter ‘the Outer Space Treaty’), the Magna Carta of international space law, in its Article IV, prohibits the placement of nuclear weapons and other weapons of mass destruction in orbit around the Earth and establishes, during times of peace, somewhat of a demilitarization of celestial bodies. It also prohibits the establishment of “military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies.” This is the most significant provision with respect to armed conflict through space and military forces in space. Under Article III, space activities are to be carried out “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” It should be noted that the maintenance of international peace and common security is principal purpose and supreme value of the United Nations.25 More light is thrown on this in the later part of this work. The provision of Article VI of the Outer Space Treaty requiring that States bear “international responsibility for national activities in outer space [...] whether such activities are carried on by governmental agencies or by nongovernmental entities” is also pertinent in this discussion. It has a significant impact on the research and development of weapons systems. For example, to the extent that a military space contractor pursues testing of space weaponry in outer space, the host State will bear “international responsibility” for the activity.26 The provision of Article IX of the Outer Space Treaty, can be stretched to cover a situation of armed conflict in and through outer

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26

Xinmin M. A., 2014, “The Development of Space Law: Framework, Objectives and Orientations”, A Speech at United Nations/China/APSCO Workshop on Space Law, Beijing, China, 2014. See Major Ramey R. A., 2000, “Armed Conflict on the Final Frontier: The Law of War in Space” The Air Force Law Review Vol. 48 2000, p. 76.

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space. According to the Article, “States Parties to the Treaty shall pursue studies of outer space and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra-terrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. It is an incontestable fact the war leaves indelible mark in any area it is fought – Hiroshima and Nagasaki are typical examples. In the Preamble of the Moon Agreement,27 the prevention of the Moon from becoming an area of international conflict, is desired. Just like the provision in the Outer Space Treaty, activities in the Moon shall be carried out in accordance with international law, in particular the Charter of the United Nations and taking into account the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and mutual understanding, and with due regard to the corresponding interests of all other States Parties. Article 3 of the Moon Agreement appears to be more useful as it relates to armed conflicts. It provides that the Moon shall be used exclusively for peaceful purposes. It prohibits any threat or use of force or any other hostile act or threat of hostile act on the Moon. It prohibits the use the Moon to commit any such act or to engage in any such threat in relation to the Earth, the Moon, spacecraft, the personnel of spacecraft or manmade space objects. It prohibits the placing in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. It forbids the establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon. With respect to the peaceful and sustainable use of Outer Space, Article 4 of the Moon Agreement is also important. According to the Article, in the exploration and use of the moon, due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress. These provisions aim to safeguard the sustainable exploration and use of outer space, with due regard to the interests of present generation and future generations, underpinning the notion of long-term sustainability of outer space and intergeneration equality.28 The Rescue and Return Agreement29 clarifies the duties of States relating to astronauts and objects launched into Space. It gives astronauts the status of

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Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979. Xinmin M. A (supra). Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue and Return Agreement), 1968.

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diplomats. The Liability Convention30 takes as its goal an elaboration of “effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage.” Its Article II made a launching State “absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight.” The Registration Convention31 establishes a mandatory system of registration for space objects launched into orbit and beyond. It specifies the requirement that States maintain a registry, and the nature of its contents. Other treaties dealing on areas of armed conflicts also exist. For instance, the “Limited Test Ban Treaty”, adopted before any of the “space” treaties, is the first treaty provision governing the use of outer space. The Treaty forbids nuclear weapon test explosion[s], or any other nuclear explosion[s] [...] (a) in the atmosphere; beyond its limits, including outer space; or underwater, including territorial waters or high seas; or (b) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted.32 The Anti-Ballistic Missile (ABM) Treaty33 severely limits the deployment, testing, and use of missile systems designed to intercept incoming strategic ballistic missiles. Article V (1) provides that “[e]ach party undertakes not to develop, test, or deploy ABM systems or components which are seabased, air-based, space-based, or mobile land-based. V.

Space Weapons for Terrestrial Armed Conflicts

Some weapons are land-based, sea-based, or air-based, and can be used to damage space object or interfere with its functioning (for example, anti-satellite weapon or ASAT). Others are space-based and can be used in attacking targets either in space or on the ground (for example, space-based ballistic missile defence interceptors and ground-attack weapons). Countries have invested billions of dollars into the research and development of advanced space weapons like the Space Based Laser (SBL). Others are in the process of developing a space-based defence option in the form of kinetic kill vehicles capable of destroying enemy ballistic missiles during the boost

______ 30 31 32 33

Convention on the International Liability for Damage Caused by Space Objects (Liability Convention), 1972. Convention on Registration of Objects Launched into Outer Space (Registration Convention), 1975. Treaty Banning Nuclear Weapons in the Atmosphere, In Outer Space and Under Water (Limited Test Ban Treaty), 1963. Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26, 1972, U.S.U.S.S.R., 23 U.S.T. 3435 (entered into force Oct. 3, 1972) [hereinafter ABM Treaty].

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phase.34 Generally, technologies that have been created with the capability and intent of destruction include space-based directed energy weapons, spacebased kinetic weapons, certain anti-satellite satellites (ASAT), etc. Some distinct classes of Space-based weapons include, namely:35 V.1.

Directed-Energy Weapons

Directed Energy Weapons include a broad variety of technologies such as lasers, particle beams and signal interference technologies like high-powered microwaves or high power radio frequencies.36 These weapons destroy targets with energy transmitted at the speed of light over long distances, are in a class of their own. They include a range of weapons from electronic jammers to laser cutting torches. Directed-energy weapons could destroy targets on or above the earth’s surface, depending on the wavelength of the energy propagated and the conditions of the atmosphere, including weather. V.2.

Kinetic-Energy Weapons against Missile Targets above the Atmosphere and against Surface Targets

The concept of Kinetic Energy Weapons is simple: a ‘kill’ is being executed through high velocity impact (hit-to-kill).37 Kinetic-energy weapons come in two types: those designed to destroy targets outside the earth’s atmosphere and those that can penetrate the earth’s atmosphere. The first type, described here, could conceivably provide an additional layer of defence against targets that leak through the laser weapons’ boost-phase defence. They would destroy targets using the kinetic energy of high-velocity impact and would require very little weapon mass. They are only able to engage targets above 60 km because the interceptor needs to stay out of the atmosphere. Space-based kinetic-energy weapons for surface targets also destroy targets by using their own mass moving at very high velocities. Unlike weapons that engage targets outside the earth’s atmosphere, these must be large enough to survive re-entry through the earth’s atmosphere with a speed high enough to be destructive. To preserve accuracy and energy through re-entry, they have to attack targets at steep, nearly vertical trajectories. They could be effective against stationary (or slowly moving) surface targets that are vulnerable to vertical penetration of a few meters, such as large ships, missile silos, hard-

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35

36

37

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See generally, Park A. T., (n.d), “Incremental Steps for Achieving Space Security: The Need for a New Way of Thinking to Enhance the Legal Regime for Space”, Houston Journal of International Law [Vol. 28:3], pp. 871-912. This is exhaustively discussed by Preston B. (et al.), 2002, Space Weapons: Earth wars, United States: RAND. Available at www.rand.org. Accessed 17 September 2015. Vermeer A., (n.d) “The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellum and the Jus in Bello of the Militarisation and Weaponisation of Outer Space.” Vermeer (supra).

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ened aircraft shelters, tall buildings, fuel tanks, and munitions storage bunkers. Because of their meteoroid like speed entering the atmosphere, these weapons would be very difficult to defend against. V.3.

Space-Based Conventional Weapons against Surface Targets

Space-based conventional weapons would inherit their accuracy, reach, target sets, and lethality from the conventional munitions they deliver. Such weapons could engage a broader range of targets than kinetic-energy weapons, including manoeuvring targets and more deeply buried targets. They could use “old” technology. Note that both kinetic-Energy weapon and Space-based Conventional Weapon destroy targets by delivering mass to the target using either the kinetic energy of their own velocity and mass or the stored chemical energy of conventional explosives to destroy the target.38 Each type of weapon operates in different ways, is suitable for different kinds of targets, has different response times, and requires different numbers of weapons in orbit to achieve the degree of responsiveness required to reach a particular target when needed.39 V.4.

Electromagnetic and Radiation Weapons and Explosive Proximity Weapons

On one hand, Electromagnetic and Radiation Weapons operate through the emission and/or creation of electromagnetic pulse or radiation. The device that brings about both consequences at once is a nuclear weapon. On the other hand, Explosive Proximity Weapons, also referred to as space mines, are moved in position and explode.40 Intersection of jus ad bellum and jus in bello with the Regulation of Outer Space

VI.

As earlier mentioned, the cornerstone provision on the regulation of the use of force between States is Article 2(4) of the Charter of the United Nations. This Article is declaratory of customary international law and even considered to be jus cogens, thus binding upon all States in all their international relations, including those in outer space.41 Jus cogens (Peremptory norms) are ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified

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Ibid. Ibid. Vermeer (supra). See, Vermeer A., (n.d) “The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellumand the Jus in Belloof the Militarisation and Weaponisation of Outer Space”. See also, Randelzhofer A., 2002, “Article 2(4)”, in: Simma B. (ed.), 2002, The Charter of the United Nations: A Commentary, Oxford: Oxford University Press, at 112-136.

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only by a subsequent norm of general international law having the same character.’42 The United Nations International Law Commission, talking about jus cogen in 2001 states:43 “So far, relatively few peremptory norms have been recognized as such. But various tribunals, national and international, have affirmed the idea of peremptory norms in contexts not limited to the validity of treaties. Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.”

The Outer Space Treaty expressly confirms that activities in outer space shall be conducted in accordance with international law and the Charter of the United Nations. Article III provides thus: “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”

The meaning of the above provision is that every activity in outer space is regulated by International Law, including the Charter of the United Nations. Therefore, Article 2(4) automatically regulates activities in outer space. Where there is a lacuna in the legal regime of outer space, International Law rules, including the Charter of the United Nations are called to play. Article 103 of the Charter pushes the point further. It provides thus: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

The interpretation of this, therefore, is that the Charter of the United Nations prevails over any of treaties and principles governing outer space in the event of a conflict. The provision of Article 2(4) of the Charter of the United Nations, where jus ad bellum originated from, and the provisions of Articles 42 and 51, where the exceptions to jus ad bellum emanated from, apply to outer space in all ramification. In this regard, the prohibition by Article 51 of Additional Protocol I44 applies to armed conflicts through outer space. This article is a key provision and

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See Article 53 of Vienna Convention 1969. International Law Commission, 2001, p. 85. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

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sets clear limits at every stage to the preparation and conduct of military operation. It prohibits indiscriminate attacks – attacks not directed against a definite military objectives (e.g. area bombing) or in which the means and methods of warfare used cannot be restricted to specific military objective (e.g. poorly controllable missiles), or which bring into use other means and methods that make it impossible to observe the rules of International Humanitarian Law. VII.

Duties of Space-Faring Belligerent Nations towards Non-Combatant Civilians and Civilian Objects in Outer Space and on Earth

In any armed conflict, the belligerents must take measures, to the maximum extent possible, to avoid or minimize damage to civilians or civilian objects, whether on Earth or in Outer Space. This will require verifying the nature of what is being attacked and the possible damage that the attack might cause.45 The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.46 Belligerent State can accomplish this goal in two ways: (a) eliminating those objects which may be regarded as military objectives like units of the enemy armed forces, their armoured cars and mobile artillery, and military installations such as fixed gun emplacements and munition depots; and (b) denying the enemy the acquisition or production of weapons either through cutting off supply or selecting arms factories as targets military operations.47 Resolution XXVIII of the 20th International Conference of the Red Cross and Red Crescent (Vienna 1965) and Resolution 2444 (XXIII) of the United Nations General Assembly (1968) reaffirmed some “principles for observance by all governmental and other authorities responsible for action in armed conflicts.”48 The relevant ones are – (b) that it is prohibited to launch attacks against the civilian population as such; and (c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.49 The principles clearly underlie the prescriptions of Article 25 and 26 of the

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46 47

48 49

See Garcia D., (n.d), “Future Arms: what International Law? Or Future Arms: Legal Vacuum? Or Future Arms: Global Governance Vacuum – What International Law? Or What International Law for the New (Weapons) Technologies?”, a paper presented to the Cornell University Law School, International Law and International Relations Colloquium. Declaration Renouncing the Use, in Time of War, of certain Explosive Projectiles. Saint Petersburg, 29 November/11 December 1868. See Kalshoven F. and Zegveld L, 2001, Constraints on the Waging of War: An Introduction to International Humanitarian Law, Geneva: International Committee of the Red Cross, pp. 44-45. Ibid. Ibid.

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Hague Regulations, which provide that undefended towns may not be attacked or bombarded by any means and that the commanding officer of a force attacking a defended locality “must before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.”50 The Additional Protocol I of 197751 gave specific form, adapted to today’s circumstances, to the principles concerning the protection of the civilian population first enunciated in the Hague Regulations on War on Land and embodied in customary law.52 Article 50 (I) of Protocol I defines civilians as persons not belonging to the armed forces. Article 52 (I) of the same Protocol talks of civilian objects as all objects that cannot be considered as military objectives. Under Article 51, neither the civilian population as a whole nor individual civilians may be the object of attack. “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” It prohibits indiscriminate attacks – attacks not directed against a definite military objectives (e.g. area bombing) or in which the means and methods of warfare used cannot be restricted to specific military objective (e.g. poorly controllable missiles), or which bring into use other means and methods that make it impossible to observe the rules of International Humanitarian Law.53 Any attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, must be abandoned.54 In the case of operations in an area where civilians or civilian objects are likely to be present, military commanders must always assess the proportionality of the expected harm to the civilians as compared to the intended military advantage. The military commander is under obligation to gather information on the location of military objectives and on the surrounding civilian areas.55 If there is likelihood of excessive losses among civilians, the attack must be cancelled or suspended. Article 51(6) prohibits attack against the civilian population or individual civilians by way of reprisals. Article 52 of Protocol I prohibits attacks on a number of civilian objects. This is an attempt to protect human beings as much as possible from the effects of war.56 Any object normally dedicated to civilian purposes, such as a place of

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52 53 54 55 56

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Ibid. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. Hans-Peter Gasser, 1993, International Humanitarian Law: An Introduction, Vienna: Paul Haupt Publishers, p. 62. Ibid. See Article 51(4) of Protocol I. See Article 51(5)(b). Article 57. Hans-Peter Gasser, 1993 (supra), p. 64.

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worship, a house or other dwelling or a school counts as being civilian and therefore must not be attacked, unless and until the commander in charge is convinced to the contrary. “Historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” must not be attacked.57 “Starvation of civilians as a method of warfare is prohibited.” Therefore, “objects indispensable to the survival of the civilian population” like foodstuffs, livestock or drinking water installations, are protected.58 Belligerents must take care in warfare to protect the natural environment against widespread, long-term and severe damage.59 There must be no attacks on “works and installations containing dangerous forces”, particularly dams, dykes, and nuclear power installations.60 A cardinal question that we need to ask and provide answer to is – Does the protection given to civilian population and civilian objects under International Humanitarian Law, extend to civil space assets and astronauts? The answer to this question is, “yes”, as long as they are not being used for military purposes. VIII.

Conclusion and Recommendations

It has earlier been mentioned that the provision of Article 2(4) of the Charter of the United Nations, is the principal source of jus ad bellum. Going by our discussion so far, it can be said that the legal regime of outer space as it relates to armed conflict in and through outer space is inadequate. Therefore, in the event of conflict, the provisions of the Charter of the United Nations should be applied. The wordings of the Charter in Article 103 are worth considering here: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The interpretation of this provision is that the Charter of the United Nations prevails over any of treaties and principles of outer space in the event of a conflict. Therefore, the provision of Article 2(4) of the Charter of the United Nations, where jus ad bellum originated from, and the provisions of Articles 42 and 51, where the exceptions to jus ad bellum emanated from, apply to outer space. The question, whether jus in bello should apply as part of general international law in principle in outer space in the event of armed conflict, has been answered by the ICJ advisory opinion. Therefore, in all armed conflicts, whether on land or in outer space, jus in bello must be applied.

______ 57 58 59 60

Article 53 of Protocol I. See Article 54 of Protocol I. Article 55 of Protocol I. Article 56 of Protocol I.

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All said and done, this recommends that the time has come for those working the field of International Space Law and International Humanitarian Law, to come up with an all-embracing legal regime, which will embody the principle of jus in bello in the regulation of armed conflicts in and through outer space. More so, an international enforcement regime should be put in place for the effective operation of such laws. Bibliography

Arjen Vermeer, (n.d.), “The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellum and the Jus in Bello of the Militarisation and Weaponisation of Outer Space.” Bartels R., 2009, “Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts”, in the IRRC, Vol. 91, No. 873, March 2009. Garcia D., (n.d.), “Future Arms: what International Law? Or Future Arms: Legal Vacuum? Or Future Arms: Global Governance Vacuum – What International Law? Or What International Law for the New (Weapons) Technologies?”, a paper presented to the Cornell University Law School, International Law and International Relations Colloquium. Hans-Peter Gasser, 1993, International Humanitarian Law: An Introduction, Vienna: Paul Haupt Publishers. IJC, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 International Committee of the Red Cross, 2004, International Humanitarian Law: Answers to your Questions, ICRC, Geneva. International Committee of the Red Cross, 2005, Discover the ICRC, Geneva, Switzerland: ICRC. Kaarbo J. and Ray J. L., 2011, Global Politics, 10th edn, United States: Wadsworth Cengage Learning. Kalshoven F. and Zegveld L, 2001, Constraints on the Waging of War: An Introduction to International Humanitarian Law, Geneva: International Committee of the Red Cross. Major Ramey R. A., 2000, “Armed Conflict on the Final Frontier: The Law of War in Space” The Air Force Law Review Vol. 48 2000, p 76. Moussa J., “Can jus ad bellum override jus in bello? Reaffirming the Separation of the two Bodies of Law”, International Review of the Red Cross, Volume 90 Number 872, December 2008. Park A. T., “Incremental Steps for Achieving Space Security: The Need for a New Way of Thinking to Enhance the Legal Regime for Space”, Houston Journal of International Law [Vol. 28:3], pp 871-912. Pictet J, 1958, Commentary on the Geneva Conventions of 12 August, 1949, relating to the Treatment of Prisoners of War, Geneva: ICRC.

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Preston B. (et al.), 2002, Space Weapons: Earth wars, United States: RAND. Available at http://www.rand.org. Accessed 17 September 2015. Sassoli M. and Bouvier A. A., 1999, How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Geneva: International Committee of the Red Cross. Scott W. B., “USSC Prepares for Future Combat Missions in Space”, 145:5 AV. WK. & SPACE TECH., Aug. 5, 1996. Simma B. (ed.), 2002, The Charter of the United Nations: A Commentary, Oxford: Oxford University Press. Vermeer A., (n.d.) “The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellumand the Jus in Belloof the Militarisation and Weaponisation of Outer Space”. Weiler J. and Nissel A. T. (eds), 2011, International Law: Critical Concepts in Law, Volume V International Law in and of War, New York: Routledge, pp. 360-376. Xinmin M. A., 2014, “The Development of Space Law: Framework, Objectives and Orientations”, A Speech at United Nations/China/APSCO Workshop on Space Law, Beijing, China, 2014.

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Avoiding Legal Black Holes International Humanitarian Law Applied to Conflicts in Outer Space Cassandra Steer*

Abstract The applicability of international humanitarian law (IHL) is not dependent on any domestic legal system, however its enforcement is at least partially subject to domestic application. There are scenarios in which States assert they can derogate from IHL and other rules of international law due to emergency or threats to security. When it comes to hostilities that take place in or through Outer Space, the fact that Outer Space may not be appropriated as sovereign territory means that regulation of military activities and their consequences are truly international. No State can exert exclusive jurisdiction over a breach of IHL that takes place “in” Outer Space. However this also means there is a greater risk of abuse of the rules of IHL by the creation of new legal black holes; if it’s up to individual States to interpret and apply these rules, they may attempt to justify unlawful derogations in the name of emergency or security. Generally IHL must apply to space in the same ways it applies to terrestrial conflicts, in the sense that justifiable derogations for reasons of national security are truly exceptional and very limited. The question then arises, can States derogate from either the space treaties or from IHL under claims of State security? This paper argues that the international rule of law ensures their continued application in times of conflict in Outer Space, and provides a set of principles that ensure the risk of legal black holes is limited.

I.

Introduction

In times of hostilities and conflict, States will naturally take whatever action is necessary to protect their interests and their security. The law of armed conflict regulates what States may do lawfully in such situations, in order to limit the potential of chaos in international relations, and to limit the potential effects of wars on humanity. This has been the case throughout the history of the regulation of warfare, harking back at least as far as Chinese military tactician Sun-Tzu’s “The Art of War” in the 5th century B.C.1 For centuries, this was predominantly a case

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McGill Institute of Air and Space Law, Canada, [email protected]. Lawrence P. Rockwood, “Walking Away from Nuremberg: Just War and the Doctrine of Command Responsibility”, (University of Massachusetts Press, Amherst, 2007), p. 20.

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of custom; concepts of honour and “conduct befitting a soldier” prevailed, and since the 4th century A.D. Augustinian notion of “just war” governed behaviour during conflicts.2 From the 19th century on there was a trend to codify international custom, and the Augustinian tradition was carried into the Lieber Code, a product of the US civil war.3 The further codification of the customs of warfare in the early 20th century has made a great impact on today’s lawful and acceptable conduct during conflict, including the so-called Hague Conventions which laid down principles of land warfare,4 and following the Second World War, the Geneva Conventions5 and various treaties governing methods and means of warfare. Many of these rules have also been recognised as customary international law, applicable to all States regardless of whether they have signed or ratified the relevant treaties. Although suffering and destruction still takes place during armed conflicts, in general there is adherence to these limiting rules; States realise the importance of reciprocity, and breaches of these rules are the exception rather than the expectation. Nonetheless there have been some examples in recent history of States pushing the boundaries of these limits in the name of a “state of emergency”, claiming that extraordinary situations may lead to extraordinary measures. One such example is the creation of a legal “black hole” for those individuals who were detained as terrorist suspects following the attacks of September 11 2001; legal advisors to the State Department of the US argued that these individuals were “illegal enemy combatants” and as such could be arrested and detained as prisoners of war, but did not have the right to protection and treatment guaranteed to prisoners of war under the fourth Geneva Convention.6 Many individuals were arrested in their country of residence and transported by so-called “extraordinary rendition” to prisons and camps in another country, where their basic human rights were denied and they were subjected to torture. The

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Ibid. p 28. Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863. Convention (I) For The Pacific Settlement Of International Disputes (Hague I) (29 July 1899); Convention With Respect To The Laws And Customs Of War On Land (Hague, II) (29 July 1899); Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864 (Hague, III); (July 29, 1899); Declaration Prohibiting Launching of Projectiles and Explosives from Balloons (Hague, IV); (July 29, 1899). Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, (Geneva I)(12 August 1949); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (Geneva II) (12 August 1949); Convention (III) relative to the Treatment of Prisoners of War, (Geneva III)(12 August 1949); Convention (IV) relative to the Protection of Civilian Persons in Time of War, (Geneva IV)(12 August 1949). Joseph P Bialke, “Al-Qaeda & (and) Taliban-Unlawful Combatant Detainees, Unlawful Belligerency, and the International Laws of Armed Conflict” (2004) 55 AFL Rev 1.

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US administration asserted the right to unilaterally suspend the international obligations applicable during conflict in the name of national security.7 However when it comes to the law of armed conflict and some other fundamental regimes of international law, exceptions to their application should be kept to a minimum. These “legal black holes” into which the individual detainees fell were highly contentious and the majority of international lawyers argued that they were an unlawful interpretation of international humanitarian law.8 The law of armed conflict, or international humanitarian law (IHL), is universally applicable and not dependent on any domestic legal regime. However the invention of a new category of persons taking part in hostilities as “illegal” and the legal black hole that came with it, demonstrate that the application of international law – or lack thereof – is still in many ways dependent on State will and State actions. It is a question of enforceability rather than applicability. When a State considers that its security is under threat, and claims a “state of emergency” under which some international legal obligations may be suspended, there is a risk that a unilateral interpretation may push the boundaries of IHL. In the context of outer space this susceptibility to an expansive interpretation has an unusual dimension. In the immediate future it is less likely that this would be with respect to the rights of detainees, since there aren’t many humans in space. Rather there is a risk that, for example, there would be different interpretations of when the use of force would be lawful as an act of selfdefence. Do we want to leave it up to States to interpret this question unilaterally in times of emergency? Other examples are the lawfulness of targeting of dual use satellites, given the risk of collateral effects on Earth, or the question whether the potential creation of space debris should be part of any calculation of proportionality when seeking to physically destroy a satellite. The

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Sanford Levinson, “Constitutional Norms in a State of Permanent Emergency” (2005) 40 Ga L Rev 699; Sanford Levinson, “Torture in Iraq & the rule of law in America” (2004) 133:3 Daedalus 5; William E Scheuerman, “Emergency Powers and the Rule of Law After 9/11” (2006) 14:1 Journal of Political Philosophy 61. Thomas J Bogar, “Unlawful Combatant of Innocent Civilian-A Call to Change the Current Means for Determining Status of Prisoners in the Global War on Terror” (2009) 21 Fla J Int’l L 29; Michael Dorf, “What is an Unlawful Combatant, And Why it Matters: The Status of Detained Al Qaeda and Taliban Fighters” (2002) FindLaw: Legal News and Commentary; Ryan Goodman, “The Detention of Civilians in Armed Conflict” (2009) American Journal of International Law 48; Michael H Hoffman, “Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law” (2002) 34 Case W Res J Int’l L 227; “ICRC Policy Document on Torture and Cruel, Inhuman or Degrading Treatment Inflicted on Persons Deprived of their Liberty” 93:882 International Review of the Red Cross 1; Levinson, supra note 7; Clive Stafford Smith, Bad Men: Guantánamo Bay and the Secret Prisons (London: Phoenix, 2008).

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fact that such activities would take place out of sight of those of us on Earth, and the fact that outer space belongs to no single State, means there is a risk of the “tragedy of the commons”; if States act only out of concern for their own security, who is to say they will take into consideration the risks of creating more space debris, or the collateral effects of targeting a dual use satellite? Although the applicability of international humanitarian law (IHL) is not dependent on any domestic legal system, its enforcement is at least partially subject to domestic application. Does this leave us with a bleak picture of the status of IHL in space? If spacefaring nations consider it entirely up to them to unilaterally determine what is lawful during a conflict in outer space, are we not left with a risk of chaos, with States asserting multiple interpretations and regimes of IHL applicable at any given time? Or worse, a state of lawlessness? Not if we operate on the assumption of the Rule of Law in space. Because international space law is a part of public international law, and because Article III of the Outer Space Treaty specifies that all space activities must be conducted in accordance with international law, it would only be a rogue State that would claim that IHL and the general principles of international law do not apply during a situation of conflict in or through space. The Rule of Law, and the commitment the international community has to it, guarantee against legal black holes appearing in space in a time of conflict. Part II of this paper will discuss the notion of a “state of emergency”, and the tensions that exist between the Rule of Law in outer space and a “state of emergency” as giving rise to possible exceptions to international obligations. In Part III the unique geographical and jurisdictional challenges that outer space pose will be discussed, as will other potential legal black holes during a conflict in outer space. In Part IV a number of legal principles will be enumerated which operate as limits on any exceptions to international obligations, even in a state of emergency. Finally it will be concluded that legal black holes can be avoided in a situation of conflict in outer space if States recognise the basic tenets of the Rule of Law, which is also in their own interest. II.

The Rule of Law versus a State of Emergency

II.1.

“State of Emergency” in International Law

The notion of a “state of public emergency” stems from nineteenth century Western Europe, and constitutes a situation in which a State justifies suspending certain international obligations.9 Along the same line, since the twentieth century the core human rights treaties have permitted derogations from States’ obligations to protect these rights if there is a situation that constitutes a

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Scott P Sheeran, “Reconceptualizing states of emergency under international human rights law: theory, legal doctrine, and politics” (2012) 34 Mich J Int’l L 491 at 491.

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“public emergency which threatens the life of the nation,” however this exception is subject to a limitation: derogations are only permitted if the measures are “strictly required by the exigencies of the situation.”10 Derogations are allowed under these conditions to allow States to respond to extraordinarily threatening conditions, without having to limit themselves according to broad human rights obligations. Because certain IHL provisions also protect human rights, States have sometimes claimed that a situation of emergency or exception can lead to justified derogation from IHL obligations.11 Generally States do not deny that human rights and IHL should continue to apply during a state of emergency,12 however sometimes the regime that allows certain derogations have been coopted and abused. It was under a claim of a state of emergency that the US created an expansive interpretation of “war” to include the fight against terrorism in the Military Commissions Act, thereby asserting that IHL protections did not apply to individuals who were detained following the September 11 attacks.13 During the “Arab Spring” uprisings many Arab States had declared a state of emergency and withdrawn significant human rights.14 The UN Special Rapporteur for States of Emergency concluded that about ninety-five states, or around half of the countries in the world, had been under a state of emergency between 1985 and 1997.15 The International Commission of Jurists stated in its study on states of emergency described them as “the counterpart in international law of self-defence in penal law.”16

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International Covenant on Civil and Political Rights art. 4, Dec. 16, 1966, S. TREATY Doc. No. 95-20, 999 U.N.T.S. 171 (ICCPR); See also Human Rights Committee [H.R. Comm.], General Comment No. 29: States of Emergency, 1 2, 4, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. Special Rapporteur for States of Emergency, The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency: Tenth Annual Rep., 11 20, 33, 48, Commission on Human Rights, U.N. Doc. E/CN.4/Sub.2/1997/19 (June 23, 1997) (by Leandro Despouy). Ibid. p 8. Senate Bill 3930 Military Commissions Act of 2006, S.3930, September 22, 2006; See Jean-Claude Paye Topics: Imperialism & Political Economy, “‘Enemy Combatant’ or Enemy of the Government?”, online: Monthly Review . Sheeran, supra note 9 at 493. Special Rapporteur for States of Emergency, The Administration of Justice and the Human Rights of Detainees: Question of Human Rights and States of Emergency: Final Report, add., U.N. Doc. E/CN.4/Sub.2/1997/19/Add.1 (June 9, 1996). International Commission Of Jurists, States Of Emergency: Their Impact On Human Rights, at iii, 413 (1983).

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II.2.

“State of Emergency” in Space

Because we are so dependent on space technologies for our daily lives, and because militaries are also highly dependent on these technologies, it is conceivable that a situation of conflict in or through space could be read as a threat to the life of a nation. In hypothetical scenarios known as “war games”, military lawyers and operators have noted that as soon as a space asset is threatened in any way, even by the activity of a space object belonging to State A passing closely in the orbital path of a satellite belonging to State B without clear communications as to the intention or extent of deliberate movement, tensions escalate rapidly into full-blown conflict.17 If activities in space are not accompanied by communications with respect to the intentions of the actor responsible, it is possible that the right to use force in self-defence could be called upon and accompanied by claims of a state of emergency. If this set of conditions were to be used as a justification for suspending IHL obligations and protections, the risk of legal black holes would increase; different States interpreting IHL in different ways, or asserting a right to suspend certain obligations would lead to a lack of legal clarity. However there are limits on the ways in which a state of emergency can justify suspension of international obligations. Apart from the requirement that the measures taken must be “strictly required by the exigencies of the situation”, emergency measures must also be proportionate to the actual threat to a nations’s life and security, must be temporary, and must be aimed at a return to the normal status quo.18 Thus a threat posed to satellite operations in a State cannot be used to justify total and temporally unlimited suspension of all IHL protections and obligations. II.3.

International Law in Space

Apart from the specific limitations on the right to derogate from international obligations during a time of emergency, one thing that is clear is that international law governs activities in outer space, and activities that pass though outer space, including the launch, operation and return of space objects and activities which affect these operations.19 Article III of the Outer Space treaty states this in no uncertain terms, and even specifies that this includes the UN Charter. There can therefore be no doubt that the law prohibiting the use of force according to Article 2(4) of the Charter applies in space. In fact this norm is considered to be one of the peremptory jus cogens rules of international law;

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This has been noted by a member of the Union of Concerned Scientists, and by the author, in several private conversations with individual US, Canadian and Australian military lawyers. Human Rights Committee General Comment No. 29: States of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001) at para. 2. Stephan Hobe et al, Cologne Commentary on Space Law: In Three Volumes. Outer Space Treaty (Carl Heymanns Verlag, 2009) at 66.

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that is, a rule that can never be derogated from even in a state of emergency.20 The only time the use of force can be lawful is if it is approved for a temporary and specific purpose as part of a measure of collective security by the UN Security Council under article 42 of the UN Charter, or if it is a temporary and proportionate act of self-defence according to Article 51 of the Charter. These norms also apply in space, by virtue of their peremptory nature, and by virtue of Article III of the Outer Space Treaty.21 While self-defence could itself be considered a state of emergency, this does not in itself justify the suspension of other obligations, according to the notion of “emergency” under international law. Acts of self-defence must therefore also comply with international law requirements, as will be discussed further in the next section. As Manfred Lachs wrote in 1972, outer space had never been a lawless area, but rather had always been subject to international law, though the matter could never have been put to the test before.22 Two decades later, the International Court of Justice (ICJ) declared in its opinion on the Legality of Nuclear Weapons that IHL, “applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.”23 IHL will therefore always apply to future conflicts in space. The question remains whether States will respect this to its fullest. That international law stakes an exclusive claim over the governance of activities in space is further underlined by Article II of the Outer Space Treaty, which stipulates that outer space “is not subject to national appropriation by claim of sovereignty, by use or by any other means”. The exercise of domestic jurisdiction requires the ability to exert sovereignty over the territory, or in this case, over the physical domain of outer space, which is prohibited by the treaty, and since its writing, by customary international law. This means that no State may exercise its domestic laws to the exclusion of other domestic legal regimes, and that international law shall always prevail. It is true that there is some extra-terrestrial reach of domestic laws in the physical domain of space, to the extent that space objects are registered according to the Registration Convention as falling under the jurisdiction of the launching State,24 and activities of non-governmental entities in outer

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Alexander Orakhelashvili, Peremptory norms in international law (Oxford University Press Oxford, 2006) at 50. Hobe et al, supra note 19 at 67; Jackson N Maogoto & Steven Freeland, “The Final Frontier: The Laws of Armed Conflict and Space Warfare” (2007) 23:1 Connecticut Journal of International Law 165 at 1. Manfred Lachs, The Law of Outer Space: An Experience in Contemporary LawMaking, Reissued on the Occasion of the 50th Anniversary of the International Institute of Space Law, (Martinus Nijhoff Publishers, 2010) at 125. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 259 (July 8). Article II, Convention on the Registration of Objects Launched into Outer Space.

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space require authorization and constant supervision of the relevant State.25 However this amounts to jurisdiction over an object, and not over the physical domain of outer space, nor over the activities of others in outer space. In general terms, then, the International Rule of Law should prevail over all activities in outer space. But in times of conflict, we have seen States sometimes push the boundaries of the law, and the unique domain of space is likely to prove even more susceptible in some ways to creative interpretations in the name of State security or emergency. III.

Potential Legal Black Holes in Space Conflict

The “geography” of outer space offers challenges unique to any other environment or domain that is governed by international law. Although comparisons are often drawn to the legal regime governing the Antarctic, or the high seas, since these regions are also not subject to the sovereign claim of any single State, there remain some differences in space. The most obvious is that we do not know at what point “outer space” begins and sovereign airspace ends.26 This means that the physical space in which sovereign jurisdiction ends and the exclusive and supreme claim of international law begins may not be clear, and the potential for a “legal black hole” in the space in between may be greater. It is agreed that Low Earth Orbit (LEO) begins at approximately 160km above the Earth is and there is therefore no contention that this is outer space.27 But what about the “grey area” between this and the current upper limit of approximately 60km of any airplane flight? Can States unilaterally interpret their airspace as extending to whatever height is strategically beneficial during a conflict? Could there be, rather than legal black holes, asserted overlaps of multiple legal regimes in this physical space between certain sovereign jurisdiction and certain outer space? The reason these questions are of importance is that different rules of IHL apply in different physical spaces. The law with respect to international armed conflicts, involving two or more States, differs slightly from the law on non-international armed conflicts, between one State’s government authorities and armed groups within that same State.28 While many argue that the differences between these laws are fading, there are some important differ-

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Article VI, Outer Space Treaty. Article 1, Chicago Convention on International Civil Aviation (1944) recognises that “every State has complete and excusive sovereignty over the air-space above its territory”. This is generally recognised to be customary international law, See: Francis Lyall & Paul B Larsen, Space Law: A Treatise (Ashgate Pub. Limited, 2009) at 160. Ibid. at 168. See for example Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 and Protocol Additional to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

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ences, such as the principle of non-intervention with respect to noninternational armed conflict, protecting a State in a situation of internal conflict from the intervention of third States;29 and with respect to international armed conflicts the prohibition on reprisals.30 Similarly with respect to armed conflict on the high seas, it is clear that this physical space begins where territorial seas, exclusive economic zones and continental shelf boundaries end.31 While in a specific case the exact boundary line may be contested, in general there is clarity as to the physical spaces and therefore the legal regimes that apply. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea specifies that naval warfare may take place on the high seas, that due regard must be given to neutral States, and that IHL applies to this physical space.32 The question is whether such clarity can be claimed with respect to conflict in outer space. III.1.

Defining “Conflict in Space”

The unique geography of space has many dimensions. The lack of clarity regarding a line of demarcation between sovereign airspace and the “commons” of outer space is a challenge not only for determining what legal regime applies above or below a certain line, but also with respect to objects that move between these spaces, such as any missile or rocket that has a ballistic trajectory, or in the near future, sub-orbital flights carrying humans for civilian or military purposes. So what is meant, then, by “conflict in space”? Is this any conflict that involves space objects, or only a conflict that takes place above that uncertain line of demarcation? III.1.1.

Conflict in Space

Just as there is an international manual clarifying the applicability of IHL to conflicts at sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare clarifies IHL applicable to sovereign and international airspace.33 It defines “airspace” as “the air up to the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit.”34 From this definition, any conflict that would physically take place above the lowest possible perigee of a satellite in orbit would be a “conflict in space”. This is a spatial definition, which helps to a certain extent, but there

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Article 3 Protocol II. Article 20 Protocol I. Article 86, United Nations Convention on the Law of the Sea (1982). Section IV, “San Remo Manual on International Law Applicable to Armed Conflicts at Sea”, International Institute of Humanitarian Law, Cambridge University Press (1995). “Manual on International Law Applicable to Air and Missile Warfare”, Harvard Program on Humanitarian Policy and Conflict Research (2009), www.ihlresearch.org/amw/manual/ (“Harvard Manual”). Article 1(a) Harvard Manual.

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may be other aspects to a conflict which do not take place above this altitude, but which still affects space objects, or which only temporarily take place above this altitude and otherwise fall below this altitude. In this “in-between space”, in order to avoid legal black holes or multiple unilateral interpretations of how IHL applies, a functional definition may be needed. III.1.2.

Conflict through Space

The first Gulf War in the 1990s is often referred to as the first space war, because during “Operation Desert Storm” there was a high dependence on satellite communications and imaging technologies.35 Since then the dependence of many militaries on space technologies has increased.36 Thus, even a conflict on Earth has some space aspects to it. However the question of IHL applied to space surely does not include these situations. But if a space object were to be used as a weapon with respect to a conflict on Earth, this could be considered conflict “through” space. For instance if one satellite were to interfere with or disable another satellite, in order to disable the communications of a belligerent party to a conflict on Earth. While it may not currently be technologically feasible to direct the course of a satellite to deliberately collide with another satellite, the potential for this in the future should not be discounted, especially given current research being undertaken into on-orbit servicing, which could be utilised for belligerent activities.37 Another type of “conflict through space” could be the use of cyber-attacks from Earth to interfere with or disable a satellite in space, or the use of jamming signals from Earth to interrupt signals from a satellite in space. Conversely, if a ballistic missile were to have a trajectory that traversed through space and back into airspace, it would seem unlikely that this would fall under a regime of IHL applied to space rather than IHL applied to airspace.38 However it is conceivable that this, too may become a legal black hole according to individual State interpretations.

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Alasdair McLean, “A new era? Military space policy enters the mainstream” (2000) 16:4 Space Policy 243; Jackson N Maogoto & Steven Freeland, “From Star Wars to Space Wars – The Next Strategic Frontier: Paradigms to Anchor Space Security” (2008) 33:1 Journal of Air & Space Law 10; Jeffrey L Caton, Joint warfare and military dependence on space (DTIC Document, 1996). James A Lewis, “China as a military space competitor” (2004) Center for Strategic and International Studies 2; Maogoto & Freeland, supra note 35; Jackson N Maogoto & Steven Freeland, “The 21st Century Space Arms Race: Curtailing Heavenly Thunderbolts Through the Shield of the ‘Peaceful Purposes’ Mantra” (2009) Hyderabad: ICFAI University Press 70; Peter L Hays, United States Military Space: into the twenty-first century (DIANE Publishing, 2002). See for example tests undertaken by the US Defence Advanced Research Project Agency (DARPA) on the Orbital Express Space operations Architecture; . See for example the definition of “air or missile operations” in Article 1(c) of the Harvard Manual: “Air or missile combat operations” mean air or missile operations

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III.2.

Use of Force and Targeting in Space

Because the enforcement of international law can be dependent on domestic application, some sensitive areas in this new domain may be open to the risk of differing unilateral interpretations. Perhaps the most sensitive is the question of the use of force in self-defence, which is only lawful in response to an armed attack. The use of force is prohibited outright, not only with respect to the waging of war, which was already outlawed in 1928 by the Briand-Kellogg Pact,39 but also with respect to any use of force short of war such as interventions, blockades or reprisals.40 Such is the reach of article 2(4) of the UN Charter, and this jus cogens norm is now recognised in customary international law.41 As mentioned above, the use of force can only be lawful if the UN Security Council authorises it under its so-called “Chapter VII” powers of collective security, or if it is an act of self-defence according to Article 51 of the UN Charter. With regards to self-defence, article 51 requires that this be in response to an armed attack; this is a condition sine qua non. The armed attack must be underway, or at least “imminent”. A “threat” of an armed attack is insufficient to trigger a right to use force in self-defence.42 The challenging question which must be answered, is what amounts to an armed attack in space, and as long as this remains unclear, the risk of a legal black hole arises, given that States may assert an armed attack has taken place under debatable circumstances. “Armed attack” is defined in international law in different ways. The important thing is to distinguish between the definition applicable to jus ad bellum, or the lawfulness of the use of force, and jus in bello, or the law applicable during a conflict. Under the latter, “armed attack” is defined in Article 49(1) of Additional Protocol I to the Geneva Conventions as an “act of violence against the adversary, whether in offence or defence”.43 This term of art is used in order to define a particular type of military operation during an armed conflict to which particular international humanitarian law norms apply, such as the limitations and prohibitions applicable to lawful targeting,

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designed to injure, kill, destroy, damage, capture or neutralize targets, the support of such operations, or active defence against them. The General Treaty for Renunciation of War as an Instrument of National Policy, (Paris, 1924), League of Nations Treaty Series, Vol 94, online: www.yale.edu /lawweb/avalon/imt/kbpact.htm. Giovanni Distefano, “Use of Force” in Paola Gaeta & Andrew, eds, The Oxford Handbook of International Law in Armed Conflict (Oxford University Press, 2014) 545 at 545. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and Admissibility) [1984] ICJ Rep 392, para. 188. Distefano, supra note 40 at 553. Ibid., art 49(1).

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protection of civilians and lawful weapons.44 It is indifferent as to whether the existence of the conflict is itself lawful. But this is not the same as an “armed attack” for the purposes of defining the threshold of when selfdefence is lawful, or the jus ad bellum body of law. For this threshold question we must turn to other sources of international law, such as decisions by the ICJ on situations where the question of an “armed attack” has been considered. In the Nicaragua case the ICJ found that an isolated minor incident which, by the manner in which it takes place, cannot be mistaken for a threat to the safety of the State would not qualify as armed attack under Art. 51 UN Charter.45 This would be a kind of lower limit. However in the Oil Platforms Case the ICJ considered whether a series of minor attacks could cumulatively be considered to amount to an armed attack.46 Although it did not find so under the facts of the case, some have argued since that the fact the ICJ considered it demonstrates that it may be possible under a different set of facts.47 Furthermore the attack must be undertaken with the “specific intention of harming”.48 This requirement of an intent to harm may be opaque in the domain of space, given that States are not always willing to communicate their intentions with respect to space activities. One example is Russian Object 2014-28E, launched in May 2014 as part of a military communications satellite launch. The object itself was not registered, and it was assumed that it was a piece of space debris, until it began a series of manoeuvres including meeting up with the remains of the rocket stage that launched it. While this may have been a case of testing on-orbit servicing, the fact that Russia made no clear statement as to the purpose of the object raised concerns in the media as to whether this may have been a weapons test.49 Given the potential discussed above for escalation between States if activities in space are not accompanied by communications

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Mike Schmitt, “‘Attack’ Is a Term of Art in International Law: The Cyber operations Context” in C Czosseck, R Ottis & K Ziokowski, eds, 4th International Conference on Cyber Conflict (Tallinn, Estonia: NATO CCDCOE Publications) 283 at 285. Nicaragua v United States of America, supra note 41, para. 195. Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161, para. 64. Yoram Dinstein, War, aggression and self-defence (Cambridge University Press, 2011) at 195; Karl Zemanek, “Armed Attack” in Rüdiger Wolfrum, ed, Max Planck Encyclopedia of Public International Law (Oxford University Press, 2013). Oil Platforms Case, para. 64. See e.g. Andrew Griffin, “Is Russia flying a satellite killer around space? Unidentified Russian satellite prompts space weapon worries”, The Independent (18 November 2014), online: The Independent ; Michael Listner & Joan Johnson-Freese, “Object 2014-28E: Benign or Malgnant?”, Space News (8 December 2014), online: Space News .

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with respect to the intentions of the actor responsible, it is possible that the right to use force in self-defence could be called upon and accompanied by claims of a state of emergency in situations which are quite simply unclear. Another question that the unique domain of space raises is whether the disabling or damaging of a satellite by means of jamming, dazzling or cyber interference would amount to an “armed attack” in the sense of jus ad bellum. This type of non-kinetic interference is more likely to be the course of action of a belligerent than the outright destruction of a space object, since the nonkinetic activities may be more difficult to trace and less costly. Without a clear definition this kind of situation might also give rise to the claim of a state of emergency or a right to suspend international obligations against the use of force in retaliation. Is the targeting of a satellite by means other than kinetic weapons really an “armed attack”? Another international manual, the Tallinn Manual on Cyber Warfare, gives a definition of cyber-attack as “a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects.”50 If we apply this to a cyber-attack on a satellite, it would seem that there is a potential for damage, destruction and possibly even injury or death as a secondary effect, as a result of critical communications or other space-reliant technologies being interrupted. Under such circumstances a State may be able to claim a right to self-defence, however to allow this right as soon as any level of damage has been caused would be to allow escalation in a domain where this is exactly what we should restrain. If we return to the questions posed in the introduction regarding lawful targeting of satellites, there is much in the body of law of IHL that should be applied as a matter of international law. This is a question of jus in bello. For instance, the principle of proportionality is enshrined in Article 51(5)(b) of Additional Protocol I to the Geneva Conventions, and Article 55 provides that methods and means of warfare that may be expected to cause “widespread, long-term and severe damage” to the environment are prohibited. In the case of kinetic destruction of a space object, we know from tests undertaken by China, Russia and the US51 that the space debris caused by such methods cause widespread, long-term and severe damage to the space environment, and a hazard to all

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Rule 30, Tallinn Manual on International Law Applicable to Cyber Warfare, Cambridge University Press (2013). See ‘Chinese ASAT Test’, CelesTrak, online: CelesTrak . Earlier ASAT tests by the Soviet Union also created space debris: See Union of Concerned Scientists, “A History of Anti-Satellite Programs”, online: Union of Concerned Scientists. . Regarding the creation of space debris by the US launch of a missile in 1985 to destroy its own aged Solwind satellite, James Moltz, The politics of space security: strategic restraint and the pursuit of national interests (Stanford University Press, 2011), p 202.

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future space activities. Proportionality would therefore dictate that such outright destruction of a space object would rarely, if ever, be lawful. Similarly, the question of targeting dual use satellites may be a source of tension among space faring nations, who fear the targeting of their own satellites but also know the strategic advantage of targeting an adversary’s space assets due to our high reliance on these technologies for military activities. the principle of distinction, which is central to jus in bello and must apply to any decision to target a space object just as it does to conflicts on land, at sea or in the air. According to Article 48 of Additional Protocol I, which is considered to be reflective of customary international law, parties to a conflict must “at all times distinguish between [...] civilian objects and military objectives and accordingly shall direct their operations only against military objectives”. Article 52 of Additional Protocol I defines military objectives as “those objects which by their nature, location or use make an effective contribution to military action [...]”,52 as long the targeting of such objectives do not result in disproportionate collateral damage.53 However, the specificity of the space environment raises questions. One predominant problem in space is that many objects are “dual use”, servicing both civilian and military purposes. Although it could be said based on nature, location, or use that targeting a particular satellite would provide military advantage, the potential fallout for civilians in the case of destroying or even disabling a dual use satellite could be disastrous considering the extremely high level of dependency of civilian life on the technology the satellite provides. Article 54 of Additional Protocol I outlaws the attack against, destruction of or rendering useless of “objects indispensable to the survival of the civilian population”,54 however it only lists thing such as food, crops, livestock, and water and only prohibits “denying them for their sustenance value to the civilian population”. The question is whether the technology or services provided by a specific satellite or space applications would amount to something indispensable to the survival of the civilian population. As such it may be possible to say that kinetic attacks on space objects are prohibited according to international law, as are attacks which result in disproportionate collateral damage or risk technologies indispensable to the survival of the population. It is true that these are factual calculations that must be left in the hands of States which may find themselves in such new, unknown conflict situations, and may find their own space assets threatened by adversaries. The risk of unilateral interpretations may therefore remain, but one thing that can be said is that the risk of legal black holes are reduced if we look to existing bodies of international law.

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Article 52(2) Additional Protocol I. Article 57(2)(iii) Additional Protocol I. Article 54(2) Additional Protocol I.

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IV.

Avoiding Legal Black Holes through the Rule of Law

IV.1.

Rule of Law in Space

There are some general limitations on the suspension of IHL obligations during a conflict in or through space. The underlying one, upon which all other limits are built, is the fundamental Rule of International Law; even in a state of emergency the rule of law must prevail. As the Inter-American Court of Human Rights has stated, that the suspension of human rights does not imply “a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard for the principle of legality by which they are bound at all times.”55 This means that even though there may be conditions under which some specific obligations may be suspended, a total disregard for IHL requirements in space can never be justified. A state of lawlessness or legal chaos due to differing interpretations will always be bounded in some way. Part of the international rule of law is the law of treaties, as codified in the Vienna Convention on the Law of Treaties (VCLT),56 and as recognised in customary international law. The VCLT does allow for modification of a treaty obligation, but not if it is with respect to an obligation the derogation from which “is incompatible with the effective execution of the object and purpose of the treaty as a whole.”57 This therefore limits derogation from fundamental protections guaranteed such as the prohibition on torture, the right to minimum standards of humane treatment and the right to life. But it is unclear whether it would limit other rules of IHL regarding targeting and proportionality. Another possibility for suspending a treaty or certain of its provisions is where there is an unforeseen fundamental change of circumstances, the existence of which constituted an essential basis for the States to enter the treaty in the first place.58 Historically the outbreak of conflict was considered to abrogate all treaty relations between States until a peace treaty was signed,59 however this shifted in the twentieth century to an opposite stance. Conflict was not generally considered to be a fundamental change of circumstances in the sense intended in the VCLT, since this exception was meant to prevent States from entering a treaty under a mistake of fact, and not to allow States to withdraw from or suspend treaties due to a shift in political relations. In recent years international law has taken an intermediate position, and it does

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56 57 58 59

Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87, Inter-American Court of Human Rights (ser. A) No. 8, 1 24 (Jan. 30, 1987). 1969 Vienna Convention on the Law of Treaties (VCLT). Article 41 VCLT. Article 62 VCLT. Arnold Pronto, “The Effect of War on Law-What Happens to Their Treaties When States Go to War” (2013) 2 Cambridge J Int’l & Comp L 227 at 230.

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allow for the temporary suspension of treaty obligations between States in conflict, if these relate to economic or political relations between those states.60 The question of the effect of conflict on the applicability of treaties has been given due attention in a study undertaken by the International Law Commission (ILC), leading to a set of draft articles.61 Article 3 states that the “existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties”, and in its commentary the ILC specified that some treaties are indeed meant to apply in times of conflict, such as those covering IHL, methods and means of warfare and the conduct of hostilities, as well as some human rights treaties. In the case of a conflict in space, therefore, States cannot claim that IHL obligations and protections could be suspended due to a state of emergency. Of course jus cogens norms cannot, by definition, be suspended during conflict, since they can never be derogated from.62 There are also certain obligations which are owed to the international community as a whole (obligations erga omnes), which may also not be suspended, whether or not they are considered to be of a fundamental peremptory nature (jus cogens). This is because, even if it were theoretically possible to suspend such obligations as between to belligerent States during conflict, to do so would be to suspend them with respect to all other States, thus breaching the very nature of their universal application. One of these is the obligation under Article IV of the Outer Space Treaty, prohibiting the placement of nuclear weapons or other weapons of mass destruction in orbit around the Earth. Since this obligation is owed by all States to all other States, it cannot be suspended in times of conflict. The same can be said of the body of IHL: war does not exist outside the limits of law. IV.2.

General Principles as Limits

Even with the general applicability of international law in space, and the specific applicability of IHL, the risk of differing unilateral interpretations may arise in the unique environment of space, where much behaviour of States is unpredictable. For instance, given that the definition of “armed attack” depends in part on the intention of the aggressor, it is important that intentions are made clear. However the fact that most States do not wish to divulge

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61 62

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Ibid. at 228. See e.g. Eritrea-Ethiopia Claims Commission’s finding that “the Parties’ bitter international armed conflict [had] fundamentally changed the nature of their relationship…” Civilians Claims by Eritrea, Partial Award of 17 December 2004, para. 38, XXVI RIAA 195, 214; See also The North Atlantic Coast Fisheries case, Award of 7 September 1910, XI RIAA 167, 181. Report of the International Law Commission on its Sixty-third Session', UN Doc A/66/10, 2011, 173ff (ILC Report). ICL report p 21.

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their space capabilities in full means that the intent of many activities in space are unclear, compounded by the fact that that there may be unintentional interference or effects of certain activities, which could be read as intentional. If one State is unclear on the intentions of another State, the propensity to claim self-defence, or a state of emergency, may be greater. These exceptions to the prohibition on the use of force and the application of certain specific rules of IHL are only meant to be triggered in exceptional situations, but the new domain of space may be susceptible to premature claims or even their abuse. In these cases, apart from the limits on the doctrine of emergency, and the limits placed on suspending treaty obligations by the VCLT and by the international rule of law as stipulated by the ILC, there are also some general legal principles which operate as a limit on what States can justifiably claim during a situation of emergency. There are moral underpinnings to the VCLT which are not explicit in its articles, but which are also the underpinnings of the modern system of international law as a whole. One of these is the imperative for a system that functions based on reciprocal respect and the desire for stability. If States claim exceptions to one treaty in a time of tensions, there is no longer any guarantee of adherence to other treaty obligations. In today’s time of international interdependence, such a situation would escalate to even greater levels of uncertainty and potential chaos, especially given many other neutral States would be affected by conflict in outer space. It is in no State’s interest during a time of conflict with one or more States to undermine the surety of its relations with other States. This relates to another principles which is often seen as carrying little substantial weight, but which underpins all international relations; that of good faith. Treaties are negotiated on the understanding that States will do their utmost to fulfil their obligations. Especially in the case of IHL treaties, which have been given form specifically to regulate during times of hostility, respect for these norms is essential to the survival of humanity. Aside from treaty relations, much of IHL and the law on the use of force is recognised as customary international law, binding on all States. Even though the enforceability of international law has a weak link in that it is at least in part dependent on the will of States to adhere to it and apply it, those States which do not do so lose moral high ground and become less trustworthy partners, particularly in the space domain where so much has yet to be explored, where uncertainties prevail, and where good international relations are essential.63

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Jeffrey L. Caton, “Joint Warfare and Military Dependence in Outer Space”, JFQ Winter 1995-1996, .

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V.

Conclusion

It is clear from the discussion here that the Rule of Law acts as a limit on unilateral interpretations of international law applied to space, even in times of conflict. This is not just a matter of morality, or of a normative aspiration, but rather a matter of legal necessity. Without the limitations of the Rule of Law, there is no system of reciprocity, which is something States in fact prefer. In general States act in accordance with IHL during times of conflict, at least in part because they want to be able to count on belligerent States to do the same. Without reciprocity and without the Rule of Law as the supreme principle guiding all activities in space, there is no system at all. Even during the Cold War, the USSR and the USA recognised very quickly that this was an undesirable state of affairs. As each State tried to gain the “high ground” in space by developing superior technologies, they also recognised that without some respect for rule of international law, and without the fundamental rule agreed to in Article III of the Outer Space treaty that all activities shall be carried out in accordance with international law, neither State could continue to use outer space with any sense of stability or safety.64 It is in the interests of all States, and one could say especially in the interests of those who are most active in space, to ensure that IHL is adhered to and claims of suspension or exception are kept to an absolute minimum. As it is stated in the US National Security Strategy of 1994: “Retaining the current international character of space will remain critical to achieving national security goals.”65

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Moltz, supra note 51. A National Security Strategy of Engagement and Enlargement, 1994, .

Extending the International Law Principle of Good Neighborliness to Outer Space Motolani Fadahunsi-Banjo*

Abstract At inception of Mankind’s activity in Space, the essentiality of maintaining peaceful demeanor in all activities to avoid extending war zones from earth to space was a major concern. This led to the creation of the Committee on Peaceful uses of Outer Space, International Space Law Treaties, principles, and codes of conduct. It is important that space activities be conducted in accordance with International Law, International Space Law and the principle of peaceful purposes. This paper espouses the frontier of the concept of who is your neighbor in space, obligations of states to each other as neighbors hinged on ownership of objects launched into Outer space, and brings to the fore consequences of non-conformity to such obligations. It also further seeks to discuss the International law Principle of good neighborliness, how it has affected activities of States on earth positively, and how such can be extended to outer space putting into consideration its res communis nature and non-appropriation principle as contained in the Outer Space Treaty. Also the question will be addressed whether such application of the good neighborliness principle can proffer solutions on issues regarding space debris and militarization in space, to foster continuous cooperation in Outer Space. In conclusion the paper emphasizes that a peaceful outer space as not only an obligation to all states but a necessity to ensure a sustainable space environment.

I.

Introduction

The principle of good neighborliness in international law depicts a picture of the existence of a healthy relationship among neighboring states, states bordered by the sea or having a common frontier.1 Generally, interaction among states is of

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1

Motolani Fadahunsi-Banjo, National Space Research and Development Agency (NASRDA), Nigeria, [email protected]. Elena Basheska: Contemporary Southeastern Europe, The Good Neighborliness Condition in Europe Enlargement (2014) at p. 92. See also www.suedosteuropa.unigraz.at/cse/sites/ default/files/papers/ Basheska The_Good_Neighbourliness _Condition in_EU_Enlargement_0.pdf, Components of Good Neighborliness Between States – Its Specific Legal Contents – Some Considerations Concerning the

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great necessity to avoid conflicts, minimize misunderstanding, and enhance cooperation. It is important to stipulate that good neighborliness is not restricted to a geographical location alone, but rather it involves blooming international relations among nations. In corroboration, the Preamble of the United Nations Charter enjoins all nations to live together in tolerance as good neighbors thereby expanding the definition of neighbor beyond geographical proximity.2 It is opined by Elena Basheska that good neighborliness is easily embraced amongst nations with standing cordial relations bound by international law and maintained based on strict observance of such laws. The principle is conventionally portrayed as using individual property in a manner preventive of harming another person’s property. In international parlance, this indicates that nations, while exercising sovereignty over the use of their territories, consciously observe their obligation to prevent harm to the environments of other states, and areas beyond state jurisdiction.3 The Outer Space is an area internationally agreed to be the province of all mankind, embodying activities beneficial and in the interests of all countries.4 Interrelationship and peaceful coexistence requires a continuous exhibition of good neighborliness to prevent hampering both individual and international interest. As a result of registration, Space objects acquired nationality traits of nations on earth, thereby extending state jurisdictions to space objects, exercisable within the object launched into the outer space and viewed by the researcher as a neighborhood owned and native to all human races. Extending good neighborliness into outer space requires continuous and consistent communication, international cooperation and reinvention of our commitment to peaceful co-existence in outer space. From the forgoing, this paper seeks to uphold the existing peaceful inter relationship of states in Outer Space and further advocate an extension of good neighborliness in cohabiting, collaborating, and resolving issues; for instance militarization and space debris removal.

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2 3 4

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Reports of the Sub-Committee on Good-Neighborliness Created by the Legal Committee of the General-Assembly of the United Nations Bucharest: Editura R.A.I, 58. Pop writes that “good neighborliness does not designate a geographical situation, but a model, a type of international relations, a certain kind of ties, as between good neighbors.” United Nations Charter [1945] ATS 1 / 59 Stat. 1031; TS 993; 3 Bevans 1153, See also https://treaties.un.org/ doc/publication/ ctc/ uncharter.pdf. These are jurisdictions or areas seen as global commons or, belonging to all humans. For instance the Outer space, high seas, and the Antarctica. OST Article 1.

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II.

Who Is a Neighbor?

This paper is hinged on the international Law Principle of Good Neighborliness, thereby necessitating the definition and proper understanding of the word neighborliness. Neighborliness is sourced from the word neighbor, a neighbor is defined as someone who lives very close to you or a country that is next to another country.5 In Legal parlance Neighbor is defined in tort as persons closely associated or nearby people or property that could be affected by my actions or omissions.6 This is further deepened by the Locus classicus case of Donoghue v. Stevenson7 where Lord Atkins offered the foundational definition of a neighbor as ‘persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are in question’.8 From Lord Atkin’s summation it arises that neighbors owe each other duty of care, refraining from intentionally or negligently harming one another. According to Elena Basheska,9 neighborliness is the external ties of a country with other states, it further depicts a situation where a neighbor exhibits friendly attitudes expected of a good neighbor. In relation to the intent of this paper, these definitions will be related to international principle of good neighborliness bearing in mind nations as neighbors and further extending its effect and consequences to outer space. Thus it is imperative to give an insight into the Principle for proper understanding of its effect on earth. III.

International Law Principle of Good Neigbhorliness and Its Impact on Earth

The principle of good neighborliness is traditionally enshrined in the ancient Roman law of sic utere tuo ut alienum non ledas which means a property owner should have free enjoyment of his property without causing harm to others. In other words, refraining from harming others in exercising individual rights.10 Ab initio the principle guided individual activities, due to its general

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9 10

http://dictionary.cambridge.org/dictionary/british/neighbour. Ibid. Donoghue v. Stevenson [1932] AC at p. 562. Lord Atkins in his submission in the case of Donoghue v. Stevenson while answering the question ‘’who then is my Neighbor in Law ‘’ proffered the above answer to his question. The common law judgment of the case has formed the foundation of negligence, duty of care, product liability law in Common Law jurisdictions globally. Ibid. Lotta Viikari: The Environmental Element in Space Law: Assessing the Present and Charting the future, Matinus Nijhoff Publishers (2008) p. 150.

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acceptance, it soon garnered international status.11 Although the principle has no form of codification, Legal jurists and opinion-makers are of the view that the neighborliness principle is not only a general principle of law but also a general principle of international law.12 Its global acceptance has made it an important principle of customary law13 and it is thus believed that it should apply in all human endeavors since the freedom of each subject of law is limited by the equal respect of the freedom of other subjects. Similarly, Article 74 of United Nations Charter buttresses the universal applicability of good neighborliness.14 The International implication of the Principle espouses that a State, in exercising rights to utilize its territory and resources within its control as it deems fit, should not inflict harm to the environment within another state and areas beyond state jurisdiction.15 The principle is further applicable to areas which could be of global common or importance and not necessarily geographically located within a state’s jurisdiction.16 For instance, a state should consider the

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12 13

14

15

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Ibid., the principle gained acceptance internationally as reflected in Treaties, international regulations and in domestic relations. For Instance Hungary in its application in Gabčikovo-Nagymaros Project invoked the maxim which is the foundation of good neighborliness as a fundamental rule. See Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997), 25th September 1997, International Court of Justice [ICJ]. See also Philppe Sands: Principles of International Environmental Law Vol. I, Frame works Standards and Implementations, Manchester University Press (1995) p. 197. Ibid. Hendric A. Strydom: International Law and Institutions; The Legal Principle Relating to Climate Change at 5 www.eolss.net/sample-chapters/c14/E1-36-10-00.pdf it has been codified into International regulations in form of humanitarian law, for instance the Stockholm Declaration 1972, moreover it is widely accepted as a customary international law by many authors evident in Report of the 64th Conference of International Law Association 1990 p. 168, the United Nation Chatter related good neighborliness to issues concerning social, economic, and commercial matters but I has been extended to the environment. The Charter of the United Nations (adopted 26th June 1945, in force 24 October 1945) 59 Stat. 1031 UN Charter.(Assessed 25th June 2015) its universal application is evident in its extension beyond commercial, social activities into various human endeavour such as the environment, international relations and cooperation amongst states in areas beyond state jurisdiction such as the Outer space, high seas, and Antarctica. Corfu Channel Case: United Kingdom v. Albania I.C.J (1949) I.C.J 4 at p. 22, Areas beyond state jurisdiction refers to outer space, high sea, and Antarctica and areas which has no state ownership. Principle 2 of the Rio Declaration, in accordance with the Charter of the United Nations and the principles of international law, States have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

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interest of other states while carrying out activities such as exploiting resources in areas within its jurisdiction or control, installations both within and outside its territory which he has ownership over or has under its supervision;17 Examples of such are space objects or installations located in outer space. The United Nations Charter enunciates in Article 74 the importance of good neighborliness among states in being considerate in their activities putting into cognizance the global interest of all nations.18 The application of this principle was shown in the leading cases of Trail Smelter19 and Corfu channels.20 In the Trail Smelter case, the issue for determination was to ascertain whether a state is obliged to protect other states from injury occasioned by the act of an individual within its jurisdiction. It was held that not only is a state responsible for preventing harm occasioned by individuals within its jurisdiction, to other states, it was further established that no state has the right to permit the use of its territory for any activity causing injury by fumes to another’s territory, property or persons as stipulated by International law or laws of the United States.21 Similarly in the Corfu Channel case, the International Court of Justice held that states have the obligation not to allow their territory to be intentionally used for activities contrary to the rights of other states.22 IV.

The Principle of Good Neighborliness in Outer Space

At the inception of man’s physical entrance into outer space, the essentiality of good relations and inter-cooperation amongst humans regardless of race, nationality, and disposition, established the foundation of space activities. This is evident in the content of international space regulations in the form of Treaties, principles, conventions, codes of conduct that have been emphatic on the importance of international cooperation. International organizations

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19 20 21 22

These are installations owned by private individuals or juristic persons or by foreigners carrying out activities within a state where they are registered. United Nations Charter (accessed 26th June 2015):’’Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.’’ See also, Philippe Sands: Principles of International Environmental Law Vol. I, p. 197. Trail Smelter Arbitration (United States-v-Canada) Arbitral Tribunal 3 U.N Rep. Int’l Arbitration. Awards 1905 (1941). Corfu Channel’s Case. Ibid., also www.casebriefs.com/blog/law/international-law/international-law-keyedto-damrosche/chapter-18/trail-smelter-arbitration-united-states-v-canada/2/. The Corfu channels case was a suite between United Kingdom and Albania, where Albania failed to inform United Kingdom of the presence of mines in its waters; the mines exploded resulting to the death of British naval personnel. Albania was held responsible that it ought to have notified United Kingdom of the Presence of Mines.

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were inaugurated to enlighten each member state of the necessity of good relation and cooperation with all states regarding space activities. The Outer space is a res communis with non-discriminatory access to all nations,23 despite being an area beyond state jurisdiction, Space objects launched into outer space are owned and controlled by nations, private or juristic persons on earth, exhibiting ownership and control rights on such objects. Ownership of objects launched into outer space is not affected by their presence in outer space; all space objects have similar attributes of state nationals.24 The rights to ownership and control are followed by responsibilities expected of the appropriate state where such objects are registered or otherwise agreed in situations of possible multiple states contact of a space object.25 Ownership and control of a space object extends to Outer space thus attracting responsibilities and obligations. From the researcher’s perspective space objects are extensions of states’ territory in a res communis which is a province of mankind immune to state appropriation. The researcher is of the view that space objects have attracted the attributes of neighbors in space due to their continued connection to states, retaining ownership of the objects. The activities within installations, space objects, the satellites and its components are attributed to the state with ownership and control, but success recorded by the activity is an achievement to mankind. From the forgoing, the satellites which is a qausi-territory of a state in itself confers a duty of care on its national owner to ensure all activities from within its territory both on earth and in space does not harm the environment of other states and areas beyond state jurisdiction. This environment here refers to the part of outer space where the space object is located. For instance where a space object owned by state A is launched in to the outer space for a specific activity,26 State A is obliged not only to ensure compliance with re-

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24

25

26

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Article 1 of Treaty on Principle Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies Resolution 2222(XXI) annex – adopted on 19th December 1966, opened for signature on 27th January, entered into force on 10th October 1967 (OST 1967). Article VIII OST [...] Ownership of objects launched into outer space are not, including space objects landed or constructed on a celestial body and of their component parts is not affected by their presence in outer space, on a celestial body or by their return to earth… Article V, VI and VIII OST, 1967; Article 5, Convention on International Liability for Damage Caused by Space Objects, Adopted by the General Assembly in its resolution 2777(XXVI) of November 1971, opened for signature on 29th March 1972, entered into force on 1st September 1972 (Liability Convention); Article II(1)&(2) Convention of Registration of Objects Launched into Outer Space, Adopted by the General Assembly in Resolution 3235(XXIX) of 12th November 1974, opened for signature on 14 January 1975 entered into force on 15th September 1976 (Registration Convention). By virtue of the Outer Space Treaty, all activities in space are expected to be peaceful, devoid of any harm to the Outer Space environment, and earth.

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strictions applicable to the intended activity but also prevent such activity from causing harm to other Satellites symbolizing the territory of another state or the global commons, which is beyond state jurisdiction or ownership where they are all placed.27 Thus where a space objects drifts from its orbit or has a different payload for activities which has a possibility of causing harm to other space objects, the national owner is obligated to pay due recourse to the wellbeing of other space objects otherwise tantamount to negligence, preventable where good neighborliness is taken seriously by all states. Each state has a right to be in space, explore all opportunities, and exercise its rights within its satellite or space object. This right is punctuated by ensuring any activity explored is harmless to the activities of other states and the space environment resulting in harm to other states territories in space via their space objects. Obviously, launching satellites in space imposes some duty of care following from international obligations resting on the state of registration, as specifically the state with jurisdiction and control over the space object.28 Moreover state activities with regard to that state’s object in space may directly or indirectly affect other space objects owned by other nations, thus it can be inferred that all space objects are neighbors in space emanating from their nationality. V.

Obligation of States as Neighbors in Outer Space

According to Sumudu Atapattu,29 the Principle of good neighborliness is entrenched in the Principle of sovereignty, as maintained in Island of Palmas Case;30 where the definition of Sovereignty was connected to the duty of a state to ensure the protection of the rights of other states within its territory especially the right to integrity and inviolability in peace and war. This obli-

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Article IX OST…if a state party to the Treaty has reason to believe that an activity or an experiment planned by it or its nationals in Outer space including the moon and other celestial bodies would cause potentially harmful interference with activities of other state parties in the peaceful exploration and use of outer space it shall undertake international consultation before proceeding with any such activity…. Ibid. Sumudu Atapattu: Emerging Principles of International Environmental Law, 2006 at p. 291. United States v. Netherlands RIAA (1928) 829, in the Case Max Huber enunciated a classical definition of Sovereignty: ‘Sovereignty signifies independence, that is the right to act on part of the globe, and to the exclusion of other states the functions of a state: this right has a corollary duty, the obligation to protect within its territory the rights of other states in particular their right to integrity and inviolability in times of peace and in war together with the rights each states may claim for its nationals in foreign territory.’

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gation was further buttressed by the Arbitration tribunal in the Trail Smelter case.31 V.1.

Non-Interference

Duty of non-interference is an obligation rooted in the principle of good neighborliness particularly the maxim sic utere tuo ut alienum non laedat, interpreted as use your property in a manner not harmful to another’s property. This is a duty all states must observe meticulously as a violation affects the territorial integrity of another state. There exist no unified form of interference states are expected to refrain from, however, some writers are of the view that the International right of good neighborliness includes the obligation connected to the activities been carried out in a state.32 Others are of the view that Interference could be political33 or jurisdictional which undermines the territorial sovereignty of other states and could be as a result of military operations at the boarder of another country.34 A nexus in diverging views of these writers is that the interference causing the damage in question emanated from activities within a state obliged to prevent such activity. According to Maria Del Lugan fores, technology and a new conception of the environment has modified the traditional notion of good neighborliness and physical contiguity is no longer a sine qua non requisite for an obligation arising from the Principle governing relations among states. The application of the obligation to outer space activities involves proper supervision and continuous monitoring of space activities within a state’s jurisdiction, extending such duties to installations and space objects launched in outer space. This entails ensuring space object launched within its territory or space object bearing its nationality in space is strictly monitored to stick to the purpose for which it is launched. A state in possession of the knowledge that activities of its citizen on earth or in space has a possibility to have trans boundary effect is expected to nip such in the bud taking precautions to prevent its occurrence in totality. For instance where a state is informed that a space object registered in its territory is conducting an experiment, with an apprehension of creating a long lasting debris field in space. It is obliged to prevent such activity, due to the possibility of trans-boundary damage on other neighboring satellites in space. Moreover, Article IX of the OST specifically provides that state parties to the treaty must interact with other states in situations where it apprehends that

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Ibid. Andrassy, J.: Les relations internationales de voisinage. RCADI 1951-II, Vol. 79. 77182, cited by Maria Del Lugan fores at p. 260. Lammers J.G: Pollution of International Water Courses, (1984) Matinus Nijhoff Publishers p. 264. Ibid.

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an activity by it or its nationals will cause harmful interference to neighbors in space or the space neighborhood. There exist no agreed interference causing activities in space, however, activities such as intentional anti-satellite tests in orbit, intentional laser beaming of other satellites and jamming have been agreed and deemed capable of harmful inference.35 An act of non-disclosure of a wandering satellite is also viewed as a form of interference since it has a possibility of damaging other satellites in space.36 V.2.

Due Diligence

Due Diligence is an obligation that involves states taking relevant steps to adopt measures that prevents inflicting harm to the right of other states, redress damages arising from interference and punishing the author. The principle is coupled with exclusive competence of a state in relation to its territory. This touches on the policing and judicial activities of a country. The states are expected to develop regulations in this regard to prevent interference before its occurrence and also punish any erring citizen engaging in such activities within its territory. In a like manner the registering state of a space object has an obligation to extend its domestic regulations on good neighborliness to its space objects in outer space since ownership, jurisdiction and control of a space object extends to outer space. Generally states are obliged to have clauses on good neighborliness in domestic national space legislation, and ensure strict compliance especially where the activity in question was carried out by an individual or private company registered with the state. V.3.

Obligation to Cooperate on International Issues

In international law, it is an obligation and a binding principle that states should cooperate with neighbors on international issues.37 The importance of cooperation among states and its practical significance is emphasized in several international agreements and instruments.38 The obligation to cooperate is

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36 37

38

Leonard David: Play Nice Up There Code of Conduct for Space Sought, Online publication of Space.com on 6th, January 2011. See www.space.com/9701-surfacemars-possibly-shaped-plate-tectonics.html. In determining activities regarded as misconduct in space he interviewed Marcia Smith, Micheal Kreplon, and Theresa Hitches. Ibid. Article 1(3) United Nations Charter: ‘To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;’. See: The preamble to the OST, Agreement on the Return of Astronauts, the UN Charter, UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. This principle was codified to emphasize the importance of cooperation

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reflected or affirmed in totality in international law and customs, particularly the principle of good neighborliness, reciprocity, non-discrimination and good faith. The obligation is of utmost necessity in areas beyond state jurisdiction, for instance the Outer space which is a global common. This obligation in the outer space context is contained in the preamble of all United Nations Treaties and Principles on Outer space, believed to further strengthen international cooperation amongst nations. The ability to regulate state activities in outer space requires total cooperation from all nations without which anarchy could be the result, thereby developing into a battle frontier. Thus, the researcher opines that this obligation is foundational, essential and a prerequisite to world peace. VI.

Consequences of Non-Conformity to Obligations

States as neighbors both on earth and Outer space have equal right to exercise their rights and an equal duty to recognise the rights of other states beyond their territories. Mutual respect in reciprocity is essential for international good neighborly relations among states.39 The golden rule; do unto others as you want them do to you40 substantiate this position. Article 12 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts41 provides that: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.’ The action of a state amounts to breach if it is a party to the law or regulation giving rise to such obligation. Situations where nations neglect their duties emanating from good neighborliness especially in outer space, creates general noncompliance with international regulations guiding space activities. The implication is far reaching as activities of nations on earth hugely depend on space technology. It creates a vindictive atmosphere without recourse to international interests and cooperation, thereby attracting non-peaceful activities and militarization in space.

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among nations, despite the non-codification of the principle of good neighborliness, the declaration on friendly relations forms it foundation. Henrikson, Alan K. (2000). Facing across Borders: The Diplomacy of Bon Voisinage, International Political Science Review 21(2), 124. Ibid., As noted by Henrikson: “neighbors are to be accepted as being equal and thus as deserving of considerate regard when an action that might adversely affect them is being contemplated, just as the shoe were on the other foot. ‘Do unto others as you would have them unto you’ – the Golden Rule-obtains. Draft Articles on Responsibility of States for Internationally Wrongful Acts UN GAOR 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001). Text adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session, See www.un.org/documents/ga/docs/56/a5610.pdf visited 29th June 2015.

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The global efforts regarding space debris removal and reduction will be hampered due to indiscriminate debris causing activities in the spacescape, since states are more interested in their own activities without recourse to international interest. State security nationally and internationally is of immense concern to nations as it is connected to state sovereignty. Insecurity within a state’s jurisdiction emanating from extraterritorial activity prevents the affected state from exercising its rights absolutely. In like manner, non-conformity with obligations regarding good neighborliness as contained in International space Laws creates insecurity among space faring nations resulting from efforts geared towards protection of national interest. VII.

Conclusion

Outer space has been of tremendous benefit to mankind both space faring and non-space faring nations alike. From spinoffs from remote sensing and communication satellites to the international space station and all other space objects in space which guide and our daily activities. A snag which encumbers space activities is the effect it has on the space environment. The emergence of space debris from the effect of man’s use of space has begun to threaten the use of outer space as numerous space debris fly freely in space. Embracing the good neighborliness principle arouses states consciousness of duty of care to other states in outer space, thus encourages states to embrace means by which space debris can be mitigated and a possibility of mapping out means by which existing Space debris can be removed while all nation make conscious effort not to create more space debris in future. In the researcher’s opinion, issues pertaining militarization in outer space must always be weighed against good neighborliness irrespective of the definition ascribed to it. The denominator and the underlying intent for all activities in outer space must always be for peaceful purpose.

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Environmental Protection as a Limitation to the Use of Force in Outer Space Peter Stubbe*

Abstract Despite the absolute ban of the use of force in international law, military confrontations in international relations cannot be completely ruled out. This could potentially also apply to outer space. Satellites are widely used for military purposes and could, therefore, be regarded by the belligerent parties as legitimate military targets. Warfare in outer space would have a devastating impact on the outer space environment due to the creation of a massive amount of space debris. The paper argues that the environmental protection provisions of international humanitarian law, which applies to military warfare in outer space, have a limiting effect on the conduct of military operations in space. Outer space forms part of the human environment and space debris pollution constitutes a global environmental concern. The provisions to be examined are the environmental protection norms of the ius in bello, namely those enshrined in the First Additional Protocol to the Geneva Convention and the Environmental Modification Convention, as well as the fundamental principles of international humanitarian law. Particular account is given to the current work of the International Law Commission in the field of environmental protection in times of armed conflict. This includes the proposal to designate areas of major ecological importance as protected zones in which no warfare is permissible. In applying this approach to (certain parts of) outer space, the outer space environment could be spared from the devastating consequences of space warfare.

I.

Introduction

While the use of force is banned under international law, the use of force cannot be totally excluded from international relations. In the space context, a military confrontation could make satellites the object of the use of force. Their physical destruction, damaging or impairment in any other manner causes the generation of space debris, thus resulting in the degradation of the outer space environment and threatening the long-term usability of outer

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German Aerospace Center (DLR), Germany, [email protected].

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space. The destruction of the Fengyun-1C satellite1 and other ASAT tests2 bear witness of this potential for environmental damage in outer space. This paper asks whether environmental protection law can have a limiting effect on the conduct of an armed conflict in outer space. In a first step, the current state of affairs in terms of space security shall be briefly mapped, including references to ongoing discussions in international fora, and the two bodies of law, ius contra bellum and ius in bello, will be briefly presented. In a second step, the norms having a protective effect for the outer space environment will be scrutinized with regard to their potential for constraining the use of military force in outer space. This does not only include the examination of the relevant ius in bello, but also cover the ‘ordinary’ rules of international environmental law. The scrutiny, finally, opens up the perspective to an approach that is currently being discussed in the International Law Commission (ILC), namely the designation of certain areas as protected zones. Since 2013, the ILC works on the topic of ‘Protection of the Environment in Relation to Armed Conflict’.3 II.

Outer Space and Military Force

II.1.

Outer Space as a Potential Area of Conflict and the Consequences for the Space Environment

As a basic principle, it cannot be excluded that a military confrontation extends to outer space. Space applications have become an essential element for the conduct of military operations and the corresponding space and ground infrastructure could become a military target. During the times of the EastWest confrontation, the two superpowers, by and large, exercised some degree of restraint when it comes to the development of anti-satellite weapons, which even the Strategic Defence Initiative (SDI) programme did not challenge. This reluctance reflected their interest in safeguarding outer space as a strategic room for their respective militaries.4 Since the beginning of the new millennium, however, the weaponization of space seems to have become a realistic policy option. Corresponding technology developments and anti-satellite

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See National Aeronautics and Space Administration, Fengyun-1C Debris Cloud Remains Hazardous, in: Orbital Debris Quarterly (18, 1) 2014, p. 2. See Klinkrad, H., Space Debris: Models and Risk Analysis, Springer Berlin/Heidelberg/New York 2006, p. 21. See UN Doc. A/68/10, Report of the International Law Commission, sixty-fifth session (6 May-7 June and 8 July-9 August 2013), paras. 130-144. See Moltz, J.C., The Politics of Space Security: Strategic Restraint and the Pursuit of National Interests, 2nd edition, Stanford University Press, Stanford 2011, p. 50; Mutschler, M., Keeping Space Safety: Towards a long-term strategy to arms control in outer space, Peace Research Institute Frankfurt, Report No. 98, Frankfurt/Main 2010, pp. 6-7. Nevertheless, there were, of course, a number of space weapons development programs.

ENVIRONMENTAL PROTECTION AS A LIMITATION TO THE USE OF FORCE IN OUTER SPACE

weapons testing bear witness of this policy change.5 In the context of the thus heightened tensions, there is a risk of misperceptions and ambiguities in view of the increasing pollution of space with space debris and the equally growing probability of in-orbit collisions.6 The object population in low-Earth orbits has reached a level that can be characterized as unstable. The Inter-Agency Space Debris Coordination Committee (IADC) found: “Even with a 90% implementation of the commonly-adopted mitigation measures, based on the ESA provided initial population of 2009, the LEO debris population is expected to increase by an average of 30% in the next 200 years.”7

Accidental collisions together with uncertainties over the cause of the sudden loss of a satellite occurring in times of serious political tensions may be perceived as an armed attack, thus triggering a military response. It is increasingly recognized that there is a need to enhance transparency and mutual trust in order to avoid and mitigate tensions among States in the utilization of outer space. There are a couple of different types of space weapons. Of particular interest are those targeting satellites. Anti-satellite weapons are nuclear explosions in outer space, kinetic-energy and directed-energy weapons, jamming as well as anti-ballistic weapons systems; they can be either ground or space based.8 The damaging or complete destruction of satellites results in the creation of massive amounts of space debris.9 The resulting fragmentation of a spacecraft can add massively to the already existing debris population. The Fengyun-1C destruction created as many as 3,400 additional debris objects.10 Even measures that disrupt the ordinary functioning of a satellite in absence of its complete destruction or its physical damaging increase the risk of a further debris proliferation. A (temporarily) disabled satellite is incapable of performing collision

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6 7 8

9 10

See Ibid., pp. 7-9; Liemer, R./Chyba, C.F., A Verifiable Limited Test Ban for Antisatellite Weapons, The Washington Quarterly (33, 3) 2010, pp. 149-151; and Maogoto, J.N./Freeland, S., Space Weaponization and the United Nations Charter Regime on Force: A Thick Legal Fog or a Receding Mist?, The International Lawyer (41, 4) 2007, pp. 1096-1097. See Adushkin, V. et al., Orbital missions safety – A survey of kinetic hazards, Acta Astronautica, In Press, Corrected Proof, Available online 8 January 2016, pp. 5-6. IADC Doc. 12-08, Rev.1, Stability of the Future LEO Environment, January 2013, p. 17. See Hart B.L., Anti-Satellite Weapons: Threats, Laws and the Uncertain Future of Space, Annals of Air and Space Law (XXXIII) 2008, p. 346. See also Neuneck, G./Rothkirch, A., The Possible Weaponization of Space and Options for Preventive Arms Control, Zeitschrift für Luft- und Weltraumrecht (55, 4) 2006, pp. 504-507. See Hart B.L., Anti-Satellite Weapons: Threats, Laws and the Uncertain Future of Space, Annals of Air and Space Law (XXXIII) 2008, pp. 374-375. See National Aeronautics and Space Administration, Fengyun-1C Debris Cloud Remains Hazardous, in: Orbital Debris Quarterly (18, 1) 2014, p. 2.

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avoidance maneuvers in case of close conjunctions. It is expected that collision debris in low-Earth orbits will take over as the most important source of debris and there is a growing collision risk in orbit.11 The Outer Space Treaty (OST)12 only prohibits the placement of weapons of mass destruction in outer space and on celestial bodies. Conventional weapons do not fall under this ban so that their stationing and deployment is not prohibited by the disarmament norms of the Outer Space Treaty.13 Particular restrictions exist for the Moon and other celestial bodies, which must be used for ‘exclusively purposes’ only.14 This excludes not only aggressive, but also every military use15 so that conventional weapons too, must not be placed or deployed on the Moon and other celestial bodies. In light of the incomplete disarmament provisions of international space law and the heightening tensions, there are several initiatives aimed at curbing space weaponization and at building mutual trust and confidence. The debate over the ‘prevention of an arms race in outer space’ (PAROS) in the scope of the Conference on Disarmament in Geneva started in the 1980s, but has not matured substantive results. Discussions have remained in a deadlock for many years. Russia and China have proposed a legally binding disarmament treaty,16 but no consensus could yet be reached on a meaningful step towards disarmament in outer space. In order to overcome the Geneva stalemate, the idea of a voluntary Code of Conduct for Outer Space Activities has been put

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See IADC Doc. 12-08, Rev.1, Stability of the Future LEO Environment, January 2013, p. 13; and Liou, J.-C., An active debris removal parametric study of LEO environment remediation, in: Advances in Space Research (47, 11) 2011, p. 1866. The 2009 Iridium-Cosmos collision can be regarded as a case in point in this respect. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (done 27 January 1967, entered into force 10 October 1967) 610 UNTS 205. See Neuneck, G./Rothkirch, A., The Possible Weaponization of Space and Options for Preventive Arms Control, Zeitschrift für Luft- und Weltraumrecht (55, 4) 2006, p. 513. See Art. IV para. 2 of the Outer Space Treaty and Art. 3 of the Moon Agreement (MOON). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (done 18 December 1979, entered into force 11 July 1984) 1363 UNTS 3. See Jakhu, R./Stubbe, P., Art. 3 MOON, in: Hobe, S./Schmidt-Tedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume II, Carl Heymanns, Köln 2013, margin number 66. It was first proposed in 2008 and recently updated. The 2014 version is: CD Doc. CD/1985, Letter Dated 10 June 2014 from the Permanent Representative of the Russian Federation and the Permanent Representative of China to the Conference of Disarmament Addressed to the Acting Secretary-General of the Conference transmitting the updated Russian and Chinese texts of the draft treaty on prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects (PPWT), introduced by the Russian Federation and China, 12 June 2014.

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forward and is being promoted by the European Union.17 Persisting dissent over the substance and the way in which the instrument has been consulted and negotiated seem to make the success of this initiative rather unlikely. In the scope of the United Nations, a Group of Governmental Experts (GGE) on Transparency and Confidence-Building Measures has adopted a consensus report highlighting possible means for furthering mutual trust in the conduct of outer space activities.18 The Committee on the Peaceful Uses of Outer Space (COPUOS), since 2009, works on the topic of long-term sustainability in the scope of its Scientific and Technical Subcommittee.19 What becomes apparent from the discussions is that the issues of sustainability (encompassing to a number of sub-topics, among them the key question of the long-term preservation of the usability of outer space) and transparency and confidencebuilding (aimed at restoring mutual trust) overlap to a significant extent. Both are concerned with the question of how to ensure interference-free utilization of outer space, i.e. with the safety of space operations.20 Against this background, it should be made sure that the ongoing tensions related to space security do not become an obstacle to the successful and important work on the civil issues of space safety and space sustainability. Ius contra bellum and ius in bello

II.2.

When it comes to the possible extension of a military confrontation to outer space, the question of the applicability of the ius contra bellum and the ius in bello arises. As a general principle, these rules apply to outer space activities; there is no general limitation ratione loci. Art. III OST provides that all activities in outer space must be carried out “in accordance with international law, including the Charter of the United Nations”. The prohibition of the use of force as manifested in Art. 2 no. 4 of the UN Charter is a peremptory

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18 19

20

See European External Action Service, Disarmament and Non-proliferation: Outer space activities: Code of Conduct for Outer Space Activities, (accessed 30 January 2016). See UN Doc. A/68/189, Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, 29 July 2013. A recent draft version of a set of guidelines elaborated in the scope of a corresponding working group is enshrined in: UN Doc. A/AC.105/C.1/L.348, Updated set of draft guidelines for the long-term sustainability of outer space activities, 26 November 2015. This, in turn, brings to the table the question of a space traffic management system, which is defined as “[comprising] technical and regulatory provisions for guaranteeing safe and interference-free access into outer space, operations in outer space, and return from outer space to Earth.” Contant-Jorgensen, C./Lála, P./Schrogl, K.-U. (ed.), Cosmic Study on Space Traffic Management, International Academy of Astronautics, 2006, p. 21.

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norm of international law from which no derogation is permissible.21 Its establishment constitutes a major advancement of the international legal order after the Second World War and there are only two narrow exceptions to the rule: lawful measures of self-defense22 and military actions based on an authorization of the UN Security Council.23, 24 The condition that triggers the right to self-defense is the ‘armed attack’ according to Art. 51 UN Charter.25 In the outer space context, the unauthorized physical interference with a space object could be regarded as such an attack, even if it is not undertaken with the intention to damage or destroy in order to obtain a military advantage, but, for instance, for the purpose of active debris removal. The Russian-Chinese draft PPWT treaty tabled in the Conference on Disarmament seems to follow this understanding as the definition of ‘use of force’ contained therein covers any damage inflicted on third States’ space objects, unless there are special agreements authorizing actions to stop the uncontrolled flight of space objects.26 Ius in bello, as part of international law, applies to space activities, as well.27 The norms of international humanitarian law serve the purpose of limiting the negative consequences resulting from the application of military force.28 It protects persons and bans certain means and methods of warfare. Based on the recognition that armed conflicts cannot be completely excluded from international relations, its ultimate aim is to at least reduce human suffering. The body of international humanitarian law includes provisions on environmental protection. These provisions could limit the conduct of armed operations in outer space in view of the space environmental degradation that is associated with the generation of space debris.

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26 27 28

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See Crawford, J., Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, Oxford 2012, pp. 595-596. See Art. 51 UN Charter. See Chapter VII of the UN Charter. See Shaw, M., International Law, 7th edition, Cambridge University Press, Cambridge 2014, p. 815. The notion of the expression ‘armed attack’ is close to notion of an ‘act of aggression’ whose meaning has been clarified in the context of international criminal law. See Art. 8 bis of the Rome Statute of the International Criminal Court (done 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 together with Resolution RC/Res.6 of the Review Conference of the Rome Statute, Amendments on the crime of aggression to the Rome Statute of the International Criminal Court (depository notification number C.N.651.2010), 11 June 2011. See Art. I lit. (d) Draft PPWT. See Goh, G.M., Keeping the peace in space: a legal framework for the prohibition of the use of force, Space Policy (20, 4) 2004, p. 267. See Gasser, H.-P./Thürer, D., International Humanitarian Law (Status: March 2011), in: Wolfrum, R. (ed.), The Max Planck Encyclopedia of Public International Law: Online Edition, (accessed 30 January 2016), Oxford University Press, margin number 1.

ENVIRONMENTAL PROTECTION AS A LIMITATION TO THE USE OF FORCE IN OUTER SPACE

III.

Space Environmental Protection in Armed Conflict

Environmental protection in times of armed conflict is an issue that has long been debated. It is widely recognized that the environment, the livelihood of mankind, must be granted a certain level of protection, in peacetime and in times of war. A wide body of environmental law has emerged in order to preserve man’s natural environment and environmental protection norms have found their way into body of the ius in bello. The norms that shall be particularly scrutinized in the following are Art. 35 and 55 of the First Additional Protocol to the Geneva Conventions29 as well as the relevant provisions of the Environmental Modification Convention.30 But it is not only these specific provisions that may have a protective effect. There are, in addition, general principles in international humanitarian law, such as the principles of distinction, proportionality and precaution that are potentially relevant to the preservation of the space environment;31 their application to the warfare in outer space will also be included in the examination. The condition for a protective effect of environmental protection law is that outer space can be regarded as belonging to man’s natural environment and that the generation of space debris, accordingly, represents a form of environmental damage. This question will be addressed before turning to the application of the norms and principles to the debris-generating use of space weapons. III.1.

Space Debris as Space Environmental Pollution

The notion of the natural environment is generally construed in a broad manner. Over the years, a great variety of different environmental protection law – be it conventional or customary – has developed. There are multiple instruments protecting various types of flora and fauna, biodiversity and the climate. The treaties regulating State’s activities in certain areas contain their own environmental protection provisions, such as the Outer Space Treaty32 and the United Nations Convention on the Law of the Seas.33 The customary ‘no harm’ rule, i.e. the prohibition of serious transboundary environmental

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30

31

32 33

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (done 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (hereafter ‘First Additional Protocol’). Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (done 10 December 1976, entered into force 5 May 1976) 1108 UNTS 151 (hereafter ‘ENMOD Convention’). See Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 2013, p. 24. See Art. IX sentence 2 OST prohibiting the harmful contamination of outer space. See Part XII of the United Nations Convention on the Law of the Sea (done 10 December 1982, entered into force 16 November 1994) 1183 UNTS 396.

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damage, protects the environment as a whole and also the later discussed provisions of the ius in bello use the generic term ‘environment’. This diversity is generally believed to result in a wide understanding of the term which is to be interpreted as encompassing everything that surrounds and environs, i.e. human beings, all living and non-living nature, social and economic circumstances.34 The ILC, in its current work on environmental protection in armed conflicts, undertakes to elaborate a set of principles which is intended to include a definition of the environment. The working definition as set forth in 2015 report of the special rapporteur reads as follows: “[E]nvironment includes the natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, and the characteristics of the landscape.”35

This definition and other definitions are not legally binding. In addition, definitions contained in specific treaties are only valid in the particular context of these instruments. As a result, there is no generally accepted legally binding definition of the term ‘environment’ in international law. The absence of such legal clarity in this respect complicates the discussion of the inclusion of outer space into the notion of the environment. Space is also not referred to in the aforementioned definition which, in essence, merely mentions a number of natural resources and their interaction as well as the characteristics of the landscape as parts of the environment. There is, however, good reason for assuming that space belongs to the natural environment. As a basic principle, the generally wide understanding of the term speaks for such an inclusion. There is also a corresponding strong indication in international space law itself. The Moon Agreement recognizes that there is an environment of the Moon and other celestial bodies in Art. 7 MOON.36 In addition, the ENMOD Convention defines an ‘environmental modification techniques’ as “[...] any technique for changing [...] the dynamics, composition or structure of the earth [...] or outer space.” As environmental modification is deemed possible in outer space, space cannot but be considered part of the environment. The United

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See Birnie, P./Boyle, A., International Law and the Environment, 2nd edition, Oxford University Press, Oxford 2002, p. 3. UN Doc. A/CN.4/685, Second report on the protection of the environment in relation to armed conflict: Submitted by Marie G. Jacobsson, Special Rapporteur, 28 May 2015, Annex I: Protection of the environment in relation to armed conflicts: proposed draft principles, Preamble: Use of terms lit. (b). The definition corresponds to the definition contained in the ILC’s 2006 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, namely in Principle 2 lit. (b). See UN Doc. A/61/10, Report of the International Law Commission, fifty-eighth session (1 May-9 June and 3 July-11 August 2006), para. 66. Art. 7 MOON requires that States “shall take measures to prevent the disruption of the existing balance of the environment […].”

ENVIRONMENTAL PROTECTION AS A LIMITATION TO THE USE OF FORCE IN OUTER SPACE

Nations Educational, Scientific and Cultural Organization (UNESCO) established a working group on ethics and space policy which stated: “As to the protection of the environment, space technology was found to represent a factor of damage to the circumterrestrial, terrestrial and planetary environments”37 while specifically referring to space debris in this context.38 Given that space belongs to the environment, space debris can, in fact, be regarded as an environmental damage. Space debris are defined as “all manmade objects, including fragments and elements thereof, in Earth orbit or reentering the atmosphere, that are non-functional”.39 Their introduction into the pristine (space) environment constitutes a form of environmental pollution. Pollution is namely defined as the human-induced insertion of substances or objects into an environment or the generation of such substances/objects in an environment to which they usually do not belong.40 It can therefore be concluded that the generation of space debris (as induced by the deployment of space weapons) represents a form of environmental pollution and thus environmental damage. III.2.

Ius in bello

III.2.1.

First Additional Protocol to the Geneva Conventions

Art. 35 para. 3 of the First Additional Protocol reads as follows: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Art. 55 of the First Additional Protocol reads as follows: “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes the prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”

Both norms have a similar scope of application as they prohibit “widespread, long-term and severe damage” to the environment and the difference between them appears to be rather marginal. A look at the systematic context of the two articles suggests that Art. 35 aims to protect the environment per se because the provision belongs to the part of the Protocol addressing methods and means of warfare. Art. 55, on the other hand, is concerned with the

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Pompidou, A., The Ethics of Space Policy, (accessed 30 January 2016), UNESCO 2000, p. 7. See Ibid. IADC Doc. 13-02, Key Definitions of the Inter-Agency Space Debris Coordination Committee, April 2013. See Springer, A.L., Towards a Meaningful Concept of Pollution in International Law, in: International and Comparative Law Quarterly (26, 3) 1977, pp. 532-533.

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reduction of the suffering of the civilian population, thus implying that the environment is only protected indirectly it is quality as a basis for human life.41 This should, however, not be construed as a reduction of the protective effect of either of the two provisions. In substance, the causation of widespread, long-term and severe environmental damage is prohibited. When it comes to the application to space warfare, it needs to be considered whether the generation of debris as a result of the deployment of space weapons can, in fact, cause such environmental damage. It needs to be kept in mind that all of these conditions (widespread, long-term, and severe) need to be fulfilled cumulatively. The physical destruction of a space object by an antisatellite weapon can indeed generate a massive amount of debris, which must be assessed as being unlawful under the First Additional Protocol. As a general principle, the presence of space debris can be regarded as a form of environmental damage/pollution. The pollution caused by a cloud of debris objects can also be characterized as widespread because the destruction of a satellite causes its fragments to spread out in different directions. An in-orbit fragmentation, in particular if caused by a high-velocity impact,42 is always associated with the dispersion of debris objects over many different orbits.43 These objects may also remain for a long time in orbit before they (if at all) re-enter Earth’s atmosphere. Depending on the altitude of the objects, the resulting debris objects could remain in outer space for decades or even centuries. There are only very limited natural forces that lead to a reduction of the debris pollution. The more significant factors reducing the orbital lifetime

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See de Preux, J., in: Sandoz, Y./Swinarski, C./Zimmermann, B. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers, Geneva 1987, para. 1449, p. 414. It has already been mentioned that there are weapons that do not directly result into the creation of debris (as kinetic energy weapons do). But also weapons that aim to temporarily disable satellites without destroying them increase the risk of collisions and thus of fragmentation events. There would thus be a causal connection between the deployment of the space weapon and the later fragmentation. The shoot-down of Fengyun-1C as well as the Iridium-Cosmos collision in 2009 (while it did not involve a space weapon, the environmental consequences are nevertheless comparable) can be regarded as cases in point. See National Aeronautics and Space Administration, Chinese Anti-Satellite Test Creates Most Severe Orbital Debris Cloud, in: Orbital Debris Quarterly (11, 2) 2007, p. 2; and National Aeronautics and Space Administration, Satellite Collision Leaves Significant Debris Cloud, in: Orbital Debris Quarterly (13, 2) 2009, p. 2.

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of debris are air drag, which emanates from residual Earth atmosphere,44 as well as solar radiation pressure.45 The third criterion, the severity of the damage, appears to be much more open to interpretation. One may ask whether environmental harm that already qualifies as widespread and long-term does not in any event constitute a severe damage to the environment. It is clear that a single debris object cannot be regarded as a serious space environmental damage.46 The events discussed in the present context, however, are of a different scale so that the damage can be held to be of a severe nature. Even more so, the question of seriousness cannot be discussed without considering the long-term sustainability of outer space activities. The already high level of debris pollution implies an uncontrolled growth of the LEO object population in the future. Any additional pollution events must therefore be assessed more strictly as compared to a situation of a pristine environment. It is the preservation of the usability of outer space for the benefit of future generations47 that is the decisive criterion for assessing the severity of environmental damage in space.48 As a result, Art. 35 and 55 of the First Additional Protocol protect the space environment from massive pollution with space debris in times of armed conflict. III.2.2.

Environmental Modification Convention

The ENMOD Convention bans the severe and long-lasting modification of the environment, including the space environment. Art. I para. 1 of the ENMOD Convention reads as follows: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”

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See Alwes, D./Benkö, M./Schrogl, K.-U., Space Debris: An Item for the Future, in: Benkö, M./Schrogl, K.-U. (eds.), International Space Law in the Making: Current Issues in the UN Committee on the Peaceful Uses of Outer Space, Edition Frontières, Gif-sur-Yvette 1993, p. 235. See Klinkrad, H., Space Debris: Models and Risk Analysis, Springer, Berlin et al. 2006, pp. 322-323. Space activities would otherwise be effectively outlawed because any such activity sooner or later results in the creation of debris. A decommissioned satellite that has lost its function after the end of its operational lifetime turns into a debris object. The principle of inter-generational equity infuses the problem of justice as well as an intertemporal dimension into international law. See Weiss, E.B., Intergenerational Equity in International Law, in: American Society of International Law Proceedings (81) 1987, pp. 126-127. See Stubbe, P., Background of the COPUOS SDM Guidelines, in: Hobe, S./SchmidtTedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume III, Carl Heymanns, Köln 2015, margin numbers 23-24.

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According to the treaty, States must not use the environment itself as a weapon by means of its modification. Such a scenario is not totally unthinkable; the use of deliberately created debris fragments for the purpose of destroying satellites represents a possible way of space warfare.49 The criteria of the prohibited environmental damage are the same as under the pertinent provisions of the First Additional Protocol. The above reasoning therefore also applies in the context of the ENMOD Convention. The protective effect of the can be held to be even higher because the criteria do not need to be fulfilled in a cumulative manner, but only alternatively (‘or’). Generating debris for the purpose of using the resulting space environmental pollution as a weapon is, therefore, prohibited under the ENMOD Convention. III.2.3.

Principles of International Humanitarian Law

Apart from the above environmental protection provisions, the principles of international humanitarian law may also have a protective effect. The relevant principles are distinction, proportionality and precaution.50 Distinction is certainly one of the most fundamental principles of the ius in bello. It means that “[...] the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”51 Civilian objects must not be attacked.52 This raises the question as to whether the environment – here: outer space environment – can be qualified as a civilian object. Civilian objects are objects that do not fall into the scope of military objectives. The latter is defined as “[...] those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers

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See Neuneck, G./Rothkirch, A., The Possible Weaponization of Space and Options for Preventive Arms Control, Zeitschrift für Luft- und Weltraumrecht (55, 4) 2006, p. 508. Neutrality is also a principle relevant to space warfare given that third States that are not a party to the conflict could be affected by space warfare. The present discussion, however, focusses only on those provisions that directly protect the space environment. The principle of neutrality is particularly important with regard to the hazard that debris resulting from the destruction of satellites poses to the satellites of neutral States. See Bourbonnière, M., The Ambit of the Law of Neutrality and Space Security, Israel Yearbook on Human Rights (36) 2006, pp. 224-225. In discussing the principle, it also needs to be kept in mind that outer space is a res communis area in whose preservation the international community as a whole can be held to have an interest. See Gaja, G., States Having an Interest in Compliance with the Obligation Breached, in: Crawford, J./Pellet, A./Olleson, S. (eds.), The Law of International Responsibility, Oxford University Press, New York 2010, p. 961. Art. 48 First Additional Protocol. See Art. 52 para. 1 First Additional Protocol.

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a definite military advantage.”53 While it may be that a certain part of the environment turns into a legitimate military objective in certain specific situations,54 the environment is, as a basic rule, a civilian object. It may be objected that the environment consists of many different elements and can thus not easily – in parts or in its entirety – be regarded as an ‘object’. On the other hand, it was brought forward that State practice shows the opposite: The environment is, in fact, included in the notion of a civilian object. In addition, the dichotomy of the two object categories – civilian and military – equally suggests that everything that is not a military target falls into the other, civilian category, including the natural environment.55 This seems to be supported by the ILC which formulated in Draft Principle 1 on environmental protection in relation to armed conflict: “The natural environment is civilian in nature and may not be the object of an attack [...].”56 According to the principle of distinction, the outer space environment must be protected as a civilian object and must not become the target of an attack; indiscriminate attacks are also prohibited. Applying this norm to warfare in outer space means that the outer space environment itself must not be attacked, for example through the deliberate creation of debris for the purpose of using the debris as a weapon against satellites. A further principle is that of proportionality. In attacking a military object, civilian objects must be protected against excessive incidental (or ‘collateral’) damage.57 The perceived military advantage must be put into relation with the resulting human suffering or loss of or damage to civilian objects. In particular in the environmental context, the foreseeability of the damage is one of the key discussion points. Military conduct may also have reverberating effects: The damage may extend in time and space as compared to the point in time of the immediate military advantage. All these facts need to be taken into consideration in the proportionality assessment.58 In the case of space weapons destroying orbiting satellites, the immediate environmental damage is beyond doubt. The generation of debris clouds can, in addition, be regarded as a typical example for an environmental pollution that has long-term,

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Art. 52 para. 2 First Additional Protocol. See Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 2013, p. 28. See Ibid., pp. 26-27. UN Doc. A/CN.4/685, Second report on the protection of the environment in relation to armed conflict: Submitted by Marie G. Jacobsson, Special Rapporteur, 28 May 2015, paras. 149-151. See Shaw, M., International Law, 7th edition, Cambridge University Press, Cambridge 2014, pp. 859-860. See Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 201, pp. 29-31.

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secondary effects. Additional debris objects increase the collision probability and spur the collision-cascading process. It should, therefore, not come as a surprise that the physical interception of a satellite results in a severe damage that – as has been discussed above – can be characterized as widespread, long-term and severe. The magnitude of the initial, direct damage is, therefore, well foreseeable and the attacking party should also be aware of the related long-term consequences. It may be argued that there is less certainty in cases where the space weapon does not lead to the total destruction of the satellite. But also in this case, the increased pollution risk resulting from (temporarily) uncontrolled objects should play a role in the assessment of proportionality. The third principle relevant in this context is that of precaution. It says that the attacking side must constantly apply a high level of care in order to exclude or reduce damage to civilian objects. All feasible means must be applied to this end, including the gathering and assessment of all relevant information. In deciding upon the means and methods to be deployed in an armed confrontation, the belligerent party is required to revert to the option that causes the least suffering and damage. Environmental impact assessments need to be carried out for this purpose. Interestingly, it has been submitted that the precaution principle exerts its primary effect on the development or procurement of weapons systems.59 In applying the principle to warfare in outer space, it is clear that effective precaution is not feasible without sufficient information about the consequences of deploying space weapons against satellites. This would also presuppose relevant knowledge about the space object population in the first place. Given that the principle applies early and shall determine decisions of weapons development and procurement, is may be argued that the development and procurement of space weapons capable of attacking satellite is incompatible with the requirements by international humanitarian law for the protection of the space environment. III.2.4.

Interim Conclusion

What could be shown by the above discussion is that international humanitarian law, in fact, sets certain conditions for military conduct in outer space. Space is an integral part of the human environment and enjoys protection equal to the protection of other parts of the environment, also in times of armed conflict. The magnitude of damage caused by attacks on satellites orbiting the Earth suggests that the effect of the ius in bello is significant. It appears that, as a general rule, the environmental damage resulting from an attack is of a widespread, long-term and serious character and that such damage is out of proportion as compared to the presumed military advantage (which would

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See Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 2013, pp. 33-34.

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consist, in the present context, in taking out an adversary’s Earth observation, communication etc. capabilities). This implies that it will be difficult to argue that the deployment of space weapons aimed at or leading to the destruction of satellites is a legitimate form of using force in outer space. The actual assessment, of course, needs to be made on the basis of the circumstances of the individual case as a number of different factors play a role. The altitude in which the attack occurs, for example, has a significant bearing on the scale of the pollution. It has been suggested in respect to the protection of the environment in times of armed conflict that the application of the ius in bello should be scrutinized by discussing individual, typical subcases of different forms of military conduct in order to assess the corresponding environmental impact and to clarify the notion of proportionality.60 It would be a reasonable undertaking to do the same for space warfare. The question of whether international humanitarian law can prevent the deployment of weapons having devastating consequences for humanity has been scrutinized by the International Court of Justice in its advisory opinion on the legality of the threat or use of nuclear weapons. The Court argued that: “[T]he he principles and rules of law applicable in armed conflict – at the heart of which is the overriding consideration of humanity – make the conduct of armed hostilities subject to a number of strict requirements. Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.”61

While the Court, at the same time, did eventually not conclude that the use of nuclear weapons is definitively illegal (also in view of the right of self-defense when the survival of a State is at stake),62 the advisory opinion shows that in particular international humanitarian law can effect a limitation that comes close to a quasi-ban on certain weapon types.63 In considering whether this reasoning can also be applied to space weapons it has to be taken into account that their use leads to a further degradation of the already polluted space environment. It is in particular against the back-

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See Bothe, M. et al., International law protecting the environment during armed conflicts: gaps and opportunities, International Review of the Red Cross Vol. 92, No. 879, 2010, p. 578. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, ICJ Reports 1996, para. 95. See Ibid., paras. 95-97. See Epping, V., in: Ipsen, K. (ed.), Völkerrecht, 6th edition, C.H. Beck, München 2014, §54, margin number 13.

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ground of the generally dire prospects for the further evolution of the debris population in low-Earth orbits and the related threat to the future usability of outer space, that the environmental protection provisions of the ius in bello can be held to impose a significant limitation on the use of space weapons. This suggests that their deployment may be acceptable only under exceptional circumstances, but that such weapons are not an ordinary means of warfare in outer space. III.3.

Other Environmental Law: ‘No Harm’ Rule and Art. IX Outer Space Treaty

Given that outer space forms part of the natural environment, other environmental law outside international humanitarian law could also be potentially relevant for the protection of the space environment in times or armed conflict. Art. IX sentence 2 OST prohibits the ‘harmful contamination’ of outer space. While the provision is often construed within the context of the travaux préparatoires of the Outer Space Treaty, suggesting that outer space is only protected against nuclear, biological and chemical pollution,64 the provision should instead be interpreted more broadly. Any type of pollution/contamination of outer space is prohibited under the Outer Space Treaty given that contamination and pollution have essentially the same meaning, namely the introduction of certain things, elements or substances into an environment where they do usually not belong.65 In addition, Art. IX sentence 2 Outer Space Treaty should be regarded in the broader context of international environmental law. The customary ‘no harm’ rule prohibits trans-border, serious environmental damage, including to areas outside the jurisdiction of a State.66 As this includes outer space, Art. IX sentence 2 OST represents the space-specific expression of the broader ‘no harm’ rule of international environmental law.67 The presence of space debris in outer space constitutes a form of space pollution because man-made debris objects are not part of the natural space environment. This presence is thus an environmental damage that is prohibited

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See Hacket, G.T., Space Debris and the Corpus Iuris Spatialis, Editions Frontières, Gif-sur-Yvette 1994, pp. 104-107. See UN Doc. ST/ESA/STAT/SER.F/67, Glossary of Environmental Statistics, United Nations, New York 1997, p. 58; and Frantzen, B., Umweltbelastungen durch Weltraumaktivitäten, in: Böckstiegel, K.-H., (ed.), Handbuch des Weltraumrechts, Carl Heymanns Verlag, Köln et al. 1991, p. 612. See Beyerlin, U., Umweltvölkerrecht, C.H. Beck, München 2000, §8, margin number 116, p. 55; Brunnée, J., Common Areas, Common Heritage, and Common Concern, in: Bodansky, D./Brunnée, J./Hey, E. (eds.), The Oxford Handbook of International Environmental Law, Oxford University Press, New York 2007, p. 557. The ‘no harm’ rule being a norm of customary international law found expression in Principle 21 of the Stockholm Declaration. See Durner, W., Global Commons: Statusprinzipien von Umweltgütern im Völkerrecht, Nomos, Baden-Baden, 2001, p. 166.

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under Art. IX sentence 2 OST and the customary ‘no harm’ rule. It is clear, though, that the generation of a single piece of or a minor amount of debris does not constitute a violation of international law. Only ‘harmful’ (Art. IX sentence 2 OST) or ‘serious’ damage (‘no harm’ rule) is prohibited. While it is difficult to assess when the threshold to a significant pollution event is crossed, the impacts of space warfare on the space environment that are discussed in this paper must be regarded as such significant damage. Again, the currently high degree of pollution, especially in low-Earth orbits, and the associated loss of parts of outer space for the use of generations to come must be taken into account. Beyond the consideration of the substance of the provisions and their protective effect for the space environment, it is necessary to clarify the interrelationship between international humanitarian law and the ‘ordinary’ norms of international law. As a general principle, international law remains applicable in times of armed conflicts. The ILC, in 2011, adopted as set of draft principles relating to the effect of armed conflicts on treaties,68 whose Art. 3 stipulates: “The existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties: (a) As between States parties to the conflict; (b) As between a State party to the conflict and a State that is not.” There is no reason why this should not also be the case for other sources of international law, namely customary international law (such as the ‘no harm’ rule) and general principles of international law (such as the principles of sustainable development). While not specifically speaking of the applicability of environmental law in times of armed conflict, the ICJ, in its advisory opinion on the legality of the use of nuclear weapons found that environmental law “[...] indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.”69 This led observers to speak of a complementary function of the non-international humanitarian environmental protection law vis-à-vis international humanitarian environmental protection law, while also hinting to the necessity of further research on their interrelationship as regards, for example, the substantial differences between the corresponding norms.70 In its recent work on environmental protection in times of armed conflict, the ILC also considered this question of interrelation. In addressing some norms of environmental law (referred to as ‘principles’), it found: “Although general

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See UNGA Res. 66/99, Effects of armed conflicts on treaties, 27 February 2012, Annex. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, ICJ Reports 1996, para. 33. See Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 2013, pp. 46-48.

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applicability of the principles cannot be excluded, there is little indication that they would be applicable during the conduct of hostilities as such, at least as they are understood in a peacetime environmental context.”71 In its recent work, the ILC therefore seems to follow a more reluctant approach to this question. Some support for this approach may be derived from the secondary rules of international law. One of the circumstances precluding wrongfulness of a certain conduct is that the act in question “[...] constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”72 There appears to be little room for arguing that the provision would not also apply mutatis mutandis to the use force that is authorized by the UN Security Council. Any use of force would, therefore, constitute a circumstance that precludes the wrongfulness and thus the responsibility of the respective State if such conduct is taken within the limits established by international law.73 The legitimacy of the use of force presupposes compliance with the ius in bello. In other words, space environmental damage resulting from the damaging/destruction of a satellite would not result into the responsibility of the State to which the damaging or destroying act can be attributed unless such responsibility can be based on the violation of the environmental protection norms of international humanitarian law. The applicability of general environmental law remains untouched in this logic, only wrongfulness would be excluded.74 This reasoning applies, of course, only as long as the norms of general environmental law do not belong to the body of ius cogens.75 IV.

Protected Zones – A Case for Outer Space?

Brief account shall be given to another means for protecting the environment in times of armed conflict. Outer space, or a particular part of it, could be declared an ‘area of major ecological importance’ that is spared from the conduct of military operations. The possibility for establishing demilitarized

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UN Doc. A/CN.4/685, Second report on the protection of the environment in relation to armed conflict: Submitted by Marie G. Jacobsson, Special Rapporteur, 28 May 2015, para. 153. Art. 26 of the ILC Articles on State Responsibility. The text of the articles is annexed to a UN General Assembly resolution: UNGA Res. 56/83, Responsibility of States for internationally wrongful acts, 28 January 2002, Annex. There is a duty to comply with the law, if the circumstance no longer exists. The invocation of a circumstance precluding wrongfulness is also without prejudice to the obligation to provide compensation for material damage resulting from the conduct in question. See Art. 27 of the ILC Articles on State Responsibility. See also the reasoning applied by the ICJ: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, ICJ Reports 1996, para. 30. The wrongfulness of a violation of a peremptory norm of international law cannot be excluded according to Art. 26 of the ILC Articles on State Responsibility.

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zones already exists under international humanitarian law. According to Art. 60 First Additional Protocol, the parties to an armed conflict can agree on such demilitarized zones, to which they are not allowed to extend their military operations. In view of the importance of environmental protection in times or armed conflict, the ILC, in its current work on the topic, proposes that “States should designate areas of major ecological importance as demilitarized zones before the commencement of an armed conflict, or at least at its outset.”76 The absence of military operations in a thus protected area obviously spares this area from war-induced (environmental) devastations. As a general principle, outer space must be used for peaceful purposes only. This is, however, construed as prohibiting only aggressive acts,77 thus not going beyond the prohibition of the use of force in international relations. Only the Moon and other celestial bodies are to be used for exclusively peaceful purposes only, suggesting that any military use is prohibited.78 The designation of space as a demilitarized zone, thus acknowledging its special ecological importance, would be a desirable step towards protecting the outer space environment from the consequences of warfare. While it appears unrealistic to expect that any military use will be suspended as a result of such a designation given that space applications are used for a variety of military purposes (reconnaissance, navigation and telecommunication), the use of weapons of any kind against space infrastructure could be banned on the basis of creating protected zones. To a certain extent, such zones already exist today, namely in the context of the space debris mitigation regime. Low-Earth orbits and the geostationary Earth orbit are particularly protected under this regime. Particularly strict end-of-life disposal requirements apply in these regions. The presence of objects in low-Earth orbits is confined to 25 years after end-of-life and objects in the geostationary Earth-orbit must be directly removed from this orbital region and transferred into a graveyard orbit.79 The protected region in lowEarth orbit is defined as is the spherical shell that extends from the surface of

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UN Doc. A/CN.4/685, Second report on the protection of the environment in relation to armed conflict: Submitted by Marie G. Jacobsson, Special Rapporteur, 28 May 2015, Annex I: Protection of the environment in relation to armed conflicts: proposed draft principles, Principle 5. See von Kries, W., Die militärische Nutzung des Weltraums, in: Böckstiegel, K.-H. (ed.), Handbuch des Weltraumrechts, Carl Heymanns, Köln et al. 1991, pp. 338-339. See Schrogl, K.-U./Neumann, J., Article IV OST, in: Hobe, S./Schmidt-Tedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume I, Carl Heymanns, Köln 2009, margin number 45. See No. 5.3.2 and No. 5.3.1 IADC Mitigation Guidelines. The space debris mitigation document of the Inter-Agency Space Debris Coordination Committee (IADC) was the first mitigation document of its kind (2002) and has been updated since its first publication. See IADC Doc. IADC-02-01, Rev. 1, IADC Space Debris Mitigation Guidelines, September 2007.

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the Earth to an altitude of 2,000 kilometers and the protected region in geostationary Earth-orbit as a segment of the spherical shell which is characterized by a lower boundary at 200 kilometers below and an upper boundary of 200 kilometers above the geostationary Earth orbit altitude and which is located in the latitude sector defined by 15 degrees South latitude and 15 degrees North latitude.80 Given that the definition of the protected regions is driven by their currently high degree of pollution and their prospective further use for various space applications, the thus defined regions can also be characterized as areas of major ecological importance. They deserve special protection, also in times of armed conflict. As there currently seems to be little progress with the traditional approach towards more transparency and mutual confidence or towards the prevention of an arms race in outer space, the infusion of the environmental perspective into the demilitarization debate may facilitate efforts for achieving mutual security in space. An increased discussion of the environmental consequences of space weapons and space debris in general constitutes a contribution to this end. V.

Conclusion

As the above discussion shows, international humanitarian law can, in fact, limit the use of military force in outer space. Space debris is a consequence of deploying space weapons and can be characterized as a form of environment damage in outer space. This basic premise opens up the field of application for a number of norms relevant to environmental protection. Apart from the specific environmental protection provisions of the First Additional Protocol and the ENMOD Convention, there are a couple of ius in bello principles (distinction, proportionality, precaution) that have a limiting effect in this context. Space weapons causing major environmental harm in outer space can, thus, not be regarded as legitimate means of warfare in outer space. Further studies should be carried out in order to clarify in more detail the way in which the relevant provisions apply to space warfare. The ongoing discussions in the International Law Commission on the topic of environmental protection in armed conflicts are a contribution to this end. A particular issue worth being considered is to designate outer space as a protected, demilitarized zone, in which no combat action would be allowed in order to preserve the outer space environment also in times of military conflict for the benefit of future generations.

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See No. 3.3.2 IADC Mitigation Guidelines. The instrument also includes an illustration of the regions.

ENVIRONMENTAL PROTECTION AS A LIMITATION TO THE USE OF FORCE IN OUTER SPACE

Bibliography

Adushkin, V. et al., Orbital missions safety – A survey of kinetic hazards, Acta Astronautica, In Press, Corrected Proof, Available online 8 January 2016. Alwes, D./Benkö, M./Schrogl, K.-U., Space Debris: An Item for the Future, in: Benkö, M./Schrogl, K.-U. (eds.), International Space Law in the Making: Current Issues in the UN Committee on the Peaceful Uses of Outer Space, Edition Frontières, Gif-sur-Yvette 1993, pp. 233-270. Beyerlin, U., Umweltvölkerrecht, C.H. Beck, München 2000. Birnie, P./Boyle, A., International Law and the Environment, 2nd edition, Oxford University Press, Oxford 2002. Bothe, M. et al., International law protecting the environment during armed conflicts: gaps and opportunities, International Review of the Red Cross Vol. 92, No. 879, 2010, pp. 569-592. Bourbonnière, M., The Ambit of the Law of Neutrality and Space Security, Israel Yearbook on Human Rights (36) 2006, pp. 205-229. Brunnée, J., Common Areas, Common Heritage, and Common Concern, in: Bodansky, D./Brunnée, J./Hey, E. (eds.), The Oxford Handbook of International Environmental Law, Oxford University Press, New York 2007, pp. 550-573. Contant-Jorgensen, C./Lála, P./Schrogl, K.-U. (ed.), Cosmic Study on Space Traffic Management, International Academy of Astronautics, 2006. Crawford, J., Brownlie’s Principles of Public International Law, 8th edition, Oxford University Press, Oxford 2012. Droege, C./Tougas, M.-L., The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection, Nordic Journal of International Law (82, 1) 2013, pp. 21-52. Durner, W., Global Commons: Statusprinzipien von Umweltgütern im Völkerrecht, Nomos, Baden-Baden, 2001. Frantzen, B., Umweltbelastungen durch Weltraumaktivitäten, in: Böckstiegel, K.-H., (ed.), Handbuch des Weltraumrechts, Carl Heymanns Verlag, Köln et al. 1991, pp. 597-636. Gaja, G., States Having an Interest in Compliance with the Obligation Breached, in: Crawford, J./Pellet, A./Olleson, S. (eds.), The Law of International Responsibility, Oxford University Press, New York 2010, pp. 957-964. Gasser, H.-P./Thürer, D., International Humanitarian Law (Status: March 2011), in: Wolfrum, R. (ed.), The Max Planck Encyclopedia of Public International Law: Online Edition, (accessed 30 January 2016), Oxford University Press. Goh, G.M., Keeping the peace in space: a legal framework for the prohibition of the use of force, Space Policy (20, 4) 2004, pp. 259-278. Hacket, G.T., Space Debris and the Corpus Iuris Spatialis, Editions Frontières, Gif-sur-Yvette 1994.

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Hart B.L., Anti-Satellite Weapons: Threats, Laws and the Uncertain Future of Space, Annals of Air and Space Law (XXXIII) 2008, pp. 344-381. Ipsen, K. (ed.), Völkerrecht, 6th edition, C.H. Beck, München 2014. Jakhu, R./Stubbe, P., Art. 3 MOON, in: Hobe, S./Schmidt-Tedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume II, Carl Heymanns, Köln 2013. Klinkrad, H., Space Debris: Models and Risk Analysis, Springer Berlin/Heidelberg/New York 2006. von Kries, W., Die militärische Nutzung des Weltraums, in: Böckstiegel, K.H. (ed.), Handbuch des Weltraumrechts, Carl Heymanns, Köln et al. 1991, pp. 307-349. Liemer, R./Chyba, C.F., A Verifiable Limited Test Ban for Anti-satellite Weapons, The Washington Quarterly (33, 3) 2010, pp. 149-163. Liou, J.-C., An active debris removal parametric study of LEO environment remediation, in: Advances in Space Research (47, 11) 2011, pp. 1865-1876. Maogoto, J.N./Freeland, S., Space Weaponization and the United Nations Charter Regime on Force: A Thick Legal Fog or a Receding Mist?, The International Lawyer (41, 4) 2007, pp. 1091-1119. Moltz, J.C., The Politics of Space Security: Strategic Restraint and the Pursuit of National Interests, 2nd edition, Stanford University Press, Stanford 2011. Mutschler, M., Keeping Space Safety: Towards a long-term strategy to arms control in outer space, Peace Research Institute Frankfurt, Report No. 98, Frankfurt/Main 2010. National Aeronautics and Space Administration, Chinese Anti-Satellite Test Creates Most Severe Orbital Debris Cloud, in: Orbital Debris Quarterly (11, 2) 2007, pp. 2-3. National Aeronautics and Space Administration, Fengyun-1C Debris Cloud Remains Hazardous, in: Orbital Debris Quarterly (18, 1) 2014, pp. 2-3. National Aeronautics and Space Administration, Satellite Collision Leaves Significant Debris Cloud, in: Orbital Debris Quarterly (13, 2) 2009, pp. 1-2. Neuneck, G./Rothkirch, A., The Possible Weaponization of Space and Options for Preventive Arms Control, Zeitschrift für Luft- und Weltraumrecht (55, 4) 2006, pp. 501-516. Pompidou, A., The Ethics of Space Policy, (accessed 30 January 2016), UNESCO 2000. de Preux, J., in: Sandoz, Y./Swinarski, C./Zimmermann, B. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Martinus Nijhoff Publishers, Geneva 1987. Hobe, S./Schmidt-Tedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume I, Carl Heymanns, Köln 2009.

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Shaw, M., International Law, 7th edition, Cambridge University Press, Cambridge 2014. Springer, A.L., Towards a Meaningful Concept of Pollution in International Law, in: International and Comparative Law Quarterly (26, 3) 1977, pp. 531-557. Hobe, S./Schmidt-Tedd, B./Schrogl, K.-U. (eds.), Cologne Commentary on Space Law, Volume III, Carl Heymanns, Köln 2015. Weiss, E.B., Intergenerational Equity in International Law, in: American Society of International Law Proceedings (81) 1987, pp. 126-132. Treaties and Documents

Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (done 18 December 1979, entered into force 11 July 1984) 1363 UNTS 3. CD Doc. CD/1985, Letter Dated 10 June 2014 from the Permanent Representative of the Russian Federation and the Permanent Representative of China to the Conference of Disarmament Addressed to the Acting Secretary-General of the Conference transmitting the updated Russian and Chinese texts of the draft treaty on prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects (PPWT), introduced by the Russian Federation and China, 12 June 2014. Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (done 10 December 1976, entered into force 5 May 1976) 1108 UNTS 151. European External Action Service, Disarmament and Non-proliferation: Outer space activities: Code of Conduct for Outer Space Activities, (accessed 30 January 2016). IADC Doc. IADC-02-01, Rev.1, IADC Space Debris Mitigation Guidelines, September 2007. IADC Doc. 12-08, Rev.1, Stability of the Future LEO Environment, January 2013. IADC Doc. 13-02, Key Definitions of the Inter-Agency Space Debris Coordination Committee, April 2013. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, ICJ Reports 1996, 226. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (done 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3. Resolution RC/Res.6 of the Review Conference of the Rome Statute, Amendments on the crime of aggression to the Rome Statute of the International Criminal Court (depository notification number C.N.651.2010), 11 June 2011.

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Rome Statute of the International Criminal Court (done 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (done 27 January 1967, entered into force 10 October 1967) 610 UNTS 205. UN Doc. A/61/10, Report of the International Law Commission, fifty-eighth session (1 May-9 June and 3 July-11 August 2006). UN Doc. A/68/10, Report of the International Law Commission, sixty-fifth session (6 May-7 June and 8 July-9 August 2013). UN Doc. A/68/189, Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, 29 July 2013. UN Doc. A/AC.105/C.1/L.348, Updated set of draft guidelines for the longterm sustainability of outer space activities, 26 November 2015. UN Doc. A/CN.4/685, Second report on the protection of the environment in relation to armed conflict: Submitted by Marie G. Jacobsson, Special Rapporteur, 28 May 2015. UN Doc. ST/ESA/STAT/SER.F/67, Glossary of Environmental Statistics, United Nations, New York 1997. UNGA Res. 56/83, Responsibility of States for internationally wrongful acts, 28 January 2002. UNGA Res. 66/99, Effects of armed conflicts on treaties, 27 February 2012. United Nations Convention on the Law of the Sea (done 10 December 1982, entered into force 16 November 1994) 1183 UNTS 396.

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Humanitarian Law Implemented Space Communication in the Service of International Humanitarian Law Mahulena Hofmann and Loren François Florey*

Abstract Ius in bello, as enshrined in the primary humanitarian law (1949 Geneva Conventions, 1977 Additional Protocols and international customary law), requires concrete measures in order to protect specific groups such as the civilian population. Such measures cannot be implemented without viable communication channels, including via satellites. One of the projects guaranteeing the fast deployment of satellite communication in the context of humanitarian crises (natural or man made disasters) is the project emergency.lu based on a network of international agreements, including the ITU framework, national legislation of Luxembourg and contracts.

I.

Introduction

Emergency.lu launched by the Luxembourg Government is one of the projects aiming at the establishment of Internet connectivity in areas without any infrastructure. The motivof such projects is the need to re-establish telecommunication networks at the scenes of humanitarian catastrophes, where helplessness and lack of coordination are often predominant, e.g. after the 2010 earthquake in Haiti. The main character of the programme is a civil one, following natural catastrophes. However, its technology can be applied both in times of natural catastrophes and the periods following civil or international armed conflicts. The nomadic satellite-based telecommunication system – ‘emergency.lu’ – aims to assist humanitarian agencies responding to communities affected by natural disasters, conflicts or protracted crises.1 This system is available as a global public good to the international humanitarian community as of 1 January 2012, with Luxembourg funding its development, implementation, operation and maintenance to the tune of € 17.2 million. It has capacity to intervene globally.

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Mahulena Hofmann, University of Luxembourg, Luxembourg, Mahulena.Hofmann @uni.lu. Loren François Florey, Luxembourg, [email protected]. See www.itu.int/net/pressoffice/press_releases/2011/52.aspx.

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According to the programme, the volunteers of Luxembourg Civil Protection can be involved in emergency missions abroad setting up space communication networks in such regions. Once delivered to the disaster zone, it takes less than an hour to hook up a telecom terminal to its inflatable antenna, to point the antenna to a satellite in geostationary orbit, and to provide high speed internet connectivity, for voice, data and image transmission, enabling aid workers on the spot to register their laptops, tablets and cell phones and use the satellite capacity at no cost. As an example of the restoration of communication networks using Luxembourg-based space technology,2 the communication restoration programme in South Sudan in 2011 can be mentioned, where on-going clashes between progovernment and anti-government forces have undermined the security situation and have had dire humanitarian consequences.3 Based on the coordination through an international Emergency Telecommunications Cluster (ETC), the programme succeeded in providing security and data telecommunications and coordination services to the humanitarian community. With the humanitarian crisis in December 2013, the programme expanded to new locations in the interior of South Sudan, supporting humanitarian organizations involved in the crisis response through the provision of vital telecommunication services. Emergency.lu is in permanent preparedness. In the periods when the system is not needed, a complementary programme SATMED – a global satellite enhanced cloud-computer based telemedicine platform – can be used.4 Both these component parts aim to protect civil population by facilitating the work of humanitarian organizations, relief workers and health care providers. All of these humanitarian activities are based on a national and international legal framework. The first two chapters of the contribution give an overview of the international and national legal basis of this project. The conclusion analyses its place in the framework of international space law, telecommunication law and international humanitarian law. The contribution uses extensively the facts contained in the Master thesis written by the co-author of this study, Loren François Florey.5 II.

International Background

Attacks to telecommunication networks may be qualified under specific conditions as an “armed attack” in the wording of the UN Charter and evoke a situation of military conflict where international humanitarian law – ius in

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http://ictemergency.wfp.org/web/ictepr/countries-south-sudan. www.etcluster.org/emergencies/south-sudan-conflict. http://satmed.lu/#services. L. F. Florey, Luxembourg’s Global Telecommunication Platforms via Satellite, Master Thesis, University of Luxembourg, 2014.

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bellum – is applicable.6 It may also be argued that the restoration of telecommunication networks belongs to the category of obligations of occupying powers to guarantee supplies “essential to the survival of the civilian population” comparable to clothing, bedding, or means of shelter provided by Article 69 of the 1977 Protocol I to the Geneva Conventions of 12 August 19497 – ius in bello. However, and this is the area on which the contribution is focused on, it may be further argued, that the fast renewal of connectivity belongs today to the central tasks of states in a humanitarian crisis of whatever source or legal character it might be – victims of natural catastrophes, or formerly belligerent parties in a post-conflict situation. These may decide to accomplish this task making recourse on their local sources, to conclude agreements with other administrations in the region, or to take into account the international support, such as the project emergency.lu. In the framework of the United Nations, the global responsibility for the coordination of the information and communications technology (ICT) responses to emergencies lies by the UN World Food Programme (WFP)8 which is the designated Global Emergency Telecommunication Cluster (ETC) Lead Agency. In an emergency, ETC functions as a platform enabling the exchange of information among the members – humanitarian, private sector and governmental organisations that have an interest in humanitarian assistance and can commit to making a positive contribution to technology in emergency response.9 This cluster is a “global network of organizations that work together to provide common communication services in humanitarian emergencies”.10 In order to become an ETC member, the organisation must have an interest in humanitarian assistance, support the achievement of the mandate of the ETC and actively participate in or contribute to ETC activities at the global and local levels. A formal request for membership submitted to the ETC Secretariat that outlines the nature of an organisation’s interest, the role that it wishes to play and the contribution that it commits to make to the work of the ETC, has to be adopted by a consensus of all ECT members.11 In this structure, the Ministry of Foreign Affairs, Directorate for Development Cooperation is representing Luxembourg.

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J.-C. Woltag, Cyber Warfare, Max Planck Encyclopedia of Public International Law (MPEPIL), para. 8-9. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3. www.wfp.org/. www.etcluster.org/about-etc/members. http://ictemergency.wfp.org/web/ictepr/emergency-telecommunications-cluster. www.etcluster.org/about-etc/members.

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Additionally, the membership in ECT is automatically open to all associated organisations of the Inter-Agency Standing Committee (IASC)12 – a unique forum involving both the key UN and non-UN humanitarian partners which has been established in June 1992 in response to UN General Assembly Resolution 46/182 on the strengthening of humanitarian assistance.13 One of the crucial members of the ECT is the International Telecommunication Union (ITU) which always considered the transmission of emergency messages to be one of its crucial tasks.14 The ITU has started, on its own initiative, a Framework for Cooperation in Emergencies (IFCE), which aims to extend all ICT services and applications to all phases of disaster management. The IFCE is an “ITU strategic initiative” targeting a facilitation of the rapid deployment of emergency communication systems in the event of a sudden on-set disaster or a long-term deployment in chronic or recurrent humanitarian contexts or as a part of a preparedness strategy in developing countries. Luxembourg participates in IFCE on the basis of the 2011 Agreement to Cooperate on Strengthening Emergency Telecommunications and Rapid Response in the Event of Natural Disasters15 signed by the Minister for Development Cooperation and Humanitarian Affairs of Luxembourg, and the Director of ITU’s Telecommunication Development Bureau (BDT) on 6 December 2011. The ITU encourages its 193 Member States to use the ‘emergency.lu’ platform and to facilitate the rapid deployment of emergency telecommunication systems in the event of a sudden-onset disaster or a longterm deployment in chronic or recurrent humanitarian contexts, as well as to negotiate appropriate regulatory and legal frameworks with the national communication Administrations, particularly Telecommunication Regulatory Authorities.16 In case of deployment and use in one of the ITU member States, the ITU shall be also responsible for obtaining customs clearances, licenses and other governmental approvals and permissions required to deploy the programme. Furthermore, Luxembourg is party of the 1998 Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations,17 which has been elaborated under the auspices of the ITU and entered into force in 2005. According to this Convention, a “disaster” is “a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property or the environment, whether caused by accident, nature or human activity, and whether developing sud-

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http://interagencystandingcommittee.org/iasc/. A/RES/46/182, 19 December 1991. ITU Convention., e.g. Article 40. Cooperation Agreement between the Government of Luxembourg and ITU, 6 December 2011. www.itu.int/net/pressoffice/press_releases/2011/52.aspx. UNTS, vol. 2296, p. 5.

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denly or as the result of complex, long-term processes” (Article 1 para 6). The Convention calls on States to facilitate the provision of prompt telecommunication assistance to mitigate the impact of a disaster and covers both the installations and operation of reliable, flexible telecommunication services. Regulatory barriers that impede the use of telecommunication resources for disasters should be waived: these barriers include the licensing requirements to use allocated frequencies, possible restrictions on the import of telecommunication equipment, as well as any limitations of movement of telecommunications teams. The Convention defines the status of the relief workers, as well as their privileges and immunities, and foresees the conclusion of bilateral agreements between the helpers and the receiving state. At present, there are 47 Parties to the Tampere Convention, with Luxembourg having acceded in 201218 with a reservation common to all Members of the European Union.19 Concerning to some authors, the Convention is less functional at large as expected, as some signatory States face difficulties when implementing its far-reaching provisions in their national legal order.20 III.

National Framework

Emergency.lu was officially launched in December 2011: On 13 January 2011, HITEC Luxembourg S.A. and SES Astra Techcom S.A. formed a joint venture “National Satellite Communication Framework (NSCF) – emergency.lu “on the basis of an Agreement – Contrat d’Association Momentanée – NSCF – emergency.lu”21 – concluded according to the 1915 Law on Commercial Societies.22 The agreement is in force until the complete implementation of the project, with the possibility of the Government of Luxembourg to suspend the project in earlier stages. The joint venture has three main mandates: The first mandate is the establishment of detailed specifications and implementation procedures, as well as the definition of the details of the configuration of the existing system. The second mandate concerns the deployment and configuration of the platform which enables to operationalize e.g. satellite communication modules, the HUBs, the computer servers and the software, eighteen preconfigured satellite

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19

20 21 22

https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXV4&chapter=25&lang=en#EndDec, details on http:// www.itu.int/ITUD/emergencytelecoms/tampere.html. Reservation: To the extent to which certain provisions of the Tampere Convention on the Provision of Telecommunications Resources for Disaster Mitigation and Relief Operations fall within the area of responsibility of the European Community, the full implementation of the Convention by Luxembourg has to be done in accordance with the procedures of this international organisation. Fn 5, p. 15. Contrat d’Association Momentanée – NSCF – emergency.lu, 13 January 2011. Loi du 10 août 1915 concernant les sociétés commerciales (Loi du 12 julliet 2013).

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terminals and different elements concerning the logistic chain of deployment, including the training and information of the personnel. The third mandate deals with the operational and maintenance aspects of the project, including the costs of the global satellite footprint. According to the agreement, NSCF – emergency.lu shall work together with Luxembourg Air Rescue (LAR) – the holding company of Luxembourg Air Ambulance S.A. (LAA), with the view to operate a global deployment service and the storage of one deployment kit. LAR is affiliated to the joint venture through a letter of exclusive cooperation and an agreement between the LAR and the Ministry of Foreign Affairs. As a public-private partnership structure, the project falls under the scope of the Law of 25th June 2009 on Public Procurements.23 The Directorate for Development Cooperation and Humanitarian Affairs of the Ministry for Foreign and European Affairs acts in the function of a “state body” as the contracting authority. When concluding a public contract with economic operators, having as object the labour, supply of products or any provision of services, a “negotiated procedure” based on this law is applicable. This is possible due to the fact that the equipment and services needed for the realization of the project are of such a specific nature that only ascertained economic operators can be entrusted with it.24 On the basis of this procedure, a contract between the Government of Luxembourg, the joint venture NSCF – emergency.lu and Luxembourg Air Ambulance was signed on 31 March 201125 and prolonged until 2020 in at the end of the year of 2014. The contractual body remains unchanged, however minor changes have been done, e.g. the Steering Committee of the project has been revised in order to make it more efficient. This contract fixes the obligations of the parties, as well as the details of implementation of the project. In 2012, the Ministry for Foreign and European Affairs of Luxembourg concluded a contract with Skype Communications SARL26 making its software available to NSCF as a part of emergency.lu. The Ministry was granted by Skype the right to a “worldwide, non-exclusive, non-sub licensable, nontransferable, royalty-free and perpetual license” to use the Skype Customized Client, including all related material, to its internal communication purposes and to sub-license the software to the NSCF for the implementation of the emergency.lu project.

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Law of 25 June 2009 on Public Procurements. Supra note 23, Article 8 para. 1.e. Contract between the Government of Luxembourg and NSFC – emergency.lu and Ducair, 31 March 2011. 20 March 2012, as amended.

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IV.

Implementation of the Project with International Partners

In the period following the concluding of the 2011 contract, the Government of Luxembourg signed numerous Emergency Standby Agreements with several international structures on the use of emergency.lu. Some of these structures belong to the UN system, such as the United Nations Children Fund (Unicef)27 or the Office of the UN High Commissioner for Refugees (UNHCR) and the UN World Food program.28 The most recent Standby Agreement signed by Luxembourg was concluded on 14 July 2015 with the International Organization for Migration (IOM), with the aim to have recourse on its resources in case of natural catastrophes or in regions without telecommunication infrastructures. For example, emergency.lu will enable the connection of the personnel of IMO with their seat in Geneva and coordinate humanitarian actions on the spot.29 According to these legally binding agreements, the partners maintain a pool of operational resources including personnel, technical expertise, services and equipment that can be deployed to the contracting partner at the onset of an emergency situation. Luxembourg offers its support – the material, mostly the satellite ground terminals, the personnel and the know-how – to the other contracting Party. The collaboration arising out of the standby agreement is based on a best-effort basis, meaning that the Government of Luxembourg does not have to guarantee that the Service Packages and experts will be available each time when a request for deployment is issued. The Luxembourg Minister for Cooperation and Humanitarian Affairs is competent to decide whether the personal and equipment are sent, according to the concrete situation. Moreover, in case of long-term missions, the support of an ongoing humanitarian operation can be subject to the approval of local authorities and the license for a satellite earth station from a competent regulatory body. The Humanitarian Intervention Team of Luxembourg (HIT) – the Support Team members, the Standby Personal, the Short Term Experts or the experts in the wording of the standby agreements – was created on the basis of a European initiative formulated in the 1999 Community Civil Protection Programme.30 In the course of the implementation of the programme, an intervention group assigned to international humanitarian missions has been created. This intervention team is composed of several specialized units, such as the

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www.unicef.org/. www.unhcr.org/cgi-bin/texis/vtx/home. See the information on the website www.emergency.lu/. Council Decision of 9 December 1999 establishing a Community action programme in the field of civil protection, 1999/847/EC.

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logistical support team (Log) or the Technical Assistance and Support Team (TAST).31 The Short Term Experts are volunteers of the Civil Protection of Luxembourg and have to undergo training in ICT and information management in order to be able to assemble the antennas and to manipulate the ground terminals. They are accorded the status of “Expert on Mission” for the United Nations within the meaning of Article VI, sections 22 and 23 of the 1946 Convention on the Privileges and Immunities of the United Nations,32 in case that the organization, party of the Standby Agreement, belongs to the UN system. On each mission, the experts operate under the authority of the respective organization, party of the Standby Agreement. In addition, the experts have to comply with the rules and procedures applied by the contracting organization.33 Some of the parties may require each supporting member to sign a statement that they accept to be bound by the standards of conduct contained therein. It is also common to include in the standby agreement a provision requiring the Support Team members to sign an undertaking containing their obligations vis-à-vis the contracting organization, when taking up their tasks under the agreement.34 The contracting partner is responsible for all necessary operational and administrative in-country support to the Support Team, whereas the Government of Luxembourg is contractually liable for the actions of its deployed personal. It is also obliged to ensure that the members of the team are of good health; each member of the group has to have an insurance, covering life and malicious act, death, medical issues, unemployment, third party liability and accident insurance; the life and malicious act insurance must include war- and other extraordinary risks for Support Team members. Each standby agreement contains a standard arbitration clause: Any dispute, controversy or claim between the organization and Luxembourg arising out of or relating to the Agreement will be settled amicably by negotiation or by any other non-judicial means including arbitration, as agreed upon by the parties. The standby agreements enter into force upon signature by both parties and shall stay in force until either party terminates the Agreement, given three months written notice to the other party.

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Law of 12 June 2004 concerning the creation of an Administration of Rescue Services. 1 UNTS 15. E.g. Article 6.4 of the Standby Agreement with UNHCR. E.g. the respective provision of the Standby Agreement with the UNHCR: “Luxembourg shall ensure that its personal, including deployed experts, abide by and respect their contractual obligations pursuant to this Agreement, and remind them that no re-negotiations of terms shall occur in the field.”

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V.

Conclusion

As envisaged in the beginning of the contribution, the place of the emergency.lu in the framework of international space law, and international humanitarian law shall be shortly analysed. 1 What are the space law implications of the programme? The project emergency.lu uses both pre-booked and ad-hoc capacity available on GSO satellites. Without launching any distinct space object or without operating of satellite station, providing of Internet to re-establish connectivity in crises areas can be hardly automatically categorised as “national activity” in the sense of Article VI of the 1967 Outer Space Treaty. Therefore, responsibility and liability for space activities according to space agreements remain attached to the States launching and operating the satellites used for the transmission of signals – which might be Luxembourg in many cases of the satellites operated by the SES, but a different State when using capacities on satellites launched by other States Parties of the Outer Space Treaty. 2 The project emergency.lu has implications in the area of international telecommunication law: Emergency.lu is using mostly the C-band frequencies to make it less sensitive to atmospheric disturbances and to provide a more reliable connection. Internet access to the users is provided through WIDER, a specific Wi-Fi solution, which is connected to the terminal.35 In order to coordinate the use of the C-band in the international scale, the Government of Luxembourg had to enter into contact with the ITU prior to launching the project, in order to receive an international recognition of the use of necessary frequencies.36 What are the humanitarian law aspects of the programme? Humanitarian law is not only applicable to military conflicts, but also extends to situations which remain outside the scope of the UN Charter’s prohibition of the use of force, in particular armed conflicts within the territory of a state or civil wars. Without answering the question of whether the destruction of telecommunication networks falls under the means allowed by international humanitarian law, it may be argued that the restoration of such telecommunication networks belongs to the category of obligation of occupying powers to guarantee supplies “essential to the survival of the civilian population” comparable to clothing, bedding, or means of shelter provided by Article 69 of the 1977 Protocol I to the Geneva Conventions of 12 August 1949 – ius in bello. The fast

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http://ictemergency.wfp.org/web/ictepr/wavelength15/beach-ball-for-emergencyresponse. R. Thurmes, Luxembourg Administration as Notifying Administration, in: M. Hofmann (ed.), International Regulations of Space Communications, 2013, 173 ff.

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renewal of national and international connectivity can be seen also a significant post-conflict task of formerly belligerent parties. It can be concluded that the potential of the projects as emergency-lu is more extensive than the support of states – victims of natural catastrophes; its technology can be used in crises of whatever source it might be, helping to fulfill the purposes of international humanitarian law.

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The Applicability of the Right to Self-Defence to the Area of Exploration and Exploitation of Outer Space Olga A. Volynskaya*

Abstract The modern space technologies form an inalienable part of our lives. Access to space is not only a question of national prestige, but first of all a source of advanced knowledge and achievements which cannot be obtained on the Earth, but are successfully applied for the benefit of the Earth economy. Nowadays the use of space technologies is so common that any “side” application of satellite systems – other than commercial – is not taken into consideration. However, it is these unobvious areas that pose danger. As the active global-coverage satellite systems, such as GPS or GLONASS, were created primarily for defence purposes, any political tension can lead to the “switching off” or at least limitation of coverage of such systems. Satellites by nature are not weapons, but their role in support of armed forces and military operations on the Earth is evident. In the recent years the issue of the necessity to prevent utilization of weapons in space and preserve the freedom of outer space from military operations has been raised more and more often at the international fora. The problem of applicability of the fundamental right to self-defence recognised by Article 51 of the UN Charter to the area of exploration and exploitation of outer space is the cornerstone of such discussions at any levels. This paper presents international law and international space law analysis of a range of aspects of applicability of Article 51 of the UN Charter to outer space, potential ways of its adaptation to the domain of exploration and use of outer space in the context of the long-term sustainability of space activities, the concept developed within the framework of the United Nations, as well as other international initiatives related to the promotion of safety, security and stability of space activities.

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ROSCOSMOS, the Russian Federation, [email protected].

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I.

Historic Evolution of the Concept of Self-Defence

The birth of the concept of self-defence dates back to Ancient Greece and Ancient Rome when the issue was first raised on the possible legal justification of war.1 The Roman doctrine of just war substantially contributed to further development of the elements of the above concept which were then developed by the apologists of Christian theology.2 With the evolvement of state sovereignty the right of self-defence gained a status of a natural, inherent right exercised in response of a wrongdoing. In particular, Hugo Grotius stated that three kinds of just grounds for resorting to war (jus ad bellum) which involve the pursuit of a right: self-defence, the recovery of property and punishment.3 The opinion of Grotius that the right of self-defence “has its origin directly, and chiefly, in the fact that nature commits to each his own оюprotection, not in the injustice or crime of the aggressor”4 was widely supported by the classical doctrine and successors (Gentili, Victoria, Suarez, Wolff, etc.).5 It is important to note that the right of self-defence was not considered unlimited: “For in order that a self-defence may be lawful, it must be necessary; and it is not necessary unless we are certain, not only regarding the power of our neighbour, but also regarding his intention”.6 By the end of the XIX century the concept of “war as the last resort” was formed, however, leaving unresolved a whole range of issues such as the unambiguous understanding of the nature and the essence of the right of selfdefence. The Caroline case of 18377 was a breakthrough in the legal forming of the legal doctrine of self-defence which from this moment required the following three factors to be exercised: “(i) an actual infringement of the rights of the defending State; (ii) a failure or inability on the part of the other State to use its own legal powers to stop or prevent the infringement;

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S.A. Alexandrov, Self-Defense Against the Use of Force in International Law. The Hague: Kluwer, 1996, p. 1-2. In particular, Saint Augustine and Saint Thomas Aquinas. For more details See, e.g.: J.D. Tooke, The Just war in Aquinas and Grotius. – London: SPCK, 1965. Hugo Grotius, De Jure Belli Ac Pacis, Book II, Chapter I, Section II, para. 2, Classics of International Law. – 1925. – P. 171 et seq. For commentaries See: S.A. Alexandrov, supra note 1, at 5; Grotius Hugo, Internet Encyclopaedia of Philosophy, (last visited: 20.09.2015). Hugo Grotius, ibid. Section III, at 172. For more details See: S.A. Alexandrov, supra note 1, p. 5-7. Hugo Grotius, supra note 3, Chapter XXII, Section V, para. 1, at 173. For more details See: R.Y. Jennings, The Caroline and McLeod Cases, 32 AJIL 82 82 (1938).

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(iii) acts of self-defence must be strictly confined to the object of stopping the infringement and have to be reasonably proportionate to what is required for achieving this object.”8

Before the League of Nations one of the fundamental principles of self-defence – proportionality – was formulated and confirmed by the 1907 Hague Conventions.9 Proportionality means that the “retaliatory impact and/or civilian cost to the use of force in self-defence must be considered”.10 Another important principle applied to the application of self-defence is necessity which implies that the “use of force in self-defence must be limited to the attainment of legitimate military objectives”,11 that is not turn into reprisal. The notion of right of self-defence was not expressly used in the Covenant of the League of Nations, however, its nature and scope were further developed through doctrinal attempts to define aggression, as well as practical cases of legitimate self-defence. Eventually, it was the Charter of the United Nations to declare the inherent right of self-defence as a jus cogens, or peremptory norm at the basis of the global UN security system. II.

The Right of Self-Defence in the General International Law

Article 2(4) of the United Nations Charter establishes the following international obligation: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

There are three exceptions to the above prohibition, namely, consent of a state to use force within its territory, Security Council authorization under Article 42 of the UN Charter, and self-defence. The right of self-defence is established by Article 51 of the UN Charter which reads as follows: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of

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Cited from: S.A. Alexandrov, supra note 1, at 20. The principle of proportionality was later reflected in the 1980 Draft Articles on State Responsibility (Article 49) and referred to in the 1997 Additional Protocols to the Geneva Conventions of 1949. Cited from: The Legal Right to Self-defence, Factsheet Series No. 2, Canadians for Justice and Peace in the Middle East, June 2008 (last visited: 19.09.2015). Ibid.

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this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

This provision has raised a plenty of issues when applied in practice, the amount of which is even greater when it comes to such a specific, truly unique area of human activities as outer space. If analyzed literally, the above rule pertaining to outer space activities provides no clarity as to what is, hypothetically, an armed attack in space, what is arms in space, or which might be the objective and impartial criteria to consider actions against an armed attack in space as lawful, proportionate and adequate. The very applicability of Article 51 of the UN Charter to outer space has not been comprehensively assessed by the international expert community,12 which is one of the factors of slowing down the work on the current international initiatives in the domain of exploration and exploitation of outer space (see part IV of the present article). In the meantime, the Vienna Convention on the Law of Treaties should be recalled in this respect, in particular its Article 31 which puts forward the general rule of interpretation of treaties: “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”. In accordance with this rule the analyzed Article 51 of the UN Charter by stating that self-defence might be used “if an armed attack occurs” against a state covers the situations of an actual armed attack, that is the one which is already happening, leaving beyond its scope the cases of preventive or preemptive self-defence in case of a threat of an attack. This approach is criticized by some authors,13 but only a deep international study can solve this multifaceted problem of interpretation. The international expert representation in such a study is essential, taking into account that in the context of national policy and practice states, following own interests, can interpret in specific ways the basic rules and principles of international law, as well as its specialized branches such as international space law.

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For a commentary on different doctrinal approaches to the problem of applicability of the right of self-defence to outer space See, e.g.: G.P. Zhukov, International Space Law and the Challenges of the XXI Century. A Tribute to the 50th Anniversary of the flight by Yuri Gagarin in outer space, Moscow: RUDN, 2011, pp. 210-211. In particular, Professor Gennady Zhukov considers that the inherent right of self-defence is fully applicable to outer space activities. See, e.g.: M. Bourbonniere, R.J. Lee, Legality of the Deployment of Conventional Weapons in Earth Orbits: Balancing Space Law and the Law of Armed Conflict, EJIL (2007), Vol. 18 No. 5, at 887 at seq.

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III.

International Space Law and the Right of Self-Defence

The preamble of the first General Assembly resolution on exploration and exploitation of outer space (1348 (XIII)) of 1958 declared: “The General Assembly [recognizes] the common interest of mankind in outer space and that it is the common aim that outer space should be used for peaceful purposes only”. Based upon this rule, Article IV of the 1967 Outer Space Treaty (the OST)14 set forth one of the fundamental principles of international space law: “States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”

This article establishes the so called partial demilitarization of outer space15 by banning the use of nuclear weapons and other weapons of mass destruction, but keeping silent on the use of conventional arms in outer space. In the meantime, the second part of the mentioned Article IV stating that “The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

as well as the related provision of the 1979 Moon Agreement,16 namely Article 3(3): “States Parties shall not place in orbit around or other trajectory to or around the moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the moon.”

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the OST) – GA resolution 2222 (XXI), annex, adopted on 19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967. For a commentary See, e.g.: International Space Law (a Treatise) (edited by G.P. Zhukov, A.Kh. Abashidze), RUDN, 2014, at 206. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement) – GA resolution 34/68, annex, adopted on 5 December 1979, opened for signature on 18 December 1979, entered into force on 11 July 1984.

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and Article 3(4): “The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the moon shall also not be prohibited.”

establish complete demilitarization of the moon and other celestial bodies, including their surface, orbits around or trajectories to and around them. Neither the OST, not the other four space treaties17 expressly provide regulation of the applicability of the right of self-defence to the area of space activities. However, Article III of the OST declares that “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”

This provision draws a link between international space law and international law, principally the UN Charter, which allows to conclude that the latter’s Article 51 on the right of self-defence can be applied to outer space. The various complex aspects (or modalities) of its application are yet to be determined and scrutinized, including: – definition of outer space; – definition of arms/weapons and armed attack in outer space; – possible situations in space which might cause the need to self-defence, – criteria for using the right of self-defence in space; – means to be exhausted before application of self-defence; – and others.

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The Moon Agreement, as well as the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement) – GA resolution 2345 (XXII), annex, adopted on 19 December 1967, opened for signature on 22 April 1968, entered into force on 3 December 1968; Convention on International Liability for Damage Caused by Space Objects (the Liability Convention) – GA resolution 2777 (XXVI), annex, adopted on 29 November 1971, opened for signature on 29 March 1972, entered into force on 1 September 1972; Convention on Registration of Objects Launched into Outer Space (the Registration Convention) – GA resolution 3235 (XXIX), annex, adopted on 12 November 1974, opened for signature on 14 January 1975, entered into force on 15 September 1976.

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The last, but not least, aspect is closely related to another fundamental principle of international space law declared by Article IX of the OST: “In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall 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 all other States Parties to the Treaty.”

Thus, for many years the OST has been the international legal guarantee of neutralization and prevention of militarization of outer space. At the same time it should be noted that not all states members of the United Nations participate in the OST (103 states ratified, 25 signed)18 and even fewer are signatories of the other conventions and agreements on space activities, which is a serious impediment on the way to ensure a truly global, universally recognized and respected regulatory regime of space activities. Another issue should be mentioned in this context. As the above analysis shows, the UN treaties on outer space do not regulate the application of the right of self-defence, which might be explained, first, by the fact that at the time of drafting the treaties the problem of weaponization of outer space was not on the international agenda; and second, that there is a presumption in space law that outer space shall be used for peaceful purposes only. However, the latter argument is disputable: the notion “peaceful purposes” is evidently not equal to that of “peaceful uses” as peaceful uses may have military purposes (e.g. the use of reconnaissance satellites). This ambiguity has become especially acute in the recent years, the proof of which being the activated work on outer space transparency and confidence-building measures (TCBMs) in the First Committee of the UN General Assembly and the longterm sustainability of space activities (LTS) developed in the framework of COPUOS. This is an alarming signal to the international space community that requires urgent attention and solution. IV.

New International Initiatives on Space Activities Mentioning the Right of Self-Defence

The references to the right of self-defence are encountered in the current texts of the European Draft Code of Conduct for Outer Space Activities, as well as the Draft Treaty on the Prevention of Placement of Weapons in Outer Space presented and promoted by the Russia and China. Despite the fact that authors of both texts use the same notion of self-defence, it is evident that its

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Status of International Agreements relating to activities in outer space as at 1 January 2015 (last visited: 19.09.2015).

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understanding and interpretation which the authors imply and implement in the respective draft provisions differ, which once again proves the need of thorough international discussion what is the right of self-defence in outer space. IV.1.

The Draft International Code of Conduct for Outer Space Activities (ICoC)

The European Draft of an International Code of Conduct for Outer Space Activities19 proposes the following general principle of space activities: “The responsibility of states to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the Charter of the United Nations, and the inherent right of states to individual or collective self-defence as recognised in the Charter of the United Nations.”

In the course of three rounds of open-ended consultations (in 2013 held in Kiev and Bangkok, in 2014 held in Luxembourg) and an international meeting in New York in July 2015 a significant number of delegations expressed their concerns about the inclusion in the draft Code of the wording that states can damage or destroy foreign space objects if such actions are justified by: – “imperative safety considerations, in particular if human life or health is at risk; or – in order to reduce the creation of space debris; or – by the Charter of the United Nations, including the inherent right of individual or collective self-defence” (para. 4.2 of the draft Code version May 2015). Such an approach used by the authors of the draft Code is highly criticized as three absolutely different situations undoubtedly requiring a differential approach are put into one dimension. Moreover, the proposed formula means an effort to arbitrarily interpret the peremptory norms of the UN Charter, including Article 51, which, remembering that the draft Code is supposed to become a politically, but non-legally binding instrument, is inacceptable from the legal point of view and endangers the whole established system of international space law. IV.2.

The Draft Treaty on Prevention of the Placement of Weapons in Outer Space (PPWT)

The Russian-Chinese Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT) in its Article V states: “Nothing in this Treaty may be

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Version of May 2015, Ref. Ares(2015)2669915 – 25/06/2015.

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interpreted as impeding the exercise by the States Parties of their right of selfdefence in accordance with Article 51 of the Charter of the United Nations”. Thus, it is important to come to a uniform understanding of the concept of self-defence applied to outer space activities in order to exclude ambiguous interpretation of the above texts. Evidently enough, the jus cogens of the UN Charter cannot be interpreted by a non-legally binding instrument, but such an instrument, if duly drafted, negotiated and universally adopted, could be an important step towards a future legally binding regime of the prevention of placement of weapons in space. Both non-legally binding and legally binding instruments can and should be developed simultaneously and in close relation so that to avoid deviation in key provisions, notions and concepts and to pursue a common objective – to ensure safety and security in outer space. To this end the Russian Federation initiated the assessment of the inherent right of self-defence in respect of its applicability to outer space activities. IV.3.

The Right of Self-Defence on the Agenda of COPUOS

At the 57th session of COPUOS the Russian delegation officially proposed the Committee to consider the legal grounds and modalities of hypothetical use of the right of self-defence related to outer space in accordance with the UN Charter.20 In 2015 at the STSC session a working document was presented by the Russian Federation with a title “Achievement of a uniform interpretation of the right of self-defence in conformity with the Charter of the United Nations as applied to outer space as a factor in maintaining outer space as a safe and conflict-free environment and promoting the long-term sustainability of outer space activities”.21 The document promotes the idea to consider in the framework of COPUOS of a substantial range of legal aspects pertaining to the use of the right of selfdefence in outer space including: – a wide review of regulatory aspects which require a deep analysis in order to develop more precise criteria of objective assessment of activities in outer space; – proposals on classification of possible situations which might provoke a conflict in space; – proposals on the mechanisms to avoid conflict situations; – proposals on the proportionate, adequate reactions to possible conflict situations.

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Statement by the Permanent Representative of the Russian Federation in Vienna V.I. Voronkov on 11 June 2014 (last visited: 22.09.2015). UN document A/AC.105/L.294 of 29 April 2015.

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The document also contains a draft guideline “Implementation of operational and technological measures of self-restraint to forestall adverse developments in outer space” as a contribution to the LTS Guidelines being developed in COPUOS, which is on the joint of the topics of LTS and space security, but at the same time in no way intends to solve the problem of the use of the right of self-defence in outer space. V.

Conclusions

The above analysis showed that the issue of applicability of the right of selfdefence to outer space activities as it is declared by the UN Charter implies, first, accurate unambiguous interpretation of the respective Article 51 of the UN Charter, second, interpretation and assessment of a possibility to correspondingly amend the OST should its signatory states consider it necessary. Taking into account that the OST, as well as the other space treaties, was developed and adopted under the auspices of UN Committee on the Peaceful Uses of Outer Space, the best forum for the proposed processes would reasonably be COPUOS. It is important that such discussions would be multilaterally discussed and approved, taking in due consideration the interests and needs of the maximum number of states, especially developing countries, ensure the international balance of interests, come to a clear and uniform understanding of the concept of the right of self-defence related to outer space, and elaborate a common strategy and regulatory framework of activities in this area, whose best format would be a legally binding document with the ultimate goal to promote confidence-building and enhance safety and security in outer space and sustainability of space activities.

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Cybersecurity in the Space Age Michael Potter*

Abstract Legal aspects of cybersecurity in the space age are issues that both includes and transcends issues of outer space assets, space activities and outer space law. In the case of cybersecurity the spectrum includes space law, international law and domestic law. Without a clear understanding of the importance of cybersecurity in the space age, and without the most basic definitions of cyberattacks and WMDs there remains an increased level of instability, legal confusion, a lack of deterrence, and chaos in the international system. Due to the international intervention into Iraq over the past decades, the term Weapons of Mass Destruction (WMDs) has often been viewed as an over-politicized term. And more importantly many are inclined to believe that accusations of WMDs were cynically and disingenuously used by aggressor nations to manipulate the international system and as a pretext for war in the case of Iraq. And while there is virtually no consensus dealing with cyberattacks in the international system, there is certainly no consensus on the role and legality of digital and physical counter-attacks to combat cyberattacks both generally, as well as those of a potential WMD magnitude. It would be understandable then, that politically and legally it may not be seen, as a convenient or an appropriate moment in history, to call for a reassessment and a thoughtful clarification of the definition and more importantly to ensure that a clarified definition of WMDs enables certain types and classifications of cyberattacks to be considered as WMDs.

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International Institute of Space Commerce, USA. 21 years ago in Jerusalem at the IAC, this author presented a paper entitled “The Outer Space-Cyberspace Nexus: Satellite Crimes.” The paper suggested a framework for analytically understanding the outer space-cyberspace nexus, which I believe is still of relevance. More recently there have been arguments that “cyberspace” is dead. Decades ago we had to fight to enter a portal and immerse ourselves into cyberspace. In the internet of things, we are now immersed. In fact we have to fight, if we want to extricate ourselves from cyberspace. The argument suggest that cyberspace is so ubiquitous, that it is essentially meaningless. Today I would argue that there is not just a nexus, but a collision of cyberspace and outer space. I believe the more interesting question is whether the news of the death of cyberspace is premature? This paper is protected under the Creative Commons, Attribution, Non-Commercial (CC BY-NC).

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I.

Introduction

By the time you finish this sentence, computer hackers from around the globe will have made at least 1,000 attempts to breach the Pentagon’s firewall.1 If this has not captured your attention, consider that tens of billions of dollars will be allocated in the next 5 years for both cybersecurity and the security of space assets.2 On a daily basis cybersecurity becomes more urgent and more visible. In current events the difficulties that Secretary of State Hillary Clinton has confronted as a result of moving sensitive government email traffic to her personal server has attracted almost a global fascination. In fact it was alleged that some of her emails contained sensitive satellite photos of North Korean nuclear capabilities.3 Even the most recent Tom Cruise movie, “Mission Impossible: Rogue Nation,” starts off with a scene of special agents hacking a Russian satellite. Cyberattacks are growing exponentially. This urgency was highlighted earlier in the year when the White House held a cybersecurity summit in Palo Alto, California.4 This paper is not intended as a final and definitive work on the subject of cybersecurity and of cyberattacks within international and space law. The paper is written in the spirit of initiating a discussion and a debate on the future of these issues and as a motivation to policymakers and to the international legal community to begin to take sensible and effective actions. In a post Cold War era, in a time of multipolarity, while nuclear weapons remain very important, their day-to-day strategic significance can be said to have diminished as the threats of both terrorism and cyberattacks accelerate in the direction toward Weapons of Mass Destruction (WMDs). In this paper the author argues the term “cybersecurity” remains a relevant and useful term, and a helpful way to organize our thoughts, our defenses and our responses to Internet, cyber and satellite related security. How important is the cybersecurity in the space age? Consider that during the height of the Cold War, one of the few justifications for all out nuclear

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“On the Frontlines of Cyber War,” By Damon Cline, Augusta Magazine, April 2015. www.augustamagazine.com/Augusta-Magazine/April-2015-1/On-the-Frontlines-ofCyber-War/. “US Commits $5B In NEW $$ To Countering Space Threats; HASC Protects It,” By Colin Clark, April 22, 2014. http://breakingdefense.com/2015/04/us-commits-5b-innew-to-countering-space-threats-china-russia/. Clinton emails contained spy satellite data on North Korean nukes Revelation among biggest concerns inside intel community, By John Solomon, The Washington Times, September 1, 2015. The New Cold War Is Going Digital And that’s a problem, because deterrence doesn’t work when it comes to cyberattacks, Heather Roff, August 13, 2013, Slate.Com. www.slate.com/articles/technology/future_tense/2015/08/russia_joint _chiefs_of_staff_hack_deterrence_doesn_t_work_with_cyberattacks.html.

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war, would have resulted from an adversary conducting a preemptive attack on defense early warning reconnaissance satellites. The entire premise of the nuclear strategic concept of Mutually Assured Destruction (MAD) necessitates reliance on timely and accurate assessment of whether the enemy had launched nuclear equipped missiles. With early warning satellites, outer space was militarized, but not weaponized. Today an attack on early warning space reconnaissance satellites might be able to be achieved, most efficiently through a cyberattack rather than a traditional physical military attack. To place cybersecurity into a powerful context consider that for nearly 20 years the U.S. nuclear launch code at all the minuteman silos was eight 0s.5 And even now, a former U.S. commander is arguing that we should take nuclear missiles off of high alert, to minimize the possibility of a cyberattack.6 A Pentagon-sponsored report warns that the United States faces new threats from mass destruction weapons in the form of cyber, electronic and financial attacks, in addition to more well-known dangers from nuclear, chemical and biological WMDs. “In addition to the prolific conventional [weapons of mass destruction] threats posed by a vast network of state and non-state actors, the U.S. must also contend with emerging threats that are not conventionally recognized as WMD [...] Very few of America’s adversaries will attempt to challenge the unmatched strength of the U.S. military in a traditional conflict, but they may employ alternative asymmetric approaches ... it is therefore necessary to consider emergent, nontraditional threats, such as cyber, electromagnetic pulse (EMP), and economic attacks, in a comprehensive discussion of WMD threats.”7

Vice Admiral Arthur Cebrowski, recently asserted that: “Although a cyber-attack is digital, not physical, it is a threat that could physically harm thousands or tens of thousands of people. It’s likely that we will confront more cyber-attacks than chemical or dirty bomb attacks given the ease of which rogue states and non-state malicious parties can engage and given the difficulty of deterrence. Physical harm is physical harm, regardless of the attack vec-

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“FOR NEARLY TWO DECADES THE NUCLEAR LAUNCH CODE AT ALL MINUTEMAN SILOS IN THE UNITED STATES WAS 00000000” Today I Found Out, Karl Smallwood, November 29, 2013. www.todayifoundout.com/index.php/2013/11/nearly-two-decades-nuclear-launchcode-minuteman-silos-united-states-00000000/. “Former U.S. commander: Take nuclear missiles off high alert,” Robert Burns, April 30, 2015. www.airforcetimes.com/story/military/2015/04/29/former-us-commandertake-nuclear-missiles-off-high-alert/26603763/. “Inside the Ring: New WMD threats,” Bill Gertz, The Washington Times, www.washingtontimes.com/news/2012/oct/10/inside-the-ring-new-wmdthreats/?page=all.

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tor. We must therefore think of WMD in results-centric terms, not device-centric terms.”8

I would like to provide an example of a significant current event, not in an effort to politicize this discussion, but in an effort to more broadly inform this discussion. It is instructive to look at the recent case of the lifting of the embargo on Iran, as part of an international effort to slow the Iranian development of nuclear weapons. This international agreement permits $ 100 billion of frozen Iranian funds to go to Tehran. It is well know that Iran has a vigorous cyberattack capability, even including a dedicated group of government sanctioned hackers with, the rather curious name of, “Rocket Kitten.”9 Even if Iran possessed a nuclear bomb today, it is not clear if this particular Weapon of Mass Destruction would confer a tremendous amount of immediate, leveragable, tactical advantage. However it is very clear that tens of billions of unfrozen dollars could be allocated by the Iranian regime for the support of conventional conflicts, terrorism and in particular, the subject of this paper, cyberattacks could be quite significant tactical and strategic value for Iran. In fact Ian Bremmer recently argued that Tehran successfully reverse-engineered the powerful Stuxnet worm created by the NSA and Israel before turning “it into their own cyber-weapons [...]”.10 As a non-traditional threat, cyber warfare is highly leveragable. The cost of entry into the cyberwarfare area is extremely minimal, with satellite access, broadband access and remote low-cost leasable supercomputer capabilities. According to David Stupples the: “Iranians “have now realized they have a much stronger weapon at hand,” he said. “If they pour resources into that,

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“Results- vs. Device-Centric Threats: Why Cyber-Attacks Should be in the WMD Conversation,” https://blogs.mcafee.com/executive-perspectives/results-vs-devicecentric-threats-cyber-attacks-wmd-conversation/. Also See: Vice Admiral Arthur Cebrowski, Proceedings 1998, PIRACY 2.0: THE NET-CENTRIC EVOLUTION, http://cimsec.org/piracy-2-0-net-centric-evolution/18343. “Iran-Linked Espionage Group Continues Attacks on Middle East,” Security Week, Eduard Kovacs, September 2, 2015, www.securityweek.com/iran-linked-espionagegroup-continues-attacks-middle-east. “[...] to destroy Saudi Aramco's servers and nearly stop the kingdom's oil production [...] The US is losing its cyber edge and 'a black swan event' is increasingly likely The cyber gap between the US and its adversaries is only expected to narrow as nationstates and hacktivists invest more time and money learning how to spy on, steal from, and destroy digital systems.” BREMMER: The US is losing its cyber edge and 'a black swan event' is increasingly likely,’ Natasha Bertrand, May 8, 2015, Business Insider. www.businessinsider.com/bremmer-and-cyberwarfare-2015-5 Also look at: EXCLUSIVE: U.S. officials conclude Iran deal violates federal lawwww.foxnews .com/politics/2015/10/09/exclusive-us-officials-conclude-iran-deal-violates-federallaw/.

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they can continually attack and continually get payoffs from their activities, quite cheaply.”11 From a military perspective, bandwidth and frequency are now almost more important than bombs and boots. Countries whom organize for conventional warfighting capabilities, now find themselves involved with a new arms race for control of bandwidth inside the battlefield. Army’s have gone high-tech and have now implemented user-friendly visualizations of the spectrum’s real-time status on the battlefield. Soldiers can now pinpoint which locations are securely in electromagnetic control and which are susceptible to electronic attack. Leaders will soon “discover that no amount of firepower can assure its dominance.”12 Some analysts are arguing that nationstate hackers maintain a weapon of mass destruction that is significant threat to the U.S. infrastructure. According to “a Department of Homeland Security official, network inspections had “found software tools left behind that could be used to destroy infrastructure components,” following hacks from Russia and China. “It’s like (improvised explosive devices) in Iraq. Bomb makers have certain signatures, and looking at a bomb, you can tell who and where that signature comes from.”13 II.

Weapons of Mass Destruction (WMDs) Definitional Issues

In fact what makes the subject of cyberattacks in the international system bedeviling is that it quickly morphs into the similar discussion of how international law and international organizations ought to deal with war in the international system. Over the last many decades war has proven to be difficult for the international system to effectively legislate, regulate, control or halt. Sadly the control of cyberattacks in the international system are likely also to remain elusive in the decades ahead. Nevertheless definitions are important. Cyberattacks originate across a spectrum, from sole actors, to state actors and syndicates and groups that are driven by ideology or profit motive. As cybersecurity relates to satellite cybersecurity the emphasis should primarily be on the state actors, and non-traditional state-like actors and proxies rather than the lone unattached, unaffiliated hackers. Cyberattacks are a continuation of politics and the continuation of war by electronic and cyber means. To riff-off a well known aphorism, “power grows out of a hacked network.”

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“Cyber War Rages Between Iran, US,” Voice of America, March 3, 2014. Al Pessin, www.voanews.com/content/cyber-war-rages-between-iran-united-states/2666299.html. Inside the New Arms Race to Control Bandwidth on the Battlefield, www.wired.com/2014/02/spectrum-warfare/. Chinese Hackers Have A Weapon Of Mass Destruction That No One Is Talking About, Business Insider, Geoffrey Ingersoll Feb. 22, 2013, www.businessinsider.com /mandiant-china-hackers-wmd-no-one-mentions-2013-2#ixzz3YJhbYVTM.

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What makes cyberattacks difficult under international law and the “law” of popular opinion is that conflict and war are generally focused on violence and physical and “kinetic” operations. In a recent article entitled, “Cyber Operations and the Jus in Bello: Key Issues,” Michael Schmitt argues, “Cyber operations can unquestionably generate such [physical] consequences even though they launch no physical force themselves. For instance, a cyber operation against an air traffic control system would place aircraft, whether military or civilian, at risk. Or one targeting a dam could result in the release of waters, thereby endangering persons and property downstream. In neither case would the actual act be destructive, but in both the consequences would be. Referring back to the requirement of violence, and its development in Additional Protocol I, cyber operations can therefore qualify as “attacks,” even though they are not themselves “violent,” because they have “violent consequences.” A cyber operation, like any other operation, is an attack when resulting in death or injury of individuals, whether civilians or combatants, or damage to or destruction of objects, whether military objectives or civilian objects.”14 It is worth noting, that “The annual, global economic cost of cyber-attacks have now reached more than $ 400 billion, with about a quarter of that coming from just the U.S.15 In the context of Iran, it is probably not widely understood, that the country’s current development of Intercontinental Ballistic Missiles (ICBMs). ICBMs falls into a troublesome definitional category. ICBMs are considered to be a WMD, according to the U.S. Department of Defense.16 The significance of the words “separable” and “divisible” part of the weapon is that missiles such as SCUDs are considered weapons of mass destruction, while aircraft capable of carrying bombs are currently not. It is interesting to note that, the Proliferation Security Initiative (PSI) a global effort that aims to stop trafficking of weapons of mass destruction (WMD), their delivery systems, and

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“Cyber Operations and the Jus in Bello: Key Issues,” Michael Schmitt, http://law.huji.ac.il/upload/6_Housen-Couriel.pdf. “See What Elon Musk's Right Hand Man Has to Say About Cyber Hackers,” Andrea Tse, www.thestreet.com/story/12441320/1/See-what-elon-musks-right-handman-has-to-say-about-cyber-hackers.html. “weapons of mass destruction” (DOD) Chemical, biological, radiological, or nuclear weapons capable of a high order of destruction or causing mass casualties, and excluding the means of transporting or propelling the weapon where such means is a separable and divisible part from the weapon. Also called WMD. See also special operations. Source: JP 3-40,” See DoD Dictionary of Military Terms. See also In 2004, the United Kingdom's Butler Review recognized employed the definition of United Nations Security Council Resolution 687, which defined the systems which Iraq was required to abandon:Ballistic missiles with a range greater than 150 Ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities.kilometres and related major parts, and repair and production facilities.

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related materials, to and from states and non-state actors of proliferation concern, was originally created to stop the shipment of SCUD missiles.17 Separately, under U.S. federal law, the 9-11 attacks on the World Trace Center would be defined as a WMD, because under U.S. law a “destructive device,” include any “explosive,” any “bomb,”18 and in addition the WTC attacks, the terrorists used the fuel of the airplane as their weapon. The airplanes contained 60 tons of fuel each. Aviation fuel contains 10x the energy, gram per gram, as TNT. The potential energy was equivalent to about 600 tons of TNT, more than half a kiloton.19 I believe that commonly accepted international law too narrowly defines WMDs, while U.S. domestic law defines WMDs far too broadly defined. However under U.S. law there are the concepts that it is illegal to “conspire” to attempt to create as well as it is illegal to use “any combination of parts” towards creating WMDs. These could be a useful concepts in international law. A threshold for considering cyberattacks a WMD might include cyberattacks targeting civilians, cyberattacks on civilian aviation, cyberattacks on community water systems and energy systems, attacks on railroads, highway signaling systems, space systems, and even on a nation’s commercial and financial systems. The distinguishing elements, are civilians, scale, proportionality, and financial impact. Routine low level information probes and data gathering as an international practice seems to have become generally accepted. Current international law does not provide sufficient language in which the law is able to properly view cyberattacks in the framework of WMD. I would argue similarly, that in the case of cybersecurity when a significant portion of a network is dedicated to delivering a cyberattack of WMD magnitude, that “network” portion of the dedicated network, ought to be classified as a WMD. Of importance the network could be construed, as a legitimate target in the international system. In a recent paper, on the disruption of satellite transmission it was argued, “The as-yet unresolved issue of whether a virtual attack on a satellite system is in fact an armed attack under the Charter is a compelling one to an increasing number of states: more and more, state and non-state actors are interested in knowing under what circumstances disruption of a satellite transmission consti-

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“The Proliferation Security Initiative: Can Interdiction Stop Proliferation?”Jofi Joseph, www.armscontrol.org/print/1579. 18 U.S. Code §2332a – Use of weapons of mass destruction | US Law | LII / Legal Information Institute, https://www.law.cornell.edu/uscode/text/18/2332a. “Analysis of the Terrorist Attack,”. Department of Physics at the University of California at Berkeley, and Faculty Senior Scientist at the Lawrence Berkeley Laboratory, where I am also associated with the Institute for Nuclear and Particle Astrophysics. http://muller.lbl.gov/pages/Analysis_of_the_attack.htm.

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tutes an attack act that justifies self-defense; and what the parameters of legitimate response to such an act may be.”20

But there is a substantial change in the nature of the activity when it turns to destruction of property and the infliction of harm on civilians. When that threshold is crossed the country that has become victim to such an attack, could arguably have a legitimate basis to launch a physical attack on the country and the cyber infrastructure of the perpetrators. A nation inflicting offensive destruction, perhaps, may be seen as losing what is normally viewed as an acceptable capability to monitor and probe. This would be a significant departure from the norms of the Cold War. III.

Space & Cold – Strategic Threat21

III.1.

A Framework of Threats

In a recent presentation titled “Satellite hacking,” a popular IT security expert listed the following top 10 threats:22 III.2.

A Brief Current Overview of Satellite & Strategic Issues

In a recent CBS television news piece on U.S. satellite vulnerability, “A White House document obtained by 60 Minutes estimates the Pentagon spends about $ 25 billion a year on space – more than NASA or any other space agency in the world. The estimate includes spy satellites and other classified spending. In a statement, the Chinese embassy in Washington, DC, told 60 Minutes that China is “committed to the peaceful use of outer space.” [...]

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“DISRUPTION OF SATELLITE TRANSMISSIONS UNDER IHL: LAUNCHING NEW PARADIGMS,” Deborah Housen-Couriel, http://law.huji.ac.il/upload/6_Housen-Couriel.pdf. In the late nineteen-fifties, “US intelligence developed what seemed like a useful technology: equipment that could tamper with the electronics of orbiting satellites; theoretically, such a device could even be used to take control of an orbiting object. The equipment was tested, but just before somebody pointed it at a Soviet satellite, intelligence officers contacted a consultant with the National Security Agency to hear his thoughts. He shot the plan down quickly, said the idea was a very, very bad one. By using the equipment, he argued, America would be setting the precedent that it was acceptable for countries to tamper with each other’s satellites, and if everyone started doing it, nobody would be able to use satellites at all. The equipment was disabled to ensure that no one would ever use it, even by accident.” “The Dirty Secrets Behind the Race to Put a Man on the Moon,” Kurt Eichenwald, NewsWeek, September 17, 2014. www.newsweek.com/2014/09/26/dirty-secrets-behind-race-put-man-moon271158.html. Hacking Satellites … Look Up to the Sky – InfoSec Resources, September 18, 2013. http://resources.infosecinstitute.com/hacking-satellite-look-up-to-the-sky/ Also See: WTA Urges Teleport Operators to Improve on Cybersecurity, By Juliet van Wagenen, August 5, 2015. www.satellitetoday.com/technology/2015/08/05/wtaurges-teleport-operators-to-improve-on-cyber-security/.

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Gen. Hyten says the U.S. wants peace but must be prepared for conflict. “It’s a competition that I wish wasn’t occurring, but it is,” says Hyten. “If we’re threatened in space [...] we have the right of self-defense [...] and we’ll make sure we can execute that right.”23 The top cyber official for the Air Force says the service’s space and satellite networks are being constantly hacked by outside groups. “There’s millions of probes every year into our networks, from every corner of the world,” according Gen. John Hyten, the head of Air Force Space Command, “Those probes come from everything, from nation states down to individuals just curious, down to criminal behavior,” he added.24 For the U.S. the ground war in the Middle East, has now largely become an unregulated cyber-satellite war. While there may not be a lot of American “combat boots” in Syria, “dozens of manned and unmanned aircraft dot the skies above gathering video and other types of intelligence about the movement of Islamic State militants. The images collected by those aircraft are streamed by satellites in near real-time thousands of miles away to Langley Air Force Base in southern Virginia.”25 Experts argue: “Iran is improving its cyber capabilities faster than experts ‘would have ever imagined’ and increased cyber-security spending 12-fold since 2013. Iran is training a new generation of cyber soldiers, According to a report released in 2013 by the Middle East Media Research Institute, by November 2010, the Basij Cyber Council had trained 1,500 cyber-warriors who, according to IRGC commander Hossein Hamedani, “have assumed their duties and will in the future carry out many operations.”26 “Although Chinese defense academics often publish on counterspace threat technologies, no additional anti satellite programs have been publicly acknowledged. PLA writings emphasize the necessity of “destroying, damaging, and interfering with the enemy’s reconnaissance [...] and communications satellites,” suggesting that such systems, as well as navigation and early warning satellites, could be among the targets of attacks designed to “blind and deafen the enemy.” PLA analysis of U.S. and coalition military operations also states that “destroying or capturing satellites and other sensors [...] will deprive an opponent of ini-

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“Critical U.S. satellites vulnerable?” – CBS News, April 24, 2015. www.cbsnews.com /news/preview-the-battle-above/?utm_content=buffer05833&utm_medium=social &utm_source=facebook.com&utm_campaign=buffer. Cyber general: US satellite networks hit by 'millions' of hacks, http://thehill.com /policy/defense/240286-general-us-space-networks-probed-millions-of-timesannually. A Look Inside a Secret US Air Force Intelligence Center – Defense One, www.defenseone.com/technology/2014/11/look-inside-secret-us-air-force-intelligencecenter/99347/. “Iran increased cyber-security spending 12-fold since 2013,” March 28, 2015 By Pierluigi Paganini, http://securityaffairs.co/wordpress/35419/hacking/iran-cybercapabilities.html.

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tiative on the battlefield and [make it difficult] for them to bring their precision guided weapons into full play.”27 In April 2015 the Pentagon released a Cybersecurity Strategy, which is a follow on to the original first-ever cyber strategy in 2011. “[...] with a warning to potential adversaries: The United States will no longer only be reactive in its cyber defenses, as the Pentagon will be armed and ready to retaliate against cyberattacks or even strike first to pre-empt them. The strategy is careful to note, however, that the U.S. seeks to exhaust all network defense and law enforcement options before moving to cyber operations.”28

The U.S. Air Force, recently admitted the need to move toward a common satellite control system. The head of the U.S. Air Force Space Command General John Hyten argued, “that developing a separate ground system for each separate satellite program was the “dumbest thing in the world” and change was overdue.” “[...] he told a news conference that “way too much money” had been spent on separate telemetry, tracking and control systems in recent years. “We’re going to figure out how to spend that money once and have industry do the unique things that are unique to their satellite.” Developing a common ground system would also help shore up the security of the networks used to communicate with, track and control the satellites, and it would make it far easier to train Air Force personnel, Hyten argued.29 “For us, the balance in the future’s going to be operating in those three domains of air, space and cyber,” he said. “How do you manage the balance? Can you become more efficient or control costs while maintaining the same operational capability? If so – it’s like nirvana.”30, 31, 32, 33

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Chinese Strategy and Military Power in 2014: Chinese, Japanese, Korean, Taiwanese and US Assessments Anthony H. Cordesman November 25, 2014 Rowman & Littlefield, https://play.google.com/store/books/details?id=nwfmBQAAQBAJ&rdid=booknwfmBQAAQBAJ&rdot=1&source=gbs_vpt_read&pcampaignid=books_booksearch _viewport. “Armed and Ready: The Pentagon’s Assertive New Cyber Strategy,” Eric Sterner, April 30, 2015. www.worldpoliticsreview.com/articles/15656/armed-and-ready-thepentagon-s-assertive-new-cyber-strategy. U.S. Air Force moves toward common satellite control system, Reuters, April 16, 2015. www.reuters.com/article/2015/04/16/us-usa-military-space-groundidUSKBN0N72QO20150416. The Pentagon's new cyber attack plan: 'Blunt force trauma,' By Philip Ewing, 04/18/15, www.politico.com/story/2015/04/dod-hopes-cyber-can-create-blunt-forcetrauma-117095.html. “NRO’s Sapp Prods Unnamed Colleague on Resiliency,” SpaceNews, Mike Gruss, June 30, 2015. http://spacenews.com/nros-sapp-prods-unnamed-colleague-onresiliency/?utm_content=buffer18a94&utm_medium=social&utm_source=facebook .com&utm_campaign=buffer.

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The National Aeronautics and Space Administration was under heavy attack over the past two years, as adversaries tried to infect machines with malware or use advanced persistent threats to get into the network, according to Congressional testimony. Attackers from a Chinese-based IP address had breached the network at NASA’s Jet Propulsion Laboratory and gained full access to the networks and sensitive user accounts, NASA Inspector General Paul Martin told the House Science, Space and Technology committee, NASA made the discovery in November, and the JPL incident is still under investigation, according to Martin.”34 In the past the International Space Station was hit by ‘malware spread from infected devices in orbit: “Russian cosmonauts managed to carry infected USB storage devices aboard the station spreading computer viruses to the connected computers. The damage done by the malware to the computer systems of the ISS is unknown. However, Kaspersky said virus epidemics took hold of the space-based computers, including dozens of laptops. “It’s not a frequent occurrence, but this isn’t the first time,” a NASA spokesperson said at the time. In May, the United Space Alliance, which oversees the running of if the ISS in orbit, migrated all the computer systems related to the ISS over to Linux for security, stability and reliability reasons.”35 One of the most popular cases of satellite eavesdropping has as a protagonist the off-shelf software SkyGrabber, produced by the Russian firm Sky Software and sold for $ 26. The software can be used by hackers in Iraq and Afghanistan to capture unencrypted video feeds of the Predator unmanned aerial vehicles (UAVs).36 The best known of alleged takeovers of satellite control occurred in 2007 and 2008. In particular, a serious attack was observed in 2008 when hackers obtained the control of the NASA Terra EOS earth observation system satellite for 2 minutes in June and for another 9 minutes in October. Fortunately the attackers didn’t damage the satellite during the time they gained control of it. The incident took place in July of 2008. Unlike the Terra EOS incident, this

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“Air Force charges new cyber task force with looking for threats in core missions,” JARED SERBU, APRIL 18, 2015, http://federalnewsradio.com/defense/2015/04/airforce-charges-new-cyber-task-force-with-looking-for-threats-in-core-missions/. “Space Combat Capability [...] Do We Have It?” Capt Adam P. Jodice, USAF Lt Col Mark R. Guerber, USAF, Air & Space Power Journal, Sept-Oct, 2015. www.airpower.maxwell.af.mil/article.asp?id=238. NASA Has Been Under Heavy Cyber Attack – NASA Watch, By Marc Boucher on March 5, 2013 (A belated story about an earlier cyber attack). http://nasawatch.com/archives/2013/03/nasa-has-been-u.html. International Space Station attacked by ‘virus epidemics’, The Guardian, November 12, 2013. www.theguardian.com/technology/2013/nov/12/international-spacestation-virus-epidemics-malware. Hacking Satellites … Look Up to the Sky – InfoSec Resources, September 18, 2013. http://resources.infosecinstitute.com/hacking-satellite-look-up-to-the-sky/.

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hack did gain access, but did not allow control to be gained.37 Hackers from China breached the federal weather network recently, forcing cybersecurity teams to seal off data vital to disaster planning, aviation, shipping and scores of other crucial uses, officials said. The October satellite data outage meant that the National Weather Service and centers around the world did not receive large amounts of information. “A July report on NOAA by the Inspector General for the Commerce Department – where NOAA sits – criticized an array of “high-risk vulnerabilities” in the security of NOAA’s satellite information and weather service systems. The report echoed the views of a 2009 audit from the IG that said the primary system that processes satellite data from two environmental and meteorological systems had “significant” security weaknesses, and that “a security breach could have severe or catastrophic adverse effects.”38 The incidents and examples above are remarkably compelling. But one aspect that touches the immediate lives of so many civilians and commercial air travel. III.3.

Hacking the Friendly Skies: A Framework for Aviation Cybersecurity

Currently, there is no common vision, or common strategy, goals, standards, implementation models, or international policies defining cybersecurity for commercial aviation. Globally aviation administration has fallen short in its efforts to protect the national air traffic control system from terrorists or others who might try to hack into the computers used to direct planes in flight, according to a government report. The Government Accountability Office report credited the Federal Aviation Administration with taking steps to deter hackers but concluded that “significant security control weaknesses remain, threatening the agency’s ability to ensure the safe and uninterrupted operation of the national airspace.”39 According to the FAA document the vulnerability exists because the plane’s computer systems connect the passenger network with the flight-safety, control and navigation network. It also connects to the airline’s business and administrative-support network, which communicates maintenance issues to ground crews. There was very publicised incident recently where a hacker, Chris Roberts was arrested for sniffing air-control data traffic and connecting his laptop to

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“Hacking Satellites … Look Up to the Sky” – InfoSec Resources, September 18, 2013. http://resources.infosecinstitute.com/hacking-satellite-look-up-to-the-sky/. Chinese hack U.S. weather systems, satellite network, Mary Pat Flaherty, Jason Samenow and Lisa Rein November 12, 2014, www.washingtonpost.com/local/ chinese-hack-us-weather-systems-satellite-network/2014/11/12/bef1206a-68e9-11e4b053-65cea7903f2e_story.html?utm_content=buffer980c3&utm_medium=social &utm_source=facebook.com&utm_campaign=buffer. FAA computers vulnerable to hackers, GAO report says. www.washingtonpost.com /local/trafficandcommuting/faa-computers-vulnerable-to-hackers-gao-reportsays/2015/03/02/388219ac-c119-11e4-9271-610273846239_story.html.

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the infotainment networks of a commercial passenger airplane.”40 Documents showed how inflight entertainment systems on some planes were connected to the passenger satellite phone network, which included functions for operating some cabin control systems. These systems were in turn connected to the plane avionics systems. In a recent demonstration a U.S. government drone was hacked. According to news reports: “Spoofing a GPS receiver on a UAV is just another way of hijacking a plane,” Humphreys told Fox. “In five or ten years you have 30,000 drones in the airspace, each one of these could be a potential missile used against us.” “What if you could take down one of these drones delivering FedEx packages and use that as your missile?” Humphreys asks. “That’s the same mentality the 9-11 attackers had.”41 On the satellite portion of the network, Colby Moore, a researcher with the cybersecurity firm Synack, has found that it’s relatively easy to crack Globalstar’s GPS satellite network. This is a company that bills itself as “the world’s most modern satellite network.” GPS trackers beam data to satellites, which send them back to base stations on Earth. Using cheap hardware and small planes, Colby successfully intercepted and decoded data – none of which was encrypted.42 In addition satellite communications systems have security vulnerabilities that may allow hackers to gain access to aircraft systems, according to cyber security expert Ruben Santamarta, security consultant. Santamarta published a white paper that discusses security vulnerabilities in air, sea and land satcom systems, including systems made by Cobham and Iridium.”43 Positioning, navigation and timing (PNT) has been at the foundation of military capability for centuries, required for functions ranging from navigating the seas to coordinating actions on the battlefield. Pseudolites, which provide an alternate signal that can be used to increase resilience for area protection.44, 45 The Air Force has been in the process of modernizing GPS perfor-

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“Feds Say That Banned Researcher Commandeered a Plane,” Kim Setter, May 15, 2015, Wired Magazine, www.wired.com/2015/05/feds-say-banned-researchercommandeered-plane/. U.S. Drone HACKED and HIJACKED With Ease! November 1, 2013. http://politicalblindspot.com/u-s-drone-hacked-and-hijacked-with-ease/. GPS satellite networks are easy targets for hackers, Jose Pagliery, http://money.cnn.com/2015/08/04/technology/hack-space-satellites/. “U.S. Drone HACKED and HIJACKED With Ease!” Matt Thurber – October 4, 2014, www.ainonline.com/aviation-news/2014-10-04/security-expert-raises-issuessatcom-vulnerabilities. “Assured PNT: A path to resilient positioning, navigation and timing,” http://peoiews.apg.army.mil/news_Assured_PNT.html?utm_content=buffer4f8a6&ut m_medium=social&utm_source=facebook.com&utm_campaign=buffer. For example, on April 1, the Russian GNSS GLONASS suffered an unprecedented total disruption of its entire system where positioning was valueless for almost 11

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mance and security.46 The purpose of “Information Assurance” IA, also referred to as cyber security, is to ensure that DOD systems can resist and continue to operate during cyber-attacks by managing risks and implementing safeguards. Gen. John Hyten, the Air Force Space Command commander, recently stated: “The good thing about having space and cyberspace in one command is we can actually integrate the capabilities of space and cyber and figure out how we’re putting those pieces together. That’s what we’re trying to do. All the networks are invisible, but everything is connected [...] everything has to work together.”47 An emerging doctrine in the U.S. military circles is the subject of cyber counter-attacks. IV.

Counter Attack

Cyber-security is tricky because it represents what former, Richard Clarke, former U.S. National Coordinator for Security, Infrastructure Protection, and Counter-terrorism calls an “offense preference.” “It costs thousands of times more money to defend your resources from a digital attack than to perpetrate one. Many companies have sprung up with the goal of providing cyber-security to companies. Their wares, however, constitute little more than Band-Aid measures that can temporarily deter hacking before a workaround is developed.”48

One recent analyst asked “if attacking the hackers was the next security frontier?”49 Counter-attacks to deal with cyberattacks can be both of a physical and digital nature. Counter-attack have also been termed hacks back,”50 and

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hours. Reports that it was an error by a GLONASS engineer are challenged by others questioning if it was the result of a cyber attack or a powerful solar flare that erupted at about the same time.GPS jammers a top concern in maritime cyber readiness, Jun 3, 2014. www.professionalmariner.com/June-July-2014/GPS-jammers/. “GPS Actions Needed to Address Ground System Development Problems and User Equipment Production Readiness,” September 2015. www.gao.gov/assets/680/672367.pdf. “AFSPC: Space, cyberspace provide advantages, challenges,” By Tech. Sgt. Torri Hendrix, Secretary of the Air Force Public Affairs Command Information / Published September 16, 2015, www.af.mil/News/ArticleDisplay/tabid/223/Article/617413/afspc-space-cyberspaceprovide-advantages-challenges.aspx. “CMC talk addresses challenge of cyber-security and warfare,” Sarah Torribio, February 20, 2015. https://www.claremont-courier.com/articles/news/t14454-cyber. ATTACKING HACKERS: THE NEXT SECURITY FRONTIER? Payments, www.pymnts.com/in-depth/2015/attacking-hackers-the-next-securityfrontier/#.VeEQjXi8HjI. What Is Active Defense? (AKA Attack the Hackers), www.pymnts.com/indepth/2015/attacking-hackers-the-next-security-frontier/#.VhBIl7SUDjI.

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“active defense.” These concepts of counter-attack inform the new U.S. cyber attack strategy Which calls for the ability to deliver ‘blunt force trauma’.51 V.

Conclusion

Although perhaps slightly overstated and sensationalist, analysts argue that we are engaged in and witnessing an active full-blown cyberwar and that hackers, at will, can now reach every satellite around the earth. Yet, it is true that cyberattacks are growing an exponential rate, which makes the issue of cyber attacks exponentially more relevant. In the recent The Joint Comprehensive Plan of Action (JCPOA) agreement with Iran, neither WMDs of ICBMs and potential cyberattack WMDs have not been carefully considered, nor curtailed. There are many questions for international agreements such JCPOA. Who determines their legitimacy of the negotiators and of the agreement? Ironically in this case, Iran dictated exclusively who they considered to be “legitimate” negotiating parties for this agreement. More importantly if there are serious negative, or even deadly consequences that result from the failure of this regime, who should or would be held accountable, if anyone were ever to be held accountable at all? In negotiations such as JCPOA is it realistic and is it necessary to bring all the relevant parties to the negotiating table? If in the future, JCPOA is not considered to be a success, will critics dismiss these efforts as being the work of a small group of elite politicians, naive policymakers, and negotiators who intentionally created havoc in the international system? It is instructive that during Chinese Premier Xi Jinping’s recent visit to the United States, an unprecedented, yet rather modest baby step agreement for cyberspace between the two countries was signed. While the agreement represents a “first start, it also highlights long-standing shortfalls in U.S. preparedness and response capabilities in cyberspace beginning with a lack of well understood doctrine for cybersecurity.” President Barack Obama “announced that he and Xi had agreed not to conduct or support cybertheft of business secrets. Obama called the agreement “a work in progress,” while Xi agreed that the countries would abide by “norms of behavior” in cyberspace.52 This agreement is referred to as a “CERT agreement – that is, direct cooperation between Chinese and American law enforcement officials. If American commercial secrets are stolen, US law enforcement should now be able to call up their Chinese counterparts and expect real investigations and possibly

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‘Blunt force trauma’ – Philip Ewing – POLITICO, www.politico.com/story/2015/04 /dod-hopes-cyber-can-create-blunt-force-trauma-117095. U.S.-China Cybersecurity Pact Highlights Bigger Issues – US News, By Daniel Gerstein, www.usnews.com/opinion/blogs/world-report/2015/09/26/us-chinacybersecurity-pact-highlights-bigger-issues.

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even arrests as a result.”53 Joseph Steinberg assets that: “While some might argue that the US is better off with a bad deal or a partial deal than with no deal, and that any reduction of hacking is better than the present situation, or that the agreement is simply a framework for moving forward, I am not so sure. By announcing this agreement, the US government has granted some level of de-facto legitimization to activities that it should not be willing to tolerate.”54 Daniel Gerstein argues, “Today, no such official doctrine guides international, or for that matter, U.S. cybersecurity policy. No comprehensive framework exists for thinking about cyberspace issues, managing concerns or even responding to crises. There are no set limitations on potentially destabilizing behavior. There’s not even an internationally accepted glossary or terminology to guide creation of cyber norms.”55

Cybersecurity in the space age is topic that both includes and transcends issues of outer space assets, space activities and outer space law. Without a clear understanding of the importance of cybersecurity in the space age, and without the most basic definitions of cyberattacks and WMDs there remains an increased level of instability and legal confusion and chaos in the international system. Without clear and accurate legal definitions there is also an important missing layer of deterrence in the international system. Nations will continue to mount vigorous cyberattacks against other nations. Most importantly these cyberattacks, when they exceed a certain magnitude and proportionality, and threaten civilians can be viewed as WMDs. The argument in favor of deterrence is to make sure that there is no sanctuary for those that seek to commit cyberattcks as a WMD. And while there is virtually no consensus dealing with cyberattacks in the international system, there is no consensus on the role and legality of digital and physical counter-attacks to combat cyberattacks of a potential WMD magnitude. Internationally there are many overlaps and many holes in various international regimes. There are regimes that focus on nation states, on organized crime, on terrorism, on money laundering, radiological material, and on countless other transnational issues. Understandably, I am a bit reluctant to suggest yet another incomplete, and problematic regime. Nevertheless an

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The new US-China cybersecurity agreement: a brief guideUpdated by Zack Beauchamp on September 25, 2015, www.vox.com/2015/9/25/9399117/obama-xi-cybereconomic. “10 Issues With the China-US Cybersecurity Agreement,” BY JOSEPH STEINBERG CEO, SecureMySocial, www.inc.com/joseph-steinberg/why-the-china-uscybersecurity-agreement-will-fail.html. U.S.-China Cybersecurity Pact Highlights Bigger Issues – US News, By Daniel Gerstein, www.usnews.com/opinion/blogs/world-report/2015/09/26/us-chinacybersecurity-pact-highlights-bigger-issues.

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international framework of principles that could inspire a strategy for combating cyberattacks might be the Proliferation Security Initiative (PSI) a global effort that aims to stop trafficking of weapons of mass destruction (WMD), their delivery systems, and related materials.56 In the very near future it is conceivable that a nation will conduct a visible and powerful kinetic, military attack upon the physical cyber and network assets of a nation responsible for cyberattacks that approach the level of WMDs. Very conceivably cyberattack WMDs will have some space and satellite nexus. The international legal community needs to collectively be prepared for this eventuality. If the international legal community fails to act, or fails to address these issues correctly, the community may in the future, be viewed, as almost providing a tacit acceptance of the development and non-regulations and enforcement of cyberattacks as a WMD. Nations will not wait for the international legal community to catch up with the exponential challenge of cyberattacks in the international system.

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“Proliferation Security Initiative: Statement of Interdiction Principles,” Fact Sheet, The White House, Office of the Press SecretaryWashington, DCSeptember 4, 2003. www.state.gov/t/isn/c27726.htm.

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE Session 3 THE PORTRAYAL OF SPACE (LAW) IN MEDIA AND MOVIES Co-Chairs: Melissa K. Force Steven Mirmina Rapporteur: Michael Chatzipanagiotis

Space Law and the Media Science Fiction Movies on the Moon Rafael Moro-Aguilar*

Abstract “Science fiction” is a literary and cinematographic genre that is characterized by its capacity for anticipation. Most analyses of science-fiction tend to focus on the scientific and technical predictions, such as Verne’s many accurate predictions concerning travelling to the moon (1865-69). However, science fiction novels and films have also made some striking anticipations of a more social nature. In a number of cases, this has included confronting problems of a legal nature, some of which are currently addressed by international space law, in particular the 1967 Outer Space Treaty (OST). The present paper will focus on four critically acclaimed sci-fi movies showing moon exploration or colonization, either as their main topic or as a side topic. Two of those movies: Fritz Lang’s classic Woman in the Moon (1929), and the more recent independent movie Moon (2009), touch upon the issue of mining lunar resources and provide us with the occasion to reflect, among other legal issues, on the exploitation of the Moon’s natural resources. Another classic sci-fi movie, H.G. Wells’ First Men in the Moon (1964), raised the issue of the harmful biological contamination of celestial bodies, a hazard that must be prevented according to Art. IX OST. Finally, Kubrick’s and Clarke’s masterpiece 2001: A Space Odyssey (1968), although not directly devoted to the Moon, at some point touches upon two important legal issues of lunar exploration: 1) the duty of States to inform the international community about their activities conducted on the Moon (Art. XI OST); and 2) the right to visit Moon stations and other lunar facilities by representatives of other States (Art. XII OST).

I.

Introduction

The Moon is the only natural satellite of the Earth. As such, it is the closest celestial body to us. Its clear, round appearance in the firmament has undoubtedly inspired our ancestors since the dawn of time. Its constant presence has had a strong influence in the development of civilization – by showing philosophers and astronomers that there are other worlds like the Earth in the sky, by providing a celestial cycle to be used for the first calendars, etc. No wonder, the Moon also inspired the first “science-fiction” tales recorded in human history. Around 160 B.C., the Syrian-born Greek satirist author Lucian of Samosata wrote perhaps the oldest story about a journey to the

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[email protected].

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Moon.1 Under the ironic title of “True Story”, it tells about a ship full of Greek soldiers that is transported by an unusually large storm up into the air, and then it flies adrift in the sky for eight days, until finally landing on the lunar surface. There, the voyagers encounter the inhabitants of the Moon and become friends with them. The Greeks even help the “Moonites” in their war against the inhabitants of the Sun, who are their rivals over the colonization of the Morning Star (the planet Venus). The peace treaty agreed upon between the two empires, the “Moonite” and the “Sunite”, may be the very first reference ever made to an interplanetary rule of law.2 Indeed, while most analyses of science-fiction works tend to focus on the scientific and technical predictions, sci-fi stories and films have also made some striking anticipations of a more social nature. In a number of cases, this has included confronting problems of a legal nature. For instance, in the nineteenth century, renowned French writer Jules Verne explored the possibility of people traveling to the Moon by means of a gigantic cannon, the cost of which would be defrayed by contributions from all nations in the world.3 In his fiction, Verne not only envisioned international cooperation in the peaceful exploration of outer space, but more remarkably, he also anticipated that such exploration would be conducted by transforming military hardware into technology destined for civil purposes. This is exactly what happened in the second half of the 20th century, when the USSR and the USA turned intercontinental ballistic missiles technology into launching rockets, in order to send the first artificial satellites and the first astronauts into outer space.4

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Lucian of Samosata, “A True Story”. A good classic edition is included in “Lucian with an English translation by A.M. Harmon of Yale University in eight volumes”, volume I, William Heineman Ltd, London (1913, reprinted 1972), pages 247 et seq. Another translation of the same work is available on the Internet (under the alternative title of “The True History”) at: http://lucianofsamosata.info/TheTrueHistory .html. [All websites referenced in this paper were last visited on 23 December 2015]. “On the following conditions the Sunites and their allies make peace with the Moonites and their allies, to wit: That the Sunites tear down the dividing wall and do not invade the moon again [...]; That the Moonites permit the stars to be autonomous, and do not make war on the Sunites; That each country aid the other if it be attacked; [...] That the colony on the Morning Star be planted in common, and that anyone else who so desires may take part of it; That the treaty be inscribed on a slab of electrum and set up in mid-air, on the common confines.” “Lucian [...]”, 1972 (See note 1 above), volume I, p. 273. Jules Verne, “De la terre à la lune”, 1865. The best edition in English is “The Annotated Jules Verne – From the Earth to the Moon”, Walter James Miller (editor), Gramercy Books, New York, 1995. W. J. Miller, “The Annotated Jules Verne – From the Earth to the Moon”, Afterword, p. 162. These two remarkable social anticipations came in addition to Verne’s many accurate scientific and technical predictions concerning travelling to the moon, which can be found in both “From the Earth to the Moon” and its sequel,

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Around the turn of the century, the new art of cinematography was fast to catch up, and very shortly after its inception, in 1902, the first ever sciencefiction story was brought to the screen. Naturally, it was about a trip to the Moon.5 Ever since then, “science fiction has made magnificent use of the Moon.”6 Woman in the Moon (Frau im Mond)

II.

The first of the four movies analyzed in this paper, Woman in the Moon, is a silent film that premiered in 1929. It was written and directed by GermanAustrian Fritz Lang (who was already famous by his 1927 epic masterpiece Metropolis), and it is considered a classic of German Expressionist cinema of the 1920s. Lang wrote the script based on the novel “Die Frau im Mond” (1928) by Thea von Harbou, his wife and collaborator at the time. Notable German rocket experts such as Hermann Oberth and Willy Ley served as technical consultants on the film. It was released in the USA as By Rocket to the Moon and in Great Britain as Woman in the Moon.7 Depicting the first human expedition to the Moon, the film is a mixture of scientific speculation and melodrama.8 The first part – concerning the preparation of the trip and the physical foundations of a voyage to the Moon, as well as the launch of the rocket – is far more solid than the second part, when scientific constraints all but dissapear – characters are shown walking and breathing freely on the lunar surface – and purely dramatic scenes prevail. The purpose of the trip is to verify the theory of one of the travelers, professor Manfeldt, about the existence of large amounts of gold on our satellite. A gang of evil businessmen have learned of Mannfeldt’s ideas and insist on having one of them included in the team of lunar explorers. Finally, we also witness the romance between two other travelers: the idealistic entrepreneur Helius – the promoter of the trip – and her assistant Friede, both of whom will end up stranded on the Moon. Woman in the Moon is widely considered the first “serious” science fiction film ever made. The basics of rocket travel were presented to a mass audience for the first time, including the use of a multi-stage rocket. The rocket is fully asembled in a tall building and then moved to the launch pad, like many

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“Around the Moon” (1869). For a good essay describing all such predictions, See Dean Regas, “The Science of Jules Verne’s Fiction”, Sky & Telescope June 2015, pages 32-37. A Trip to the Moon (Le voyage dans la lune) by French director Georges Méliès became an instant classic in the history of cinema, while obtaining also a huge success wherever it was projected, in Europe and in the Americas. It can be watched at: https://www.youtube.com/watch?v=qz9IS73Uwkw. Francis Lyall & Paul B. Larsen, “Space Law – A Treatise”, Ashgate, 2009, p. 177. See entry in Wikipedia: https://en.wikipedia.org/wiki/Woman_in_the_Moon. Wikipedia, ibid.

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modern launch vehicles. Most significantly, as launch approaches, the launch team counts the seconds backwards from ten to zero (“now”, or jetzt, was used for zero). As a result, Woman in the Moon is often cited as the first occurrence of the “countdown to zero” before a rocket launch.9 Apparently, Lang himself came up with this idea, which was intended to add a more dramatic effect to the key moment of departure of the travelers toward outer space.10 Legal Issues Raised by Woman in the Moon

III.

Besides its many technical merits, the film also raises two questions that are relevant from the point of view of space law. The first one is the fact that a group of individuals (or for that matter, any private physical or legal person) undertake an expedition to the Moon apparently on their own, without any kind of control or supervision by any State: this is not possible under current international and national space law. Secondly, we have of course the issue of the exploitation of lunar resources. Note that the non-appropriation principle as currently embodied in international space law is not at stake here: the explorers do not make any claim over the Moon or intend to colonize it. Their intention is rather to extract the gold that they have found under the Moon’s surface and take it to the Earth for commercial purposes: can this legally be done? The two questions will surface again even more strongly in the last movie analyzed in the present paper (Moon), and are thus better addressed together later in the paper. 2001: A Space Odyssey

IV.

This celebrated movie, which had its premiere in April 1968, was the brainchild of two geniuses: American director Stanley Kubrick – who had decided to make “the proverbial good science fiction movie” – and English novelist and futurist Arthur C. Clarke. In the words of the Encyclopedia Britannica, this science-fiction film “set the benchmark for all subsequent movies in the genre and consistently ranks among the top 10 movies ever made,” being “especially known for its groundbreaking special effects and unconventional narrative.”11

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Wikipedia, ibid. The scene of the rocket launch can be watched at: https://www.youtube.com/watch?v=uQlwhG76P9A&list=RDuQlwhG76P9A#t=0. www.spektrum.de/quiz/was-verdankt-die-raumfahrt-dem-stummfilm-die-frau-immond-1929-von-fritz-lang/636420. By contrast, Verne’s voyage to the Moon started with a count-up: “Thirty-five! Thirty-six! Thirty-seven! Thirty-eight! Thirty-nine! Forty! Fire!” “The Annotated Jules Verne”, p. 152. www.britannica.com/topic/2001-A-Space-Odyssey-film-1968. See also the corresponding entry in Wikipedia: https://en.wikipedia.org/wiki/2001:_A_Space_Odyssey _(film).

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According to the script, in the year 2001, space travel is an utterly routine activity, and manned stations exist in Earth’s orbit and on the Moon. An uneasy but peaceful coexistence is maintained between the different space powers. The balance is broken when a singular monolith of a seemingly extraterrestrial origin is found under the Moon’s surface by United States astronauts. The US Government decides to keep this finding secret, and as a result the American moon base, situated in the crater Clavius, refuses to receive any further visits from its Soviet counterparts. The movie then shows the voyage undertaken some time later by American spacecraft Discovery towards Jupiter – some of the most memorable scenes of the movie focusing on the problems encountered by the crew with their intelligent computer HAL 9000. The story ends with a trip “beyond the infinite” made by the only surviving crew member, who eventually returns to Earth as a reborn person, as a “star child”, heralding a new step in the evolution of mankind. The movie was controversial from the beginning, and it was too often misunderstood (it still is). The reason is that the underlying message (mankind’s first encounter with an alien intelligence, symbolically represented by the black monoliths), which is very clear in Clarke’s novel, becomes abstract and almost totally disappears in Kubrick’s movie. The latter is above all an audiovisual experience; an authentic masterpiece which, as such, is open to alternative interpretations. Undoubtedly, one of the strongest assets of the movie is its realism. Kubrick’s obsession about getting expert adviser, and his painstaking work to film all details in as credible a fashion as possible, became legendary. The result is a most vivid and realistic depiction of the life of astronauts in outer space.12 Precisely for this reason, it is noteworthy that one of the very few “mistakes” made in the movie concerns the only reference made to international space law. In one scene located inside the giant wheel-shaped space station, some characters refer to an obscure “IAS Convention” as the text governing human activities in outer space.13 Obviously, this convention does not exist – it is just a fiction invented by the authors. Had Kubrick researched this particular subject matter as carefully as he did with all other aspects of astronautics, he could have easily found out that already in 1959, the United Nations Organization had established a Committee on the Peaceful Uses of Outer Space (COPUOS) charged, among other tasks,

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Piers Bizony’s book “2001 – Filming the Future”, Aurum Press, London, 1994, provides an excellent account of how this film was conceived and brought to the screen. The exact words are: “Two days ago, one of our rocket buses was denied permission for emergency landing at Clavius. [...] Denying them any permission to land is a direct violation of the IAS Convention”. The whole scene can be watched at: https://www.youtube.com/watch?v=PlPMxgHQKg8. This scenario is also mentioned in Lyall & Larsen, “Space Law – A Treatise”, p. 187, n. 53.

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with the elaboration of international rules applying to the activities of States in outer space. Moreover, he would have found that discussions in this UN Committee had already resulted, in October 1967 (therefore, several months before the movie was released), in the entry into force of the first major convention in this area: the Outer Space Treaty,14 subsequently ratified or adhered to by all spacefaring nations.15 Legal Issues Raised by 2001: A Space Odyssey

V.

Although not directly devoted to the Moon, 2001: A Space Odyssey touches upon two important legal issues of lunar exploration, both of which are embodied in the 1967 Outer Space Treaty (hereinafter, OST): 1) the duty of States to inform the international community about their activities conducted on the Moon (Art. XI OST); and 2) the right to visit moon stations and other lunar facilities by representatives of other States (Art. XII OST). According to Art. XI OST, there is a general obligation for States parties to the Treaty to inform the UN Secretary General as well as the international scientific community and the public of the “nature, conduct, location and results” of their activities in outer space, including the Moon and other celestial bodies. To be sure, this is a very lax requirement, and the qualification “to the greatest extent feasible and practicable” renders the provision relatively vague in its obligatory content.16 However, it is hard to think of a more significant result of outer space exploration than finding an artifact from an alien civilization. Keeping secret the discovery of the monolith buried in the Moon would surely violate, if not the rules, at least the spirit of the OST, whose foundations are transparency (Art. XI) and international cooperation (Art. IX) among States parties. Moreover, the Treaty declares that exploration of outer space, including the Moon and other celestial bodies, is to be done “for the benefit and in the interests of all countries […], and shall be the province of all mankind” (Art. I).

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 610 UNTS 205, (1967) 6 ILM 386. Of course, it is also very likely that the lack of any reference to the UN or to the OST in the film was not a “mistake”, but rather a deliberate option made by the authors. The aim would be to maintain a politically neutral flavor and a timeless character in their movie. In the same vein, 2001 mentions repeatedly a fictitious “United States Astronautics Agency”, instead of referring to the actually existing National Aeronautics and Space Administration, NASA. Jean-François Mayence & Thomas Reuter, “Article XI”, in Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrögl (eds.), “Cologne Commentary on Space Law”, Vol. 1 (Outer Space Treaty), 2009, pp. 189 et seq.

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Also, under Art. XII OST, “stations, installations, equipment and space vehicles on the Moon” are to be open to inspection by representatives of the other State parties, on the basis of reciprocity, and subject to prior notice, for reasons of safety and to avoid interference with normal activities being carried out there.17 In brief, Moon base Clavius has to allow visits by other States, provided that the requirements established in the OST provision are met. Routine visits and inspections might be eluded temporarily with the excuse of a quarantine, as alleged in the movie by the Clavius authorities. But denying permission to a supposedly emergency landing from a foreign spacecraft would be a much harder “visit” to refuse. Such an action would amount to an omission to assist astronauts in an event of accident, distress or emergency landing, something that would run against another one of the UN Outer Space Treaties: the 1968 Rescue Agreement.18 In brief, actions undertaken by Moon base Clavius with an aim to conceal the alien monolith that was found buried in the Moon could be violating a number of principles embodied in the OST, as well as Article 2 of the Rescue Agreement. In 1979, a new treaty was adopted by the United Nations General Assembly dealing specifically with the Moon and other celestial bodies; it entered into force in 1984.19 Interestingly, the Moon Agreement (MA) contains two provisions that go directly to the heart of the problems touched upon by 2001. After repeating in Art. 15.1 the same provision on access to lunar facilities that was made by Art. XII OST, Art. 10.2 MA explicitly states that any “persons in distress on the moon” are to be offered shelter in the stations, installations, vehicles and other facilities of States parties. Also, Art. 5.3 MA says that should one State party find signs of organic life on the Moon, that State should promptly inform the UN Secretary General as well as the public and the international scientific community. However, it is well known that the Moon Agreement has a very low level of ratification, and that its provisions are not binding on any of the major space powers.20 We will examine the Moon Agreement again in Section X below, when analyzing the exploitation of lunar resources.

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Lesley Jane Smith, “Article XII”, in Stephan Hobe, Bernhard Schmidt-Tedd & KaiUwe Schrögl (eds.), “Cologne Commentary on Space Law”, Vol. 1 (Outer Space Treaty), 2009, pp. 207 et seq. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 610 UNTS 8843. Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1363 UNTS 21; (1979) 18 ILM 1434. As of 31 December 2015, the Moon Agreement had just 16 States parties, as opposed to 103 States parties for the Outer Space Treaty.

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H.G. Wells’ First Men in the Moon

VI.

Another classic sci-fi movie with a lunar theme is a British film under the title H.G. Wells’ First Men in the Moon (or simply First Men in the Moon), which was directed by Nathan Juran and released in 1964. Noted Hollywood special effects specialist Ray Harryhausen made possible to film two different expeditions to the Moon (the “cavorite” one, and the “UN” one; see plot below). He also used stop-motion effects in order to provide animated Selenites and other creatures for the movie.21 Instead of a rocket, a gravity blocking substance is conceived here by the protagonists, two late 19th century Englishmen. They call it “cavorite” because of the name of its inventor, amateur scientist Joseph Cavor. Panels of it are used for building a rudimentary spaceship. That allows three explorers: Cavor, Bedford, and Kate, to leave the Earth and make a controlled flight to the Moon. There they find a developed, ant-like race of inhabitants living beneath the surface of the Moon. Their big-brained ruler, the Prime Lunar, decides to retain the explorers for life so that the Selenites’ secret, quiet existence is not revealed to the inhabitants of the Earth. Eventually, Bedford and Kate manage to return to Earth, while Cavor decides to stay in order to study the Selenite civilization. When decades later a United Nations rocket expedition reaches the Moon, they will find out that all the Selenites have been killed off by earthly microbes that were inadvertently brought to the Moon by Cavor and to which they had no immunity.22 Legal Issues Raised by First Men in the Moon

VII.

The tragic end of the Selenites brings to the fore the important issue of the harmful contamination of the Moon and other celestial bodies by terrestrial explorers. This is a hazard that must be prevented, according to Art. IX OST. The Moon Agreement also requires its States parties to take measures necessary to prevent the disruption of the existing balance of the lunar natural environment (Art. 7.1 MA). Although biological contamination is not directly addressed in the UN Outer Space Treaties, there is a whole body of standards already existing in that specific area: the so-called “planetary protection”. These rules have been progressively developed since 1964 by the Committee on Space Research

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See the corresponding entry at Wikipedia: https://en.wikipedia.org/wiki/First_Men_ in_the_Moon_(1964_film). A trailer of this movie can be watched at: https://www. youtube.com/watch?v=CMw6O6r_JxE. This plot twist does not appear in H.G. Wells’ tale “The First Men in the Moon” (1901) that served as inspiration for the movie. It is taken instead from Wells’ most famous and influential work: “The War of the Worlds” (1898), where the Martians invading the Earth are wiped out by terrestrial bacteria.

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(COSPAR), which is a non-governmental organization composed of independent and internationally renowned space scientists.23 COSPAR’s Planetary Protection Policy (PPP) classifies all interplanetary missions in five separate categories, depending on: a) the degree of astrobiological interest of the celestial body which is the subject of study; and b) the likelihood that the area to be explored may have conditions that are adequate for the growth and propagation of terrestrial life.24 In this context, missions to the Moon are classified under Category II. This category encompasses space missions destined to visit those celestial bodies that have a certain degree of interest from the point of view of biological studies, but where risk of contamination with earthly microbes is extremely low. Missions destined to those celestial bodies (comprising the majority of Solar System bodies) should produce documentation detailing planned operations and identifying the materials that are going to be introduced into the environment of that celestial body.25 However, no biological contamination control measures are required for lunar (or any other Category II) landing missions.26 According to Art. IX OST (and Art. 7.1 MA), affecting the Earth’s environment by introducing alien materials in it is another hazard that must also be prevented. In particular, the introduction of alien organisms into the biosphere of our planet – the so-called “back contamination” – is a very remote possibility, but one the occurrence of which could have potentially disastrous consequences for terrestrial life. This was already pointed out in a 1962 report by the Space Studies Board of the US National Academy of Sciences, which recommended that NASA “do everything possible to minimize the risk of back contamination.” As a result, the US Government established in 1966 an Interagency Committee on Back Contamination, which advised that, as a preventive measure, astronauts and hardware reaching the Moon had to be quarantined. Accordingly, when the first Apollo expeditions that landed on the Moon arrived back to Earth, the astronauts together with their capsule and the lunar samples brought with them were biologically isolated. Isolation was done first inside a Mobile Quarantine Facility, and afterwards in a building that NASA had constructed in 1969 for this specific purpose in its Houston space center: the Lunar

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http://cosparhq.cnes.fr/. https://cosparhq.cnes.fr/sites/default/files/ppp_article_linked_to_ppp_webpage.pdf. Private organizations participating in the Google Lunar X-Prize competition (http://lunar.xprize.org/) are imposed, among other requirements, compliance with the documentation requirements established by the COSPAR’s PPP for lunar missions. As could be expected, it is missions to Mars in particular that receive most attention and which have the most burdensome planetary protection requirements (such as sterilization, etc.) in order to prevent biological contamination of that planet. See also NASA’s website on planetary protection: http://planetaryprotection.nasa.gov/about.

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Receiving Laboratory. The last three Apollo expeditions to the Moon abandoned this protocol, after the absence of any biological activity on the Moon had been sufficiently proven.27 Additional legal issues raised by First Men in the Moon are: 1) The possibility of claiming sovereignty over the Moon, as the protagonists do “for Queen Victoria” in the movie. Such an action might have succeeded in an hypothetical expedition to the Moon conducted in 1899, but certainly not by the time the second expedition arrives, in 1964. Any claim of sovereignty over outer space and celestial bodies was unanimously ruled out in 1963 by the UN General Assembly in its Resolution 1962 (XVIII), and again in 1967 by the entry into force of the Outer Space Treaty (Art. II OST). 2) The possibility for individuals to carry out a trip to the Moon without any control or supervision by a State: this is also against current international and national space law, as per Art. VI OST and the legislation of States that have enacted domestic space law, such as the US, the UK, and others.28 We will analyze this issue with more detail in Section IX below. Moon

VIII.

Moon is a very remarkable British independent sci-fi drama movie co-written and directed by British director Duncan Jones. It premiered at the 2009 Sundance Film Festival. It received very positive reviews from film critics, and it obtained a number of awards from film festivals in Europe and America.29 The story is set in 2035. It follows Sam Bell, a man who experiences a personal crisis as he nears the end of a three-year solitary stint mining helium-3 in Sarang, a private facility located on the far side30 of the Moon. It turns out that Lunar Industries, the corporation Bell is working for, is using very unscrupulous cost-saving methods while carrying out the exploitation of lunar

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Michael Meltzer, “When Biospheres Collide”, NASA SP-2011-4234 (2011). This book provides a very detailed historical account of NASA’s Planetary Protection programs, including all measures adopted during the Apollo space program in order to prevent back contamination. It is available online at: www.nasa.gov/connect/ebooks/when_biospheres_collide_detail.html. It is ironic to note here that the title of that book pays tribute to yet another classic sci-fi movie: When Worlds Collide (1951). For instance, Section 3 of the UK Outer Space Act 1986 prohibits any unlicensed UK activity in space. See the corresponding entry at Wikipedia: https://en.wikipedia.org/wiki/Moon_(film). See also the film’s official website: www.sonyclassics.com/moon/. The Moon is tidally locked to Earth, so that the rotational period around its axis coincides with its period of revolution around the Earth. As a result, from our planet we can only ever See one lunar hemisphere, the so-called “near side”, while the other one, i.e. the “far side”, is perennially hidden. Conversely, as seen from the Moon, the Earth is visible only for observers located on the lunar near side.

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resources. This includes making use of clones as employees, and preventing any communication of the latter with the Earth. Bell – or rather his most recent clone – decides to go back to Earth in order to denounce these irregular practices. Despite all difficulties and dangers, he will eventually succeed. Legal Issues Raised by Moon (I): State Licensing and Supervision

IX.

Under Art. VI OST, States are responsible for all activities carried out in outer space, including those conducted by non-governmental (i.e. private) entities. Insofar as private entities such as companies and other private organizations will engage in the exploration and use of the Moon, relevant States must exercise proper control, issue appropriate licences, and supervise the activities of those legal persons that are their nationals. This will be essential for States in order to make sure that they are complying with their obligations under international space law. The consequence is that any corporation setting up a privately-owned station – for example, a mining facility, such as Lunar Industries’ in this movie – anywhere on the Moon31 will still be subject to the control and supervision of the corresponding State. The latter should ensure that the corporation does not engage in practices that violate international law, including the United Nations Charter, or the Universal Declaration of Human Rights.32 Also, when licensing commercial activities such as e.g. space tourism on the Moon, States should impose strict requirements so as to prevent any disruption and contamination of the lunar environment, or any interferences with the activities of other States, in order to comply with their international law obligations. Legal Issues Raised by Moon (II): Exploitation of Lunar Resources

X.

Moon portrays the use of the helium-3 isotope as a fuel for nuclear fusion, this kind of power generation having become the Earth’s primary source of energy. Some experts disagree with this vision, pointing out that the isotope is generally far from being abundant in the lunar soil, and that helium-3 alone will not justify setting up a lunar resource extraction industry. Moreover, as of today, nuclear fusion remains unproven as a viable process for obtaining electrical power.33

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It is legally irrelevant that this is done on the far side of the Moon. However, it makes the Earth invisible, and thus radio communications with Earth, although still possible, become more complex. According to Art. III OST, activities in the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out in accordance with international law. Ian A. Crawford, “Lunar resources: A review”, in Progress in Physical Geography, April 2015; vol. 39, 2: pp. 137-167: http://ppg.sagepub.com/search/results?fulltext= ian+a.+crawford&submit=yes&journal_set=spppg&src=selected&andorexactfulltext

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However, there are many other exploitable raw materials in the Moon that are of potential economic interest. Certain useful metals that are relatively abundant in the lunar crust such as titanium and aluminum could be mined. Other metals that are known to exist – albeit in smaller amounts – in the Moon as well, such as uranium, thorium, and rare-earth elements, will likewise become interesting if found in large enough concentrations. Some essential gases such as oxygen and hydrogen could be extracted from surface minerals. Lunar soil (regolith) itself could be used as a building material. The discovery of water ice buried or mixed with the lunar soil in permanently shadowed craters around the poles has very significant implications, as this is a particularly useful resource for a future colonization of our satellite. Even solar energy collected on arrays placed on the surface of the Moon and then beamed to Earth has been suggested as a possible lunar export.34 Lunar resources would first of all be applied to enabling continued exploration and other human activities (for instance, space tourism, or astronomical studies) on the Moon itself. Use of those resources would then expand to support a future industrial capability in the space within the Earth-Moon system – the region often referred to as “cislunar space”. In the longer term, activities elsewhere in the Solar System could also be conveniently supplied from the Moon, since weaker lunar gravity means that it is easier launching into space from the Moon than having to transport the materials out of Earth’s gravity well. Eventually, some lunar materials might also be imported to Earth and contribute directly to the global economy.35 However, exploitation of natural resources from the Moon and from other celestial bodies, such as asteroids, is currently unsatisfactorily regulated by international law. Although the OST may not be explicit in this regard, there seems to be a basic consensus that the Moon itself, as well as any part thereof, are not available for private ownership by individuals or companies. But the status of specific materials extracted from the Moon is a different matter. As noted among other authors by Lyall and Larsen, permanent appropriation of lunar samples, and thus a right of private ownership over lunar materials, has already happened in the past and cannot be precluded in this area.36 By contrast, the 1979 Moon Agreement declares in its Art. 11.1 that the Moon and its natural resources are “the common heritage of mankind”, and in article 11.3 that lunar natural resources cannot become the subject of a right of property. Since natural resources cannot be subject to private appropriation, Art. 11.5 calls for the establishment of an international legal regime

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=and&x=0&y=0. A preliminary version of this paper is freely available at: http://arxiv.org/abs/1410.6865?context=astro-ph.EP. I. A. Crawford, ibid. I. A. Crawford, ibid. F. Lyall & P.B. Larsen, ibid., p. 188, note 56.

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to govern their exploitation, once such exploitation is about to become feasible. According to Art. 11.7, the purpose of such international regime will be, inter alia, the orderly and safe development of the natural resources of the Moon, their rational management, and an equitable sharing by all States parties in the benefits derived from those resources. As already noted however, the Moon Agreement has received very limited acceptance, and none of the major spacefaring nations is a party or is currently inclined to adhere to it. Although it is binding on those States that have ratified it, the Moon Agreement will certainly not be an impediment for other non-party States to move ahead and start the exploitation of lunar resources in a different manner as the one prescribed by that treaty.37 Discussions on the Moon Agreement held at the Legal Subcommittee of COPUOS in recent years, under the permanent agenda item “Status and application of the five United Nations treaties on outer space”, have yielded some interesting reflections and documents, but no definite conclusion has been reached about the Agreement. The COPUOS debates made obvious that there is a lack of consensus in the international community as to how to proceed on this matter and as to what role the Moon Agreement should play, if any, in the future exploitation of lunar resources.38 An alternative solution to the international regime foreseen by the Moon Agreement is to recognize private ownership over extraterrestrial resources to non-governmental entities. These non-governmental entities would then carry out the actual exploitation, subject to authorization and supervision by the corresponding States parties (pursuant to Art. VI OST), in order to ensure compliance with all provisions of the latter Treaty. This was done by a new provision adopted in 2015 by the United States within the framework of its Commercial Space Launch Competitiveness Act.39 The new provision directs the President to facilitate and promote space resources exploration and recovery, and establishes a legal right to space resources that US citizens may obtain from asteroids and other celestial bodies. Such right must be consistent with current law and international obligations of the US, and will be subject to authorization and continuing supervision by the US Federal Government. Finally, the Act assures that the US does not assert

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F. Lyall & P.B. Larsen, ibid., p. 195, note 85. See e.g. COPUOS Legal Subcomittee official reports for the years 2007 and 2008: Doc. A/AC.105/891 (www.unoosa.org/oosa/en/ourwork/copuos/lsc/2007/index. html), paragraphs 42 and 43 as well as Annex I; and Doc. A/AC.105/917 (www. unoosa.org/oosa/en/ourwork/copuos/lsc/2008/index.html), par. 42 and Annex I. U.S. Commercial Space Launch Competitiveness Act (H.R. 2262), signed into law by President Barack Obama on 25 November 2015.

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sovereignty or any kind of exclusive rights, including ownership, over any celestial body.40 As a reaction to the new US law, a position paper was adopted by consensus by the Board of Directors of the International Institute of Space Law (IISL) on 20 December 2015.41 The paper acknowledges that under current international space law, it is not clear whether there is a right to take and consume non-renewable natural resources such as minerals and water that are present in celestial bodies. According to the IISL, given the absence of a clear prohibition of the taking of resources in the OST, the new US Act is a possible interpretation of the OST, and thus does not violate the Treaty.42 Nevertheless, the position paper concludes, it is an open question whether this legal solution is satisfactory. It might best be regarded as a starting point for initiating discussions in this area, with a view to the future development of international rules that will coordinate the free exploration and use of outer space, including resource extraction, with the benefit and the interests of all countries.43 In any case, certainty as to the applicable legal regime is a fundamental necessity for making possible a future lunar economic exploitation.44 The development of lunar resources will require the establishment of an international legal regime which encourages large-scale investment in prospecting and extraction activities, while at the same time ensuring that outer space does not become a source of international conflict.45 To conclude: the legal regime for the future exploitation of lunar and other extraterrestrial resources is still a legal void, one of the few to be found in current international space law, and one that will have to be addressed one

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The Act determines in Sec. 51303 that US citizens engaged in commercial recovery of an asteroid resource or a space resource “shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.” The IISL Position Paper is available at: www.iislweb.org/html/20151220_news.html. It is also published in the present 2015 IISL Proceedings. IISL Position Paper, part II. IISL Position Paper, part III. For some perspectives on those future international discussions, See: Jeff Foust, “New Law Unlikely to Settle Debate on Space Resource Rights”, Space News, Dec. 4, 2015: http://spacenews.com/new-law-unlikely-to-settle-debate-on-space-resourcerights/; Marcia Smith, Space Policy Online, 13 December 2015: www.spacepolicyonline.com/news/asteroid-bill-authors-open-to-internationaldiscussions-but-not-regulatory-yoke; Tanja Masson-Zwaan & Bob Richards, Leiden Law Blog, 22 December 2015, at: http://leidenlawblog.nl/articles/will-the-unitedstates-rule-space-resource-mining. F. Lyall & P.B. Larsen, ibid., p. 196. I. A. Crawford, ibid.

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day. Science fiction movies will continue helping us along in the task, by inspiring us and by putting into pictures all the fantastic possibilities that lie ahead.46

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The author would like to commend the IISL for organizing, within its annual Colloquium on the Law of Outer Space, a panel on “The Portrayal of Space Law in Media and Movies”. By bridging two of my lifelong interests: Space Law and science fiction, IISL provided the inspiration for writing the present paper. The author also wishes to express his gratitude to Steven Mirmina, Senior Attorney at NASA, for co-chairing such a fantastic panel during the 2015 IISL Colloquium in Jerusalem, and for making some suggestions for improving the language of this paper.

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Where Law Meets Cinema James Cameron’s Avatar as Food for Thought about the Anthropocentric Nature of Space Law George D. Kyriakopoulos*

Abstract James Cameron’s Avatar is a 2009 science fiction film about a paraplegic marine who participates in a military mission of colonization and exploitation of the moon Pandora of a planet in the constellation of Alpha Centauri. The mission’s main purpose is the extraction of the precious mineral unobtanium. The film’s hero, Jake, will come close to the native Na’vi tribe, which lives in harmony with Nature and resists human colonization. Jake will approach and mix with the Na’vis by remotely driving a genetically engineered body. When human forces attempt a military strike, Jake chooses to side with the natives in order to help them to protect the natural environment of Pandora and repel the human attempt to destroy the planet’s ecosystem in order to promote commercial exploitation. The interest of the film lies in the acceptance that Mankind has an unlimited right to populate planets with intelligent life in terms reminiscent of the Colonial Era: Imposition of the technologically advanced, plunder of colony’s resources, violation of the rights of indigenous populations and environmental degradation in the name of commercial priorities. However, what is more interesting is an attempt to apply international law to the mythological context of Avatar: UNGA Resolutions 1803(XVII) and 1514(XV) provide that all peoples not only have the right to selfdetermination but they also have “permanent sovereignty” over their natural resources. Nevertheless, international law is not automatically extended to extraterrestrial creatures. A similar lacuna exists regarding the implementation of space law in this case: Although Article IX OST provides that States shall avoid “harmful contamination” during space exploration, the obligation of States to conduct activities in outer space “with due regard to the corresponding interests of all other States” (Articles I, IX OST) obviously does not refer to alien indigenous populations. The same is true with Article II OST, as the non-appropriation principle makes sense only between “nations”. It appears that International and Outer Space Law have significant lacunae with respect to the protection of alien ecosystems and life forms – deficiencies that could be remedied through an enlarged perception of planetary protection. This approach emphasizes the special ethical status of extraterrestrial life – at least at the level of intentions, despite the absence of regulatory provisions. It follows that outer space exploration requires a coherent set of rules in order to face systematically the aforementioned challenges. The current status of this research will be the object of this paper.

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National and Kapodistrian University of Athens, Greece, [email protected].

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an·thro·po·cen·tric \ ˌan(t)-thrə-pə-ˈsen-trik\ : considering human beings as the most significant entity of the universe1

James Cameron’s Avatar is a 2009 science fiction film about a paraplegic marine who participates in a military mission of colonization and exploitation of the moon Pandora of a planet in the constellation of Alpha Centauri. The mission’s main purpose is the extraction of a precious mineral called unobtanium. Avatar premiere was in London on December 10, 2009, while its international release was on December 16 of the same year. The film was highly appraised for its visual effects and is considered to present as the highest-grossing film of all time. It should also be mentioned that Avatar was nominated for nine Academy Awards and finally won three of them: for Best Art Direction, for Best Cinematography and for Best Visual Effects.2 I.

The Plot

The film’s hero, Jake, a man of the mission, will come close to the native Na’vi tribe, which lives in harmony with Nature and resists human colonization. Jake will approach the Na’vis by remotely driving a genetically engineered body, which allows him to mix with the natives. Through this involvement, Jake will be initiated into the philosophy of the Na’vis and become a partaker of their deep relationship with Nature. When human forces attempt a military strike, Jake chooses to side with the natives in order to help them to protect the natural environment of Pandora and repel the human attempt to destroy the planet’s ecosystem in order to promote commercial exploitation. II.

Assessment

The film’s central theme is that, sometime in the future, Mankind is guided by a philosophy of unlimited exploitation of planets with (inferior) intelligent life-forms, in terms reminiscent of the Colonial Era: Imposition of the technologically advanced, plunder of extraterrestrial colony’s resources, violation of the rights of indigenous populations and environmental degradation in the name of commercial priorities. At the same time, however, the film is a hymn to the harmonious coexistence with the Natural Environment in compliance with its laws. This dimension of the film leads to two different directions: on one hand, it constitutes a message for today’s human beings, who not only have become alienated from Mother Nature, but they systematically cause damage to It; on the other

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www.merriam-webster.com/dictionary/anthropocentric. See www.the-numbers.com/movie/Avatar#tab=news (last visited on 24.9.2015) as well as www.imdb.com/title/tt0499549/awards (last visited on 24.9.2015).

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hand, it invites us to ask ourselves whether there are specific principles as well as a prevailing philosophy under which Mankind is preparing for the long journey to the Stars, which essentially has only just begun. Despite the actual trend in space activities towards the commercialization of “near Earth space”, exploration of outer space remains of paramount importance. Consequently, the concept of Avatar describes the conflict between: – an unrestricted exploitation of natural resources of a planet having also, in addition to a diverse natural ecosystem, intelligent life-forms (Na’vi), by a technologically superior race (in this case, the human race at an indefinite time in the future); – the protection of the natural resources on this planet by indigenous people, who live in harmony with the natural environment (now threatened by the invaders). Under this scheme, the Avatar’s challenges for space law (IV) particularly emphasize planetary exploration as an indispensable foundation for the systematic use of outer space, which is not currently the case (III). III.

Exploration v. Exploitation, Exploitation through Exploration

It is well known that the main issues in space law from the outset were the “exploration” and the “use” of Outer Space. At the time of the inception of the space treaties, and especially the Outer Space Treaty (OST),3 it seemed that both concepts were balanced and equally important. One could argue that the expectations of Mankind at that time were mainly focused on space exploration rather than on use and exploitation. It is not by accident that, at that time, the preferred theme in science fiction novels was the so-called “deep space” and the “space travel”.4 All these expectations culminated in the landing of Apollo 11 on the Moon in 1969.5 These expectations for space “exploration” and “use” were further reflected in space law: According to the Preamble of the OST, which in fact reiterated General Assembly Resolution 1962 of 1963, said treaty was

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, adopted on 19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967, 610/U.N.T.S./205 (hereinafter “Outer Space Treaty” or “OST”). […] as, for instance: Poul Anderson, Tau Zero; Frank Herbert, Dune; Isaac Asimov, Foundation; Arthur C. Clarke, Rendezvous with Rama; Robert A. Heinlein, Starship Troopers; or the Star Wars (original) trilogy and the Star Trek saga. As Manfred Lachs pointed out, “[…] outer space is one of the big chapters of man’s activities which shows its potentialities. Man entered into it driven by an inborn urge for adventure and greater control of nature” – “Some Reflections on the State of the Law of Outer Space”, J.S.L., vol. 9, Nos 1 & 2, 1981, p. 10.

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“Inspired by the great prospects opening up before mankind as a result of man’s entry into outer space, Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes,6 AND Believing that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development”.7

Furthermore, Article I of the OST provided that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind”, while Article V imposed on States to “regard astronauts as envoys of mankind in outer space and [...] render to them all possible assistance in the event of accident”. Along the same line, according to Article IX, States Parties to the Treaty should pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extra-terrestrial matter and, where necessary, shall adopt appropriate measures for this purpose”. What lies in the heart of these regulations is merely the thirst of Humanity for space exploration, for the ultimate Quest, for the Great Adventure – rather than the “use”.8 In any case, even if one were to assume that the motives of outer space exploration (in fact, of ANY exploration) is the economic exploitation of new discoveries, the spirit of the OST provisions mentioned fits well with the admiration of Mankind to the infinity of the Universe, which, back to the 1950s and the 1960s, constituted a fascinating challenge for the International Community.9 What followed was not what was expected. Almost 50 years after the landing on the Moon and the first lunar steps of Neil Armstrong, Mankind is still absent from the Moon. The same is also true for Mars, a planet so beloved in science fiction novels. Of course there were robotic missions on Mars, important scientific discoveries such as latest for the existence of liquid water on

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See S. Hobe & N. Hedman, “Preamble”, in S. Hobe, B. Schmidt-Tedd, K.-U. Schrogl & G. Meishan Goh (eds.), Cologne Commentary on Space Law, Vol. 1 Outer Space Treaty, Carl Heymanns Verlag, 2009, p. 21. Cf. UNGA Resolution 1348 of 13 December 1958 establishing the ad hoc Committee on the Peaceful Uses of Outer Space, stressing, inter alia, the desire of the international community “to promote energetically the fullest exploration and exploitation of outer space for the benefit of mankind”, “conscious that recent developments in respect of outer space have added a new dimension to man’s existence and opened new possibilities for the increase of his knowledge and the improvement of his life” – text of the resolution in www.unoosa.org/pdf/gares/ARES_13_1348E.pdf. It should be also noted that in the wording of the General Assembly resolutions of that time “exploration” is always mentioned before “use”. For the timeless human dreams for space exploration, See Manfred Lachs, “Some Reflections…”, op. cit., p. 3. As Lachs mentions, “First was the question of entry into outer space; second the status of it; and third the activities within outer space” – op. cit., p. 7.

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the surface of the Red Planet, the Voyager missions in order to study the outer Solar System, as well as a lot of other unmanned missions in order to study the celestial bodies in our planetary system – for instance NASA’s New Horizons probe flew past Pluto recently, towards another target.10 However, NASA’s share of the federal budget has dropped dramatically since the spacerace heyday of the 1960s, although the United States still regard space exploration as a key priority, according to recent declarations of the deputy chief of the Agency.11 So, in sharp contrast with the increased involvement of the private sector in many “space use” applications, it has to be admitted that outer space exploration has stalled. And, obviously, this happens because there are insufficient funds for it. Why explore space? Of course it is a very expensive activity, between the fuel costs and the technological challenge of operating in a hostile environment. However, there are concrete benefits in space exploration. Perhaps the most direct benefit comes from the fact that technologies used today on Earth were first pioneered in space exploration. It seems also that exploration could give a boost to new jobs, as each space agency would be in the constant need of contractors, universities and other entities in order to implement its exploration programs. Last but not at all least, space exploration might prove a necessity for the survival of Mankind. As Stephen Hawking has recently pointed out, “we are entering an increasingly dangerous period of our history” as “our population and our use of the planet resources are growing exponentially”. For this reason, “our only chance of long term survival is not to remain inward looking on planet Earth but to spread out into space”.12 In another interview in the El País journal, Hawking insisted on the same issue, stating that “I think the survival of the human race will depend on its ability to find new homes elsewhere in the universe, because there’s an increasing risk that a disaster will destroy Earth. I therefore want to raise public awareness about the importance of space flight”.13 Obviously Hawking highlights two main reasons why Mankind should explore the stars: The exhaustion of natural resources of the Earth, relative to population growth, and the risk of occurrence of fatal disasters on our planet. It is worth noting what NASA mentions with respect to space exploration:

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For details, See https://www.nasa.gov/mission_pages/newhorizons/main/index.html (last visited on 15 January 2016). See Mike Wall, “Space Exploration Still US Priority, NASA Says”, www.space.com/19743-space-exploration-priority-nasa.html (Last visited on 15 January 2016). From an interview of Stephen Hawking. See www.space.com/8924-stephen-hawkinghumanity-won-survive-leaving-earth.html (last visited on 15 January 2016). http://elpais.com/elpais/2015/09/25/inenglish/.1443171082_956639.html (Last visited on 15 January 2016).

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“Humanity’s interest in the heavens has been universal and enduring. Humans are driven to explore the unknown, discover new worlds, push the boundaries of our scientific and technical limits, and then push further. The intangible desire to explore and challenge the boundaries of what we know and where we have been has provided benefits to our society for centuries. Human space exploration helps to address fundamental questions about our place in the Universe and the history of our solar system. Through addressing the challenges related to human space exploration we expand technology, create new industries, and help to foster a peaceful connection with other nations. Curiosity and exploration are vital to the human spirit and accepting the challenge of going deeper into space will invite the citizens of the world today and the generations of tomorrow to join NASA on this exciting journey.”14

It seems that at present the international community is mainly concerned with the challenge of initiating activities of space exploitation – in other words with the stricto sensu use of outer space and not with space exploration. Several important legal issues are associated with this new reality. The thorniest question in this regard is whether positive space law can adequately regulate the strongly emerging private activities aimed at the economic exploitation of celestial bodies.15 Space law has been expressed so far in broad, vague principles that have permitted the maximum flexibility necessary for exploratory space activities.16 Nevertheless, law, in general, is not immutable

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NASA, “Why we explore”, in www.nasa.gov/exploration/whyweexplore/why _we_explore_main.html#.VqU3nzaAXOg (last visited on 15 January 2016). See for information: R.J. Lee, Law and Regulation of Commercial Mining of Minerals in Outer Space, Springer, 2012, 372 p.; Z. Meyer, “Private Commercialization of Space in an International Regime: A Proposal for a Space District”, Northwestern J.I.L.&B., Vol. 30 Issue 1, 2010, p. 241-261; S. Hobe, “The Impact of New Developments on International Space Law (New Actors, Commercialization, Privatization, Increase in the Number of “Space-faring Nations”), Uniform Law Review, 2010, Vol. 15, issue 3-4, p. 869-881; F. Tronchetti, The Exploitation of National Resources of the Moon and Other Celestial Bodies, Nijhoff, 2009, 320 p.; J.L. Zell, “Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer Space”, Minnesota J.I.L., vol. 15, 2006, p. 489-519; R. Jakhu, “Twenty Years of the Moon Agreement: Space Law Challenges for Returning to the Moon”, Z.L.W., vol. 54, 2005, p. 243-260; W. White, “The Legal Regime for Private Activities in Outer Space”, paper presented at “Space: The Free Market Frontier”, 15 March 2001, in www.spacefuture.com/archive/the_legal_regime_for _private_activities_in_outer_space.shtml (last visited on 15 January 2016); K.M. Zullo, “The Need to Clarify the Status of Property Rights in International Space Law”, Georgetown L.J., vol. 90. 2001-2002, p. 2413-2444. As Bueckling rightly observed, “time and again it becomes apparent how difficult it is to provide adequately phrased rules for, and to systematize in legal language the extremely complicated subject matter created by the technological explorations in outer space and the resulting multitude of conflicting interest” – Adrian Bueckling, “The Strategy of Semantics and the ‘Mankind Provisions’ of the Space Treaty”, J.S.L., vol. 7 no 1, 1979, p. 17. For the same issue, See Heidi Keefe, “Making the Final Frontier

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but responds to the needs of society. As exploration has given way to exploitation and as this – predominantly international – law lacks the specificity and legal certainty necessary for mature commercial activity, sooner or later law will follow the international community needs in outer space. Anyway, every systematic effort of exploitation of natural resources in outer space will likewise sooner or later require a corresponding promotion of space exploration. Otherwise, the scope for commercial exploitation will remain narrow, essentially limited to a few suborbital recreational activities as well as mining activities on near-Earth celestial objects (NEOs). Add to this the parameter of Earth’s overpopulation with its environmental implications and the need to seriously tackle the prospect of space exploration follows effortlessly. All roads lead to the Stars, regardless of the existing difficulties (Per aspera ad astra).17 Applying International Space Law to Avatar’s Challenges: The Anthropocentric Article I Ost

IV.

As far as space law is concerned, this debate becomes particularly interesting, as it provides us with the challenge to reflect on the adequacy of the existing rules and regulations in providing a solid answer for this particular concern – space exploration. However, what is more interesting is an attempt to apply international law to the mythological context of Avatar. From the perspective of general international law, UNGA Resolution 1803(XVII, in conjunction with Resolution 1514(XV), provides that all peoples not only have the right to self-determination but they also have “permanent sovereignty” over their natural resources. Nevertheless, international law is applicable among States, therefore its application is not automatically extended to extraterrestrial creatures. Further, a similar lacuna also exists regarding the implementation of the Law of Outer Space in this case: Although Article IX of the OST provides that States shall avoid “harmful contamination” during space exploration, the obligation of States to conduct activities in outer space “with due regard to the corresponding interests of all other States” (Articles I, IX OST) obviously does not refer to alien indigenous populations. The same is true with Article II OST, whereby outer space is not subject to national appropriation, as this concept makes sense only between “nations”. Under the present approach, it seems that the most disturbing provision is Article I of the OST, according to which “The exploration and use of outer

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Feasible: A Critical Look at the Current Body of Outer Space Law”, Santa Clara High Technology Law Journal, Vol. 11 Issue 2, 1995, p. 346. Kurt Vonnegut, The Sirens of Titan (1959).

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space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”. Moreover, same article provides that “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States [...] and there shall be free access to all areas of celestial bodies”. The Moon Agreement of 197918 is along the same line: Article 11 declares the Moon and its natural resources as “the common heritage of Mankind”, whereas, pursuant to Article 4, “The exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries”. Space law doctrine has repeatedly stressed the importance of these articles, though always with respect to relations among (earth) states in outer space. However, if one considers the impact of these provisions in the specific context of the relationship of human beings to extra-terrestrial life forms, said provisions acquire a completely different meaning. It should be recognized that the perception of the Universe as “a province of mankind” involves intense anthropocentrism, if seen in the context of a planetary exploration process. It seems that Manfred Lachs had considered this kind of approach as inevitable, as he had noted that “space is ‘outer’ in relation to the small planet called earth. In fact, it is the universe – minus our globe, or perhaps minus a small, narrow band of the air space surrounding it. Thus in building a law for the universe minus our globe we are relying on an anthropocentric approach. In all domains and so in law-making this anthropocentrism is the result of our special capacities [...]”.19

The term “Mankind” in the space treaties has been interpreted variously, according to the different viewpoints of scholars over time about the degree of collectiveness this term expresses.20 What is more, it could serve as a pretext for all those who would opt for an unrestricted, “wild” exploitation of natural resources of outer space, in other words an exploitation which would not be subject to any rules except that of profit. This anthropocentrism is somewhat tempered by Article IX of the OST. Said article is the only hard law provision to rely upon, as it sets some standards in order to mitigate contamination of the celestial bodies from human missions (forward contamination) or contamination of the Earth by the introduction of extra-terrestrial matter (backward contamination). Thus, Article

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Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, adopted on 5 December 1979, opened for signature on 18 December 1979, entered into force on 11 July 1984, 1363/U.N.T.S./3 (hereinafter “Moon Agreement”). Lachs, “Some Reflections…”, op. cit., p. 6. See Bueckling, op. cit., p. 18-19.

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IX is the only legal provision so far that moves, to a certain extent, away from the anthropocentric logic of the space law in force, as it could serve as the legal “basis for the environmental protection of outer space” from human intervention.21 Furthermore, Article 7 par. 1 of the Moon Agreement constitutes an advanced version of the same principle, as it gives priority to the forward protection of the Lunar environment, by stating that “In exploring and using the Moon, States Parties shall take measures to prevent the disruption of the existing balance of its environment, whether by introducing adverse changes in that environment, by its harmful contamination through the introduction of extra-environmental matter or otherwise”.22

In this context, the Galileo case should be mentioned: said spacecraft plunged into Jupiter’s atmosphere on 21 September 2003, thus being deliberately destroyed in order to protect a possible ocean beneath the icy crust of the moon (of Jupiter) Europa.23 As such, and in the absence of sufficient positive law provisions which would ensure the safeguard of extra-terrestrial natural ecosystems and the protection of existing life forms, intelligent or not – with the exception, of course, of Article IX of the OST –, a Universe – “province of Mankind” is a legal construction that could give rise to a version of space exploitation similar to the one of the colonial past of the Earth.24 It appears, then, that International and Outer Space Law, being profoundly anthropocentric, have significant lacunae in matters of protection of extraterrestrial environments and alien life forms. Besides, special attention must be given to the term “celestial body”, while we are still in research of a comprehensive legal regime applicable to these astronomical objects.25 It is also important to bear in mind that, according to Article 1 par. 1 of the Moon Agreement, “the provisions [...] relating to the Moon shall also apply to other celestial bodies within the solar system, [...] except insofar as specific legal norms enter into force with respect to any of these celestial bodies”. However, this clarification does not affect the anthropocentric nature of the aforemen-

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22 23 24

25

S. Marchisio, “Article IX”, in S. Hobe, B. Schmidt-Tedd, K.-U. Schrogl & G. Meishan Goh (eds.), Cologne Commentary on Space Law, Vol. 1 Outer Space Treaty, Carl Heymanns Verlag, 2009, p. 176. See Marchisio, “Article IX”, op. cit., p. 177. http://solarsystem.nasa.gov/galileo/; Marchisio, op. cit., p. 179. Cf. Bueckling observing that “the very notion of heritage, taken in relation to the concept of mankind, marks the birth of an ancient human norm” – op. cit., p. 21. For the same author, the concept of ‘Mankind’, for the time being, “does not represent a workable legal term” – op. cit., p. 22. Carl Q. Christol, “The Moon and Mars Missions: Can International Law Meet the Challenge?”, J.S.L., Vol. 19 No 2, 1991, p. 132.

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tioned provisions, in the light, of course, of the basic instrument in space law, which is the OST. V.

The Concept of Planetary Protection v. Anthropocentrism

Article IX OST constitutes the major legal source of the concept of planetary protection. “Planetary protection aims to prevent biological contamination of both the celestial body (object of mission) and the Earth. The need for such a protection is based on the human experience from the past: During the Spanish exploration of the Americas by the conquistadores, the smallpox virus they carried killed thousands of indigenous people [...]”

NASA defines Planetary Protection (PP) as “the term given to the practice of protecting solar system bodies (i.e., planets, moons, comets, and asteroids) from contamination by Earth life, and protecting Earth from possible life forms that may be returned from other solar system bodies”.26 The Agency admits that its policy regarding PP “is aligned with the COSPAR Planetary Protection Policy, and is consistent with Article IX of the ‘Outer Space Treaty’”. According to NASA’s Office for Planetary Protection, PP “is essential for several important reasons: to preserve our ability to study other worlds as they exist in their natural states; to avoid contamination that would obscure our ability to find life elsewhere – if it exists; and to ensure that we take prudent precautions to protect Earth’s biosphere in case it does. Typically, planetary protection is divided into two major components: forward contamination, which refers to the biological contamination of explored solar system bodies; and backward (or back) contamination, which refers to the biological contamination of Earth as a result of returned extraterrestrial samples”.27

Regarding said contamination, NASA Policy Directive NPD 8020.7G “Biological Contamination Control for Outbound and Inbound Planetary Spacecraft (Revalidated 05/17/13 w/change 1)” provides that “The conduct of scientific investigations of possible extraterrestrial life forms, precursors, and remnants must not be jeopardized. In addition, the Earth must be protected from the potential hazard posed by extraterrestrial matter carried by a spacecraft returning from another planet or other extraterrestrial sources. Therefore, for certain space-mission/target-planet combinations, controls on organic and biological contamination carried by spacecraft shall be imposed in accordance with directives implementing this policy”.28

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http://planetaryprotection.nasa.gov/overview. http://planetaryprotection.nasa.gov/overview (last visited on 15 January 2016). Text in http://planetaryprotection.nasa.gov/overview.

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In this respect, NASA’s Procedural Requirements NPR 8020.12D “Planetary Protection Provisions for Robotic Extraterrestrial Missions”, adopted in compliance with NPD 8020.7G, makes a categorization of such missions in order to assure an adequate Planetary Protection. Table 1.

Mission Planetary Protection Categories*

Planetary Target Priority Not of direct interest for understanding the process of chemical evolution or where exploration will not be jeopardized by terrestrial contamination. No protection of such planets is warranted, and no requirements are imposed. Of significant interest relative to the process of chemical evolution but only a remote chance that contamination by spacecraft could compromise future investigations. Of significant interest relative to the process of chemical evolution and/or the origin of life and for which scientific opinion provides a significant chance that contamination by spacecraft could compromise future investigations. Of significant interest relative to the process of chemical evolution and/or the origin of life and for which scientific opinion provides a significant chance that contamination by spacecraft could compromise future investigations. Any Solar System Mission

Mission Type Any

Mission PP Category I

Any

II

Flyby, Orbiter

III

Lander, Probe

IV

All Earth Return

V Unrestricted Earth Return Restricted Earth Return

* Text in http://planetaryprotection.nasa.gov/overview.

As described in NPR 8020.12D, missions must meet a certain set of forward contamination criteria including: • Limiting the probability that a planetary body will be contaminated during the period of exploration to no more than 1×10-3 (unless otherwise specified), where the period of exploration shall extend at least 50 years after a Category III or IV mission arrives at its protected target (and no longer than the time point after which no organisms remain viable on the spacecraft); • Avoiding impact of Mars over a time period of 50 years with a probability of < 1×10-2 for spacecraft the cross the orbit of Mars en route to other targets, and < 1×10-4 for all launch elements that leave Earth’s orbit;

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• •

Avoiding impact of target bodies, including orbital lifetime constraints; and Minimizing contamination through mission-dependent pre- and postlaunch approaches such as cleanroom usage, aseptic assembly of spacecraft, partial sterilization of spacecraft components, and trajectory biasing.

Careful mission design and planning are essential to meeting these conditions.29 A further safeguard is currently provided by the PP (Planetary Protection) Principles of COSPAR,30 which has concerned itself with questions of biological contamination and spaceflight since its very inception. Said principles are elaborated in the context of Article IX of the OST, which (as previously mentioned), for the time being, constitutes the only positive provision dealing with environmental protection of planetary ecosystems (under the scheme “forward contamination” – “backward contamination”). For instance, regarding human missions to Mars, a specific COSPAR guideline provides that “a comprehensive planetary protection protocol for human missions should be developed that encompasses both forward and backward contamination concerns, and addresses the combined human and robotic aspects of the mission, including subsurface exploration, sample handling, and the return of the samples and crew to Earth”.31 COSPAR recommendations depend on the type of space mission and the celestial body explored. However, the works of COSPAR constitute soft law provisions and do not create specific obligations for the space faring States. Specific reference must be made to COSPAR’s Panel on Exploration (PEX), which is a body that investigates a stepwise approach of preparatory research on Earth and in Low Earth Orbit (LEO), in order to facilitate a future global space exploration program. It has to be mentioned that, in March 2011, said panel organized a workshop, in cooperation with the European Science Foundation (ESF) and the COSPAR Panel on Planetary Protection (PPP), entitled “International Earth-based research program as a stepping stone for global space exploration – Earth-X”. The focus of the workshop was on an

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31

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http://planetaryprotection.nasa.gov/missiondesign/. The Committee on Space Research (COSPAR) is a Scientific Committee of the International Council of Science (ICSU). COSPAR represents national science institutions from 45 member countries, 13 international and scientific unions and 5 associated companies – See P. Ehrenfreund, C.P. McKay & the COSPAR Panel on Exploration (PEX), “Activities of the COSPAR Panel on Exploration supporting the Global Exploration Roadmap” (Report), Space Policy, Vol. 30, 2014, in www.elsevier.com /locate/spacepol (last visited on 15 January 2016). Expanding Options for Implementing Planetary Protection During Human Space Exploration and Robotic Precursor Missions, Interim Report, PRE Coordinating Group – Planetary Protection Sub Group, For Heads of Space Agencies Summit on Planetary Robotic and Human Spaceflight Exploration, Washington D.C., January, 2014, p. 2.

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international program “that pursues compelling science goals and prepares for future robotic and human exploration of Earth, Moon, and Mars and other space exploration targets”.32 Regardless of how important it is, planetary protection is primarily intended to protect the integrity of an alien environment for the purposes of scientific research as well as to protect the Earth from possible contamination of extraterrestrial origin. It is therefore evident that only partial relevance presents to what could be described as a real “code of ethics” for the approach and contact with alien natural environments and life forms. An important step in the right direction was the COSPAR Workshop on Ethical Considerations for Planetary Protection in Space Exploration, convened at Princeton University on June 8-10, 2010. The task of said workshop was to examine whether planetary protection measures and practices should be extended to protect planetary environments within an ethical framework that goes beyond ‘science protection’ per se.33 A set of recommendations developed during the workshop addressed the need for a revised policy framework to address ‘‘harmful contamination’’ beyond biological contamination, noting that it is important to maintain the current COSPAR planetary protection policy for scientific exploration and activities.34 In particular, Recommendation No 4 mentions that “COSPAR should consider that the appropriate protection of potential indigenous extraterrestrial life shall include avoiding the harmful contamination of any habitable environment – whether extant or foreseeable – within the maximum potential time of viability of any terrestrial organisms (including microbial spores) that may be introduced into that environment by human or robotic activity” (emphasis ours).35 Furthermore, Recommendation No 5 “acknowledges that – life, including extraterrestrial life, has special ethical status and deserves appropriate respect because it has both intrinsic and instrumental values, and – non-living things, including extraterrestrial things, likewise have value and deserve respect appropriate to their instrumental, aesthetic, or other value to human or extraterrestrial life (emphasis ours)”.36

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34 35 36

Ehrenfreund et al., op. cit. See J.D. Rummel, M.S. Race, G. Horneck and the Princeton Workshop Participants, ‘Ethical Considerations for Planetary Protection in Space Exploration: A Workshop”, Astrobiology, Vol. 12, No 11, 2012, in www.ncbi.nlm.nih.gov/pmc/articles/PMC3698687/ (last visited on 15 January 2016). Idem. Ibid. Ibid.

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Said recommendation also considered that “Inherent in the conduct of scientific, exploration, and other activities – whether by robotic or human missions – is the need to consider and appropriately protect potential extraterrestrial life”.37 Although they are not non-binding, these recommendations pave the way for a more comprehensive approach to planetary protection, with strong ethical characteristics, which significantly reflects the artistic anxieties of the Avatar movie. VI.

Some Conclusions

The question is: Did the journey to outer space make us wiser?38 The answer depends on the degree of anthropocentrism that we intend to tolerate in outer space law. As far as the prohibition of planetary contamination is concerned, it has been rightly argued that Article IX OST constitutes an emerging customary rule of international space law.39 Nevertheless, this is not enough: Outer space exploration requires a coherent set of rules in order to face systematically the challenges posed by planetary exploration and the subsequent exploitation/ colonization. Beyond contamination mitigation, the COSPAR recommendations related to the special ethical status of extraterrestrial life constitute a significant progress, at least at the level of intentions, despite the absence of regulatory provisions. Of course, it is always possible that Mankind, during its space adventure, will meet alien races far more advanced than us humans, but with similar legal perceptions about the Universe (“province-like”).40 In such a case, it is

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38 39 40

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Cf. the Star Trek’s Prime Directive, aimed at preventing interference with the internal development of civilizations that are less technologically advanced: “No identification of self or mission; no interference with the social development of said planet; no references to space, other worlds, or advanced civilizations” – See for information J.D. Stemwedel, “The Philosophy Of Star Trek: Is The Prime Directive Ethical?”, 20 August 2015, in www.forbes.com/sites/janetstemwedel/2015/08/20/the-philosophyof-star-trek-is-the-prime-directive-ethical/#3b2f795b642b (Last visited on 15 January 2016). See Lachs, op. cit., p. 5. See Marchisio, op. cit., p. 181. Professor Susan Schneider of the University of Connecticut believes that most intelligent alien civilizations will tend to be forms of superintelligence. In order to support her conclusion, she offers three observations: 1. The short window observation. Once a society creates the technology that could put them in touch with the cosmos, they are only a few hundred years away from changing their own paradigm from biology to AI; 2. The greater age of alien civilizations. Proponents of SETI have often concluded that alien civilizations could be much older than our own; 3. Extraterrestrial civilisations would likely be SAI (superintelligent AI), because silicon is a superior medium for superintelligence. – Susan Schneider, Alien Minds (for a NASA symposium in astrobiology), forthcoming in Discovery, Stephen Dick (ed.), Cambridge University Press, also in

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obvious that an analysis like the one presented here would be completely worthless.41, 42

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42

http://schneiderwebsite.com/Susan_Schneiders_Website/Research.html (last visited on 15 January 2016). As Stephen Hawking stressed in an interview in the Spanish journal El País (25.09.2015), “If aliens visit us, the outcome could be much like when Columbus landed in America, which didn’t turn out well for the Native Americans. Such advanced aliens would perhaps become nomads, looking to conquer and colonize whatever planets they can reach. To my mathematical brain, the numbers alone make thinking about aliens perfectly rational. The real challenge is to work out what aliens might actually be like” – http://elpais.com/elpais/2015/09/25/inenglish/1443171082_956639.html (Last visited on 15 January 2016). These are uncharted waters for the human race, as “When it comes to imagining ETIL who might be superior to us in intelligence, it is difficult to imagine what superior intelligence would manifest that is beyond the very human intelligence that is doing the imagining” – C. Impey, A.H. Spitz & W. Stoeger (eds.), Encountering Life in the Universe – Ethical Foundations and Social Implications of Astrobiology, Un. of Arizona Press, 2013, p. 214.

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The Hard or Soft Law of “Gravity”? Larry F. Martinez*

Abstract How are international legal norms and outer space law portrayed in the popular mass media? This paper compares how two Academy Award winning films depicted space law norms about the aid and rescue of astronauts. Marooned (1969) and Gravity (2013), produced and released during distinctive eras of space exploration, are stories about astronauts facing fatal challenges to their attempts to leave orbit and return safely to earth. Both films offer an exciting cinematic experience about the promise and peril of outer space exploration from the astronaut’s perspective for earthbound audiences. While both films depicted international collaboration as key plot elements, they did so without specific reference to the international legal regime that has as its “hard” treaty law goal the promotion of international cooperation in outer space as the “province of mankind.” Nonetheless, Marooned does depict active international collaboration to render aid, while in Gravity the lone astronaut must fend for herself amid a much more globalized orbital infrastructure. Because films may inform public attitudes towards national space policies, both Marooned and Gravity are analyzed as cultural expressions of the political discussion shaping each era’s outer space legal regime. This paper compares how these two films depict the dominant cultural orientation to how the “envoys of mankind” are either entrapped by the “hard” treaty-based laws prevalent during Marooned’s era of space exploration as opposed to the more individualistic “soft” law expectation of voluntary global collaboration in outer space exploration portrayed by the lone astronaut in Gravity.

I.

Introduction

While the 2013 film Gravity brought the specific problem of space debris to a direct cinematic encounter for millions of moviegoers, in a larger sense the film’s plot performed an important public educational function as it portrayed a range of international collaborative aspects of space exploration beginning with its opening scene of the International Space Station (ISS). Indeed, Gravity’s Mexican writer and director, Alfonso Cuarón, credited the 1969 science fiction film, Marooned, for inspiring his Gravity screenplay. In Marooned, the U.S. crew is stranded in orbit after a retrorocket failure, but receive assistance from their Soviet Cold War rivals just before their oxygen is fatally depleted. Both of these Academy Award winning films depicted an international dimension of space

______ *

California State University, Long Beach, USA, [email protected].

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exploration as important tenets to their plots, but seemingly without specific reference to the international legal regime that has as its “hard” law, (i.e., treatybased law) goal the promotion of international cooperation in outer space, the “province of mankind.” The trend, however, in outer space governance has apparently turned toward “soft” legal arrangements in recent decades rather than treaties. This marks a major shift in outer space governance accompanied by a high degree of academic interest in understanding and explaining why this shift is taking place. Political culture is increasingly considered to play a significant role influencing the range of options available to policymakers as determined “acceptable” and/or “legitimate” by the general public’s cultural view. Media products, such as books, film, television, comic books, music, and other cultural expressions, have long provided a fascinating glimpse into mankind’s future in outer space and how human beings will occupy and use the “Last Frontier.” Do these cultural depictions of outer space provide us with a utopian or dystopian prediction of mankind’s destiny as a space-faring species? Does outer space represent the chance for a new beginning minus the conflicts and tribulations that bedevil earth-bound inhabitants? Or, will we as a species project into outer space the same conflicts that divide any truly common effort to address the great challenges to our habitation on the “pale blue dot?” To a certain degree, the answers travel with the extension of rules into the outer space realm, and most specifically with the selection of “which rules” will govern human activities in outer space. Are there hard and fast rules that apply to everyone and to everyplace in space, or will we be better served by relying on voluntary guidelines and adherence to norms on other worlds? In the end, are we establishing a political culture for outer space that seeks taxpayer support based of a belief in the immutability of space legal principles, or a more flexible approach to space governance? This paper focuses on the gap between soft law depictions of voluntary international collaboration in outer space exploration and how films seemingly eschew plot twists incorporating the actual hard law aspects of the outer space legal regime stipulating such cooperation. The paper utilizes critical cultural theory to deconstruct elements of two major outer space films to analyze the factors motivating the observed bias against the hard law space regime, juxtaposed against the more benign or positive depiction of soft voluntary collaboration in the final frontier. II.

Analyzing Media

Films, like works of literature, are creative expressions of human imagination, and as such, require a “suspension of disbelief” as set out as an implicit

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collaborative contract between the creator(s) and their audience.1 The filmmaker or author creates a world into which the audience willingly enters, knowing in advance that this altered world of the creator’s soft subjective reality may not correspond to the hard realities of the objective world. The audience members, though, expect the creator to treat them with respect with regard to the audience’s expectations and beliefs about how this created world “works.” Analogously, the realm of international law shares some similarities to literature, in the way that participants enter a created world in which the soft subjective reality of states as sovereign equals collides with the hard objective reality of power politics. Human beings continuously co-habit both the world of the mind and the world of things, seeking clues from each that can help them sort out the unknowns in the other. This is the role of the “story.” Through the story, science informs art, and art (or literature) creates meaning for science. The question here then becomes, do films about outer space inform or influence the way human beings think about the meaning of outer space for the human story? Of course they do! But what messages do fictional film stories send about the role of international law in space exploration, and how might such messages influence audiences’ support for their nations’ space programs? Analogous to the film-making process, this paper proceeds in a three-step analysis: pre-production, production and post-production. In pre-production, we review the plot lines of each of the two films as expressions of human stories in outer space. In the production stage, the paper drills deeper to examine each film’s story as juxtaposed against the backdrop of international space law. Finally in the post-production stage, we attempt to evaluate what kind of message the audiences are likely to retain about the legal dimension of international space exploration. The concluding section of the paper will assess how these films exemplify cultural expressions that inform and confirm the contemporary trends in the legal evolution of the outer space regime for each era, rather than challenge the underlying legal precepts. This analysis suggests that Marooned reflects the hard treaty-based law of the early era of space exploration, contrasting with Gravity’s soft law orientation, reflecting differences in social attitudes toward international cooperation prevalent at the times they were made.

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Attributed to Samuel Taylor Coleridge, “Suspension of Disbelief,” Wikipedia, Source: http://en.wikipedia.org/wiki/Suspension_of_disbelief (accessed May 28, 2015).

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III.

Marooned: Trouble in Orbit

III.1.

Pre-Production

Marooned was released some four months after the Apollo 11 moon landing in July 1969. The filmmakers’ timing of the release attempted to capitalize on the spike of public interest in the outcome of the space race between the United States and the Soviet Union to determine whether the first astronauts on the moon would be American or Russian.2 It was high drama to the last act. Even as Apollo 11 was on its way to Tranquillity Base, the Soviet Union attempted to show its space prowess by launching Luna 15, a robotic samplereturn probe, that some in NASA suspected would try to upstage the U.S. landing by returning moon rocks to earth perhaps only hours before Apollo 11’s return. The two simultaneous missions to the moon also marked a significant legal milestone in space cooperation envisioned by the Outer Space Treaty (OST).3 Two states were simultaneously sending exploratory vehicles to another celestial body in a cooperative manner exemplified by the Soviet Union’s informing the United States about the trajectory of Luna 15 so as to allay any possible collision concerns.4 Unfortunately, Luna 15’s signal went silent during its landing approach, leading some to speculate that it crashed into a lunar mountain. Neil and Buzz had the moon to themselves. Marooned is the story of an American crew of three astronauts who are trapped in an Apollo spacecraft as they attempt to return to earth following an extended stay in a Skylab-like space station. When the service module engine repeatedly malfunctions during attempted automatic and manualoverride retro-grade burns to bring them out of orbit, they find themselves unable to return to the space station or to use the secondary manoeuvring rockets to de-orbit. They are “marooned” in orbit with quickly dwindling supplies of oxygen. Prescient to Apollo 13’s “failure is not an option” credo, the numberscrunching Gregory Peck character, who as the NASA boss, decides a rescue is too risky, is overruled by none other than a very Richard Nixon-esque voice who says that “politically, NASA only has a healthy budgetary future if it can maintain public support,” and to do that requires NASA to show their humanity by at least attempting to rescue the crew, risks be damned. Luckily,

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4

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An excellent synopsis can be found on the Wikipedia site: https://en.wikipedia.org /wiki/Marooned_(film) (accessed June 17, 2015). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (General Assembly resolution 2222 (XXI), annex) – adopted on 19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967. Luna 15 was launched three days before the Apollo 11 launch on July 16, 1969. The probe, designed to return samples to earth, crash-landed on the moon while the Apollo 11 astronauts were preparing to lift-off from Tranquility Base. Source: https://en.wikipedia.org/?title=Luna_15 (Accessed June 19, 2015).

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the U.S. Air Force has an experimental lifting body spacecraft (visually, remarkably similar to the U.S. Air Force’s X-37B spaceplane currently in service) that the Richard Janssen head astronaut character will attempt to pilot to orbit and once there perform the orbital manoeuvres to reach the stricken Ironman.5 Tension mounts as Ironman’s oxygen levels sink while a hurricane bearing down on Cape Canaveral delays the rescue craft launch. There is not enough oxygen for three astronauts to survive for the now-delayed rescue. The mission commander Richard Crenna character seemingly sacrifices himself for his crewmates by spacewalking to “repair the engine” and dies as his spacesuit rips. Just when all hope is lost for the oxygen-starved, muddle-headed astronauts, a Soviet cosmonaut appears outside the Ironman Apollo capsule, but given the small size of his space vehicle, he can offer no ride back. As the U.S. rescue craft now approaches, the Soviet cosmonaut assists the justarrived Richard Janssen character in spotting one of the two surviving astronauts (Gene Hackman character) who had drifted untethered out of the Ironman capsule. Finally, in a scene oozing of Cold War space cooperation, the never-identified Soviet cosmonaut enters Ironman’s open hatch ostensibly to aid the James Franciscus character, incapacitated by the last throes of oxygen starvation. Shortly thereafter, the Richard Janssen character also enters Ironman and connects the James Franciscus character to an emergency oxygen supply in the nick of time to save his life. Both the cosmonaut and Janssen characters jointly assist the two stricken astronauts to transfer to the U.S. rescue craft. The closing scene shows the abandoned Ironman capsule adrift in the cosmic ocean. A young boy in Mexico repeatedly watched Marooned whenever it was shown on television. In 2013, Director Alfonso Cuarón would develop and release his own film version of a marooned astronaut in his movie masterpiece Gravity.6 III.2.

Production

In 1969, governmental space entities authorized and financed by the Soviet Union and the United States completely dominated the range of civilian and military space activities and missions. But Hollywood clearly predicted a much more visible commercial component to space activities in the not-so-distant

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6

See, Leonard David. “Air Force's Mysterious X-37B Space Plane Passes 400 Days in Orbit,” Space News, January 29, 2014. Source: www.space.com/24459-x37b-spaceplane-mission-400-days.html (accessed June 23, 2015). Wikipedia, quoted from Wired article by Caitlin Roper, “Why Gravity Director Alfonso Cuarón will never make a space movie again,” Wired, October 1, 2013. Source: https://en.wikipedia.org/wiki/Marooned_(film)#cite_note-7 (Accessed June 19, 2015).

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future. In the late-1960s, private commercial space entities existed almost solely on the silver screen, not in orbit.7 In the 1968 film, 2001: A Space Odyssey, a commercial airline, the now long-defunct PanAm Airways, is shown operating space shuttles to the orbiting space station, where space commuters are lodged in a Hilton Hotel and where they can make a video call to loved ones on earth via the Bell System. Ironically, 1969 was also the year that saw a U.S. governmental entity develop an innovative packet-switching data network we now call the Internet. Let’s go back to Marooned and its legal setting. Only slightly more than a year prior to Ironman’s retro-rocket crisis, the world community saw entry into force of two treaties that specifically address the crew’s plight and the film’s plot. The first treaty, of course, is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, which entered into force in October 1967. Usually referred to as the “Outer Space Treaty” or “OST,” it served as the foundational bedrock for subsequent legal treaties and agreements establishing outer space governance. Among the treaty’s provisions, those most relevant to Marooned are found in Article V. These include defining the legal status of the astronauts as “envoys of mankind,” and stipulating that State Parties have a mutual obligation to “render all possible assistance to the astronauts of other States Parties.”8 The second treaty already in force by the date of Marooned’s theatrical release was the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, otherwise known as the “Rescue Agreement.”9 As the seminal Dembling and Arons article points out, the Rescue Agreement amplified and operationalized the humanitarian impulse behind the astronaut aid and rescue provisions found in the Outer Space Treaty.10 In a telephone call between NASA Director Keith (Gregory Peck) and the U.S. President, the possibility of a Soviet rescue is briefly discussed:

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9

10

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The exception, of course, was Telstar, the first privately sponsored space launch in 1962. Source: https://en.wikipedia.org/?title=Telstar (accessed June 19, 2015). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967. Source: www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html (accessed on June 23, 2015). See, Dembling, Paul G. and Arons, Daniel M., “The Treaty on Rescue and Return of Astronauts and Space Objects” (1968). Documents on Outer Space Law. Paper 4. Source: http://digitalcommons.unl.edu/spacelawdocs/4 (accessed June 24, 2015). Ibid.

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President: What about the Russian spacecraft? Keith: No, they can’t help us. I’ve already talked to them. I know Kashvin pretty well. You see, their Voshkod’s in the wrong orbit, won’t wash.

This conversation reveals that the U.S. has officially informed the Soviet Union about the orbital emergency and that the possibility of a Voshkod rescue was considered but then rejected as impossible due to the Voshkod’s orbital parameters. A message is relayed to the command center. Keith attempts to contact the crew. Keith: Ironman, this is Keith. Ironman, a Russian spacecraft is making rendezvous with you. Do you see a Russian spacecraft? Come in. Stoney, do you see a Russian spacecraft? Stoney: I see him. Keith: Good. Now 30 minutes ago he made a change in orbit. He is moving towards you for rendezvous. We don’t know what he’s going to do. All you can do at this point is watch him. Watch him, Stoney do you read me?11

The cosmonaut opens the Voshkod hatch and attempts through hand signals to have the Ironman crew open their hatch. Keith: Stoney, I want you to follow through with the Russian. Don’t wait for Dougherty.

A few minutes later: Dougherty: Keith, this is Rescue. I’m in the Apollo. The Russian got some air to Stoney [...] and I’ve transferred him to my oxygen now. He’s all right, he’s breathing. And I’ve got Lloyd.

[Joyous pandemonium breaks out at the good news] The film concludes with parting shots of the Voshkod and Apollo spacecraft in orbit that bring “The End” onto the screen.

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Mayo Simon (screenplay), Martin Caidin (novel), writing credits for Marooned. Source: www.springfieldspringfield.co.uk/movie_script.php?movie=marooned (accessed June 24, 2015).

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Post-Production: The International Legal Setting for Marooned

III.3.

Although international space law agreements were never explicitly mentioned in Marooned, the film nonetheless comes very close to complete compliance with the OST and Rescue Agreement. Using this three-item checklist, we can critique the film’s treaty compliance. III.4.

Communication

Both the OST’s Article V and the Rescue Agreement’s Article IX stipulate an obligation to communicate about space exploration hazards to other spacefaring parties: “Article V: [...] States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts. Article IX: [...]. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.”12

In the film, the U.S. and U.S.S.R. have communicated with each other, as indicated in the conversation between Keith and the U.S. President. But did the Soviet Union fully inform the U.S. about the orbit of the Voshkod? The major surprise of the film is the appearance of the Voshkod in the climatic conclusion of the film, but seemingly without any coordination with NASA. Interestingly, there appears to be a complete lack of agreement over common radio frequencies for rescue, as the cosmonaut cannot contact the American crew. With the most sophisticated radio equipment, the space farers are reduced to hand signals and flashlights due to apparently non-existent common radio protocols and frequencies.

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Articles V and IX, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (General Assembly resolution 2222 (XXI), annex) – adopted on 19 December 1966, opened for signature on 27 January 1967, entered into force on 10 October 1967.

THE HARD OR SOFT LAW OF “GRAVITY”?

III.4.1.

Aid to Astronauts

The U.S.S.R. cosmonaut’s does indeed carry out the Soviet Union’s legal obligation under the OST (Article V) to “render all possible assistance to astronauts of other States Parties” by assisting in the rescue of the drifting astronaut and providing oxygen to the second stricken astronaut. III.4.2.

Use and Return of Space Object

Here is where we can speculate on the Soviet motives, which are perhaps not so altruistic. At the end of the film, we see the XR-V rescue craft fire its retrorocket to leave orbit, while the Voshkod and Apollo capsule continue in their orbital trajectories, the Apollo capsule now empty and shown with an open hatch. Somewhat nefariously we can imagine the bounty of information the Soviet Union could gain if its cosmonaut were able to re-enter the now empty Apollo capsule and carefully record his observations about U.S. space technology. Contrary to maritime law, abandonment of a space object does not relinquish or change the legal status of ownership or liability. While entry of the U.S.S.R. cosmonaut into the Apollo capsule during the actual rescue took place without an explicit granting of permission by the U.S. space authorities, we can safely presume there was an implicit permission granted when Keith informed the two U.S. astronauts to “follow the Russian.” In the end, we don’t know whether the Voshkod lingered in the vicinity of the Apollo capsule or whether there was later another entry into the Apollo capsule, this time without any explicit or implicit permission from the U.S. space authorities. IV.

Gravity: Globalization’s Tour de Force

IV.1.

Pre-Production

Gravity was released in 2013, to widespread acclaim and box office success. Millions of moviegoers reveled in the visual 3-D special effects that thrust them into a story of astronauts marooned in space. But outer space in Gravity’s 2013 is a far different place than Marooned’s 1969. Many more countries, companies, and objects are in orbit. The International Space Station (ISS) shares orbital space with China’s Shengzhou space station. Both demonstrate the proliferation of high technology prowess and awareness of the key role space technology plays in terms of 21st Century infrastructure and societal development. Space is more diverse, and, more ominously, crowded. IV.2.

The Internationalized Setting for Gravity

While Marooned’s astronauts and cosmonaut were white males ostensibly in their 30s, the people populating earth’s orbital space in the 21st Century’s Gravity demonstrate a much more multi-cultural aspect to space exploration. This is exemplified in one of the film’s first scenes where an Indian astronaut Dr. Shariff Dasari sings an Indian pop song out of the 1950s, Mera Joota Hai Japani, (“My Shoes are Japanese”) while taking a break during extra-

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vehicular servicing of the Hubble Space Telescope. Alfonso Cuarón, a Mexican director and screenwriter, depicts in this way a strong allusion to the globalization of space exploration by having Astronaut Dasari sing a song lyric about how even though [...] My shoes are Japanese, these trousers English; The red cap on my head, Russian, yet my heart is Indian.13 Of course, gender diversification is also evident as the lead protagonist is a female astronaut, Dr. Ryan Stone, played by actress Sandra Bullock, and who, playing the lead role at the age of 49, also represents the greater chronological diversity of orbital denizens than those cast in Marooned almost two generations earlier. The immensity of Gravity’s space is balanced by its depiction of the size and scale of the ISS. These are huge structures, which, unencumbered by gravity, can be constructed to a truly awe-inspiring scale. Such a scale is also a much bigger target. The pivotal plot point is the threat posed by space debris as a Russian missile destroys a satellite, creating a space debris cloud that intersects the orbit of the ISS and the Space Shuttle Explorer. Catastrophe ensues as the debris cloud hits and destroys the Space Shuttle and the ISS, ultimately marooning Astronaut Stone in orbit and disrupting communication and guidance from mission control in Houston. IV.3.

Production

Astronaut Stone’s Gravity journey is literally a tour de force through the various globalized legal regimes of 21st Century space exploration. Unable to seek refuge within her own country’s Space Shuttle Explorer (legacy superpower sole sovereignty vehicle), after it is heavily damaged and its other crew members killed by space debris, space rookie Dr. Stone and surviving veteran astronaut Matt Kowalski (George Clooney) attempt to access the Russian Soyuz craft through the massive ISS, illustrating the mixed jurisdictional multinational collaborative regime. Their spacewalk to the ISS is unsuccessful due to the premature deployment of the Russian Soyuz’s parachute caused by impacts of space debris. Caught in the shrouds of the Russian spacecraft’s parachute, Dr. Stone’s life depends on astronaut Kowalski’s willingness to detach himself from her lifeline and thereby doom himself to an orbital demise. Drifting away, he calmly advises Dr. Stone to enter the ISS in order to gain entry to the Russian Soyuz spacecraft, which is now useless for re-entry but could be employed for a “Sunday drive” to the Chinese space station, conveniently orbiting a relatively short distance of 100 kilometers away from the ISS. After piloting the Soyuz to the vicinity of the Chinese space station,

______ 13

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See, Wikipedia, “Mera Joota Hai Japani,” https://en.wikipedia.org/wiki/Mera_Joota_Hai_Japani (accessed June 29, 2015). In Sanskrit the text appears as: मेरा जूता है जापानी, ये पतलून इं गिल ानी, सर पे लाल टोपी सी, िफर भी िदल है िह दु ानी, [Merā jūtā hai Jāpānī, ye patlūn Inglistānī, Sar pe lāl ṭopī Rūsī, phir bhī dil hai Hindustānī].

THE HARD OR SOFT LAW OF “GRAVITY”?

Dr. Stone could spacewalk to the Chinese re-entry capsule, which could be used to de-orbit and return safely to the earth’s surface. Following the filming of Marooned, two additional outer space treaties were ratified that complement the OST and add to the legal dimension surrounding Gravity. The Liability Convention (Convention on International Liability for Damage Caused by Space Objects) and Registration Convention (Convention on Registration of Objects Launched into Outer Space) both promise a rich payday for Sandra Bullock’s lawyers.14 The Liability Convention stipulates that the launching state bears fault-based liability for damage to space objects in orbit, while the Registration Convention details how a growing number and types of space objects remain the legal responsibility of the launching state or state of registration. In both Conventions, the Russian act of intentionally destroying a satellite and in the process creating a debris cloud that destroys the ISS, the Shuttle Explorer, and the Chinese space station, as well as killing an unspecified number of astronauts, is clearly a real potentiality and within the purview of the space treaties.15 Post-Production: The International Legal Setting for Gravity

IV.4.

As noted above, Gravity’s story takes place in a much more diverse outer space environment, both in terms of the missions and the actors. However, the legal basis regulating these activities and actors are essentially the same as for Marooned. Let’s examine Gravity’s compliance with communication, aid, and return of space vehicle obligations under the outer space treaties. IV.5.

Communication

As quoted above, the OST’s Articles V and IX and the Rescue Agreement’s Article I, clearly stipulate an obligation to communicate about potential hazards or threats to the safety of astronauts. Under the cited articles, Russia’s intentional destruction of one of its satellites would clearly require prenotification if the action posed any potential safety threat to other users of the outer space region as either a “phenomenon,” or as an activity that could cause “harmful interference.” However, on this point, the film’s script identifies not Russia but instead the North American Aerospace Defense Command (NORAD) as the source of information about the potential hazard communicated to the astronauts in a scene early in the film:

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15

Convention on International Liability for Damage Caused by Space Objects (resolution 2777 (XXVI), annex) – adopted on 29 November 1971, opened for signature on 29 March 1972, entered into force on 1 September 1972; Convention on Registration of Objects Launched into Outer Space (resolution 3235 (XXIX), annex) – adopted on 12 November 1974, opened for signature on 14 January 1975, entered into force on 15 September 1976. New York Times, “The Villain in Gravity is Real, www.nytimes.com/2013/10/12/opinion/the-villain-in-gravity-is-real.html?_r=0 (accessed June 29, 2015).

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MISSION CONTROL (V.O.) (over radio) Uh, NORAD reports a Russian satellite has incurred a missile strike [...]. The impact has created a cloud of debris orbiting at twenty thousand miles per hour. Current debris orbit does not overlap with your trajectory. We’ll keep you posted on any developments.16

The astronauts continue working to repair the Hubble Space Telescope until Mission Control in Houston again interrupts their activities with an update: MISSION CONTROL (V.O.) (over radio) Debris from the missile strike has caused a chain reaction, hitting other satellites and creating new debris. Traveling faster than a high-speed bullet up towards your altitude. All copy [...]. MISSION CONTROL (V.O.) (over radio) Well, we have a full-on chain reaction. It’s been confirmed that it’s the unintentional side effect of the Russians striking one of their own satellites. SHARIFF They shot down their own satellite? Matt pulls down a lever. Then moves upward. MATT Right of disposal. Most likely a spy sat gone bad. Now it’s shrapnel.17

Quite notably, here is where Gravity makes a direct statement about international space law that actually creates a new legal privilege – the “right of disposal.” Russia clearly fails to fulfill its communicative obligation under OST Articles V and IX, but in Russia’s defense, the film creates a new right, i.e., the “right of disposal,” that could form the legally novel basis for justifying the satellite’s intentional destruction with the goal being space debris mitigation. Of course, the “unintentional” side effect will be hotly debated during the later legal proceedings. IV.6.

Aid to Astronauts

Without communications or other surviving astronauts, Dr. Ryan must fend for herself as she gains entry first into a burning ISS and then subsequently into the Russian Soyuz spacecraft, which she then uses to travel to the Chinese Tiangong space station. Although Dr. Ryan has no Chinese language ability, the earlier guidance from Astronaut Matt Kowalski indicated that the

______ 16 17

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Alfonso Cuarón and Jonas Cuarón, script and screenplay for film “Gravity.” Source: http://gointothestory.blcklst.com/wp-content/uploads/2014/11/gravity_sp-copy1.pdf Ibid.

THE HARD OR SOFT LAW OF “GRAVITY”?

landing protocols in the Shengzhou capsule were identical to those used by the Soyuz: MATT You’re gonna take the Soyuz, and you’re gonna cruise over there. Chinese lifeboat is a Shenzhou. RYAN I’ve never flown a Shenzhou. MATT It doesn’t matter. Its re-entry protocol is identical to the Soyuz.18

IV.7.

Use and Return of Space Object

The Gravity script is silent on whether Astronaut Stone is authorized to enter the Chinese Tiangong space station and use the Shenzhou space vehicle for her re-entry to earth. Furthermore, the film does not specify whether the Tiangong space station was unoccupied at the time of the space debris incident or whether it was abandoned in its aftermath. All the audience knows is that U.S. Astronaut Stone enters an unoccupied Chinese space station without explicit notification given to the Chinese space agency nor permission requested. In extremis, we can surmise that space law would characterize this unauthorized entry as an act of survival justifiable under customary international law. The Shenzhou survives the perilous re-entry and apparently, from the language of the background radio transmissions and the Houston mission controllers heard on the Shenzhou radio, Astronaut Stone has landed it in a lake in the territorial United States’ Midwest, possibly even the Lake Zurich of her childhood mentioned in an earlier dialogue with Kowalski. Happy ending. In parallel to our discussion about the final disposition of the Ironman Apollo capsule in Marooned, China, under OST Article VIII, retains ownership of the Shengzhou vehicle after its return to earth, while the United States has an obligation under the same article to return the vehicle to China after it provides identifying information. To quote the article: “Article VIII A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose

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Page 37.

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registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.”19

If an international space lawyer were writing a new final scene of Gravity, we can well imagine that it would show a barge-mounted crane lifting the Shenzhou spacecraft out of Lake Zurich while Chinese and American space officials look on. It’s a wrap! V.

Conclusion

This paper explores the cultural side of the policy evolution from hard to soft international law for outer space. After comparing how both films are representative of their respective eras in their depictions of how humans conduct activities and contend with challenges in earth’s orbital space, we can now extend our analysis to the ways in which cultural expressions such as film potentially play a role in the policymaking arenas. As noted above, both Marooned and Gravity represent cultural expressions about the real world political-legal-economic realities of their respective eras. As Academy Award-winning films, both received validation from film professionals and audiences alike that their stories about human beings facing lifethreatening challenges in outer space are narratives that speak to our collective destiny at the “final frontier.” In Marooned, the two space-faring superpowers are the only state actors engaged in humankind’s space quest, while Gravity’s orbit is filled with a wide diversity of activities, actors, and challenges. In sum, these are films that are closer to the actual techno-scientific reality of space exploration than science fantasy films such as the Star Trek and Star Wars genres. Why do we care, though, about what these quasi-real world films say to audiences about space exploration and how we as a species decide to extend human civilization and its rules beyond the earth? First of all, such films carry out an important educational function in informing audiences about a subject the public knows little about, i.e., outer space. The vacuum of space is matched by the emptiness of public knowledge about it. Even in the United States, one of the pre-eminent space-faring nations, a recent survey of over 3,000 people found that 22% confused the methods and goals of “astronomy” with “astrology.”20 Other surveys have shown that 52% of the American public support human exploration of space, even while the average American believes NASA consumes 24% of the entire federal

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OST, Article VIII. Elizabeth Palermo, “1 in 5 Americans Confuse Astrology and Astronomy,” LiveScience, September 10, 2015, in an article about a survey conducted by the Pew Research Center measuring public knowledge of science. Source: www.livescience.com/52135-american-science-knowledge-poll.html (accessed September 16, 2015).

THE HARD OR SOFT LAW OF “GRAVITY”?

budget (actually less than .05%). Even more ominous for future funding of space exploration are survey results showing that 28% of Americans believed that NASA had closed, 40% believed the ISS had crashed, while 38% believed that “aliens walk among us.”21 Mass media in general, and films in particular, provide the vast bulk of the voting public with their only exposure to some of the realities of living and working in outer space. Although feature films take some scientific liberties (especially evident in Gravity’s depiction of the space debris problem and its ability to cripple space telecommunications), they nonetheless leave the viewing public with an enduring impression of both the opportunities and challenges of outer space. Secondly, the media in some ways create their own reality. Do media expressions about outer space influence what human beings decide to do in outer space? In other words, do films that are seen by millions of people have a political effect by informing public perceptions of a country’s activities in outer space? The premise here is that a state’s foreign policy behavior is, to some (unknown) degree, influenced by public attitudes that either support or oppose those policies. These can have very significant political ramifications for elected policy-makers if, as noted above, a sizeable proportion of the American public believes NASA’s budget accounts for one-fourth of the entire U.S. Government budget. Marooned shows that outer space is not necessarily only a place for superpower rivalry, but that the deadly vacuum of space can also be filled with cooperative engagement against the common challenge. In Gravity, the lead protagonist had to “go it alone,” more in keeping with the entrepreneurial ethos of an outer space environment that will be exploited by profit-motivated private enterprise. The hard treaty law in Marooned that is confirmed by the Soviet efforts to help rescue the dying American astronauts is absent in the soft law face of Gravity’s radio silence. Finally, cultural studies scholars have long investigated and theorized about popular culture’s role as a factor shaping how humans perceive their civilization and its destiny writ large.22 Humans understand their world through stories and the stories told by film are an increasingly prominent part of popular culture shaping public attitudes about how outer space will be explored. The story told by a middle-aged woman astronaut in Gravity is very different from that told from the perspective of thirty-something white males in Marooned. Space is a far bigger place in 2015 than it was in 1969, a frontier region used and occupied by a wider variety of states, corporations, and nationalities, each of which is pursuing its own vision of how outer space should be explored and exploited.

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22

Rod Pyle, presentation made to Space Tech Expo, May 19, 2015, Long Beach, CA. Source: www.spacetechexpo.com/visit/free-sessions-program-2015 (accessed September 16, 2015 and author’s notes at the conference). See, John Storey, Cultural Theory and Popular Culture: An Introduction (6th ed.). New York: Routledge, 2012.

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In this important way, Gravity acts to validate the soft law approach envisioning that nation-states are now merely places to go rather than the journey itself. In Marooned, the stranded astronauts were appendages of the space-faring nation, and whether they were rescued or not was determined by the state apparatus. In Gravity, you are on your own. And this, then, is the cultural question: are we ready as a species to venture into the great ocean of outer space beyond the familiar state-centric structures of laws and governments? Here is where cyberspace and outer space culturally merge. The “Wild West” of Internet governance is one in which today’s online entrepreneurs only vaguely see state frontiers and rules; much more crucial are software platforms and APIs. Astronaut Stone speaks directly to a millennial generation raised with Internet-connected smartphones in their hands almost from birth. The challenge of international travel is now reduced to Google Maps and TripAdvisor, national borders (as exemplified by the current waves of smartphone-carrying migrants) are disappearing relics as ATMs and expedited passport/customs clearances are now largely online affairs. Astronaut Stone confronts her own self-doubts, represented in her thoughts relating to her tradition-bound role as a mother grieving over the loss of her child. Analogously, space-farers will always face criticism that humans should solve their traditional problems on earth before spending valuable resources to go “out there.” But Astronaut Stone, alone and out of radio contact with mission control (i.e., the Internet), nonetheless articulates the cultural credo of this generation and the plaidoyer for soft law’s more flexible and individualistic jurisdiction as she says into the microphone (much as someone posting on Facebook): RYAN (into radio) Houston. Houston, in the blind. This is Mission Specialist Ryan Stone reporting from the Shenzhou. I’m about to undock from Tiangong [...] And I have a bad feeling about this mission. (chuckles) Reminds me of a story, Houston – Ryan cries out. CAMERA PANS TO the cabin window, then back to Ryan. RYAN Never-Never mind the story, Houston. Never mind the story. It’s getting hot in here. Okay. All right. Okay. All right, the way I see it, there’s only two possible outcomes. Either I make it down there in one piece and I have one hell of a story to tell, or I burn up in the next ten minutes. Either way, whichever way [...] no harm, no foul! Because either way [...] it’ll be one hell of a ride. I’m ready. Ryan reaches out and grabs her helmet.23

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Gravity script, loc. cit.

THE HARD OR SOFT LAW OF “GRAVITY”?

Both films are significant cultural expressions telling an important story about humankind’s innate drive to explore, understand, and expand the species’ presence into the next frontier. The rules by which that is accomplished will also adapt to the cultural story that accompanies humans on their quest. Astronaut Stone’s last words leave audiences with the story that in the end, it is the individual human being who has the freedom to make the choice, not the nation-state, and that no matter what the outcome of that trip into the unknown, “either way, whichever way, [...] no harm no foul! Because either way [...] it’ll be one hell of a ride. I’m ready.”24

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Ibid.

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Bugs Bunny and Daffy Duck vs. Marvin the Martian A Perspective from (Earthly) International Space Law Annette Froehlich*

Abstract This paper analyses several well-known clips from famous films featuring Bugs Bunny and Daffy Duck and other such characters. Since their first appearance on the screen, they have undertaken various space activities including space flights to other celestial bodies where they meet Marvin the Martian, a character who, as his name indicates, descends from planet Mars. He is obsessed with the idea of destroying the Earth. His epic phrases are “The Earth will be gone in just a few moments: it obstructs my view to Venus!” He wants to destroy the Earth by using either his “earth-shattering kaboom” (a device in form of a stick of dynamite) or his “Illudium Q-36 Explosive Space Modulator”. At the beginning of his space exploration activities the latter used to be even a “Uranium Pu-36”. In the light of international space law various, important aspects of the space exploration activities of Bugs Bunny and Marvin the Martian require further analysis. Examples are: the registration of their multiple spacecraft; the use of weapons on celestial bodies; their role in ensuring non-contamination or non-destruction of any celestial bodies and their attempts to appropriate the Moon. Indeed, Daffy Duck and Marvin the Martian both try to appropriate the Moon by planting their respective flags in its ground. This raises the question whether international law is applicable in space. Moreover, Marvin the Martian changes his character over the decades. From being a potential destroyer, he turns into a person who saves the Earth. With this, the question arises if his evolution has been influenced by the evolution of space law?

I.

Introduction

In the following article, the most prominent movies of Bugs Bunny with Marvin the Martian will be analysed in the light of international space law. Before starting this legal analysis, the different involved characters have to be introduced: Bugs Bunny and his best friend Daffy Duck, Marvin the Martian

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LL.M., MAS, SpaceTech (TU Graz)/German Aerospace Center (DLR), Mandelstr. 13/II, A-8010 Graz, Austria, [email protected].

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along with his dog K-9 (who communicates with Marvin by handling him notes). Generally, Bugs Bunny is very well known, perhaps the most celebrated cartoon rabbit. He appears sometimes with Daffy Duck and Porky Pig. In the cartoons of Looney Tunes and Merry Melodies, they interact with “Marvin the Martian”1 who made his first appearance on the screens in the cartoon “Haredevil Hare” (1948). Marvin the Martian descends, as his name indicates, from the planet Mars. He is a short, stout Martian, dressed in a kind of green Roman soldier’s uniform, with a helmet on his head. The brush on this helmet should symbolise/make thinking of a Greek or Roman centurion’s helmet.2 Besides these external specificities, he is obsessed with a plan to destroy the Earth. Indeed, Marvin was created with an opposite type of character to Bugs Bunny: Marvin, quiet soft-spoken, with a nasal accent with which he often explains his technical performance (speaks technobabble) but with tremendously destructive actions. Marvin is accompanied by his dog K9 and sometimes also brings his “instant Martians” with him: candy-sized creatures which become full size when drops of water are thrown on them. His famous phrases are: “Where’s the kaboom? There was supposed to be an Earth-shattering kaboom! Isn’t that lovely?” “This makes me very angry, very angry indeed.” For the following analysis, the most famous films of the 1940s to the 1960s like “Haredevil Hare” (1948), “The Hasty Hare” (1951), “Duck Dodgers in the 24 ½th Century” (1953), “Hare Way To The Starts” (1958) or “Mad as a Mars Hare” (1963) will be taken into account. As various actions are repeated in some of the mentioned movies, the legal analysis is not done for each film, but by an overview of the facts. II.

Application of Earthly International Space Law

Before starting to analyse the most prominent actions in the light of (earthly) international law, the question about the applicability of earthly international space law on the actions in outer space has to be raised. Even if Marvin the Martian and Bugs Bunny are not human beings, the analysis will in this particular case nevertheless undergo in the light of earthly international space law and consider these cartoons as real human beings. Indeed, these cartoon characters are acting like humans. Therefore they will be considered in the

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2

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At the beginning of his appearance, he was not named Marvin (in the film “The Hasty Hare” (1952) he was just called “Commander Flying Saucer X-2”) (See: http://looneytunes.wikia.com/wiki/Marvin_the_Martian_(character)). “That was the uniform that Mars wore: that helmet and skirt. We thought putting it on this ant-like creature might be funny. But since he had no mouth, we had to convey that he was speaking totally through his movements. It demanded a kind of expressive body mechanics”, http://looneytunes.wikia.com/wiki/Marvin_the_Martian _(character).

BUGS BUNNY AND DAFFY DUCK VS. MARVIN THE MARTIAN

following as subjects of earthly international law. Thus their activities can be analysed in order to “avoid” any potential harm for planet Earth and the whole universe. Moreover, Bugs Bunny and Daffy Duck are sent in the movies – voluntarily or not – from the Earth to outer space and its celestial bodies. It can be deducted from the circumstances that they are earthlings. Instead Marvin pretends to come from Mars. Nevertheless, the cartoon character Marvin has been “launched” (conceived) like Bugs Bunny and his friends by US American film studios so that, in a very special broad way, the country of the film studio concerned may be considered as the “launching state”. Therefore in the light of international space law, various important aspects of the space exploration activities of Bugs Bunny et al. and their fight against Marvin have to be analysed. III.

Peaceful Use of Outer Space

In the first sequence of “Haredevil Hare”, the audience can see a part of a rock on the Moon on which is engraved “Kilroy was here”. This engraving in English must originate from human beings. Even if art. I Outer Space Treaty (OST)3 grants the right of freedom of exploration and use (freedom of access), this granted right must be exercised “for the benefit and in the interest of all countries” (art. I-1 OST). Moreover art. IX OST stipulates to protect outer space environment requiring that the exploration of the celestial bodies should be conducted in a way that “their harmful contamination […] resulting from the introduction of extraterrestrial matter”4 be avoided. But what is the meaning of “harmful contamination”? Does harmful contamination only mean “contamination” or any degradation of environment like this gravure? Space activities should be carried out with the highest possible diligence to avoid any harmful interference, deliberate or unintentional alike. Even if this gravure is not endangering at first glance an experiment or programme of another state, nevertheless it constitutes a “damage”, a deterioration of the intact environment of the Moon. Additionally reference has to be made to art. IV of the Moon Agreement5 which advocates for the principle of “Province of All Mankind”. This article stipulates that “the exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries”.6 Even if the Moon Agreement was only signed and ratified by a few countries, it gives an idea about

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4 5 6

UN Outer Space Treaty “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967). Article IX Outer Space Treaty. UN Moon Agreement “Agreement Governing the Activities of States on the Moon and Other Celestial Bodies” (1979). Art. 4 Moon Agreement.

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the way space exploration should be undertaken: in “the benefit and in the interest of all countries”. Therefore it is questionable if this gravure is in the benefit and interest of all countries – presumably not! IV.

Marvin’s Various Attempts to Destroy the Moon or the Earth

The same is true for the explosive substance which Marvin is using for its attempts to destroy the Earth and the following conflict between Bugs and him to get in possession of this explosive stick. Even though Bugs gets the stick in his hand, a big detonation follows on the Moon which blasts away half part of the Moon. It has even lost most of its round shape and become a crescent moon. This intervention represents a serious infringement of international space law. The Outer Space Treaty stipulates in art. I that “the exploration and use of outer space, including the Moon […], shall be carried out for the benefit and in the interest of all countries”.7 Already the exploitation of natural resources of a celestial body in a way that the celestial body is “consumed” and doesn’t exist anymore, is not considered to be “for the benefit and in the interest” (art. I) of all states.8 Consequently, the half destruction of the Moon is, by far, also not in the interest of all countries. Moreover, art. II OST disposes clearly that “outer space, including the moon […], is not subject to national appropriation by […] means of use […] or by any other means”.9 This destruction as kind of harmful “use” of the Moon, can be considered as an appropriation. Only with someone’s own property such an intervention may be undertaken. But appropriation of any celestial body is not allowed by international space law as is demonstrated in detail below. Moreover Marvin is obsessed by the idea to destroy the Earth. His epic phrases are “The Earth will be gone in just a few moments!” This threat is just commented on by Bugs with “Why?” which is followed of the retort from Marvin: “It obstructs my view of Venus!”. He wants to destroy the Earth with an “Earth-shattering kaboom”. This Earth-shattering kaboom consists of a device in form of a stick of dynamite and is also called “Illudium Q-36 Explosive Space Modulator” which used to be named at the beginning of his space exploration “Uranium Pu-36”. In order to underline the destructive forces of this device, Marvin always mentions that he had completed over two thousand years of research to create this weapon. Furthermore, he over-enunciates the name of this weapon to make clear the type of weapon he is speaking to avoid any confusion and to give him the appearance of a kind of miracle weapon. This intention of Marvin to blow up the Earth because it “affects” his view of Venus is against art. I OST “use of outer space in the

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Art. 1 OST. Cf. Hobe/Schmidt-Tedd/Schrogl, Cologne Commentary on Space Law, Vol. I, 2009, p. 53. Art. 3 OST.

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benefit and interest of all countries” and art. II OST “non-appropriation”. It may also be considered under the aspect of “non-militarisation” of outer space as it will be alleged in the following paragraph. V.

Non-Militarisation of Outer Space and Celestial Bodies

Another short movie sequence highlights the problem of militarisation of outer space. The audience can see Marvin the Martian who has aligned its telescope/spy-glasses in direction to the Earth. He holds in his hands an explosive material, ready to be launched in direction to the Earth. Just in time, Bugs Bunny comes along, sees the menace for the Earth, takes the explosive material out of the hands of Marvin and extinguishes the already burning string of the explosive substance. As already stated, art. I OST requires that the “exploration and use of outer space, including the Moon […] shall be carried out for the benefit and in the interest of all countries”. Moreover, art. IV OST stipulates that “States parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”10 Even if we don’t know exactly the composition of this explosive sticks, – the Illudium Q-36 – it seems nevertheless that its material has unspoken destructive capacities as Marvin makes use of it to launch it on Earth to destroy the Earth. Therefore, it can be considered as a weapon of mass destruction which is not allowed to be installed on the Moon or in outer space. Moreover, art. IV-2 OST disposes that “the Moon […] shall be used by all States Parties to the Treaty exclusively for peaceful purposes. […] The testing of any type of weapons […] shall be forbidden”.11 The actions of Marvin cannot be considered at all as having “peaceful purposes”. Even if Marvin “only” wanted to test his magical sticks, this kind of testing of his Earth-shattering kaboom is clearly not allowed. VI.

Non-Appropriation of Celestial Bodies

In the film “Mad as a Mars Hare”, Bugs is sent by a rocket to Mars claiming, by planting his flag on the ground, Mars as his own in the name of the Earth. As Marvin does not agree with this and with the fact that Bugs wants to take his planet away from him, the battle between these two starts. The same action is undertaken in “Duck Dodgers in the 24 ½ th Century” in which Daffy Duck is fighting the same battle for space territory. He comes first on the scene and is planting his flag on the ground by saying “I claim this planet in the name of the Earth”. Then Marvin arrives in his Martian Maggot rocket

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Art. IV-1 OST. Art. IV-2 OST.

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and claims the planet in the name of Mars by also planting his flag in the ground “I claim this planet in the name of Mars! Isn’t that lovely?” This is the beginning of a fight between these two cartoon characters as they both pretend that there is not enough room on this planet for both of them. However art. II OST resolves this conflict very easily as “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. Therefore the planting of their respective flags on the ground of this planet is nothing more than a nice gesture without any legal implications – like the planting of the flag by the US astronauts on the Moon. VII.

Registration of Spacecrafts and Aspects of Responsibility and Liability

A further question arises with the appearance on the screen of the diverse cartoon characters with their respective spacecrafts. The audience can see a flying object (a kind of mix between rocket and plane) with the inscription “Mars to Moon Expedition” belonging to Bugs. Marvin is also presented in various films with a number of spacecraft, sometimes with an interstellar flying saucer or other spacecraft. But it is widely questionable if Marvin’s space endeavours have a peaceful purpose. Meanwhile Bugs Bunny’s space object has the inscription “Mars to Moon Expedition”, one of Marvin’s spacecraft is named “V16”. Therefore the question arises if this flying object “V16” has a peaceful purpose or, rather, is part of military equipment as the “V16” may make allusion to the former Nazi rocket V1 and V2 program. However, for all spacecraft the question of registration has to be raised as art. VIII OST stipulates that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”.12 Moreover art. II-1 Registration Convention (REG)13 asks to establish and maintain a national registry14 of space objects. Even if we do not know the exact details of these crafts and the expression “object launched into outer space” is a very wide terminology, generally every object launched into outer space in order to explore or use outer space is considered as a space object.15 Moreover, art. VIII-1(1) OST makes no difference between objects launched by States or private entities as may be in the case of Bugs’ craft. This space

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Art. VIII OST. UN Registration Convention “Convention on Registration of Objects Launched into Outer Space (1976). This national registry has not to be confound with the UN Register of Objects launched into Outer Space. Cf. Hobe/Schmidt-Tedd/Schrogl, Cologne Commentary on Space Law, Vol. I, 2009, p. 150.

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object may be “launched” by its private movie company. Moreover, art. I lit. c REG precise that the “State of registry” means a “launching State” which has registered the concerned space object. Art. I lit a REG and art. VII OST are stipulating the four criterions of a “launching State”. Therefore even if the private company had launched Bugs Bunny’s spacecraft into orbit (presumably the Warner Brothers Film studios), and the territory of facilities from which the rocket is launched is unknown, the US can be considered as the launching state as one of its private companies, the Warner Brothers Film studios have at least procured the launch of this space object. This applies to the case for Bugs’ spacecraft (the launch of which was procured by the film studios) and for the launch of Marvin’s spacecraft. Thus, for both spacecraft the US may be considered as the launching state. Furthermore this art. VII OST is an important aspect as it allows one to establish the link between a State’s international responsibility for its national activities and its international liability for damage caused by its space objects. “Each state Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each state Party from whose territory or facility an object is launched, is internationally liable for damage to another State party […] or to its natural or juridical persons by such object.”

Concerning the damage resulting from the actions of these space endeavours, the US may be held responsible and liable. VIII.

Space Traffic Management

In the movie “Hare-Way to the Stars”, Bugs is launched into space in a kind of rocket. Shortly after his launch, he is hit by the Sputnik satellite. Moreover, another movie presents the race/battles between the two spacecraft of Bugs and Marvin. Marvin’s spacecraft is approaching from the rear to the spacecraft in which Bugs and Daffy Duck are sitting. Therefore these movies are already raising space related questions like space traffic management. The intense and close contact between the various spacecraft of the acting characters reveals once more the importance and need for a space traffic management. The film was produced decades ago (the flying space objects look therefore more like planes) but it has nothing lost from its actuality that need for space traffic management. The international community has therefore to agree upon rules which should guide the traffic in outer space. IX.

Conclusion: Further Developments

In “A Christmas Carol” Marvin is working as an employee in Daffy Duck’s “Lucks Duck Super Store”. Homesick for his planet, he wants to go home to Mars for Christmas, but his boss Daffy Duck does not let him take holidays

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off, as Marvin is foreseen to take over the Christmas shift. Moreover, Marvin continues to threaten that he wants to destroy the Earth. After the visit of the Christmas ghost by Daffy, he changes his mind and generously lets Marvin leave for Christmas. Moreover he even gives Daffy a rocket which is faster than the speed of light, thus enabling him to reach Mars by yesterday – allowing him to be in time for the Christmas festivities. This film allows a view into the future and predicts a way how possible problems might be resolved. Additionally, it is a good gesture that Daffy grants Marvin his Christmas holidays even if he threated that he would destroy the Earth. Moreover, with the decades and perhaps thanks to the influence of Marvin’s contacts with earthlings, he changes his character; he even turns into a character that saves the Earth. In the computer game “Marvin the Martian vs. Mars Attacks Invasion” it is up to Marvin to save the Earth from Martian impostors. Generally the movies are reflecting very well the fear and the new topics/technical possibilities of their times (upcoming space technologies, possible accident with a space object/satellite etc.). Therefore it is quite understandable that the international community in a very short time agreed upon new rules which have to regulate this new domain. Therefore the Outer Space Treaty was considered as a kind of Magna Charta, to secure and regulate this upcoming new technology, [...] the beginning of space law!

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The Meaning of Life and Close Encounters of the Commercial Kind George Anthony Long*

Abstract Science fiction abounds with contact and interaction between humans and extraterrestrial life. In science fiction any such contact or interaction is known as a “close encounter.” With non-state actors now becoming a staple in the exploration and use of space, if extraterrestrial life exists, then the percentages increase that there will be a close encounter between non-state actors and extraterrestrial organisms, especially at the microbial level. The possibility of contact with extraterrestrial microbes from asteroid mining or other commercial space activities is a potential reality given the discovery of microbial organisms on the exterior of the International Space Station. This paper will analyze the space law principles which may impact and govern the intentional contact and interaction between non-state actors and extraterrestrial microbes by an analysis of the subplot in the movie Aliens starring Sigourney Weaver. The Outer Space Treaty of 1967 does not establish protocols governing contact with any type of extraterrestrial life. For instance, Article V of the treaty requires immediate notification be given concerning the discovery of “any phenomena” which could pose “a danger to the life and health of astronauts.” Outer Space Treaty Article IX obligates the conducting of space activities in such a manner so as to avoid “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and where necessary, shall adopt appropriate measures for this purpose.” Article 5(3) of the Moon Treaty, on the other hand, specifically references the duty to disclose “any indication of organic life,” but it does not place any restraint or limitation on an encounter with NTMs or the performing tests and experiments on NTMs. Aliens involve a terrorizing encounter between humans and an extraterrestrial bio form. An underlying plot of Aliens concerns the manipulation by the corporate owner of a commercial spacecraft to capture the alien life form and transport it to Earth so it can be studied and examined. Accordingly, the movie presents a scenario for exploring what legal duties space law imposes on corporate commercial interests relating to the discovery of, contact with and experimentation on extraterrestrial microbes. The analysis will also include a brief discussion on what constitutes extraterrestrial life.

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Fountain Hills, AZ United States, [email protected].

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I.

Introduction

In the realm of science fiction the phrase “close encounter” refers to the level or degree of human exposure to a nonterrestrial life form. Those who believe in an alien visitation to Earth have generally divided human encounters with a nonterrestrial life form into seven categories.1 A close encounter of the first kind means sighting of mechanical or technology evidence of a nonterrestrial life form.2 The second kind occurs when physical manifestation of nonterrestrial life is observable in or on animate and/or inanimate objects, with the third kind being optical observation of a nonterrestrial life form.3 A close encounter of the fourth kind is said to occur when a human is abducted for experimentation or any other purpose while a close encounter of the fifth kind is human communication with a nonterrestrial.4 Death or injury resulting from an encounter of any kind with an alien is said to be a close encounter of the sixth kind.5 Lastly, intimate relations with a nonterrestrial life form is said to be a close encounter of the seventh kind.6 Generally, these various stages are premised on the existence of an intelligent or sentient carbon based multi-celluar nonterrestrial organism. Nevertheless, close encounters of the second, third, and sixth kind can apply with respect to human contact and interaction with insentient nonterrestrial life such as microorganisms, commonly referred to as microbes, provided such life forms exist.7 At this point, it should be noted that the scientific odds are greater regarding the existence of and an encounter with a nonterrestrial microbe (“NTM”) than an intelli-

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Lynette Alice, The 7 Classes of Extraterrestrial Close Encounters, available at www.actforlibraries.org/the-7-classes-of-extraterrestrial-close-encounters/ (last visited on Sept. 22, 2015). Christine A. Corcos, Visits to A Small Planet: Rights Talk in Some Science Fiction Film and Television Series from the 1950s to the 1990s, 39 Stetson L. Rev. 183, 185 n. 6 (2009). Id. See S.P.S. Jain, “What're close encounters of the first, second, third, fourth and fifth kind?” The Times of India, March 22, 2003. Alice, supra note 1. Id. A “microorganism is a life form that requires magnification to See and resolve its structure. Microorganisms at 1-2, encyclopedia.com, www.encyclopedia.com/topic/Microorganisms.aspx (Last visited on September 29, 2015). See What is a Microbe, www.microbeworld.org/what-is-a-microbe (last visited on Sept. 29, 2015). are the oldest form of life known. Id. Most microbes are unicelluar. Id. Commonly known microbes include bacteria, yeasts, molds, protozoa, algae, rickettsia and viruses. Id. A virus is different from other microbes in that it does not have DNA or RNA and can not live or replicate on its own, instead it uses the genetic and metabolic processes of a host to replicate. Id. Rickettsia are similar to viruses in that it can only grow and multiply inside other living cells. Id. Microbes which cause or transit a disease are referred to as pathogens. Id.

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gent multi-celluar nonterrestrial life form.8 As Stephen Hawking has aptly noted, “[p]rimitive life is very common and intelligent life is fairly rare.”9 Given the ascending participation of non-state actors in the commercialization of space, if NTMs exist, then the possibility arises that a non-state commercial entity may very well discover, stumble upon or otherwise learn of NTMs while engaging in space activities. Such an awakening can occur by noticing chemical or biological traces of an NTM embedded in the soil, dust, rocks, or other non-organic matter extracted from an asteroid, comet, moon, or planet.10 An encounter can also happen if a living NTM is observed while examining or testing the soil, dust, rocks, or other non-organic matter extracted from an asteroid, comet, moon, or planet. The opportunity for a potential encounter with an NTM will substantially increase once commercial space activity such as asteroid mining or a Mars settlement comes into fruition. If a non-state actor encounters an NTM, then the occurrence presents an economic potential that may prove to be just as valuable as the elements and minerals being extracted from a commercial operation on a Solar System body. Such an additional financial opportunity arises from the possibility of obtaining intellectual property rights derived from an NTM.11 This presents the issue of what legal obligations a non-state actor has if it encounters an NTM while engaging in commercial space activities. This paper will explore the space law parameters associated with a non-state actor encountering an NTM while engaging in a commercial space activity and subsequently desiring to study and examine the NTM to determine if it has any potential economic value. In doing so, the paper will initially draw upon the factual background in the science fiction film Aliens12 to give some context to the analysis.

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Stephen Hawking, Stephen Hawking on Non-Carbon-Based Alien Life” dailygalaxy.com, (March 18, 2011) www.dailygalaxy.com/my_weblog/2011/05/stephenhawking-on-non-carbon-based-alien-life.html Indeed, if there are or if one believes that an intelligent multi-celluar life form exists on a celestial body other than Earth, then logic dictates that there are also nonterrestrial microbes. Even more so, given the complexity and temporal expanse needed for multi-celluar life to develop, it seems the scientific odds rests with the discovery of nonterrestrial microbial life rather than multi-celluar life forms. Id. This is the type of analysis being conducted by the Mars Rover. See Ian Sample, “Nasa Curiosity rover tests suggest life may have existed on Mars,” theguardian.com, March 13, 2013, www.theguardian.com/science/2013/mar/12/nasacuriosity-mars-rover-rock-samples. See supra at 2-4. A 20th Century Fox film directed by James Cameron released on July 18, 1886.

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The Factual Scenario of Aliens

II.

Aliens is a sequel to the 1979 film Alien.13 The subplot to Aliens involves a conglomerate named Weyland-Yutani which engages in commercial space activities such as mining and terra-forming. The crew of a Weyland-Yutani space cargo vessel named Nostromo first learned of and had initial contact with a nonterrestrial life form after it landed on an unsurveyed planet designated as LV 426. This initial encounter with the nonterrestrial life form is depicted in the film Alien, in which a Nostromo’s crew member named Ripley was the sole survivor. To escape the life form and prevent it from reaching Earth, Ripley, overloaded the Nostromo’s engines causing it to explode. Prior to the explosion, Ripley evacuated the vessel in one of its “life boats.” Ripley faced a legal inquest on her actions upon her return to Earth. A period of 57 years transpired between the Nostromo’s encounter with the nonterrestrial life form and Ripley’s return to Earth.14 During this time frame, Weyland-Yutani, in partnership with a governmental entity, had established a terra forming colony on LV 426. Weyland-Yutani’s survey of LV 426 prior to undertaking the terra forming operation did not uncover any indigenous life forms on the planet. Following a legal inquest on Ripley’s decision to destroy the Nostromo, Weyland-Yutani lost communication with the terra forming colony. Weyland-Yutani apparently determined that if Ripley’s account of the nonterrestrial life form was true, then it wanted to capture the life form and return it to Earth for purposes of performing scientific and industrial examination and analysis to ascertain whether it presented any economic value. The company’s secret plan was embedded within a governmentsupported mission to determine the fate of the terra forming colonists. As part of the company’s plan, it sent a representative on the mission as an observer given the financial stake it had in the terra forming operation. Ripley accompanied the mission as an advisor and initially lacked knowledge of Weyland-Yutani’s intentions. Ripley wanted to ensure the eradication of the unnamed life form. One point of high drama in the film was the means by which Weyland-Yutani’s agent intended to smuggle the nonterrestrial life form through quarantine upon returning to Earth.15

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A 20th Century Fox Film directed by Ridley Scott released on May 25, 1979. The distance of LV 426 from Earth required Ripley to go into hypersleep onboard the “lifeboat” she used evacuate the Nostromo prior to destroying the expansive cargo vessel in order to eradicate the alien life form that had killed her fellow crew members. The non terrestrial life form replicated by using other life forms as a host for its embryos. The plan was to impregnate Ripley an another female with the alien seed and smuggle the nonterrestrial life form back to Earth in their bodies. The nonterrestrial off-spring would be preserved by placing the “infected” persons into hypersleep for the return to Earth.

THE MEANING OF LIFE AND CLOSE ENCOUNTERS OF THE COMMERCIAL KIND

Although Aliens concerns an intelligent, non-microscopic multi-celluar life form, it nevertheless provides an ample setting for the relevant legal considerations associated with a non-state actor encountering an NTM during a commercial space activity. The nonterrestrial life form in Aliens presents a good metaphor for NTM similar to a virus or rickettsias given the manner of its replication.16 This paper will analyze the existing rudimentary space law framework in the context of a non-state commercial actor encountering an NTM, which is a potentially realistic 21st Century scenario. It is meant to further engage thought and consideration to the necessity for international agreement on binding parameters and protocols relating to a non-state actors discovering, studying, testing and/or modifying NTMs. III.

Intellectual Property Rights and NTMs

Biotechnology is a growing and sophisticated frontier industry. “After information technology, biotechnology is increasingly recognized as the next wave in the knowledge-based economy.”17 Biotechnology is the alteration of the “processes of life at the molecular level in order to yield new products and applications.”18 In other words, biotechnology uses “organisms or parts of organisms to make or modify products, to improve plants or animals, or to develop microorganisms for specific uses.”19 Biotechnology is not new as it has been present at a fundamental level since the “dawn of civilization when humans first began to systematically use microorganisms to ferment beer, leaven bread, or curdle milk into yogurt and cheese.”20 Moreover, biotechnology also includes the traditional breeding techniques used to improve plants and animals.21 Now, technology allows the manipulation of microorganisms, plants and animals at the celluar or molecular level. This technological advance allows for the development and enhancement of products and processes in diverse industries including pharmaceuticals,22 food,23 fuel,24 and environ-

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See Id and Note 7. Esteban Burrone, Patents at the Core: The Biotech Business, World Intellectual Property Organization available at www.wipo.int/sme/en/documents/patents_biotech_ fulltext.html (last visited Sept. 21, 2015). Alvin R. Chin”The Misapplication of Innovation Market Analysis to Biotechnology Mergers,” 3 Boston University Journal of Science & Technology, 6, 6 (1997). Insoon Song, Old Knowledge into New Patent Law: The Impact of United States Patent Law on Less-Developed Countries, 16 Ind. Intl. & Comp. L. Rev. 261 (2005). Dan L. Burk, “Misappropriation of Trade Secrets in Biotechnology Licensing,” 4 Albany Law Journal of Science & Technology, 121, 133 (1994). Thomas Connor, Genetically Modified Torts: Enlisting the Tort System to Regulate Agricultural Contamination by Biotech Crops, 75 University of Cincinnati Law Review, 1187, 1190 n. 16 (2007). Randy Berholtz, Richard H. Schurman, Vince Davies, Katherine MacFarlane, Derek & Midkiff, Sumant Pathak, “Where to File: A Framework for Pharmaceutical and

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mental preservation processes.25 The manipulation is of genetic material found in animals, plants, and microorganisms.26 In science, there is no distinction between the molecular manipulation of plants or animals.27 Biotech advocates assert that advancements in biotechnology are probably the single most important immediate economic benefit of the space industry as it can lead to very profitable returns as well as provide humanitarian value.28 The economic potential for biotechnology is apparent given that in 2011, the biotech industry generated revenues of more than $ 83.6 billion.29 The United States is the industry leader as the majority of biotech research is conducted there, the most venture capital for biotech research originates in the United States and the United States has the largest commercial market for biotechnology.30 The core of the biotech industry rests on patents.31 In the United States, patent protection is generally available for products or processes derived from all levels of life except for humans.32 Indeed, the United States Supreme Court has ruled that when Congress enacted 35 U.S.C. §101, it intended to “‘include anything under the sun that is made by man,” ‘including the modification of microorganisms, as being within the scope of

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Biotechnology Companies to Develop an International Patent Filing Strategy,” 37 Thomas Jefferson L. Rev. 225 (2015). Robert C. Bird & Daniel R. Cahoy, Human Rights, Technology, and Food: Coordinating Access and Innovation for 2050 and Beyond, 52 Am. Bus. L.J. 435 (2015). Nathan K. Shrewsbury, Patentability of Living Matter Related to Biofuel Production in the U.S., 6 Oklahoma Journal of Law & Technology 46 (Oct. 2009). Diamond v. Chakrabarty, 447 U.S. 303, 100 S.Ct. 2204 (1980)(case involving genetically engineered bacterium capable of breaking down crude oil). Michael Woods, “Food for Thought: The Biopiracy of Jasmine and Basmati Rice, 13 Albany Law Journal of Science and Technology” 123, 128 (2002). Susan J. Timian & D. Michael Connolly, The Regulation and Development of Bioremediation, 7 Risk: Health, Safety and Environment 279, 289 n. 42 (1996) quoting National Academy of Sciences, Field Testing Genetically Modified Organisms: Framework for Decisions (1989) [“[N]o conceptual distinction exists between genetic modification of plants and microorganisms by classical methods or by molecular methods that modify DNA and transfer genes.”]. See Ty S. Twibell, Space Law: Legal Restraints on Commercialization and Development of Outer Space, 65 UMKC L. Rev. 589, 627-28 (1997). William D. Sprott, “From Pine Straw to Cdna: The History of the “Product of Nature’ Doctrine,” 14 Houston Business & Tax Law Journal,” 290, 291 (2014). Omid E. Khalifeh, “The Gene Wars: Science, the Law and the Human Genome,” 9 Loyola Law and Technology Annual 91, 123 (2009-2010). Esteban Burrone, supra note 17. See David C. Hoffman, Note, A Modest Proposal: Toward Improved Access to Biotechnology Research Tools by Implementing a Broad Experimental Use Exception, 89 Cornell L. Rev. 993, 1022 (2004) (“For many [biotech] companies, a patent portfolio is the only potentially lucrative asset available for exploitation. Robert C. Bird & Daniel R. Cahoy, supra note 23, 52 Am. Bus. L.J. at 453.

THE MEANING OF LIFE AND CLOSE ENCOUNTERS OF THE COMMERCIAL KIND

patent law.33 For example, a patent on microbial life forms can be obtained by showing genetic modification or purification.34 Genetic modification, also known as genetic engineering, is the modification of an organism’s DNA genome, transferring genetic material from one organism to another species or cloning.35 Purification is referred to as the isolation of a microorganism from its natural environment.36 The rationale for allowing a patent for “a purified form of a naturally occurring microbe is that a microbe does not exist in an isolated state in nature.”37 The United States is not alone in allowing patents on microorganisms. The European Patent Office allows issuance of a patent for “any inventions which are susceptible of industrial application, which are new and which involve an inventive step.”38 This requires an invention to be novel, industrially applicable and comprised an inventive step to be eligible for a patent.39 However, since European law was unclear regarding biotech patents, in 1998 the European Union issued Directive 98/4440 which was designed to provide legal protection for biotechnological inventions.41 China does not allow patents on life forms,

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Chakrabarty, 447 U.S. at 309, 100 S.Ct. 2204. Section 101 reads as follows: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Shrewsbury, supra note 24, 5 Okla. J. L. Tech. at 46–47. See Dr. Andrew W. Torrance, Intellectual Property As the Third Dimension of Gmo Regulation, 16 Kan. J.L. & Pub. Policy 257, 267 (Spring 2007); Timian & Connolly, 7 Risk: Health, Safety and Environment at 289 n. 42. Shrewsbury, supra note 24, 5 Okla. J.L. Tech. 46. Id. Although purification is recognized by the U.S. patent office as a basis for obtaining a patent on a microorganism, this approach is not well received by some scholars as isolating microbes is essentially plucking the microbes “from their surroundings” rather than being altered by human hands. Cliff Brazil, You Didn't Build That: The Case Against Patentability of Isolated Organisms, 63 University of Kansas law Review 761, 762 (2015). Jerzy Koopman, The Patentability of Transgenic Animals in the United States of America and the European Union: A Proposal for Harmonization, 13 Fordham Intellectual Property Media & Entertainment Law Journal 103, 146 (2002) quoting Convention on the Grant of European Patents, Art. 52(1), October 5, 1973, 1065 U.N.T.S. 199. Id., at 146. Council Directive 98/44/EC, 1998 O.J. (L 213) 13 (EC). Koopman, supra note 38, 13 Fordham Intell. Prop. Media & Ent. L. J. at 145. While biotech patents remain valid under European law, it is unsettled as to the limits or parameters of after the patents after the 2010 decision in issued by the Court of Justice of the European Union in Monsanto Technology LLC v. Cefetra BV, 2010 ECJ EUR-Lex LEXIS 396 (Jul. 6, 2010) which limited a DNA based patent to the functionality of the DNA at the time of the alleged infringement. Id.

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but allows the patenting of genes.42 While India allows patenting of genetic materials, it is unclear if a patent can be obtained on genes.43 Thus, the majority of the space faring governments treat biotech products as intellectual property subject to patent protection. 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”)44 which is the cornerstone for space law, is silent about intellectual property rights and does not provide any express protection for such rights.45 Patent rights and protection, therefore, rest in Outer Space Treaty Article VII which grants a State jurisdiction and control over a space object that it launches.46 Based on Article VIII, the United States enacted domestic legislation extending its patent jurisdiction and coverage to outer space.47 The essence of the statute provides that “[a]ny invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.”48 The statute further provides that “[a]ny invention made, used or sold in outer space on a space object or component thereof that is carried on the registry of a foreign state” shall be deemed to be made, used or sold within the United States if so provided in an agreement between the United States and the foreign state.49 This statutory provision is consistent with the intellectual property rights provisions contained in Article 21 of the Agreement Among The Government Of Canada, Governments Of Member States Of The European Space Agency, The Government Of Japan, The Government Of The Russian Federation, And The Government Of The United States Of America Concerning Cooperation On The Civil International Space Station (“1998 ISS Agreement.”)50

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Molly Jamison, Patent Harmonization in Biotechnology: Towards International Reconciliation of the Gene Patent Debate, 15 Chicago Journal of International Law 688, 699 (2015). Id. Entered into Force Oct. 10, 1967, 18 UST 2410; TIAS 6347; 610 UNTS 205; 6 ILM 386 (1967). Leo B. Malagar and Marlo Apalisok Magdoza-Malagar, International Law of Outer Space and the Protection of Intellectual Property Rights, 17 Boston University International Law Journal 311, 360 (1999). Id. 35 U.S.C. §105(a) (2012). Id. The statute contains an exception based on a treaty provision which provides otherwise. 35 U.S.C. §105(b) (2012). Entered into force on March 27, 2001, T.I.A.S. No. 12, 927, State Dept No. 01-52, 2001 WL 679938.https://a.next.westlaw.com/Link/Document/FullText?findType =Y&pubNum=100856&cite=41INTLLEGALMAT1481&originatingDoc=Ied1be92

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Specifically, ISS Article 21(1) provides that “for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occurred only in the territory of the Partner State of that element’s registry [...].”51 Shortly after the effective date of the 1998 ISS Agreement, NASA and the Biotechnology Industry Organization entered into a Memorandum of Understanding (“MOU”) “to expand cooperation between NASA and the biotechnology industry.”52 The MOU53 not only symbolized the “convergence of space technology and biotechnology,” but it also recognized “the importance of biotechnology as an expanding industry with increasing significance for health care, agriculture, economics and space exploration.”54 Section 1 of the MOU recognizes that “[b]iotechnology research has been performed on the Space Shuttle and other platforms. The advent of the International Space Station (ISS) offers new opportunities for expanded research and commercial development.” Apparently, based on the MOU, in 2008 NASA and a space biotech company named Astrogenetix entered into a Space Act Agreement which granted Astrogenetix room for biotech experiments and projects on all remaining space shuttle missions until the shuttle’s retirement.55 Astrogenetix and NASA subsequently signed an additional agreement in 2011.56 Biotech research on the ISS has shown that the space environment induces key changes in microbial cells that are directly relevant to infectious disease.57 The changes include alterations of microbial growth rates, antibiotic resistance, microbial invasion of host tissue, genetic changes within a microbe, and

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136ed11db8382aef8d8e33c97&refType=NA&originationContext=document&trans itionType=DocumentItem&contextData=(sc.Search). Of course there are a few exceptions but none are relevant for purposes of this paper. The BIO and NASA – Expanding Biotech Cooperation in Space, available at https://www.bio.org/media/press-release/bio-and-nasa-expanding-biotechcooperation-space (last visted on Sept. 21, 2015). The Biotechnology Industry Organization “is the world's largest trade association representing biotechnology companies, academic institutions, state biotechnology centers and related organizations across the United States and in more than 30 other nations.” Id. A copy of the MOU is available at www.spaceref.com/news/viewpr.html?pid=8496 (Last visited on Sept. 23, 2015). Id. Corporate Overview, astrogenetix.com www.astrogenetix.com/files/agen/u1/ Astrogenetix_Overview_web.pdf (last visited Sept. 30, 2015). Nonreimbursable Space Act Agreement Between Astrogenetix, Inc., and the National Space Aeronautics and Space Administration, NASA for Utilization of the International Space Station as a National Lab available at https://www.nasa.gov/sites/default/files/files/SAA0-SOMD-11096_signed.pdf (last visited on Sept. 30, 2015). Tara Ruttley, International Space Station Plays Role in Vaccine Development, NASA.gov available at www.nasa.gov/mission_pages/station/research/benefits /vaccine_development_prt.htm (last visited on Sept. 21, 2015).

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organism virulence, which is the relative ability of a microbe to cause disease.58 Discovering the factors responsible for growth and virulence of bacteria contributes to the development of novel therapeutic treatments, including vaccines as well as biological and pharmaceutical agents aimed specifically at eradicating a particular pathogen.59 For instance, salmonella diarrhea is one of the top three causes of infant mortality in the world.60 Research and experimentation on the ISS with the Salmonella bacteria led to identifying specific targets for anti-microbial therapeutics to counter the pathogen. This has resulted in the discovery of a potential candidate vaccine for the pathogen which is currently in the planning stages for review and commercial development.61 Similarly, Streptococcus pneumonia is a bacterial pathogen that causes lifethreatening diseases, such as pneumonia, meningitis, and bacteremia.62 This organism causes more than 10 million deaths annually and is particularly dangerous for newborns and the elderly.63 Research is being conducted on the ISS to develop an enhanced vaccine for the pathogen.64 Biotech research on the ISS has now matured and diversified to the point where microbial experiments and research are the source of a “crowd funding” experiment known as Project MERCCURI which utilizes participation among “citizen scientists.”65 Project MERCCURI collects microbial samples from surface areas in various buildings and public venues. The microbes are then transported to the University of California-Davis which then sends a portion of the sample to the ISS and retains the balance in its laboratory. The growth rates of the microbes in the ISS’ micro gravity are then simultaneously compared to the growth of the corresponding microbes in the laboratory at the University of California-Davis.66 The experiment can be followed online as well as on social media.67 The apparent purpose of this project is to add to the body of knowledge concerning microbial life and possibly “advance future biological and pharmaceutical micro gravity research, which could help scientists better understand bacteria and improve treatments for afflictions caused by various pathogens” This project demonstrates that biotech research on microbial life has become a routine and pedestrian event in outer space.

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Id. Id. Id. Id. Id. Id. Id. Jessica Nimon, Project MERCCURI “Crowdsourced” Space Station Samples Take Flight, NASA.gov (March 12, 2014) available at https://www.nasa.gov/mission _pages/station/research/news/merccuri (last visited on Sept. 21, 2015). Id. Id.

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IV.

NTMs and Planetary Protection

Planetary protection is the phrase which refers to efforts to prevent biological cross contamination involving Earth and other solar system bodies from exposure to non-native microorganisms due to human use of outer space. This effort consists of preventing “backward contamination” and “forward contamination.” Backward contamination refers to Earth being exposed to a nonterrestrial microorganism brought back to the planet “in samples of soil, rocks, and other materials collected from extra-terrestrial bodies during scientific space exploration.”68 Forward contamination means exposing outer space and all celestial bodies, including all moons, asteroids, and comets with terrestrial microorganisms.69 The current planetary protection procedures place more emphasis on forward contamination than backward contamination as in the scientific community, planetary protection “usually means protecting other planets from contamination by microbes originating on Earth.”70 Some view this emphasis on forward contamination, rather than on backward contamination, as a misguided concern. One scholar has opined that: “[w]e must not be concerned about causing harm to outer space. It will destroy us much quicker than we would destroy it. We should be concerned about causing harm to ourselves by wasting the considerable and wonderful wealth we have received from Mother Nature.”71

This fundamental understanding of planetary protection provides some insight into the treatment of NTMs under current planetary protection measures. The Outer Space Treaty does not contain any reference to nonterrestrial life. Nevertheless, there is a consensus that Outer Space Treaty Article IX provides some guidance on an encounter with an NTM or planetary protection.72 The guidelines extend to non-state actors pursuant to Outer Space Treaty Article VI.73

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Molly K. Macauley, Flying in the Face of Uncertainty: Human Risk in Space Activities, 6 Chi. J. Intl. L. 131, 143 (2005). Id. Clara Moskowitz, New Bacterial Life-Form Discovered in NASA and ESA Spacecraft Clean Rooms, at 2, (Nov. 20, 2013) available at www.scientificamerican.com/article /bacteria-discovered-spacecraft-clean-rooms/ (last visited on Sept. 23, 2015). Jean-François Mayence, “Article IX of the Outer Space Treaty and the Concept of Planetary Protection: Toward a Space Environment Law” at 8. Jeb Butler, “Unearthly Microbes and the Laws Designed to Resist Them,” 41 Ga. L. Rev. 1355, 1376-1377 (Summer, 2007). Article VI imposes international responsibility on a State for its national’s activities in outer space. This essentially obligates a State to regulate and monitor the space activities of its nationals.

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Outer Space Treaty Article IX, which reads in relevant part, as follows: “[...] States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose”. (Emphasis supplied)

Article IX addresses forward contamination by obligating States to strive to avoid harmful contamination of celestial bodies other than Earth when engaging in space activities. It addresses backward contamination by requiring States to avoid causing “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter.” While Article IX at least recognizes the concern of backward contamination, it suffers from the common affliction of most space treaty provisions, vagueness. The lack of specificity is evident as neither Article IX nor any other Outer Space Treaty provision defines what constitutes “harmful contamination,”74 the phrase “adverse changes,” or specify the procedures to ensure the safe containment of nonterrestrial samples brought back to Earth.75 Likewise, Article IX fails to articulate “what ‘measures” might be “appropriate for preventing contamination.”76 Lastly, the generalized language Article IX employs does not mandate any specific State action.77 At best, Article IX establishes generalized guidelines that States should avoid backward contamination but delegates to each State the discretion to decide whether it should enact domestic laws prohibiting and enforcing such conduct. In other words, the Outer Space Treaty declines to exercise planetary protection measures at the international level. Rather, it delegates planetary protection authority to the State level. Scholarly debate exists over whether Outer Space Treaty Article III provides a legal basis for mandating planetary protection against backward contamination at the international level.78 Pursuant to Article III, outer space activities must be conducted in accordance with international law. This extension of international law to outer space is the genesis for the debate over whether the terrestrial international environmental law applies to space activities. The

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Patricia M. Sterns and Lesile I. Tennen, Exobiology and the Outer Space Treaty From Planetary Protection to the Search for Extraterrestrial Life, Proceedings of the Fortieth Colloquium on the Law of Outer Space 141, 145 (Amer. Inst. of Aeronautics and Astronautics 1997). Butler, supra note 72, at 1376-1377; Gérardine Meishan Goh, Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law, 87 Neb. L. Rev. 725, 738 (2009). Id. Butler, supra note 72, at 1376; Goh, supra note 75 at 738. See Butler supra note 72, at 1381-1384; Mayence, supra note 71, at 4-6; Sergio Marchisio “Protecting the Space Environment,” 46 L. Outer Space 9, 13 (2003).

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disagreement centers on Principle 21 of the 1972 United Nations Stockholm Declaration on the Human Environment (“Stockholm Declaration”)79 and Principle 2 of the 1992 United States Nations Rio Declaration on Environment and Development (“Rio Declaration”)80 apply to outer space activities. Stockholm Declaration Principle 21 and Rio Declaration Principle 2 each assert that pursuant to the United Nations Charter and principles of international law a State possesses the sovereign right to exploit its own resources in accordance with its own laws and “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” This language in conjunction with the contextual background for the two declarations suggests that the better legal position is that the declarations are limited to terrestrial activities and do not apply outer space activities and the prevention of backward contamination.81 In addition to the Outer Space Treaty, the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”)82 also contains language addressing backward contamination. First, unlike any other space treaty, the Moon Treaty expressly recognizes the potential for nonterrestrial life. Specifically, Moon Treaty Article 5(3) mandates that a State shall promptly inform the Secretary-General, as well as the public and the international scientific community, of any phenomena it discovers in outer space, including the Moon, which could endanger human life or health, as well as of any indication of organic life.”83 Additionally, Article 7(1) requires States to take “measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise.”84 Pursuant to Article 7(1), the Moon Agreement, as contrasted with the Outer Space Treaty, affirmatively obligates a State to enact backward contamination prevention laws. However, the Moon Agreement is “neither positive nor customary international law” since it has been ratified by only 13 States none of which are any of the major spacefaring States.85 Never-

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Declaration on the Human Environment, U.N. Doc. A/CONF.48/14 and Corr. 1, 11 I.L.M. 1416 (1972). UN Doc. A/CONF.151/26 (Vol. I), 31 I.L.M. 874 (1992). Butler, supra note 72, at 1381-1384. Entered into force July 1, 1984, 1363 UNTS 3; 18 ILM 1434 (1979). Since Article 5(3) uses the terms “phenomena” and “organic life,” this suggests that organic life is not a phenomena for purposes of the Moon Agreement. The Agreement does not articulate or explain what constitutes “harmfully affecting the environment. However, given Article 5(3)’s express reference to “organic life,” the word “otherwise” can reasonably be construed to include the possibility of contamination by nonterrestrial life, even though such a life form has not been not been scientifically proven to exist. Austin C. Murnane, The Prospector's Guide to the Galaxy, 37 Fordham Intl. L.J. 235, 264 (2013). See also Butler, supra note 72 at 1380.

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theless, the Outer Space Treaty and the Moon Agreement share some harmony in that neither establishes standards for planetary protection at the international level. They each delegate the promulgation of planetary protection measures to States. A significant point of divergence is that since the Outer Space Treaty is binding and the Moon Treaty is not binding law of any kind, space law lacks meaningful or significant report or disclosure obligations relating to the discovery of an NTM. Outer Space Treaty Article IX requires international consultation only when a State “has reason to believe” that an activity or experiment planned by it or by its nationals in outer space or on the Moon or other celestial body “would cause potentially harmful interference with activities of other States” use of outer space, the Moon or other celestial body for peaceful exploration. It does not require prior consultation for activities when a State “has reason to believe” a space activity may have backward contamination consequences. Article IX also allows another State to request prior consultation only when it “has reason to believe” that another’s space activity or experiment “would potentially cause harmful interference” with the peaceful use and exploration of space, the Moon and other celestial bodies. It does not allow another State to request consultation in connection with another’s planned activity or experiment on the basis of potentially harmful backward contamination concerns. Similarly, Outer Space Treaty XI provides that a State agrees “to inform” the United Nations Secretary-General, the public and the international scientific community, “to the greatest extent feasible and practicable, of the nature, conduct, locations and results” of its space activities. To the extent the “agreement” to disclose is mandatory, it is noted that the standard of “to the greatest extent feasible and practicable,” does not specify the timing, manner or details of any such disclosure.86 Accordingly, Article XI is deemed to establish a disclosure standard which “is sufficiently elastic to accommodate the withholding of proprietary business information which otherwise may be protected intellectual property.”87 This “withholding of proprietary business information” can potentially complicate formulating effective backward contamination measures associated with NTMs. V.

Planetary Protection at the State Level

V.1.

Initial Backward Contamination Measures

On July 16, 1969, the launch date of the Apollo 11 moon landing mission, the United States National Aeronautical and Space Administration (“NASA”) promulgated regulations to govern extraterrestrial exposure to prevent back-

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Leslie I. Tennen, Esq., Towards A New Regime for Exploitation of Outer Space Mineral Resources, 88 Neb. L. Rev. 794, 818 (2010). Id.

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ward contamination.88 The regulations were premised, in part, on the discretionary power authorized by Outer Space Treaty Article IX.89 Although NASA formally removed the extraterrestrial exposure regulations from the Code of Federal Regulations on April 26, 1991,90 examining the regulations will give some insight into the initial exercise of Article IX’s delegated authority. The extraterrestrial exposure regulations were promulgated to establish NASA’s “policy, responsibility and authority to guard the Earth against any harmful contamination or adverse changes in its environment resulting from personnel, spacecraft and other property returning to the Earth after landing on or coming within the atmospheric envelope of a celestial body.”91 Additionally, the regulations were meant to establish “security requirements, restrictions and safeguards that are necessary in the interest of national security.”92 The regulations did not apply to all NASA space missions. Instead they were limited to “all NASA manned and unmanned space missions which land or come within the atmospheric envelop of a celestial body and return to the Earth.”93 The regulations’ substantive content focuses on extraterrestrial exposure, quarantine, limited due process and the penalty for violating the regulations. The regulations outline two methods for extraterrestrial exposure. Such exposure occurs when “the state of condition of any person, property, animal or other form of life or matter whatever, who or which has” (1) directly touched or come within the atmospheric envelope of any other celestial body or (2) directly touched or “been in close proximity to (or been exposed indirectly to) any person, property, animal or other form of life or matter who or which has been extra-terrestrially exposed” by direct touch or coming within the atmospheric envelope of any other celestial body.94 NASA possessed the sole discretion to determine whether a “particular person, property, animal, or other form of life or matter, whatever” had been subject to extra-terrestrial exposure.95 Such a determination could be made “with or without a hearing.”96 The determination was not wholly arbitrary as it there had to be “probable cause to believe that such person, property, animal or other life form or matter” had experienced extraterrestrial exposure.97 A person, prop-

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14 C.F.R. §1211.100 – §1211.108 (1990) removal effective on April 26, 1991. 14 C.F.R. §1211.103(c) (1990) removal effective on April 26, 1991. 56 FR 19259. The public notice of removal stated that NASA “is removing 14 CFR Part 1211 since it has served its purpose and is no longer in keeping with current policy.” Id. 14 C.F.R. §1211.100(a) (1990) removal effective on April 26, 1991. Id at §1211.100(b) (1990) removal effective on April 26, 1991. Id at §1211.101 (1990) removal effective on April 26, 1991. Id at §1211.102(b)(1)&(2) (1990) removal effective on April 26, 1991. Id at §1211.104(a)(3) (1990) removal effective on April 26, 1991. Id. Id.

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erty, animal or other life form or matter determined to have been extraterrestrially exposed was subject to quarantine.98 Quarantine was defined as the “detention, examination and decontamination of any person, property, animal or other form of life or matter whatever that is extra-terrestrially exposed, and includes the apprehension or seizure of such person, property, animal or other form of life or matter whatever.”99 NASA possessed the discretion to determine the length as well as the terms and conditions of any such quarantine. NASA, however, did not possess the sole discretion to quarantine a person, property, animal or other form of life or matter that was subject to extraterrestrial exposure. The Department of Health, Education and Welfare and the Department of Agriculture also possessed the authority to quarantine provided the quarantine did not involve NASA astronauts, personnel, or property.100 If HEW or DOA decided to exercise its quarantine authority, then NASA would refrain from exercising its quarantine authority with respect to the same person, property, animal or other form of life or matter.101 If NASA quarantine’s, then any person subject to the quarantine would be given “a reasonable opportunity to communicate by telephone with legal counsel or other person of his choice.”102 However, NASA was prohibited from releasing any person, property, animal or other form of life or matter from the quarantine “without the prior approval” of NASA’s General Counsel and NASA’s Administrator.103 If the prior approval was denied or otherwise not obtained, then NASA could not release any person, property, animal or other form of life or matter from quarantine even if there was a court order or an order from any other authority to do so.104 In such an event, the person to whom any such court order or other order is directed would “if possible, appear in court or before the other authority and respectfully state his inability to comply, relying for his action upon this §1211.107.”105 Lastly, any person who willfully violated, attempted to violate, or conspired to violate any provision of the regulations or order issued pursuant to the regulations or who enters or departs from a quarantine station without proper authorization was subject to no more than one year imprisonment, or a $ 5,000.00 fine or both.106

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Id. Id., at §1211.102(b)(3) (1990) removal effective on April 26, 1991. Id., at §1211.105(a) – (c) (1990) removal effective on April 26, 1991. Id., at §1211.105(a) & (b) (1990) removal effective on April 26, 1991. Id., at §1211.105(b)(5) (1990) removal effective on April 26, 1991. Id., at §1211.107(a) (1990) removal effective on April 26, 1991. Id. Id., at §1211.107(b) (1990) removal effective on April 26, 1991. Id., at §1211.108 (1990) removal effective on April 26, 1991.

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V.2.

Current Planetary Protection Policy

Prior to the United States implementing the extraterrestrial exposure regulations, the Committee on Space Research (COSPAR) of the International Council of Scientific Unions had taken up the mantle of planetary protection.107 However COSPAR’s primary focus was, and apparently still is, on forward contamination rather than backward contamination. In the mid1960s and early 1970s COSPAR began issuing recommended protocols with the purpose of preventing forward contamination.108 NASA adopted the COSPAR procedures in a series of NASA Management Instructions and NASA Policy Directives (“NPD”).109 Subsequently, in the 1970’s when NASA’s focus shifted from the Moon to Mars in anticipation of the Viking Mars missions, NASA developed a renewed interest in planetary protection.110 This renewed interest in planetary protection arose out of a concern to “avoid contamination on introducing life from Earth into the Martian environment and thereby confounding analysis of the soils on the surface of Mars in looking for evidence of life.111 In other words, the concern was for forward contamination rather than backward contamination principally because the Viking missions were one way and did not involve a return to Earth of the spacecraft or of any soil or rock sample. To address the planetary protection concerns, in 1976 NASA established a Planetary Protection Office (“PPO”) to deal with contamination issues associated with the Viking missions to Mars.112 Since its formation, the PPO has become responsible for ensuring that every NASA related space mission implements the relevant planetary protection policies.113 The PPO, then and now, establishes its planetary protection policies, forward and backward, in conformity with COSPAR’s guidelines.114 Indeed, NASA explicitly acknowledges that its planetary protection policies are “well aligned” with COSPAR Planetary Protection Policy and consistent with Outer Space Treaty Article IX.115 The relevant policies exhibiting this alignment and

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Sterns and Tennen, supra note 74, Fortieth Colloquium on the Law of Outer Space at 142. See Sterns and Tennen, supra note 74, at 142. Id at 142-143. Macauley, supra note 68, 6 Chi. J. Int’l. L. at 144. Id. Brenda Koerner, Who’s our planetary protection officer?, slate.com (Aug. 20, 2004) available at www.slate.com/articles/news_and_politics/explainer/2004/04/your _planetary_protection_officer.html (last visited on Sept. 22, 2015). 113 Macauley, supra note 68, 6 Chi. J. Int’l. L. at 144. 114 Catharine A. Conley, Gerhard Kminek, and John D. Rummel, Planetary Protection and Article IX of the Outer Space Treaty at 4-5 available at www.spacelaw.olemiss. edu/events/pdfs/2010/galloway-conely-paper-2010.pdf (last visited on Sept. 22, 2015). 115 Office of Planetary Protection, nasa.gov available at http://planetaryprotection. nasa.gov/overview (Last visited on Sept. 22, 2015). See NASA Policy Instructions (“NPI”) 8020.7, NASA Policy on Planetary Protection Requirements for Human

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consistency are NPD 8020.7G: “Biological Contamination Control for Outbound and Inbound Planetary Spacecraft” and NASA Procedural Requirements (NPR) 8020.12D: “Planetary Protection Provisions for Robotic Extraterrestrial Missions.” 116 NASA is not alone in conforming its planetary protection policy with the COSPAR guidelines as the European Space Agency (“ESA”) also adheres to COSPAR’s guidelines,117 and has its own Planetary Protection Office.118 Other States have also adopted some aspects of COSPAR’s planetary protection policy into their own domestic legislation.119 Although some aspect or portion of COSPAR’s policy and guidelines have been adopted by the vast majority of space faring States, the adopted and implemented measures are voluntary and often vary among States.120 This lack of uniformity in State practice and the absence of a legal obligation to adopt any such measure precludes COSPAR’s policy and guidelines from being customary international law.121 Thus, COSPAR’s planetary protection measures are non binding and do not have the effect of law unless adopted, in some form, as part of a State’s domestic law. The current COSPAR Planetary Protection Policy, approved on October 20, 2002 and amended on March 24, 2011,122 divides all space missions into five categories.123 The categories are distinguished by (1) the degree of contact with a body in our Solar System other than Earth, including asteroids, comets and planetoids and (2) whether the space mission entails a return to Earth.124 Category I involves a mission to undifferentiated, metamorphosed asteroids125

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Extraterrestrial Missions at 2-3, (May 28, 2014) available at nodis3.gsfc.nasa.gov /OPD_docs/NPI_8020_7_.doc (last visited on Sept. 22, 2015). Id. NPI 8020.7, supra note 115, at 2; Butler, supra note 72, 41 Ga. L. Rev. at 1390 & 1393. Planetary Protection: Preventing Microbes Hitching To Space, space engineering and technology, esa.int www.esa.int/Our_Activities/Space_Engineering_Technology /Planetary_protection_preventing_microbes_hitchhiking_to_space. Gustavo Boccardo, Planetary Protection Obligations of States Pursuant to the Space Treaties and with Special Emphasis on National Legislations Provisions at 12-21, nyulawglobal.org, www.nyulawglobal.org/globalex/Planetary_Protection _Obligations_States.html (last visited Dec. 1, 2015). Id at 12. Id. Available at https://cosparhq.cnes.fr/sites/default/files/pppolicy.pdf (Last visited on Sept. 22, 2015). Butler, supra note 72, 41 Ga. L. Rev. at 1385. Id. “Undifferentiated, metamorphosed asteroids are those that were heated to temperatures of less than 1,000 K so that minerals did not segregate in a macroscopic way, but are also dehydrated (if ever hydrated in the first place) and were probably subject to temperatures at which biological materials could not survive.” U.S. National Research Council’s Space Studies Board, Evaluating the Biological Potential in Samples Returned from Planetary Satellites and Small Solar System Bodies: Frame-

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and Jupiter’s Moon Lo which do not contemplate a return to Earth.126 Missions in Category II concerns one way to worlds deemed sterile such as the Moon, Venus, Jupiter, Saturn, Uranus, Neptune, Pluto, Charon, Ceres, Jupiter moons Ganymede and Callisto, Saturn moon Titan, Neptune’s moon Triton, all comets, all Kuiper belt objects less then one-half the size of Pluto and certain Kuiper Belt objects which are larger than one-half the size of Pluto.127 Missions designated as Category III concern bodies which scientists speculate could harbor life but involve only a fly-by or orbiting observation and do not contemplate any landing or direct physical or mechanical contact with the body. Missions to Mars, the Jupiter moon Europa, and the Saturn moon Enceladus come within the scope of Category III.128 Category IV concerns missions involving direct physical or mechanical contact with a Category III body.129 Category IV also separates missions to Mars from missions to other Category III bodies by dividing Mars missions into three subcategories.130 Lastly, and most important for this paper, is Category V which encompasses a mission to any bodies which contemplate a return to Earth.131 A Category V mission is classified as either “unrestricted Earth return” or “restricted Earth return.”132 The concern for Category V missions is the protection of the terrestrial system of the Earth and Moon.133 An “unrestricted Earth return” designation applies to missions to solar system bodies which scientific opinion deems to be void of any indigenous life forms.134 All other Category V missions are designated as “restricted Earth return.”135 A mission to an asteroid or other small solar system body not specifically identified by COSPAR as being in Category I or Category II, is designated as unrestricted or restricted Earth return depending upon the answers to six questions.136 An answer of “no” or “uncertain” to all of the six questions results in the mission being classified as ‘Restricted Earth return.”137

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work for Decision Making at 43 National Academy Press 1998) available at www.nap.edu/read/6281/chapter/6 (Last visited on Sept. 22, 2015). COSPAR Planetary Protection Policy, supra note 115, Appendix at A-2. COSPAR Planetary Protection Policy, supra note 115, Appendix at A-2. Id., See Butler, supra note 72, 41 Ga. L. Rev. at 1385. Butler, supra note 72, 41 Ga. L. Rev. at 1385. The distinction among the three sub-categories are set forth in COSPAR Planetary Protection Policy, supra note 115, Appendix at A-3-A-4. COSPAR Planetary Protection Policy, supra note 115, at 2 & Appendix A-2. See Butler, supra note 72, 41 Ga. L. Rev. at 1385. COSPAR Planetary Protection Policy, supra note 115, at 2 & Appendix A-2. Id., Appendix at 2. Id. Id. Id., at A-7. Id. The six questions are: “1. Does the preponderance of scientific evidence indicate that there was never liquid water in or on the target body?

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For all Category V missions designated as “restricted Earth return,” the “highest degree of concern” is expressed by (1) “the absolute prohibition of destructive impact upon return” to Earth, (2) “the need for containment throughout the return phase of all returned hardware which directly contacted the target body or unsterilized material from the body”, and (3) “the need for containment of any unsterilized sample collected and returned to Earth.”138 After return to Earth, there must be a “timely analyses of any unsterilized sample collected” conducted “under strict containment, and using the most sensitive techniques.”139 If there is “any sign of the existence of a nonterrestrial replicating entity” then “the returned sample must remain contained unless treated by an effective sterilizing procedure.”140 Sterilization is an absolute term which requires the killing or other eradication of all microorganisms.141 If a mission originally designated as “unrestricted Earth return” is subsequently classified as “restricted Earth return” and safe return of a nonterrestrial sample cannot be assured, then the sample “shall be abandoned, and if already collected the spacecraft carrying the sample must not be allowed to return to the Earth or the Moon.”142 The same result applies if a sample containment system on a “restricted Earth return” mission is compromised and sterilization of the sample is impossible.143 COSPAR’s planetary protection policy sparingly uses the term life, when referring to backwards contamination; it primarily utilizes the terms “sample” or “matter” instead of “life.”144 While it is uncertain why this is so, the logical

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2. Does the preponderance of scientific evidence indicate that metabolically useful energy sources were never present? 3. Does the preponderance of scientific evidence indicate that there was never sufficient organic matter (or CO2 or carbonates and an appropriate source of reducing equivalents) in or on the target body to support life? 4. Does the preponderance of scientific evidence indicate that subsequent to the disappearance of liquid water, the target body has been subjected to extreme temperatures (i.e., >160°C)? 5. Does the preponderance of scientific evidence indicate that there is or was sufficient radiation for biological sterilization of terrestrial life forms? 6. Does the preponderance of scientific evidence indicate that there has been a natural influx to Earth, e.g., via meteorites, of material equivalent to a sample returned from the target body?” Id. Id., at 2. Id. Id. (emphasis supplied). General Bacteriology available at http://generalbacteriology.weebly.com/sterilizationand-disinfection.html. COSPAR Planetary Protection Policy, supra note 115, Appendix at A-1–A-2. Id. COSPAR Planetary Protection Policy, supra note 115, at 2, & A-1–A-8.

THE MEANING OF LIFE AND CLOSE ENCOUNTERS OF THE COMMERCIAL KIND

explanation appears to be that there is no scientific proof that life exists on a solar system body other than Earth and there is only scientific speculation about the possibility of life on other solar system bodies. This receives some support from the basis COSPAR uses in creating two subdivisions in Category V. In relation to Category V, COSPAR states that missions to solar system bodies “deemed by scientific opinion to have no indigenous life forms” are designated ‘unrestricted Earth return” with all other Category V missions being deemed “restricted Earth return.”145 Nevertheless, in setting the guidelines for “restricted Earth return” missions, COSPAR provides that the forward contamination procedures should also be complied with to avoid “false positives” in life detection protocols or in the search for life.146 Thus, COSPAR’s backward contamination protocols have the same purpose as the forward contamination protocols, i.e., searching for nonterrestrial life. However, COSPAR does not define the term “life.” This is a crucial point in as much as if a non-state actor discovers an NTM, then it needs to know whether the NTM is alive. This is necessary in order for a determination to be made regarding the necessity of employing backward contamination containment procedures. Accordingly, many scientists hold the view that an effective search for nonterrestrial life requires “a concise, agreed on definition of life.”147 This is even more so given that without a definition of life, there cannot be any basis for determining when an NTM is dead or sterilized as contemplated by COSPAR.148 Lastly, a definition of life is a prerequisite if planetary protection measures will subsequently require reporting the discovery of nonterrestrial life. VI.

The Meaning of Life – For Planetary Protection Purposes

Life, as we know it, is diverse and resilient. Terrestrial microorganisms have been found living a half mile under the West Antarctic Ice Antarctic Ice Sheet,149 75 meters below the Pacific Ocean floor,150 around hot water vents

______ 145 Id., at 2 (emphasis supplied). 146 Id., at Appendix A-1-A-8. 147 Dr. Chris McKay, What Is Life? It’s a Tricky, Often Confusing Question, at 3 Astrobiology Magazine, (Sept. 18, 2014) available at www.astrobio.net/newsexclusive/life-tricky-often-confusing-question/ (last visited on Sept. 23, 2015) [“In fact, in the search for life in our solar system what is needed more than a definition of life is a definition of death.”]. Dr. McKay is a planetary scientist with NASA. 148 Id., at 4-5. 149 Michael D. Lemonick, Microbes Discovered in Subglacial Antarctic Lake May Hint at Life in Space, National Geographic (August 20, 2014) available at http://news.nationalgeographic.com/news/2014/08/140820-antarctic-microbe-lakeastrobiology-science (last visited on Sept. 23, 2015).

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on the ocean floor,151 in oil reservoirs in the North Sea,152 in NASA and ESA spacecraft clean rooms after repeated sterilization procedures,153 inside the ISS with micro gravity,154 on the outside of the orbiting ISS for 1.5 years as part of an experiment,155 and outside the ISS when not a part of an experiment.156 Life as we have historically understood it is carbon based and needs water and oxygen to survive. This historical view, however, is evolving. Terrestrial microorganisms have been found which “survive on sulfur rather than oxygen, by reducing sulfur to hydrogen sulfide.”157 Microbes have also been discovered which use arsenic instead of phosphorus as one of the six essential components traditionally recognized as necessary for carbon based life.158 Also, science has determined that there are alternative liquids and solvents which can provide the biochemistry and building blocks for life in lieu of water.159 For instance, there is scientific evidence that suggests a microorganism can exist that does not need or use DNA or RNA.160 Also, it is recognized that “it is not beyond the realm of feasibility that our first encounter with extraterrestrial life will not be solely carbon-based fete.”161 The changing perspective of what is life has resulted in a NASA sponsored report recommending that the search for life in the universe should be “widened” to encompass

______ 150 National Science Foundation Press Release 15-019: No limit to life in deep sediment of ocean's “deadest” region (March 16, 2015) available at www.nsf.gov/news/news _summ.jsp?cntn_id=134420 (Last visited on Sept. 23, 2015). 151 Staff, Oil-Dwelling Bacteria Are Social Creatures in Earth’s Deep Biosphere, Astrobiology Magazine (Dec. 16, 2014) available at www.astrobio.net/topic/origins/extreme-life/oil-dwelling-bacteria-social-creaturesearths-deep-biosphere/. 152 Id. 153 Clara Moskowitz, supra note 70, at 1-3. 154 See supra at 4. 155 Aaron L. Gronstal, Lichen In Orbit, Astrobiology Magazine (Oct. 22, 2014) available at www.astrobio.net/topic/origins/extreme-life/lichen-orbit/ (last visited on Sept. 23, 2015). 156 Miriam Kramer, Sea Plankton on Space Station? Russian Official Claims It's So, space.com (Aug. 20, 2014) available at www.space.com/26888-sea-plankton-spacestation-russian-claim.html (last visited on Sept. 22, 2015). 157 Hawking, supra note 8, at 3. 158 Staff, NASA announcement: Arsenic-based life form discovered on Earth, www.washingtonpost.com/wp-dyn/content/article/2010/12/02/AR2010120204183. html (last visited on Sept. 30, 2015). 159 See Id., at 3 & 5. Such liquids and solvents consist of Additionally, solvents like ammonia, methane, and formamide hydrogen fluoride menthanol, hydrogen sulfide, and hydrogen chloride. Id. 160 Staff, “Extraterrestrial Life May Not be Based on DNA or RNA” – New Research, The Galaxy (April 28, 2012) available at www.dailygalaxy.com/my_weblog/2012/04/extraterrestrial-life-may-not-be-based-ondna-or-rna-new-research-todays-most-popular.html last visited on Sept. 23, 2015). 161 Hawking, supra note 8, at 3.

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the “possibility of ‘weird’ life,”162 or life that is different from life as we traditionally know it. The diversity of life, as we know it and as we may speculate, is leading to the development of instruments to search for biomarkers for known life and unknown nonterrestrial life.163 A biomarker is essentially a natural product that can be traced to a particular biological origin.164 To establish effective biomarkers, however, there has to be a working definition life. Although COSPAR does not define life for planetary protection purposes, it does reference one biomarker of life which is the ability to replicate. Specifically, in relation to the post mission of a “restricted Earth return” Category V mission, COSPAR provides that if upon an analysis of an unsterilized sample “any sign of the existence of a nonterrestrial replicating entity is found, the returned sample must remain contained unless treated in by an effective sterilization procedure.165 This suggests that for COSPAR planetary protection purposes, for an NTM to be subject to either containment or sterilization purposes, it should, at a minimum, be able to replicate. By contrast, if an NTM is like a virus, a mule, or the nonterrestrial life form in Aliens, and cannot independently replicate or if its replication ability has been “neutered” or otherwise genetically modified to prevent replication, then it apparently may be deemed sterilized for current planetary protection purposes and exempt from containment under COSPAR standards. Unfortunately, the inability to replicate, does not necessarily translate to being harmless to terrestrial life or the terrestrial environment. V.

Conclusion

Most “[p]eople have trouble understanding that we’re embedded in an invisible microbial world,”166 and that microbial life, like all known life, “is adaptable and resilient, and once it takes hold, it is embued with a tenacious will to continue to exist” in the environment in which it is located.167 Thus, it should not be difficult to acknowledge that if NTMs exist, then they, like a terrestrial microbe, the nonterrestrial antagonist in Aliens and like humans, will do whatever is necessary to survive given the circumstance or environment in which it finds itself. This circumstance suggests that leaving backward contamination

______ 162 Id at 5. 163 McKay, supra note 147 at 5. 164 The Lab Summons, What is a Biomarker?, Massachusetts Institute of Technology available at http://summons.mit.edu/biomarkers/what-is-a-biomarker/. 165 COSPAR Planetary Protection Policy, supra note 115, at 2. 166 Jon Cohen, The International Space Station is home to potentially dangerous bacteria at 4, AAAS.org, http://news.sciencemag.org/biology/2015/10/international-spacestation-home-potentially-dangerous-bacteria (last visited Dec. 1, 2015). 167 Sterns and Tennen, supra note 74, at 144.

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measures to a discretionary State level decision is essentially a porous and inefficient safety net for planetary protection purposes. “One of the luxuries afforded to space law is that it allows for law to guide events, as contrasted to the situation on Earth where law often lags behind.”168 The law governing backward contamination should take advantage of this luxury as failure to do so may have detrimental consequences. If the law lags behind events concerning backward contamination measures, then events may render any subsequent backward protection measures inadequate or superfluous. Prudently exercising the luxury afforded in connection with NTMs and backward contamination should involve the balancing, on the international level, of science, technology, economic opportunities, politics and moral considerations.169 The focus of such a balancing regime should be formulating appropriate international compliant measures to ensure that Earth’s biosphere does not become a host for a NTM which is or transforms into a pathogen.

______ 168 Michael Allen Potter, Human Rights in the Space Age: An International and Legal Political Analysis, 4 Journal of Law and Technology 59, 63 (1989) (emphasis supplied). 169 S.G. Sreejith, Whither International Law, Thither Space Law: A Discipline In Transition, 38 California Western International Law Journal 331, 358-362 (Spring 2008).

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Avatar Film Perspectives from Space Law Álvaro Fabricio dos Santos and José Monserrat Filho*

Abstract Avatar is a 2009 American epic science fiction film set in 2154, when humans depleted Earth’s natural resources, leading to a severe energy crisis. The mining company RDA (Resources Development Administration) exploits for a valuable mineral – unobtanium – on Pandora, a densely forested habitable moon of gas giant in the Alpha Centauri star system. Unobtanium is a room-temperature superconductor that can mitigate the Earth’s energy crisis, but the expansion of the mining colony threatens the continued existence of a local tribe of Na’vi, a 10-foot tall (3.0 m), blue-skinned, sapient humanoids. To explore Pandora, whose atmosphere is poisonous to humans, scientists use Na’vi-human hybrids called “avatars”, operated by genetically matched humans. Using this strategy, RDA intends to get intelligence about the Na’vi and the clan’s gathering place, a giant arboreal called Hometree, on grounds that it stands above the richest deposit of unobtanium in the area. RDA heavily militarized its base and its personnel and had no restrictions in using this arsenal against anyone who tried to prevent the unobtanium’s exploitation. Based on this plot, it can be assured that Avatar film is a rich case of study to Space Law, because it provides several situations where the international legal framework should be applicable. Did RDA get authorization from its State to exploit Pandora, according to Article 6 of the 1967 Space Treaty? Could RDA have installed a base in Pandora? Could RDA have militarized Pandora, by taking and placing weapons there? This paper aims to answer these questions, as well as to give other examples where the Space Law is reflected on the movie. The Treaty that regulates the exploration of the Moon and other celestial bodies is in analogy applicable to the Na’vi’s homeland, so this paper also compares the Pandora’s exploitation with the current discussions about the possibility of exploiting the Moon and asteroids.

I.

Introduction

The rewarded director James Cameron directed, produced, and co-edited the record-breaking film Avatar. Avatar was officially budgeted at US$ 237 million,

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Álvaro Fabricio dos Santos, Advocacy General of the Union (AGU), Brazilian Association for Aeronautics and Space Law (SBDA), São José dos Campos, SP, Brazil, [email protected]. José Monserrat Filho, Brazilian Space Agency (AEB), Brazilian Association for Aeronautics and Space Law (SBDA), Brazilian Society for the Advancement of Science (SBPC), Rio de Janeiro, RJ, Brazil, jose.monserrat.filho@gmail. com.

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but other estimates put the cost between US$ 280 million and US$ 310 million for production and at US$ 150 million for promotion. Avatar premiered in London on 10 December 2009, and was internationally released on 16 December 2009 and in the United States and Canada on 18 December 2009, to positive critical reviews, with critics highly praising its groundbreaking visual effects. During its theatrical run, the film broke several box office records and became the highest-grossing film of all time, as well as in the United States and Canada, surpassing Titanic, which had held those records for twelve years (and was also directed by Cameron). It also became the first film to gross more than US$ 2 billion, and the best-selling film of 2010 in the United States. Avatar was nominated for nine Academy Awards, including Best Picture and Best Director, and won three, for Best Art Direction, Best Cinematography and Best Visual Effects. Following the film’s success, Cameron signed with 20th Century Fox to produce three sequels, making Avatar the first of a planned tetralogy. The three sequels, all directed and co-written by Cameron, will be released each year starting from December 2017 to 2019.1 Cameron probably did not realize that his spectacular film had so many implications in the area of Space Law, how it is expected to be shown in this paper. II.

Space Activities Carried out in a Celestial Body

In 2154, due to a severe energy crisis caused by the mitigation of Earth’s natural resources, a private company, probably to attend a request from a specific State, decided to exploit resources from celestial bodies due to the great commercial potential of this activity. The mining company RDA (Resources Development Administration) established a base in Pandora, with a view to exploit for a valuable mineral – unobtanium – that could reduce the Earth’s energy crisis. Therefore, a terrestrial company established a base in a celestial body – Pandora – where it was carrying out space activities. Since RDA is a private company, at a first glance someone could say that the international legal framework for space activities is not applicable to this case. In this particular aspect, Article VI of the Outer Space Treaty has to be highlighted: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental entities or by non-governmental entities, and for assuring that national activities are carried out in conformity with entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for

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compliance with this Treaty shall be borne by the international organization and by the States Parties to the Treaty participating in such organization”.

Therefore, RDA had to have obtained authorization from its appropriate State to carry out space activities in Pandora. On the other hand, the appropriate State had to exercise strict surveillance on the activities carried out by RDA, because it had responsibility for the actions taken in Pandora, including the exploitation of mineral resources and the treatment for the local population. The principle of the State responsibility for space activities carried out by its own nationals is fully accepted by the international community. III.

The Establishment of a Base in a Celestial Body

Since RDA established a base in Pandora, which is considered a celestial body although it does not belong to the Earth’s solar system, particular attention must be paid to Article II of Outer Space Treaty: “Outer Space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. Therefore, in accordance with Article II of the Outer Space Treaty, despite the establishment of a base in Pandora, RDA had no right of ownership or any property on that celestial body. In this context, RDA could keep its infrastructure in Pandora on a conditional basis, only for a sufficient period within which it would carry out its activities of exploration, using and maintenance of its assets, but not for mineral exploitation. On the other hand, the exploitation of unobtanium from Pandora would only be admitted if there was an international legislation to regulate such an activity. Since other States Parties of the Outer Space Treaty, or even their private companies, could have interest on carrying out space activities in Pandora, before giving authorization to RDA, the appropriate State might have submitted prior consultations with other States Parties to the Outer Space Treaty, as provided in Article IX: “[…] If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any activity or experiment. A State Party to the Treaty which has reason to believe than an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment”.

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It is important to emphasize that: a. the mentioned Article IX of the Outer Space Treaty must be updated, because at the time when it was issued, over than 45 years ago, the technological development was not able to forecast the current discussions about the exploitation of the Moon and other celestial bodies; b. the exploitation of the Moon and other celestial bodies is conditioned to the establishment of an international legislation which will regulate such an activity; c. the international legislation which will regulate the exploitation of the Moon and other celestial bodies may follow the provisions of the Article 11 of the Moon Agreement, especially its paragraphs 5, 6 and 7, regarding the establishment of an international legal regime. IV.

The Militarization of Pandora

With a view to exploit Pandora without any resistance from the natives, RDA took an impressive arsenal of weapons to that celestial body. Hence, there was a flagrant case of militarization of a celestial body. On this subject, Article IV of the Outer Space Treaty foresees: “[…] The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purpose. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvers on celestial bodies shall be forbidden […]”.

Beyond that, dispositions of the United Nations Charter should also be respected, in accordance with Article III of the Outer Space Treaty, in verbis: “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding”.

Article 1, paragraph 1, of the UN Charter states that the primary purpose of the United Nations is “to maintain international peace and security and to that end: take effective collective measures to prevent threats to peace and the suppression of acts of aggression or other breaches of the peace by peaceful means and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace”.

Therefore, the UN Charter prohibits not only the use of force among countries, but also the threat of use of force. Francisco Rezek, a Brazilian jurist, former Judge of the International Court of Justice, affirms that there are currently only

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two hypotheses for a just war, it means a lawful use of force: the legitimate defense against aggression and sustained armed struggle for self-determination of a people against a colonial domination.2 In this context, it is important to point out that RDA was trying to colonize Pandora and impose slavery to the locals, in order to exploit freely unobtanium. Therefore, the Declaration on the Granting of Independence to Colonial Countries and Peoples, approved by the United Nations General Assembly Resolution 1514 (XV) of 14 December 1960, was infringed. Paragraphs 1 and 2 of this mentioned Declaration state that: “1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development […]”.

The right of self-determination is one of the purposes of the United Nations, as mentioned in Article 1, paragraph 2 of the UN Charter: “Article 1 – The purposes of the United Nations are: […] 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.

Therefore, the appropriate State infringed the right of life and self-determination of Na’vis, because it allowed RDA to colonize Pandora. Although the UN Charter refers to human rights, it seems that its provisions can also include civilizations from other planets. In fact, undoubtedly the inhabitants of other worlds must be treated like us, human beings. The collective use of force against another State is an exclusive decision of the Security Council of the United Nations, as establishes Article 24 of the UN Charter: “1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. 2. In discharging these duties, the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers

______ 2

Rezek, Francisco. Direito Internacional Público (International Public Law), in Portuguese. São Paulo: Saraiva, 2005, p. 373.

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granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII”.

David Rodin stresses: “National defense is currently the sole casus belli explicitly recognized in law as a justification for the use of force by States without Security Council authorization”.3 Article 51 of the UN Charter states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

The aforementioned David Rodin remarks that “the right of national-defense may deter aggression, but it may also serve as a mask and justification for dangerous military adventurism, particularly when the right is liberally interpreted”.4 The most modern and advanced weapons, excepting those defined as of mass destruction – nuclear, chemical and biological – have today free access to outer space. Article IV of the Outer Space Treaty prohibits only the placement, installation or station of these weapons into Earth’s orbit. When weapons of mass destruction cross outer space, it does not mean putting them into Earth’s orbit nor installing or stationing them in some way in outer space. Therefore, it seems to be allowed. But to prevent conflicts anywhere, this dangerous situation must be changed. Turning to Avatar film, RDA may justify the placement of weapons in Pandora as a way of protecting its employees against the Na’vis attacks. However, it cannot be ignored that in this case, human beings were the aliens. Hence, the right of self-defense cannot be used in cases of invasion. In this scenario, we shall conclude that the appropriate State could not have authorized RDA to install and station weapons in Pandora. The right of self-defense, mentioned in Article 51 of the UN Charter is not applicable to the case, because the aggression was caused by RDA and not by the natives. Beyond that, the right of self-defense is only valid for a State and not for a private company, such as RDA. Therefore, RDA was obliged to use a peaceful approach with the locals, in order to try to exploit unobtanium under their permission and conditions.

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Rodin, DavId., War and self-defense, U.S., New York: Oxford University Press, 2002, p. 107. Rodin, DavId., op. cit., p. 117.

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V.

The Exploitation of Mineral Resources from a Celestial Body

RDA established a base in Pandora with a view to exploit unobtanium, a room temperature superconductor than could mitigate the Earth’s energy crisis. According to RDA’s experts, the richest deposit of unobtanium was situated below a giant arboreal called Hometree, a sacred place for the natives. RDA’s strategy was to send avatars to Pandora and establish a close relationship with the Na’vi’s tribe, with a view to get detailed information about the unobtanium’s gathering place. First of all, it is important to emphasize that someone could say that the Moon Agreement, specifically its Article 11, is not applicable to Pandora, because it does not belong to the Earth’s solar system. Actually, Pandora is located at the Alpha Centauri star system. It is worth to remember that Article 1, paragraph 1 of the Moon Agreement foresees that the provisions of the Agreement related to the Moon “shall also apply to other celestial bodies within the solar system [...]” However, since there is no international legal framework to celestial bodies beyond our solar systems, it seems that the analogy with the disposition of the Moon Agreement is fully valid. Turning to the Earth’s current scenario, the natural resources have been used almost to the exhaustion, which has been caused serious concerns about the life for human’s future generations. Regarding the sources of energy, the use of charcoal and petrol has poisoned the atmosphere. On the other hand, the use of nuclear energy always brings the risk of accidents, as those that happened in Chernobyl, Ukraine, in 1989; and in Fukushima, Japan, in 2013. The use of clean sources of energy, such as solar energy and eolic energy, is not suitable to all countries, especially those situated near the North Pole. Beyond that, the energy generated by clean sources is usually not enough to attend the big companies’ needs. Water is the main source of energy in Brazil. However, the Southeast Region of Brazil, the richest in the country, has been facing the worst drought of the past 85 years, dramatically affecting energy production by hydroelectric plants. This fact has drawn the attention of the Brazilian authorities to the rational use of water, as well as to the need of improving the use of other sources of energy, such as solar energy and eolic energy, abundant in a huge and tropical country as Brazil. Taking into account the mitigation of natural resources, some companies have been considered the possibility of exploiting mineral resources from the Moon and other celestial bodies. Peter Diamandis, founder of the Planetary Resources, the first company devoted to the exploitation of asteroids, states that “all natural resources as you can imagine, energy, metals, minerals and water, there are virtually endless quantities in outer space”. Diamandis is the creator of the X Prize competition that gives US$ 10 million prize to whoever can perform certain technological achievement (like sending a robot to the Moon or to create a machine capable of reading DNA at high speed, for example). Deep Space Industries is

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other company that is interested in this subject – exploitation of asteroids. The four most desirable asteroids are: 1. 16238 – Diameter: 600 meters; distance from Earth: 12 million Km; estimated value already discounting the cost of mission: US$ 6.9 trillion; 2. 4034 Vishunu – Diameter: 420 meters; distance from Earth: 1.5 million Km; estimated value already discounting the cost of mission: US$ 5.28 trillion; 3. 65679 – Diameter: 730 meters; distance from Earth: 1.9 million Km; estimated value already discounting the cost of mission: US$ 1.74 trillion; 4. 7753 – Diameter: 1000 meters; distance from Earth: 1 million Km; estimated value already discounting the cost of mission: US$ 1.31 trillion.5 Prof. Ian Crawford, from the University of London – UK, points out: “Recent work has shown that the Moon does possess materials suitable for ISRU (‘In Situ Resource Utilization’). Most important in this respect is evidence for deposits of water ice and other volatiles trapped in cold (less than 100 Kelvin or minus 173 degrees Celsius) and permanently shadowed craters at the lunar poles. In addition to being required for human life support, water is also a ready source of oxygen (required for both life support and rocket fuel oxidiser) and hydrogen (a valuable rocket fuel)”.6

He stresses that “lunar surface rocks and soils are rich in potentially useful but heavy (and thus expensive to launch from Earth) raw materials such as magnesium, aluminium, silicon, iron and titanium. Therefore, if a lunar industrial infrastructure is gradually built up, the Moon may be able to provide more sophisticated products to Earth-orbiting facilities. Examples might include titanium and aluminium alloys for structural components and silicon-based photovoltaic cells for solar power”.

Prof. Crawford advocates the possibility of exploiting the Moon based on the following arguments: “1. We have the option of using lunar materials to facilitate continued exploration, and future economic development, of the Moon itself. The concept is usually referred to as In Situ Resource Utilisation, or ISRU. 2. We could make use of lunar resources to facilitate scientific and economic activity in the vicinity of both Earth and Moon (so-called cis-lunar space) as well as future exploration deeper into the Solar System 3. We can consider the importation of lunar resources to the Earth’s surface where they would contribute directly to the global economy”.

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http://super.abril.com.br/ciencia/a-pedra-de-r-5-trilhoes. In his article “Why We Should Mine the Moon”.

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The current lack of a legal framework for the use of space mineral resources found on asteroids and other celestial bodies is already worrying the space lawyer’s community. The Hague Institute for Global Justice convened a Roundtable on the Governance of Space Mineral Resources with a selected group of experts on 1 December 2014, attended by industrial leaders, scientists, diplomats, as well as political and legal experts from across the globe. Following the Roundtable, the initiative was taken to set-up The Hague Space Mineral Resources Governance Working Group to support this process and promote its advancement, within a reasonable timeframe and in accordance with international law. It is important to remember that Article 4 of the Moon Agreement states that: “1. The exploration and use of the Moon shall be the province of all mankind and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development. Due regard shall be paid to the interests of present and future generations as well as to the need to promote higher standards of living and conditions of economic and social progress and development in accordance with the Charter of the United Nations. 2. States Parties shall be guided by the principle of cooperation and mutual assistance in all their activities concerning the exploration and use of the Moon. International cooperation in pursuance of this Agreement should be as wide as possible and may take place on a multilateral basis, on a bilateral basis or through international intergovernmental organizations.”

Attention must also be paid to Article 11, paragraphs 1, 2 and 3 of the Moon Agreement: “1. The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular in paragraph 5 of this article. 2. The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means. 3. Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person. The placement of personnel, space vehicles, equipment, facilities, stations and installations on or below the surface of the Moon, including structures connected with its surface or subsurface, shall not create a right of ownership over the surface or the subsurface of the Moon or any areas thereof. The foregoing provisions are without prejudice to the international regime referred to in paragraph 5 of this article”.

Therefore, the exploration of the Moon and other celestial bodies is acceptable if it is carried out in accordance with the dispositions of the Moon Agreement.

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It should be emphasized that the low number of ratifications and signatures7 of the Moon Agreement cannot be used as an excuse to avoid its provisions, because the UN General Assembly Resolution 34/68, from 5 December 1979, dully approved this Treaty. The discussions related to the Moon Agreement, which took place in the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), lasted around 10 years. Such a rich experience and solid debates must to taking into account by the occasion of the discussions related to the international legislation for the exploitation of the Moon and other celestial bodies. However, if the “exploration” of the Moon and other celestial bodies is legally admitted, the same cannot be said about “exploitation”, which requires special regulation, as it will be shown in the following topic. VI.

The Need of Setting an International Legislation

It is important to set the difference between the concepts of “exploration” and “exploitation”. “Exploration” is defined as the act of traveling to a place or searching a place in order to learn about it. “Exploitation” may be understood as the act of using someone or something for your own purposes and/or profits.8 In the scope of the United Nations Treaties on Outer Space, the term “exploitation” first appears in Article 11, paragraph 5, of the Moon Agreement, in verbis: “5. States Parties to the Agreement hereby undertake to establish an international legal regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. This provision shall be implemented in accordance with article 18 of this Agreement.”

Paragraphs 6 and 7 of the mentioned Article 11 of the Moon Agreement present the conditions for the establishment of the referred international legal regime: “6. In order to facilitate the establishment of the international regime referred to in paragraph 5 of this article, States Parties shall inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of any natural resources they may discover on the Moon.

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According to COPUOS (document A/AC.105/C.2/2015/CRP.8), on January 1st, 2015, the Moon Agreement had 16 ratifications and 4 signatures. Cambridge Dictionaries Online (http://dictionary.cambridge.org/us/dictionary /english).

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7.

The main purposes of the international regime to be established shall include: (a) The orderly and safe development of the natural resources of the Moon; (b) The rational management of those resources; (c) The expansion of opportunities in the use of those resources; (d) An equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of developing countries which have contributed either directly to the exploration of the Moon, shall be given special consideration”.

Therefore, the exploitation of the Moon and other celestial bodies could only occur after the establishment of an international legislation to regulate that kind of space activity. Article 18 of the Moon Agreement states that: “Ten years after the entry into force of this Agreement, the question of the review of the Agreement shall be included in the provisional agenda of the General Assembly of the United Nations in order to consider, in the light of past application of the Agreement, whether it requires revision. However, at any time after the Agreement has been in force for five years, the Secretary-General of the United Nations, as depositary, shall, at the request of one third of the States Parties to the Agreement and with the concurrence of the majority of the States Parties, convene a conference with the States Parties to review this Agreement. A review conference shall also consider the question of the implementation of the provisions of Article 11, paragraph 5, on the basis of the principle referred to in paragraph 1 of that article and taking into account in particular any relevant technological developments”.

The Moon Agreement entered into force on 11 July 1984, however it was never updated, as happens with other four United Nations Treaties on Outer Space. Therefore, the international legal regime for the exploitation of the Moon and other celestial bodies is not yet dully established. Turning to Avatar film, RDA created a fait accompli, because it started exploiting Pandora despite the establishment of an international legislation. Therefore, there was no legal support for the activities carried out by RDA in Pandora. VII.

Some Remarks

The opinions and understandings presented in this paper may be summarized as follow: 1. The appropriate State should have given its authorization to RDA had started carrying out activities in Pandora and should take responsibility for these activities, in accordance with Article VI of the Outer Space Treaty; 2. As provided in Article II of the Outer Space Treaty, despite the establishment of a base in Pandora, RDA had no right of ownership or any prop-

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3.

4.

5.

6.

erty on that celestial body, unless if there was an international legislation to assure those rights; It would be recommendable that the appropriate State had submitted prior consultation to other States Parties of the Outer Space Treaty, as foreseen in Article IX; In accordance with Article IV of the Outer Space Treaty, RDA could not have established a military base, nor has used and tested any type of weapons, and could not have conducted military manoeuvers in Pandora; The appropriate State infringed the United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples, because it admitted the colonization of Pandora by its national company RDA; RDA could not have exploited unobtanium from Pandora before the establishment of an international legislation to regulate this kind of activity.

Jake Sully, Avatar’s film main character, when decided to become a Na’vi warrior, expressed his position about human beings (called “Sky People” in the film): “The Sky People have sent us a message [...] that they can take whatever they want. That no one can stop them. Well, we will send them a message. You ride out as fast as the wind can carry you. You tell the other clans to come. Tell them Toruk Macto calls to them! You fly now, with me! My brothers! Sisters! And we will show the Sky People [...] that they cannot take whatever they want! And that this [...] this is our land!”9

When reflecting on his experience in Pandora, Jake Sully repeated a line he first said at the beginning of the film where he said he eventually had to wake up from his dreams of flying that he used to have when he first lost the ability to walk. He said: I was a warrior who dreamed he could bring peace. Sooner or later though, you always have to wake up.10 Jake Sully’s words may be applicable to the current scenario of outer space exploration, specifically in the subjects of “militarization of space” and “exploitation of space minerals”. Unfortunately, peace has become an utopia and we live under the constant fear of seeing outer space become a battlefield. There are no longer warriors of peace, but, instead, there are many people who advocate the possibility of taking weapons to space as a measure of self-defense. Along centuries, mankind is not giving the due attention to the environment and, nowadays, natural resources are increasingly disappearing. As if that was not enough, we almost depleted the natural resources of the Earth and now we consider the

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www.imdb.com/title/tt0499549/quotes. http://avatarblog.typepad.com/avatar-blog/2010/05/the-best-avatar-moviequotes.html.

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possibility of exploiting minerals of the Moon and asteroids. Concerning the exploitation of space minerals, the following steps must be observed: a. all space nations, especially the developed ones, must undertake to reduce the pollution and to preserve the environment; b. the exploitation of the Moon and other celestial bodies is subjected to the establishment of an international legislation to regulate this kind of activity, or at least, the establishment of an international legal regime, such as the one foreseen in Article 11, paragraph 5, of the Moon Agreement. Taking into account the current technological development, the authors consider that the five United Nations Treaties on Outer Space must be updated. For this purpose, the role of the United Nations, through its Committee on the Peaceful Uses of Outer Space (COPUOS), must be reinforced. It should be emphasized that the authors have no restrictions on the academic discussions regarding the exploitation of space minerals, as those that are occurring within the framework of The Hague Space Mineral Resources Governance Working Group. However, they consider that the commitment of all space nations, especially the developed ones, to reduce the pollution and to preserve the environment, should come first that any experience of exploiting mineral resources from outer space. Besides, the exploitation of the Moon and other celestial bodies would only be valid after the establishment of an international legislation to regulate this kind of activity, or at least, the establishment of an international legal regime, such as the one foreseen in Article 11, paragraph 5, of the Moon Agreement. Avatar’s film had a happy end, because the majority of RDA’s staff was banished from Pandora before that celestial body was destroyed. Only a few researchers were allowed to remain there. If it is true that sometimes life imitates art, let us hope there is still time for Earth!

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE Session 4 LEGAL ISSUES OF SPACE TRAFFIC MANAGEMENT Co-Chairs: Jana Robinson Olga Volynskaya Rapporteur: Deepika Jeyakodi

Space Traffic Management A Challenge of Cosmic Proportions Frans G. von der Dunk*

Abstract Space traffic management has often, for example in the IAA Cosmic Study of 2006, been rather broadly defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from space to Earth free of physical or radio-frequency interference”. Oftentimes, especially in space law literature, references or even comparisons have been made to traffic management as it has developed in aviation and (to a lesser extent) in maritime transport. However, it should be realized that space traffic management, especially under the definition quoted, comprises a considerably larger range of activities than air traffic management. If space traffic management is ever to become feasible, therefore, rather than just referring to air and/or maritime traffic management, first a high-level overview should be performed of what space traffic management effectively will comprise, what has already been taken care of and to what extent, and where perhaps guidance from the aviation realm may be useful after all. The present paper will provide such a first high-level inventory, duly taking into account the various special features of space activities which may provide major obstacles for any truly comprehensive space traffic management regime, much more so than in the airspaces of this world.

I.

Introduction

Space traffic management has often, for example in the IAA Cosmic Study of 2006, been rather broadly defined as “the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from space to Earth free of physical or radio-frequency interference”.1 Oftentimes, moreover, especially in space law literature, references or even comparisons have been made to traffic management as it has developed in aviation and (to a lesser extent) in maritime transport. However, if space traffic management is ever to become feasible, such comparisons should be scrutinized with great care. ‘Space traffic management’

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University of Nebraska-Lincoln, College of Law, Space, Cyber and Telecommunications Law Program, [email protected]. Cosmic Study on Space Traffic Management, International Academy of Astronautics, 2006, 10.

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would not only encompass the orderly management of (1) ‘piloted vessels’, which is what air traffic management is at the heart all about, but in addition would have to deal with (2) ‘vessels’ which are piloted remotely (read ‘unmanned spacecraft’), some of which moreover intend to operate in earth orbits for many years whereas others by contrast are supposed to move beyond earth orbit altogether, (3) ‘vessels’ – and their component and fragmented parts – which are no longer ‘piloted’ in any meaningful sense (read both ‘small unguided satellites’ and ‘space debris’), and, following the Cosmic Study definition, as an even more different ‘item’, (4) the use of radio frequencies. Moreover, several specific aspects of space activities, such as the military and dual-use ones, the physical operational environment and the needs for communication, as well as the speed of movement pose additional problems for any truly comprehensive space traffic management regime, much more so than in the airspaces of this world. Thus, the present paper represents a first high-level framework analysis of the major structural aspects of that challenge – on the assumption that it would still need to be addressed in the not too distant future. II.

The Point of Departure: ‘Traffic Management’ in Air Law

The term ‘traffic management’, in particular in an international context, has mainly become an issue of importance in aviation and, to a considerably lesser extent (due to the velocity of the vessels concerned being a dimension or two smaller), in maritime transport. In international aviation, ‘air traffic management’ (ATM) has evolved out of the more concise and limited notion of ‘air traffic control’ (ATC). Whereas the latter was very much focused on specific (legal as well as resulting factual) control of aircraft movements to avoid collisions and near-collisions of aircraft for safety reasons (as well as, subsidiary, security purposes of controlling entry into sovereign airspace),2 the former came to incorporate also broader aspects such as efficient and environmentally-friendly use of airspace.3 In all cases, however, the baseline category of targeted vehicles was fairly straightforward and, at a certain level of abstraction, uniform in nature: ‘aircraft’, meaning “any machine that can derive support in the atmosphere from

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E.g., already in 1944 Art. 37(c), Chicago Convention (Convention on International Civil Aviation, Chicago, done 7 December 1944, entered into force 4 April 1947; 15 UNTS 295; TIAS 1591; 61 Stat. 1180; Cmd. 6614; UKTS 1953 No. 8; ATS 1957 No. 5; ICAO Doc. 7300), calls for the development of Standards and Recommended Practices (SARPs) on “air traffic control practices”. Cf. the efforts from the 1990s onwards of the International Civil Aviation Organization to develop a CNS/ATM (Communications, Navigation, Surveillance / Air Traffic Management) system based on the use of GNSS, as per e.g. the Global Air Navigation Plan for CNS/ATM Systems, ICAO Doc. 9750 AN/963, 2nd ed., 2002.

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the reactions of the air other than the reactions of the air against the earth’s surface”4 capable of considerable manoeuvring even at short notice since being piloted by humans on board. Compared to the four categories which the Cosmic Study asserts should be addressed by space traffic management, this represents the aviation-version of only the first category, that of piloted vessels. In addition, from a legal perspective, the authorities responsible for ATM were clearly demarcated by ‘geographical’, ‘spatially’ defined borderlines. Every state was sovereign in its own national airspace, which was clearly bounded by the borders of its territory and territorial waters,5 and could within such sovereign airspace guarantee the implementation of a coherent and comprehensive ATM system. That the vertical boundary of airspace sovereignty was not in any way formally determined constituted no problem, at least from the perspective of air law: nobody would dispute that all aircraft addressed by ATM systems were flying in airspace as opposed to any other kind of ‘space’, read: outer space. As for the airspace above international waters, under the auspices of the International Civil Aviation Organization (ICAO) specific states were ‘appointed’ to provide for such an ATM system on behalf of the international community and such a role was formally accepted by all other ICAO member states.6 While ‘geographically’ speaking such international airspaces covered the greater part of the globe, in terms of actual aircraft operations they were much less relevant than the totality of sometimes heavily used national airspaces. International air law, including on ATM as developed under ICAO auspices, was thus allowed to develop almost organically from the handling of most aviation needs at a national level. In sum, for respective national airspaces each time one single national authority was made responsible for the management of all relevant traffic and given the competences and instruments to do so, whereas for the international airspaces one single intergovernmental organization operating under a single international conventional regime ensured proper arrangements of such responsibilities, competences and instruments. Though formally military aircraft did not fall under the rules of the Chicago Convention,7 individual states would of course in their national ATM systems take care of any potential interference of military aircraft with civil aviation wherever this could – occasionally – be at issue, for example by the creation of special ‘no-fly zones’ reserved for air force manoeuvres.

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E.g. Annex 7 to the Chicago Convention, Aircraft nationality and registration marks, 5th edition, July 2003, Definitions; Annex 8, Airworthiness of aircraft, 10th edition, April 2005, Definitions. Cf. Arts. 1, 2, 11, 12, 28, Chicago Convention. As further elaborated in the SARPs; cf. Arts. 12 (“Over the high seas, the rules in force shall be those established under this Convention.”), 37(c), Chicago Convention. Annex 2 to the Chicago Convention embodies those particular SARPs. See Art. 3(a), (b), Chicago Convention.

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These ATM systems also generically allowed for special flights of aircraft not engaged in civil aviation as principally addressed by the Chicago Convention and ICAO, whether this concerned commercial aviation (the small business jets), amateur aviation, aviation sporting events, hot air balloons or even rocket launches (where the launch area would become a temporary no-fly zone for the duration of the launch window). This simply worked, principally because there was little question – or at least an underlying assumption – that ATM could focus on civil aviation and handle other uses of the same threedimensional spaces as exceptions to the standard approaches and procedures. The core of the system finally consisted of two main elements: (1) awareness with a central entity of the positions and intended trajectories of all aircraft and occasional other craft – all, however, so far comprising ‘piloted vessels’ – in a certain three-dimensional airspace, and (2) the competence of such an entity, following a priori rules, regulations, procedures and standards, to direct specific aircraft to change position or trajectory in such a manner as to avoid threats to safety or security or allow for efficient use of airspace. While undoubtedly the example of ATM would thus be very interesting and useful in a number of respects when it comes to creating a space traffic management system, when transferring this comprehensive but straightforward and relatively monolithic system-of-systems to outer space the above evaluation has to be borne in mind. At least three major issues would consequently arise here. III.

The Awareness Issue: The Reality of Spaceflight

First, the manoeuvrable manned vessels which formed the core of the global ATM system comprise, certainly so far, a minority of all vessels moving in outer space. A system mainly based on communicating with pilots would consequently fall woefully short of a comprehensive and safe system of ‘awareness’. Self-reporting by automated devices would need to be comprehensively effectuated to establish that. In addition, for unmanned spacecraft any traffic management system should substitute such communication for awareness purposes with pilots and automated on-board systems with communication to the ground control systems. That should not be an insurmountable problem, yet it has to be taken into account – for instance, because a particular space object may be monitored by various ground stations spread across the globe depending upon the particular location at issue at any given point in time. For unguided small satellites and space debris, however, mostly even that approach of taking on board ground stations would not work – both would normally not have any automated self-reporting capability on board (anymore).

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Whereas for the unguided small satellites – hopefully – proper registration with the Registration Convention8 combined with the usually short duration of their presence in a limited area at the lower margins of outer space would be sufficient to create positional awareness of manoeuvrable spacecraft as part of a space traffic management system, it does indeed require an acrossthe-board application of the registration obligations. Currently, however, the picture in this regard is not very comforting; many small satellites as of yet go unregistered because of confusion on the applicability of the Registration Convention to “a space object [not] launched into Earth orbit beyond”.9 As for space debris, however, it has already become abundantly clear that no amount of fully-fledged application of the Registration Convention would be able to take care of the extent to which a space traffic management would require relevant position and trajectory information.10 While there are some ‘unilateral’ efforts to provide the international community with data on identified space debris, such as the US Space Surveillance Network (SSN), also these are currently far removed from the level of comprehensiveness necessary for a viable and effective space traffic management system.11 Finally, the use of radio frequencies for communication purposes has of course also been present in aviation almost since its inception, and through the ITU system does allow for at least a general level of ‘awareness’. A summary investigation of current law and key players in the realm of awareness thus shows the complexity of (and the loopholes within) the existing landscape.

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Convention on Registration of Objects Launched into Outer Space (hereafter Registration Convention), New York, done 14 January 1975, entered into force 15 September 1976; 1023 UNTS 15; TIAS 8480; 28 UST 695; UKTS 1978 No. 70; Cmnd. 6256; ATS 1986 No. 5; 14 ILM 43 (1975). Art. II(1), Registration Convention; cf. the Dutch Space Law (Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects, 24 January 2007; 80 Staatsblad (2007), at 1; Nationales Weltraumrecht / National Space Law (2008), at 201), which originally did not apply its licensing system to unguided satellites (largely because of the resulting assumption of liability under the Convention on International Liability for Damage Caused by Space Objects (hereafter Liability Convention), London/Moscow/ Washington, done 29 March 1972, entered into force 1 September 1972; 961 UNTS 187; TIAS 7762; 24 UST 2389; UKTS 1974 No. 16; Cmnd. 5068; ATS 1975 No. 5; 10 ILM 965 (1971)), requiring a recent de facto amendment to make it so apply by way of an administrative measure entering into force 1 July 2015. Even with large satellites and spacecraft, however, there is a considerable lack of across-the-board registration; cf. Y. Lee, Registration of Space Objects: ESA Member States’ Practice, 22 Space Policy (2006), 42-51; F.G. von der Dunk, International space law, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti)(2015), 98; F.G. von der Dunk, Legal aspects of private manned spaceflight, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti)(2015), 682. See e.g. Lotta Viikari, Environmental aspects of space activities, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti)(2015), 737-8, 768. See e.g. Viikari, 720.

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An ITU-regime takes care of assignment of frequencies used by satellites as well as the attendant orbital slots or orbits at the international level, with some national regimes implementing that regime for national operators – but also for exclusively national usage of frequencies and orbital slots/orbits. Frequencies used by space vehicles, whether sub-orbital or orbital, and space stations such as the ISS, also somehow fit within that system. The Outer Space Treaty at the same time ‘rules’ the general behaviour of states with respect to satellites and other space objects, notably including the notification and consultation obligations under Article IX. Further to Articles VIII and IX of the Outer Space Treaty, the Registration Convention provides for its own – though rather summary – system of ‘awareness’, read registration of main parameters, including national registration as appropriate. As said, there is furthermore considerable doubt regarding its application to suborbital launches, whether manned or unmanned. As for ‘space debris’, that system is rather unsatisfactory, and awareness exclusively relies on a few national, unilateral surveillance systems, as indicated. The Competence Issue: The ‘faits accomplis’ of Space (Law)

IV.

Second, in outer space there is no system for allocating ATM-like authority along the lines of the Chicago Convention, individual sovereign states and the ICAO system. Unlike air space, outer space of course as a whole falls outside of individual states’ sovereign jurisdiction12 and thus basically equates with the (airspace above the) high seas in terms of its international legal status. And whereas the Chicago Convention has provided the baseline formula for handling ATM above the high seas under ICAO guidance further to individual states operating domestic ATM systems in national airspace, there is no comparable provision in the Outer Space Treaty or comparable authority resting with COPUOS to assume the central coordinating role of ICAO in its framework – including in the context of ITU-related frequency management.13 Yet, simply providing ICAO with an extension of its authority to address aircraft so as to encompass also spacecraft not only would require considerable

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See Arts. I, II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter Outer Space Treaty), London/Moscow/Washington, done 27 January 1967, entered into force 10 October 1967; 610 UNTS 205; TIAS 6347; 18 UST 2410; UKTS 1968 No. 10; Cmnd. 3198; ATS 1967 No. 24; 6 ILM 386 (1967). The closest the Outer Space Treaty comes to addressing such an issue as management of traffic in the global commons of outer space concerns the provisions of Articles VI through IX, providing for responsibility and liability (as elaborated by the Liability Convention) for space activities, the retention of jurisdiction on the basis of registration as a rudimentary mechanism for providing position and trajectory data on particular spacecraft (as elaborated by the Registration Convention), and a general obligation to consult in case one’s own space activities may pose a serious threat to other states’ space activities.

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expertise with space flight (generally available much more in specialized space agencies than at ICAO) and profound adaptation of the system of the Chicago Convention (such as overhauling the current definition of ‘aircraft’ quoted above), but also would ignore a few fundamental aspects of current space activities and space law which would make the exercise of such authority by ICAO a rather different paradigm as compared to its longstanding role in international aviation. To start with, the ICAO system of ‘competence’ hinges on communication with pilots to initiate flight manoeuvres following the directions of an ATM authority – but piloted vessels only comprise one category out of four needed to be regulated by a space traffic management system. For the other categories, it would be required to establish a system addressing the remote control mechanisms instead. For the second category this might still work, although one needs to be aware again that a number of ground stations may come into play, as opposed to the piloted vessels which operate under the single authority of the aircraft commander. Then again, the third category could still not be properly addressed, as this consists of space objects which are, by definition, non-guidable. This category, in other words, is essentially beyond any ‘compliance’. As for the fourth category: it was never envisaged as an element to be regulated by traffic management, as the Cosmic Study would have it, but instead as an element to allow traffic management to become possible in the first place! The role of ICAO and its member states in ensuring that such radio frequency use was duly protected in the context of the ITU thus also was a key element of air traffic management itself, where no comparable international construct exists for space traffic management. Furthermore, as indicated, contrary to ATM technology which is widely available across the world, only a handful of states currently possess the actual possibility – read technology – to generate and properly use the information needed to order spacecraft around for safety purposes as part of a space traffic management system. In view of the major military and dual-use aspects of space activities, those few states would already have a fundamental problem with freely sharing such information – whereas on the other end, space activities by definition having a global impact, all other states may not feel comfortable with becoming lopsidedly dependent on such information – let alone with directive management of their space activities and spacecraft.14

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Cf. also the discussions in ICAO on the hesitation of its member states to adapt GPS (and GLONASS) as safety-critical navigation systems without clear-cut acceptance of international liability for erroneous navigation signals on the part of the United States (respectively the Russian Federation); See e.g. L.J. Smith, Legal aspects of satellite na vigation, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti) (2015), 602-7.

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Furthermore, in terms of the law, ICAO would not step into a vacuum. COPUOS has by way of the space treaties and more recently for example the COPUOS Guidelines on Space Debris Mitigation provided for a legal framework for space activities that, although far from sufficient to provide for or even deal with space traffic management, does provide for some important legal framework rules and principles.15 Even more pertinently, as indicated, with regard to the last major element to be incorporated into any viable space traffic management system, the use of radio frequencies has since a number of years been (by and large satisfactorily so) arranged through the mechanisms available with the ITU – which as a matter of fact also addressed the orbital slots respectively orbits the spacecraft using those frequencies were to occupy.16 No future space traffic management could feasibly be envisaged without recognition, likely even proper integration, of these existing legal regimes. Also in the realm of competence a summary investigation of current law and key players thus shows the complexity of (and the loopholes within) the existing landscape. The ITU does not so much ‘possess a competence’ to determine relevant elements of space traffic management in the context of frequencies and orbital positions, but rather represents a ‘gentlemen’s system of exchange of information and coordination of behaviour for the common good’ – largely dependent furthermore on national implementation by those with real authority to direct operators to move a space object. Would that be really sufficient for an all-encompassing space traffic management system, in an environment where more and more commercial interests interfere with the more traditional military and political interests? To begin with, this addresses essentially at best only two out of the four Cosmic Study categories in any comprehensive manner: radio frequencies and unpiloted vessels – the latter actually only to the extent completing orbits around the earth (including for this purpose the geostationary orbit). Whereas space traffic management competence in the context of space debris boils down to the right to move it out of harm’s way, this essentially accrues not to any international organization, platform or system-of-systems but to the state

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This concerns notably of course the Outer Space Treaty, Liability Convention and Registration Convention as discussed above; whereas the COPUOS Guidelines (International cooperation in the peaceful uses of outer space, UNGA Res. 62/217, of 22 December 2007; UN Doc. A/RES/62/217) may be well on their way to becoming customary international law; See e.g. Viikari, 742 ff. See e.g. Art. 44, Constitution of the International Telecommunication Union (hereafter ITU Constitution), Geneva, done 22 December 1992, entered into force 1 July 1994; 1825 UNTS 1; UKTS 1996 No. 24; Cm. 2539; ATS 1994 No. 28; Final Acts of the Additional Plenipotentiary Conference, Geneva, 1992 (1993), at 1, as amended; also F.G. von der Dunk, Legal aspects of satellite communications, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti)(2015), esp. 464 ff.

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accountable for it in the first place, witness also the discussion on space debris remediation as potentially requiring states to allow their defunct space objects to be taken out of harm’s way by other states willing to do so, along the lines of the concepts of ‘abandonment’ and ‘ship wrecks’ in the law of the sea.17 Finally as to piloted vessels, while they also use radio frequencies, the ITU has no authority whatsoever to determine where these vessels should fly, or even what messages the radio frequencies to be used are to transmit in that regard. That remains exclusively the competence of the states operating (or, in the future with private manned spaceflight, controlling) such vehicles. Even in the United States, however, the state furthest advanced in (addressing) manned spaceflight management, the discussion on how to exercise US jurisdiction in space inter alia for traffic management purposes is only just gearing up.18 Here, it should be noted moreover that developments seem to go against any more or less straightforward extension of air law at least for the purposes of traffic management to outer space. Noting of course that we have not seen any actual such flights yet, the United States has chosen not to address key issues for traffic management purposes such as permission to operate and use a certain trajectory as a special kind of aviation, but as a (space) launch activity. Thus, it was the 1984/1988 Commercial Space Launch Act which was amended in 2004 to address seemingly impending private commercial sub-orbital flights.19 In the launch license due attention is given to the permitted launch trajectory, if only for the purposes of calculating the Maximum Probable Loss (MPL) which forms the basis of any third-party liability of the operator and the insurance he is obliged to take out to cover such liability.20 US air law and ATM regulations would only come into the picture to the extent of the habitual temporary clearance of US airspace around the launch site. The most recent step here is effectively just a first step: a requirement imposed by Congress upon NASA in conjunction with other relevant US government bodies “to study alternate frameworks for the management of space traffic and orbital activities”.21

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Cf. e.g. Viikari, 757-8; M.P. Schaefer, Analogues Between Space Law And Law Of The Sea/International Maritime Law: Can Space Law Usefully Borrow Or Adapt Rules From These Other Areas Of Public International Law?, in 2012 Proceedings of the International Institute of Space Law (2013), 316-30. See e.g. F.G. von der Dunk, From Space Tourists to Unruly Passengers? The US Struggle with ‘On-Orbit Jurisdiction’, in Proceedings of the International Institute of Space Law 2014 (2015), 391-405. See now, further to the Commercial Space Launch Amendments Act (23 December 2004, Public Law 108-492, 108th Congress, H.R. 3752, 49 U.S.C.; 118 Stat. 3974), Commercial Space Launch Activities; 51 U.S.C. 509. See Sec. 50914, 51 U.S.C.; further e.g. F.G. von der Dunk, Legal aspects of private manned spaceflight, in Handbook of Space Law (Eds. F.G. von der Dunk & F. Tronchetti)(2015), 684. Sec. 109(b), U.S. Commercial Space Launch Competitiveness Act; 114th Congress, H.R. 2262, of 6 January 2015; emphasis added.

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While in Europe for some time an effort (meanwhile aborted or at least put on hold) was made to address the future operations of at least those sub-orbital vehicles that fitted the definition of ‘aircraft’,22 this focused on the certification of such craft as per EASA,23 not on ATC and ATM as per Eurocontrol.24 V.

The Issues of ‘Delimitation’ and ‘Innocent Passage’

Third, whereas for air law purposes the need to determine where, vertically speaking, (sovereign) airspace gives way to outer space did not really exist, for purposes of a future space traffic management system it seems that this would have to change. This directly relates to the question of ‘innocent passage’ through foreign airspace on the way to or back from outer space, as this has often been posited analogously to the law of the sea.25 Is a spacecraft flying at altitudes of 60, 80, 100 respectively 120 km over the territory of a state different from where it took off already in outer space, meaning that the underlying state cannot claim any sovereign territorial control over that spacecraft, including subjecting it to its national (air) traffic management

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See e.g. J.B. Marciacq et al., Towards Regulating Suborbital Flights: An Updated EASA Approach, Paper IAC-10-D2.9.5, 61st International Astro-nautical Congress, Prague, 2010, 2, not published in the Proceedings of the International Institute of Space Law 2010 (2011); J.B. Marciacq et al., Accommodating Sub-Orbital Flights into the EASA Regulatory System, in Space Safety Regulations and Standards (Eds. J.N. Pelton & R.S. Jakhu) (2010), 187-212. The European Aviation Safety Agency (EASA) was established by Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, No. 1592/2002/EC, of 15 July 2002; OJ L 240/1 (2002); later superseded by Regulation of the European Parliament and of the Council on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC, No. 216/2008/EC, of 20 February 2008; OJ L 79/1 (2008). Eurocontrol was established by the Convention Relating to Co-operation for the Safety of Air Navigation (hereafter Eurocontrol Convention), Brussels, done 13 December 1960, entered into force 1 March 1963; 523 UNTS 117; UKTS 1963 No. 39; Cmnd. 2114; later amended inter alia by the Protocol Amending the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, Brussels, done 12 February 1981, entered into force 1 January 1986; 430 UNTS 279; Cmnd. 8662; and the Protocol consolidating the Eurocontrol International Convention Relating to Co-operation for the Safety of Air Navigation of 13 December 1960, as variously amended, Brussels, done 27 June 1997, not yet entered into force; Eurocontrol Revised Convention, Sept. 1997 edition at Eurocontrol. Here, it constitutes the only fundamental exception to the territorial sovereignty of the coastal state over its territorial waters; cf. Arts. 17-26, United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994 No. 31; 21 ILM 1261 (1982); S. Treaty Doc. No. 103-39.

SPACE TRAFFIC MANAGEMENT

system? Or would such spacecraft still be considered as crossing a foreign state’s sovereign airspace, in which case the latter’s jurisdiction allows it to condition such flight on compliance with certain traffic management regulations or even completely prohibit it – unless the aforementioned ‘innocent passage’ applies, in which case the underlying state presumably would still be allowed to impose traffic management-related obligations, as long as not thereby effectively denying passage as such.26 As sufficiently discussed elsewhere,27 the best that could be said is that as of today a convergence could be noted on agreement to take the 100 km altitude-line as presenting the legal boundary between airspace and outer space, which would be ready to morph into customary international law if it would not be for the official resistance of the United States, the leading spacefaring nation of today certainly when it comes to private manned spaceflight, to accepting such a boundary line – or indeed, any legal boundary. VI.

Towards a Solution?

In any event, in contrast to aviation, the vast majority of space operations to be subjected to a future space traffic management system takes place in a global commons as opposed to sovereign territories. This fact alone makes the role of some kind of intergovernmental organization on space traffic management more crucial and indispensable still than ICAO for international aviation, which after all was established after several decades of international commercial aviation had already passed by. Much more than in aviation, the management of traffic in outer space for the purpose of safe flights of manned and unmanned vehicles alike, would require a near-comprehensive space situational awareness system taking into consideration not only the many objects unmanned and difficult to manoeuvre, but also the many objects impossible to manoeuvre – yet capable of causing devastating damage to other spacecraft by impact. After all, as compared to aviation, the speed of movement has become a dimension or two larger still, making it even less likely for visual or other last-minute course corrections to remain the ultimate solution for avoiding accidents or serious threats thereof. Also the communication with those space objects that are capable thereof would largely differ from the classical modes of communication with aircraft, in view of most of the aforementioned ones being unmanned. Perhaps the most helpful approach is to start by recognizing that at the end of the day an intergovernmental authority, whether existing or newly to be established, should approach the issue of space traffic management along the lines of ATM over the high seas: get all states to agree within the bounds of

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See further Von der Dunk, International space law, 72-8. See e.g. Von der Dunk, International space law, 60-72, and literature referenced there.

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an international regime for specific states to provide the services necessary in a particular part of outer space for everyone concerned to operate safely and efficiently – and without violating existing international law or otherwise threatening the international peaceful status quo regarding outer space. Where this would, likely, for the foreseeable future not be a politically feasible option, a start could be made on the level of awareness – as is currently, to some extent, done by way of various space situational awareness initiatives. From such an ‘awareness system’ a ‘competence system’ should evolve along gradual lines, not necessarily immediately giving rise to a comprehensive globally accepted legally binding construct. In a first step, this could give rise to an optional adherence to such a system by a few leading – and farsighted – states willing to take a bow to an international regime, perhaps even entity, for the sake of an ultimately better and safer space environment. In a second phase, such an adherence could then gradually translate into a major factor mitigating liabilities in particular in the context of fault liability for damage caused by one space object to another. Ultimately, thus the ground could be prepared for the third and final step: a properly binding system of space traffic management with an effective international dispute settlement mechanism. Depending on whether there would be such a massive increase in spaceflight (manned or unmanned) as to urgently require an international, comprehensive and coherent space traffic management system, we might perhaps still have the time to overcome the political and other impediments in the way of the above suggested role of an intergovernmental entity, first in the realm of awareness, then in that of competence, first under an optional approach, then in legally binding fashion across the globe (read universe). Best, therefore, to start the discussion in earnest now – after all, it is even by comparison to aviation truly a challenge of cosmic proportions to develop a coherent, comprehensive, efficient and acceptable system of space traffic management in the sense of the Cosmic Study’s definition.

396

Space Traffic Management Regime Needs and Organizational Options James D. Rendleman and Brian D. Green*

Abstract With the increasing risks of collisions and electromagnetic interference, some suggest that there is a need for “space traffic management” (STM) in order to sustain safe operations in the space domain. Developing such a system to manage launch, on-orbit, and reentry space activities would embody important principles of the Outer Space Treaty’s Article IX – cooperation, mutual assistance, and due regard – and honor the affirmative duty to consult. Performing any form of STM, however, would be technically daunting, and resolving the security and proprietary concerns would present significant obstacles to achieving success with any proposed scheme. Nonetheless, some argue that a comprehensive STM regime should be developed. These proponents recommend that the regime address information needs, notification systems, traffic management, and an implementing organization with appropriate oversight. Relevant STM architecture options can vary. This paper addresses the need for new mechanisms, whether governmental, intergovernmental, or private, to address space congestion, debris, and electromagnetic interference concerns. Then, it will apply common-sense criteria to determine which organizational options have the greatest merit for the global spacefaring community. Three overarching approaches to reduce collisions and electromagnetic interference, and mitigate space debris challenges, will be examined and scored, and arguments for and against each will be presented.

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James D. Rendleman, JD, LLM, USSTRATCOM JFCC SPACE, Vandenberg Air Force Base, California, USA, Supervising Attorney, Operations, Space & International Law, Joint Functional Component Command for Space, United States Strategic Command, Vandenberg Air Force Base, California, USA. Member, State Bar of California. Associate Fellow, American Institute of Aeronautics and Astronautics, [email protected]. Brian D. Green, USSTRATCOM JFCC SPACE, Vandenberg Air Force Base, California, USA Chief, Space & Operations Law, Joint Functional Component Command for Space, United States Strategic Command, Vandenberg Air Force Base, California, USA. Member, District of Columbia Bar. The views expressed in this paper are those of the authors and do not reflect the official position of the U.S. Government, U.S. Air Force, or U.S. Strategic Command.

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I.

Congested Space Poses Risks to Operations

Throughout the Space Era, the space-faring community has been challenged. Problems. Failures. Crises. Tragedies. Spaceflight is complex, risky, and unforgiving. Fortunately, the history of Space has been that when problems arise, its leaders develop policies, organizations, and systems to solve them or to work around and avoid the problems in the future. Times and circumstances continue to change. As such, policies, organizations and systems evolve to respond to them. In this vein, it is appropriate to discuss the multiplying numbers of objects left in space orbit during the last half-century. The numbers now precipitate flight safety and mission assurance concerns; so much so that some observers argue for “space traffic management” (STM), suggesting that controls imposed by such a regime are needed to mitigate risks of on-orbit collision and electromagnetic interference and protect the domain from growing clutter. Assuming a consensus can be reached how to define, develop, and implement some form of STM, a number of questions arise: What should such a system manage and when? What are its technical obstacles? What frameworks should be considered? What are the obstacles and considerations? What should be the government role? Can risk and regulation better managed and performed by the private sector? This paper will attempt to address these issues. First, however, we must recap the driving foundations for the desire to implement STM. Demands for STM reached a zenith following the 2009 collision between the operational Iridium 33 and defunct Cosmos 2251 spacecraft, which generated over 3,000 trackable pieces of debris published to Space-Track.org.1 This event had followed China’s 2007 kinetic-kill anti-satellite (ASAT) test directed against one of its own satellites, the Fengyun 1C weather satellite, which generated over 3,400. Hundreds of thousands of pieces of smaller, untrackable debris also resulted from these events. Some estimate that the ASAT test created “a pervasive debris cloud of more than 150,000 objects greater than 1 centimeter in size [...] [M]any of the objects in this cloud – which accounts for more than 25 percent of all cataloged objects in low earth orbit – will stay in orbit for decades, and some for more than a century.”2 The number of operational satellites now exceeds 1,300.3 More are placed in orbit every month. Well over 400 spacecraft are operated in geosynchronous

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Space-Track.org is the public-facing website through which the U.S. government makes its space situational awareness data available to those who register for an account. Richard H. Buenneke, Remarks, European Space Policy Institute/GWU Space Policy Institute joint workshop on “Space and Security – Transatlantic Issues and Perspectives,” Washington, DC, November 17, 2009, https://www.gwu.edu/~spi/assets/docs /111709Buenneke.pdf, accessed Sept. 11, 2014. As of August 31, 2015, the Union of Concerned Scientists (UCS) assessed the operating number at 1,305, with 696 in low Earth orbit, 87 in medium Earth orbit, 41 in

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

Earth orbit (GEO) by governmental, international, commercial, and academic institutions. This number reflects the exponentially growing demand for space-enabled information services that is best delivered by systems in that unique orbital regime. The numbers also involve a tremendous investment in resources by their owner-operators. Over the decades, spacecraft placed in GEO have grown in complexity and capacity, and with that, their size and mass. The numbers of spacecraft placed in LEO also are growing rapidly because operators have begun to choose to leverage the tremendous capabilities now offered by small satellites, including CubeSats.4 Small-satellite systems with advanced miniaturized payloads and buses are now ready to provide a wide variety of technical, schedule, and cost advantages and satisfy a wide mix of mission requirements, and they can use a wider mix of launch vehicles to achieve orbit. Some entrepreneurs now propose to orbit massive constellations of hundreds or thousands of satellites.5 LEO spacecraft generate additional concerns because the relative collision speeds of objects in LEO are usually many times higher for those found in GEO. Even very small objects, traveling at speeds of about 6.9 to 7.8 kilometers per second (15,430 to 17,450 miles per hour), can inflict catastrophic damage, expelling large plumes of debris that may threaten other satellites for decades to come. Moreover, when LEO objects in different orbital planes collide, the event can take place at relative speeds of many more thousands of kilometers per hour. The predicted increasing numbers of spacecraft have exacerbated concerns about growing domain congestion, especially important as small satellites are more difficult to track and catalog by even the best existing space situational awareness systems. With large investments at stake, operators seek to manage

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elliptical orbit, and 481 in geosynchronous Earth orbit. The authors use the UCSassessed numbers for this paper. See “UCS Satellite Database,” Union of Concerned Scientists, www.ucsusa.org/nuclear_weapons_and_global_security/solutions/spaceweapons/ucs-satellite-database.html, accessed Sept. 15, 2015. A CubeSat spacecraft is usually used for research and usually has a volume of exactly one liter (10 cm cube), or some multiple of that volume (e.g., 20x10x10 cm cube or 30x10x10 cm or larger). Most employ commercial off-the-shelf components for the electronics. Leonard DavId., “Cubesats: Tiny Spacecraft, Huge Payoffs,” Space.com, Sept. 8, 2004, www.space.com/308-cubesats-tiny-spacecraft-huge-payoffs.html, accessed Sept. 6, 2014. Jason Dorrier, “Tiny CubeSat Satellites Spur Revolution In Space,” June 23, 2013, Singularity Hub, http://singularityhub.com/2013/06/23/tinycubesat-satellites-spur-revolution-in-space/, accessed Sept. 6, 2014. “CubeSat Design Specification Rev. 13,” The CubeSat Program, Cal Poly San Luis Obispo, Feb. 20, 2014, http://cubesat.calpoly.edu/images/developers/cds_rev13_final.pdf, accessed Sept. 9, 2015. For instance, a company called OneWeb plans to orbit a 600-satellite constellation to provide worldwide Internet access. Alan Boyle, “OneWeb Wins $500 Million in Backing for Internet Satellite Network”, NBC News, June 15, 2015, www.nbcnews .com/science/space/oneweb-wins-500-million-backing-internet-satellite-networkn381691, accessed Sept. 9, 2015.

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risks in order to assure long and productive on-orbit life. Given this, one might expect that operators would consider favorably any governmental or private offering that efficiently assists in the performance of such tasks. Of course, this will be the case only if the “cure” does not harm the patient – i.e., the solution does not impose dramatic new costs and restrictions that outweigh their intended benefit. II.

Space Traffic Management Defined

The International Academy of Astronautics (IAA), in its seminal study, 2006 Cosmic Study on Space Traffic Management, offered the following definition for “STM”: Space traffic management means the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference.6 With this definition, one could think of STM as being grouped into three basic functions: situational awareness, control mechanisms, and traffic regulation. Situational awareness includes functions and services related to locating and tracking objects and monitoring the environment. Control mechanisms include functions and services by which operations can be directed and approved in order to promote safe and expeditious activities. Traffic regulation includes functions that are authorized and/or performed by an appropriate authority to assess, approve, and grant permission for spacecraft operations, and develop processes and ensure compliance with them. These functions can be performed at launch, while on-orbit, and upon re-entry, but are still subject to technical obstacles. III.

Surmounting the Insurmountable – Traffic Management Technical Obstacles

The technical aspects of performing any comprehensive form of STM are daunting. Indeed, just operating a spacecraft to achieve mission success is not easy, complicated by physics, engineering, acquisition operational, and sustainment issues. Though space systems have advanced over the decades, management of their activities involves good doses of “rocket science.” Mitigating collision risks and electromagnetic interference (EMI) issues requires operators to work smartly as they perform complex operations.

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Cosmic Study on Space Traffic Management, Corinne Constant-Jorgenson, Petr Lala, Kai-Uwe Schrögl, editors, International Academy of Astronautics (Paris, France) 2006, p. 10.

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

III.1.

Space Situational Awareness (SSA)

SSA is essential to any STM system that might be fielded. Several SSA systems are being used by space operators to forecast and identify disruptive events so that responses can be developed. However, none of these SSA systems is capable of providing comprehensive awareness of the Earth’s orbital space environment, which limits the efficacy of any STM regime that hopes to ameliorate the lion’s share of orbital threats. While they do not protect against all threats, the current SSA systems do provide data that warn operators of conjunction and collision threats posed by larger objects and spacecraft. Beyond the space congestion and related safety issues, SSA also helps operators to understand and resolve on-orbit anomalies. Of further importance, quality SSA data can enable operators to distinguish unintended on-orbit anomalies from hostile attacks, and natural satellite re-entries from incoming ballistic missile warheads. The U.S. Government, its allies, and most major commercial operators rely on the “gold standard” of SSA information distributed by the U.S. Strategic Command (USSTRATCOM) through its Joint Space Operations Center (JSpOC). The JSpOC integrates data from USSTRATCOM’s Space Surveillance Network (SSN), a global network of optical telescopes and radar sensors, tracking about 23,000 orbiting objects. JSpOC analysts catalog a large portion of that number.7 Although the SSN is the world’s best at providing SSA information, its sensors are unable to consistently track any objects smaller than ten centimeters in diameter, the size of a grapefruit, in LEO. In addition, environmental events, time lags, and uncoordinated satellite movements can disrupt and confuse tracking. Also, because there are a “large number of space objects and limited numbers of sensors available to track these objects, it is impossible to maintain persistent surveillance on all objects and therefore there is inherent uncertainty

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Aaron Mehta, “USAF Focuses on Space Debris, Other Threats,” Defense News, May 24, 2014, citing General William Shelton, Commander, Air Force Space Command, in a keynote address given at the Space Symposium, Colorado Springs, Colorado on May 20, 2014, www.defensenews.com/article/20140524/DEFREG/305240019/USAF -Focuses-Space-Debris-Other-Threats, accessed Sept. 27, 2014. “The DoD’s SSA capabilities have shortcomings. The main drawback is in the location and distribution of the tracking sites. Many of their tracking radar locations are optimized for their original missile warning functions and are thus located on the northern borders of the United States. This means that the system’s coverage is focused mainly in the Northern Hemisphere. Thus there are large gaps in the tracking coverage for LEO space objects and sometimes significant time between tracks. There are efforts underway to alleviate some of these gaps, as in the recent decisions to move a radar and an optical telescope to Australia, but most of the gaps will remain.” Brian Weeden, Prepared Statement, “Space Traffic Management: Preventing Real Life ‘Gravity’,” U.S. House of Representatives Committee on Science, Space and Technology, May 9, 2014, http://docs.house.gov/meetings/SY/SY16/20140509/102218/HHRG-113-SY16Wstate-WeedenB-20140509.pdf, accessed Sept. 7, 2014.

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and latency in the catalog.”8 In GEO, objects must generally exceed one meter in size to be tracked, and are best tracked with optical telescopes rather than the radar systems used for lower orbits. The tracking of objects in GEO presents the biggest challenge to USSTRATCOM’s orbital analysts, especially “due to the small number of available deep-space tracking sensors. A satellite that maneuvers in this orbital regime may become ‘lost,’ which usually requires JSpOC analysts to devote additional time and resources to find the satellite, at the expense of sensor resources devoted to the rest of the catalog.”9 Commercial and several government operators also obtain and share SSA information as members of the Space Data Association (SDA). Founded in 2009 by the world’s three largest commercial satellite operators, Intelsat, Inmarsat and SES, the SDA provides “a mechanism for its members to share data on the locations of their satellites and any plans to reposition them that avoids revealing sensitive information yet contributes to SSA and the broader goal of ‘space sustainability.’”10 SDA claims its program provides “an automated space situational awareness (SSA) system designed to reduce the risks of onorbit collisions and radio frequency interference. It is the satellite industry’s first global operator-led network for sharing high-accuracy operational data to improve overall space situational awareness and satellite operations.”11 It is important to note that the data distributed by the SDA is built on a foundation of SSA information provided by the JSpOC; it augments the JSpOC data with individual tracking data offered by its members on their spacecraft. Since such information is continually updated, it tends to be very accurate and precise as to the systems its members operate. The SDA’s contractor, Analytic Graphics, Inc. (AGI), ingests and processes operator-supplied orbital data; performs conjunction assessments; and generates automated warning alerts. It also supports avoidance maneuver planning, radiofrequency interference (RFI)

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Abbot I. Abbot and Timothy P. Wallace, “Decision Support in Space Situational Awareness,” Lincoln Laboratory Journal, Volume 16, Number 2, 2007, pp. 297-335, 297. Ibid., 298. Marcia Smith, “Space Data Association and USSTRATCOM Reach Data Sharing Agreement,” Space Policy Online, Aug. 11, 2014, www.spacepolicyonline.com/news/space-data-association-and-usstratcom-reach-datasharing-agreement, accessed Sept. 6, 2014. On August 8, 2014, SDA announced in a press release that it had reached a data sharing agreement with USSTRATCOM, to enhance space situational awareness and provide a framework to exchange data, under the DoD SSA Data Sharing Program. According to SDA, it is the first nonsatellite operator to sign an agreement with USSTRATCOM. See also “Satellite Data Association: SDA and US Department of Defense Sign Space Situational Awareness Agreement,” Business Wire, Aug. 8, 2014, www.businesswire.com/news/home/20140808005645/en/Space-Data-AssociationSDA-U.S.-Department-Defense#.VAwHcNLwvTt, accessed Sept. 6, 2014. “The Space Data Association…How Close is Close (Analysis),” Satnews Daily, Jan. 24, 2011, www.satnews.com/cgi-bin/story.cgi?number=1681696938, accessed Sept. 11, 2011.

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

mitigation, and data sharing.12 Despite the enhancements, comprehensive tracking and cataloging is still not provided for any but a tiny subset of the total numbers of operational satellites and man-made debris existing in Earth orbit. More recently, an innovative private solution has been proposed to satisfy space operator SSA needs. On March 13, 2014, AGI announced the establishment of a Commercial Space Operations Center (ComSpOC™).13 It claims the ComSpOC will offer subscribers fused satellite-tracking measurements from a growing globally-distributed network of commercial optical, radio frequency, radar and space-based sensors, which presently include 28 optical sites and one radar. AGI says it also has implemented closed-loop tracking with its sites; successfully tracked a recent space launch; and has the capacity to provide persistent tracking and characterization of space objects larger than five centimeters.14 AGI claims to offer enhanced accuracy and readiness to satellite operators and intelligence analysts. This includes information on highdefinition ephemeris, near-real-time maneuver detection, characterization of its entire space object catalog and of all non-cooperative maneuvers performed, satellite proximity monitoring, RFI characterization and geolocation, along with other services.15 AGI’s ComSpOC website brags that it now tracks over 5,000 space objects, 75% of active GEO satellites, and 100% of all active GEO satellites with communication and sensor footprints over the continental U.S. It claims to have verified an ability to do near real-time maneuver characterization and maintain continuous custody (tracking) of actively broadcasting GEO spacecraft. AGI also offers a “SpaceBook ®” as part of its service, providing data such as status, orbit mission and owner information of all tracked objects. In the future, AGI says this will serve as a subscriptionbased portal for ComSpOC data such as health, status, event and trending information of all tracked objects.16 It remains to be seen how commercially viable the ComSpOC initiative will be, and whether it provides qualitative advantages over services provided by the JSpOC and SDA. Many non-U.S. countries and commercial entities also perform SSA activities, notably the European Space Agency and France, Russia, China, India, Japan, and South Korea. The European Space Agency (ESA) is developing its own

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“Space Data Association Selects Analytic Graphics, Inc., to Design and Operate Its Space Data Center,” SDA News, Apr. 12, 2010, www.space-data.org/sda/, accessed Jul. 18, 2010. See also Richard DalBello and Michael Mendelson, Keynote Address to Space Law and Policy 2010, Washington, DC, May 11, 2010. “AGI’s ComSpOC Takes the Guess Work Out of Ducking Speeding Space Objects,” Satnews Daily, March 13, 2014, www.satnews.com/story.php?number=1111081326, accessed Jan. 12, 2015. ComSpOC Commercial Space Operations Center, “Our Mission,” http://comspoc.com/about/#ourMission, accessed Jan. 12, 2015. Ibid. Ibid.

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SSA capacity under the European SSA Programme.17 The Russians have initiated a separate SSA observation program, the International Scientific Optical Network (ISON). The Russians describes this effort as a “scientific project”18 and it was initiated by the Keldysh Institute of Applied Mathematics and the Pulkovo Astronomical Observatory of the Russian Academy of Sciences.19 The project now involves cooperation among disparate entities in Great Britain, ESA and Switzerland. It obtains data from a network of 25 optical telescopes located at 18 facilities in nine nations around the world.20 China, Turkey, and their several partners in the Asia Pacific Space Cooperation Organization (APSCO)21 have agreed to generate and share data through the Asia Pacific Optical Space Observation System (APOSOS).22 India and the U.S. are beginning to coordinate together on data sharing and other space security matters.23 In 2001, the Japanese fielded two telescopes at the Bisei Space Guard Center, which can track one-meter objects at GEO; in 2004, Japan fielded a mechanical phased-array radar at the Kamisaibara Space Guard Center, which can track one-meter objects in LEO at a 600 km range. Their optical and radar observations are integrated at the Japan Aerospace Exploration Agency’s (JAXA) Tsukuba Space Center Tracking and Control Center. The Japanese have executed an agreement with USSTRATCOM to share this data with the JSpOC, and by “around the early 2020s” says that it hopes to construct SSA-related facilities and an operational framework to support its SSA needs, based on the Japan-U.S. partnership.24 South Korea is developing its own SSA network. It calls this system of six geographically distributed

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“ESA – ESA Spacecraft Operations – SSA Preparatory Programme.” European Space Agency, 5 December 2008. “ISON: International Scientific Optical Network – FAQ,” http://isonteam.com/faq/, accessed 18 Jul. 2010. Ibid. Brian Weeden, Suzanne T. Metlay, and Ray A. Williamson. “Space Weather and International Civil Space Situational Awareness.” PowerPoint briefing presented to NOAA Space Weather Week, 28 Apr. 2009. See Convention of the Asia Pacific Space Cooperation Organization (APSCO), Bangl.-P.R.C.-Indon.-Iran-Mong.-Pak.-Peru-Thail.-Turk., Oct. 28, 2005, 2423 U.N.T.S. 43736 (entered into force Dec. 10, 2006). Guo Xiaozhong, Nat’l Astronomical Observatories, Chinese Academy of Sciences, Asia-Pacific ground-base [sic] Optical Satellite Observation System (Oct. 2011), available at http://swfound.org/media/50867/Guo_APOSOS.pdf; See also Shen Ming, Progress on APOSOS (Nov. 8, 2012), available at http://swfound.org/media/95032/Shen-Progress_APOSOS-Nov2012.pdf. U.S. Dep’t of State, Joint Statement on the Fifth India-U.S. Strategic Dialogue (Jul. 31, 2014), available at www.state.gov/r/pa/prs/ps/2014/07/230046.htm. Nobuhiro SAKAMOTO, “Overview of Space Situational Awareness in Japan, Office of National Space Policy, Japan, Feb. 26, 2015, www.jsforum.or.jp/debrisympo/2015 /pdf/11%20150226_Sakamoto_rev.pdf, accessed Sept. 14, 2015.

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

telescopes the “Optical Wide-field patroL” (otherwise known as OWL), and plans to use it to monitor Korean satellites and space debris.25 Despite the progress and best efforts made in fielding SSA systems, USSTRATCOM, SDA, ComSpOC, the Russians, Chinese, and other entities cannot know where all orbiting spacecraft and debris are at all times. They are only tracking the larger objects. Hundreds of millions of man-made objects and debris also are found in Earth orbit – estimated to include up to 330,000,000 objects of one millimeter to one centimeter in size and, more importantly, the 560,000 objects in the one-to-ten-centimeter range, sizes that easily can destroy or catastrophically damage satellites.26 The numbers of man-made objects thought to exist in Earth orbit dwarf the relatively small number of approximately 1,300 operational spacecraft found in Earth orbit. Given the risks posed by smaller objects, and concerns about threats that might be posed by adversaries, the U.S. Air Force is shoring up USSTRATCOM’s tracking capacities. Its Space Based Space Surveillance (SBSS) Satellite was launched into orbit in September 2010, and the Geosynchronous SSA Program (GSSAP) system was launched in late-July 2014. The two-satellite GSSAP constellation will operate with electro-optical sensors in a neargeosynchronous orbit to provide tracking and characterization of objects resident in GEO.27 These two space-based sensor systems are expected to add many more objects to the USSTRATCOM space object catalog. In addition,

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Jang-Hyun Park et al., Korean Space Situational Awareness Program: OWL Network (paper presented at AMOS Technologies Conference, Sept. 11-14, 2012), available at www.amostech.com/TechnicalPapers/2012/POSTER/PARK.pdf. The numbers are from 2006, citing Dr. Heiner Klinkrad, European Space Agency Space Debris Office and one should expect the numbers to be much larger today. Union of Concerned Scientists, “What’s in Space?”, Ensuring Space Security: Fact Sheet No. 2, www.ucsusa.org/assets/documents/nwgs/satellites.pdf, accessed Sept. 18, 2014, citing H. Klinkrad, Space debris: Models and risk analysis (2006) Berlin: Springer Praxis, 96. According to the NASA Orbital Debris Program Office in 2013, radar data indicates that the number of pieces of space debris at the 1-centimeter level is approximately 500,000. At the 1-millimeter level, the population is estimated to be on the order of hundreds of millions. J.-C. Liou, “Engineering and Technology Challenges for Active Debris Removal,” Progress in Propulsion Physics 4 (2013) 735748, p. 737, www.eucassproceedings.eu/articles/eucass/pdf/2013/01/eucass4p735.pdf, accessed Sept. 18, 2014. Mike Gruss, “Military Space Quarterly – Shelton Discloses Previously Classified Surveillance Satellite Effort,” Space News, Feb. 21, 2014, http://spacenews.com/article /military-space/39578military-space-quarterly-shelton-discloses-previously-classified, accessed Sept. 18, 2014; Aaron Mehta, “USAF to launch a previously classified satellite system this year,” Air Force Times, Feb. 21, 2014, www.airforcetimes.com/article /20140221/NEWS04/302210013/USAF-launch-previously-classified-satellite-systemyear, accessed Sept. 18, 2014; “Delta IV finally launches with semi-secret GSSAP Satellites & ANGELS NanoSat,” Spaceflight 101, Jul. 28, 2014, www.spaceflight101 .com/delta-iv---gssap-launch-updates.html, accessed Sept. 18, 2014.

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USSTRATCOM will use the enhanced computing capabilities offered by a new JSpOC Mission System (JMS) to handle greatly expanded analytic tasks which numbers will increase dramatically when the new “Space Fence” radar tracking system is fielded. This acquisition, awarded to Lockheed Martin, will replace the Air Force Space Surveillance System (AFSSS).28 The AFSSS operated from 1961 until September 1, 2013, and eventually tracked up to 20,000 objects. The new Space Fence will use three ground radars “operating in the S band, which has shorter, more accurate frequencies than AFSSS used” and is expected to expand the total number of trackable objects to well over 100,000.29 With 23,000 trackable objects detected on-orbit, the JSpOC presently produces about 1,400 conjunction summary messages30 and issues about 30 conjunction warnings to operators for their maneuverable spacecraft on a daily basis.31 One can expect the conjunction numbers to dramatically increase as the number of tracked objects grows over 100,000. The dramatically expanded numbers of tracked objects found by the new Space Fence will exacerbate analytical challenges for all users of USSTRATCOM’s SSA data. Further, and perhaps important, some fear the increased numbers could pose a conundrum for operators – analysis paralysis, the state of over-analyzing (or over-thinking). With analysis paralysis, a decisionmaker is overwhelmed by too much information, and too many options – so many that he or she cannot make a reasoned decision. The decision-maker concludes that an optimal or “perfect” solution cannot be found, and fears making any decision that could lead to erroneous results. This, in effect, paralyzes the operator and its management team. Unless decision-making tools can effectively account for the increased numbers, there is a danger that analysis paralysis will confound and overwhelm space operators, so much

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The AFSSS was originally known as the U.S. Navy Space Surveillance Systems and was called the “Space Fence.” Its command passed to the Air Force’s 20th Space Control Squadron on Oct. 1, 2004. Kevin McCaney, “Air Force awards deal for Space Fence to track orbital debris,” Defense Systems, June 3, 2014, http://defensesystems.com/articles/2014/06/03/airforce-space-fence-lockheed.aspx, accessed Sept. 7, 2014. Lieutenant General John W. Raymond, Commander, Joint Functional Component Command for Space, Prepared Statement, House Committee on Science, Space and Technology on Space Track Management, May 9, 2014, p. 4, http://science.house .gov/sites/republicans.science.house.gov/files/documents/HHRG-113-SY16-WStateJRaymond-20140509.pdf, accessed Sept. 7, 2014. “The JSpOC actively tracks all objects of “softball size” (10 centimeters) or larger on orbit, using the U.S. Space Surveillance Network as its primary detection suite of sensors, …mitigating the danger of these systems colliding with the more than 23,000 trackable objects orbiting in space.” Maj. Larry van der Oord, “614th Air and Space Operations Center welcomes new commander,” Inside Vandenberg, posted June 9, 2014, and updated June 12, 2014, www.vandenberg.af.mil/news/story.asp?id=123413786, accessed Sept. 27, 2014. Liou, supra note 26, p. 735.

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

that they are unable to perform and act on any cost-benefit analysis of the risk against a decision to maneuver.32 To achieve some modicum of success, any chosen STM system will need to incorporate tools and procedures that mitigate the effects of these analytical challenges. III.2.

Control Mechanisms

Protecting satellites from on-orbit collisions depends on interplay between two separate activities: conjunction assessment and collision avoidance. In order to responsibly operate space systems, operators must act to minimize identified risks. They must perform operations supported by competent SSA capabilities. Conjunction assessment, an SSA function, involves determining the close approaches between two objects, assessing the probability of collision, and providing warning to spacecraft owner-operators. Collision avoidance involves performing a cost-benefit analysis of the risk posed by approach and deciding whether or not to perform a maneuver to decrease the risk to an acceptable level. The process of making a decision responsive to the risks, directing and implementing changes, and then monitoring internal and external feedback mechanisms, describes a control mechanism. International capacities to perform precise conjunction assessments among known objects continue to increase, and the numbers catalogued will increase once the new Space Fence is fielded. Though there is risk of analysis paralysis, thus far the increased capacity and operator coordination has enhanced the ability of operators to take steps to reduce risks of on-orbit collisions, at least among the spacecraft that operators have the ability to control and maneuver. The increased capacity has spurred operators to push forward to improve their own best practices so as to avoid collisions. The largest spacefaring States and commercial operators believe that they can benefit tremendously by orchestrating coordinated solutions to reduce chances of collision among satellites and with on-orbit debris. For example, the 2010 United States (U.S.) National Space Policy confirms U.S. policymakers’ interests in confronting debris issues and improving environmental and operational stability of the domain via international cooperation.33 To this end, the U.S. State Department has spent several years on the World’s Stage suggesting it may be time for a non-binding “Code of Conduct” for space operators, to be used as a means of encouraging greater international best practices in the domain. As another example of international coordination, the Inter-Agency Space Debris Coordination Committee (IADC), a United Nations (UN) advisory

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Comparing the relatively miniscule numbers of operational maneuverable satellites to the vast numbers of untracked, non-maneuverable objects believed to be on-orbit, or at least those that pose a collision risk and attendant risk of damage to the operational systems, also gives a bit of a lie to any thought that a fully comprehensive space traffic management regime can be achieved. National Space Policy of the United States of America, June 29, 2010.

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body composed of representatives of national space agencies, facilitates information exchange on space debris research, mitigation options, and developing best practices. Participating States consider the IADC’s recommendations as “voluntary” but have used them when developing their own domestic standards, regulations, and laws relating to debris mitigation.34 In addition to the IADC activities, the International Organization for Standardization (ISO), a non-governmental federation of national standards bodies, established an Orbital Debris Coordination Working Group in 2003. The ISO working group has initiated several standards projects addressing space debris mitigation, disposal of satellites operating at geosynchronous altitude, and prevention of the break-up of unmanned spacecraft.35 The measures and procedures encouraged by the IADC and ISO initiatives have helped slow the growth in orbital congestion. Unfortunately, “these procedures have not been adequate to prevent growth in the debris population from random collisions [...] A more focused collision avoidance capability may help, but without adherence to current guidelines and an active debris removal program, future spacecraft operators will face an increasing orbital debris population that will increasingly limit spacecraft lifetimes.”36 The technical and operational challenges to mitigate debris issues are formidable. Post-mission disposal (PMD) rates have not matched hopedfor results. “Today, based on early data analysis, it is estimated [that] around 10% of the spacecraft and rocket bodies reaching their end of life between 600-1400 km performed a re/deorbitation manoeuvre (cit. om.).”37 This rate has implications. The long-term trend of the numbers of objects left in orbit changes depending on the PMD compliance rate. “For a PMD compliance of 90%, the population remains more or less constant over the 200 years; for a PMD compliance of 60%, the effective number of objects in the population evolves with a slight exponential trend; while for a PMD compliance of 30%,

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For example, the French Space Operations Act (FSOA), described as “uniquely French contribution to global space jurisprudence,” is being used to implement IADC and ISO recommended guidelines. ESA says it will comply with the FSOA, even though it claims it has no legal obligation to do so. Peter B. de Selding, “French Debris-mitigation Law Could Pose Issue for Arianespace” (Apr. 10, 2014) http://spacenews.com/40171french-debris-mitigation-law-could-pose-issue-forarianespace/ (accessed Sept. 23, 2015). S. Tranchard, “ISO standards for a safer, cleaner space,” ISO, Oct. 9, 2013, www.iso.org/iso/home/news_index/news_archive/news.htm?refid=Ref1784. D. Kessler, N. Johnson, J.-C. Liou, and M. Matney, “The Kessler Syndrome: Implications to Future Space Operations,” 33d Annual AAS Guidance and Control Conference, Breckenridge, Colorado, February 2010, AAS 10-016, http://webpages.charter.net/dkessler/files/Kessler%20Syndrome-AAS%20Paper.pdf. J.C. Dolado-Perez, B. Revelin, and R. Di-Costanzo, “Sensitivity Analysis of the Long Term Evolution of the Space Debris Population in LEO,” 65th International Astronautical Congress, Toronto, Canada, October 2014.

SPACE TRAFFIC MANAGEMENT REGIME NEEDS AND ORGANIZATIONAL OPTIONS

the number of objects in the population clearly evolves in an exponential manner.”38 Compounding the slow progress on PMD rates, theoretical space traffic management control mechanisms are confounded by the physics of operating, directing, and monitoring the activities of systems on-orbit. Operator-tospacecraft communications essential to the control can be hindered or disrupted by often-unexpected natural or man-made events. Television and movie depictions notwithstanding, speed-of-light physical realities deny ground-based operators any type of instantaneous control of spacecraft, or the detection or analysis of on-orbit issues. The distances involved in the satellite operator’s communications chain, ranging from about 500 to 35,000 kilometers once operational orbits are achieved, limit the immediacy of data transfer between sender and receiver, different systems, and even among components within the spacecraft or in supporting ground systems. There are time lags associated with sensing, observing and analyzing events; orienting systems to ascertain the dangers and potential for damage; determining a course of action and deciding to act; and then responding to the threat and communicating with and controlling a satellite to avoid it. And, as we have discussed, oftentimes there are not enough sensors to fully monitor relevant on-orbit events. This accentuates time lag challenges. Another vexing control issue confronting satellite operators is that even if they know precisely where all the threatening objects are and their ephemerides (and as we have discussed, they cannot), they may not have sufficient time, propellant or maneuvering capability to direct spacecraft maneuvers to avoid them. The issue is exacerbated in LEO because many spacecraft placed in that orbit are essentially non-maneuverable, including all or nearly all CubeSats that are being orbited. If a spacecraft can perform a collision avoidance maneuver, however, its operators must push their predictive analysis to a maximum, and “thread the needle” among known threats as they select maneuver options among a variety of possible collision and near-collision scenarios. Operators also must be prepared for scenarios involving two live, maneuverable satellites where both satellites can perform maneuvers to avoid a threatened collision. Unless these maneuvers are coordinated, they could end up increasing the risks of collision, making the situation worse. Such scenarios are described as “non-cooperative satellite monitoring,” situations in which operators act unilaterally, intentionally or unintentionally, without information on the spacecraft station-keeping and maneuver plans of other systems.39 This is a longstanding issue, well known to operators. In addition to the time-lag issues discussed above, attempts to implement control mechanisms as part of any comprehensive STM scheme also are

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Ibid. Abbot et al, “Decision Support…,” supra note 8.

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confounded by conflicting operator mission interests. Operators want to maximize mission life, but commanding a spacecraft to perform a collision avoidance maneuver could reduce mission life. Changing a satellite’s orbital plane, or increasing or decreasing orbital periods, to reduce collision risks could exhaust much-needed propellant valued for other long-term operations to include attitude control, station-keeping, and operations. For these reasons, even when operators are apprised of a collision risk, they may choose to accept that risk. There are no mechanisms to compel the operator to perform a satellite movement. III.3.

Traffic Regulation and Enforcement

At first blush, any State agreeing that its space activities should be regulated by any STM system would appear to be acting consistent with the obligations imposed by the Outer Space Treaty.40 Under Article VI, States bear international responsibility for their activities in outer space, whether conducted by governmental agencies or private citizens.41 Parties must authorize and continuously supervise all space activities undertaken by their citizens.42 Article IX of the

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205. Article VI reads: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization.” According to Rand Simberg: “Some parties to the treaty, particularly the Soviet Union, wanted space activities to be the sole preserve of governments. But negotiators from the United States managed to achieve a compromise in Article VI of the treaty that, as [Vladimir] Kopal writes, “paved the way for the private sector to conduct space activities side by side with States and international intergovernmental organizations”… By permitting non-governmental activities in space, albeit under government supervision, this section of the treaty allowed for the creation of the commercial telecommunications, remote-sensing, and spacecraft launching industries, which were then in their infancy and today are thriving…At the time the treaty was negotiated, the issues of economic development in space seemed remote, and so diplomats set them aside as potential obstacles to finding agreement on what they saw as more pressing issues.” Rand Simberg, “Property Rights in Space,” The New Atlantis, Number 37, Fall 2012, pp. 20-31, www.thenewatlantis.com/publications /property-rights-in-space, accessed Sept. 23, 2014.

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Outer Space Treaty also sets out important guiding principles for activities conducted by space-faring nations, to include cooperation, mutual assistance, and due regard.43 In addition, Article IX also binds signatory States to undertake “appropriate international consultations” before proceeding with any “activity or experiment planned by it or its nationals in outer space” that the State “has reason to believe [...] would cause potentially harmful interference.” Article IX further provides signatory States with a right to request consultation concerning “an activity or experiment planned by another State in outer space” for which the State requesting consultation has a “reason to believe [the planned activity or experiment] [...] would cause potentially harmful interference with activities in the peaceful exploration and use of outer space [...].” Article IX does not specify the nature of the procedures or even the interested additional parties needed to conduct appropriate international consultations. One might expect, however, that a State is obligated by the Treaty to contact the States or parties whose outer space activities would experience or cause potentially harmful interference. Logically, the obligation requires these States or parties be provided with information sufficient to take appropriate action to prevent the potentially harmful interference, or mitigate its effects. Thus, the procedure and substantive nature of “appropriate international consultations” depend on the nature of the planned activity or experiment.44 With risks of collision and electromagnetic interference increasing, operators have pressured each other to operate systems more responsibly. With nearly 60 years of experience, generational technological improvements, and evolved operator best practices, the confluence of the Article IX principles of cooperation, mutual assistance, and due regard, and the consultation obligation, appear to require that spacefaring States: • Access SSA capabilities to determine if their actions might create “potentially harmful interference.” This, in turn, would require each to obtain and use SSA capabilities to prevent the interference. • Share SSA data with other spacefaring states if there is a reason to believe potential harm would result from not sharing. • Perform cooperative monitoring of space activities.

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Outer Space Treaty, Article IX states, in pertinent part, that States Parties: …shall be guided by the principle of cooperation and mutual assistance, and shall conduct all their activities in outer space, including the Moon and celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. (Emphasis added). Michael C. Mineiro, “Principles of Peaceful Purpose and the Obligation to Undertake Appropriate International Consultations in Accordance with Article IX of the Outer Space Treaty,” 5th Eilene Galloway Symposium on Critical Issues in Space Law, Washington, DC, Dec. 2, 2010, p. 2.

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•

Act to reduce debris generation and mitigate risks posed by their space objects.45

These practices would appear to comprise important, foundational prerequisites for regulating traffic in an international STM scheme. Nonetheless, the rules that would be necessary for a truly comprehensive STM regime are far from complete. As noted by the IAA, current international space law rules do not fully address a number of important issues, and they should be considered and accounted for before the international community attempts to develop any management system: • The Registration Convention does not require pre-launch notification but only requires registration following the launching. Provisions for pre-launch notifications only exist on a multilateral basis in the non-legally binding Hague Code of Conduct against Ballistic Missile Proliferation (HCOC). • There is no prioritization of certain space activities, no “right-of-wayrules,” nor is any kind of utilization of space ruled out (except when it is against the peaceful uses). • There is no prioritization of maneuvers, no traffic separation (“one-waytraffic”). • There are no “zoning” rules (restriction of certain activities in certain areas). • There are no communication rules (advance notification and communication if orbits of other operators are passed). • There is no legal distinction made between valuable active spacecraft and valueless space debris. • There are no legally binding rules requiring the mitigation of space debris and the disposal of spent space objects, or preventing of pollution of the atmosphere or troposphere. • Space law lacks enforcement mechanisms. There are no “police” in outer space, nor is there an elaborate dispute settlement system, although the Liability Convention includes a system for settlement of claims. • Private space activities in some cases may escape (i.e., not be subject to) space law, which is still State-centered. • The legal delimitation between air space and outer space is missing.46

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See generally, James D. Rendleman and Sarah M. Mountin, “Evolving spacecraft operator duty of care,” Space Safety is No Accident, T. Sgobba, I. Rongier (eds.), Springer International Publishing: Switzerland (2015), pp. 389-404. Cosmic Study, supra note 6, p. 10. The authors do not subscribe to all these observations, however. For instance, they do not believe that a spatial delimitation between air and space is necessary. Rather, they subscribe to a functionalist view of space activities.

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Any STM regime should respond to these shortcomings of international space law. In addition, and perhaps more intractable, any STM system developed must respond to national security concerns of spacefaring States. These States want to protect attributes, vulnerabilities, and maneuver capabilities of their national security satellites. Similarly, commercial proprietary and economic interests may need to be protected. Protection of systems against physical and information security risks must be balanced against the operational, safety and stability benefits achieved through STM. Identifying the most important information to protect can establish the groundwork for what kind of data can and should be exchanged. Information assurance concerns relating to the exchange of data to other networks and databases, including one ostensibly established to securely inject information in support of STM functions, would also be a high-interest item, as participants in such a database would want to reduce the risk of loss to a determined hacker, or prevent it altogether. This balancing act is taking place with USSTRATCOM’s SSA Sharing Program, where data sharing and services have been allowed by U.S. law and national policy, consistent with military operational constraints and needs. To date, USSTRATCOM has entered into SSA sharing agreements with 49 commercial firms, two intergovernmental organizations, and nine countries.47 The USSTRATCOM SSA Sharing Program efforts have been extraordinary in reaching out to the international spacefaring community, while protecting U.S. national security interests and the interests of partner governments and commercial entities. A similar balancing has taken place among commercial operators, who desire to limit exchanges of information that could give competitors insight into sensitive proprietary information relating to the capabilities, health, and life of their satellites and overall program. The SDA provides an inspired solution to the sharing challenge, employing a third-party sharing mechanism to protect the data and coordinate maneuvers and RFI mitigation. Of course, unreasonable controls can impose costs greater than the value of the information they seek to protect, without meaningfully enhancing the security of that information. For example, many satellite systems’ attributes, vulnerabilities, and capabilities can be determined by a knowledgeable or informed adversary, or by an informed third party. The combination of relatively low prices for telescopes and tracking software, along with the growing amounts of data globally available, make tracking medium-to-large satellites more feasible for an increasingly large number of observers. That has, in part, inspired AGI’s ComSpOC initiative. Some suggest that even sensitive national security satellites may no longer be able to rely upon the vast distance and

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USSTRATCOM Public Affairs, “U.S. Strategic Command signs space data-sharing agreement with Israel,” Aug. 12, 2015, https://www.stratcom.mil/news/2015/570 /US_Strategic_Command_signs_space_data-sharing_agreement_with_Israel/, last viewed Sept. 11, 2015.

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darkness of outer space to “hide” there in the open.48 According to this argument, sharing more data, less constrained by today’s strict security or economic controls, may help achieve more vital STM objectives, that is, to achieve effective collision avoidance among all active satellites, mitigate EMI and RFI, and improve planning and coordination among operators. The proponents also suggest that releases might serve as transparency and confidence-building measures that could in turn lead to enhanced stability among adversaries. Ultimately, to achieve success, those cooperating must find utility arising out of their efforts. Any STM framework selected must be politically realistic – that is, it must be a framework likely to be adopted by major spacefaring States and operators. The interest to assure safe operations is tipping the balance toward sharing more data, but only in accord with carefully scripted rules or regulations to constrain releases of only the most sensitive data. Providing more complete information on national security systems may be carefully considered by policy makers, and perhaps encouraged, as part of SSA sharing activities and any chosen STM scheme. Commercial operators are already performing similar assessments, as many do via SSA sharing agreements with USSTRATCOM or within the Space Data Association. Determining what and how much data should and can be shared will require examination and balancing of the costs associated with protecting and securing facts, databases, and operations. IV.

EMI and RFI Risk Management Regime Is Functioning, Albeit Imperfectly

SSA tools and spacecraft control functions have matured to control the EMI and RFI problems that have plagued operators for several generations. The International Telecommunication Union (ITU) plays an important role in supporting these activities and helps to prevent and resolve these issues, and will continue to do so in any future STM scheme.49 The ITU has developed an extensive body of regulation of the electromagnetic spectrum, including rules concerning satellite stations’ use of that spectrum – and, for GEO satellites, their longitudinal “slot” within the GEO belt. Member States domestically implement the ITU rules and this helps to minimize harmful interference

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See Brian Weeden, “Going Blind: Why America is on the Verge of Losing its Situational Awareness in Space and What Can be Done About It,” Secure World Foundation, Sept. 10, 2012, pp. 38-40. The ITU counts as its members the 193 United Nations Member States, along with over 700 non-governmental members in the communications industry. The ITU’s governing documents, i.e., its Constitution, Convention, and Radio Regulations, are international treaties binding on all Member States.

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by their telecommunications operators.50 The ITU even has procedures for resolving disputes over allegations of harmful interference, although it does not have the power to enforce them against a recalcitrant Member State.51 To complement the ITU’s EMI/RFI prevention and resolution processes, the SDA also offers its members RFI resolution services. According to its brochure for prospective members, “The SDA provides tools for its members to: share information and seek assistance in investigating RFI events; automatically generate data to more quickly configure geolocation systems and perform interference source analysis; and search historical data for RFI event information.”52 When members sign up for RFI resolution services and enter in transponder data for their spacecraft, SDA boasts that its tools will “perform automatic comparison with other satellites for distribution of RFI Alert notifications and recommendation of geolocation solution sets.”53 Assistance resolving EMI and RFI is among the services the JSpOC provides to USSTRATCOM’s SSA sharing agreement partners, including SDA itself.54 Despite the progress and ITU Radio Regulations that provide for a form of control mechanisms, satellites in the GEO belt still suffer from significant inadvertent EMI and RFI, and some intermittent intentional jamming. These phenomena have been the bane of the spacecraft operator’s existence for many years. For example, Intelsat’s Galaxy 15 satellite, nicknamed “ZombieSat,”55 suffered a glitch, was temporarily disabled, and began to drift; all the while, its receiver and transmitter equipment continued to function. As the Galaxy 15 drifted, there was a concern that its continuing receive and rebroadcast capability could precipitate multi-path interference for nearby satellites. As a result, IntelSat coordinated Galaxy 15’s movement with other space system operators to mitigate risks posed and until it regained control. Looking ahead, operators of GEO communications satellites have expressed concerns that OneWeb’s plans to launch a new LEO constellation of 700 satellites could inflict significant EMI on their existing satellite stations.56 These

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In the United States, for example, this responsibility falls primarily on the Federal Communications Commission (FCC). See, e.g., Peter de Selding, France Seeks ITU Help To Halt Satellite Signal Jamming by Iran, SpaceNews, Jan. 8, 2010, at www.spacenews.com/article/france-seeks-ituhelp-halt-satellite-signal-jamming-iran. SDA, “Space Data Association, Prospective Member Briefing” 2 (Jul. 18, 2013), at www.space-data.org/sda/wp-content/uploads/downloads/2013/08/SDA-ProspectiveMember-Briefing-18Jul2013.pdf (accessed Sept. 22, 2015). Ibid. at 7. “Satellite Data Association [...].,” Business Wire, supra note 10. See, for example, Ben Schott, “Zombie-Sat,” Shott’s Vocab: A Miscellany of Modern Words & Phrases, New York Times, June 1, 2010, http://schott.blogs.nytimes.com/2010/06/01/zombie-sat/, accessed Sept. 18, 2014. Peter B. de Selding, “OneWeb Fails (At Least for Now) To Soothe Satellite Interference Fears,” Space News (Sept. 18, 2015), accessed Sept. 22, 2015.

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incidents and concerns about future satellite constellation architectures demonstrate that sophisticated coordination and rigorous operator discipline are vitally important to mitigate interference problems and should be requisite attributes of any contemplated STM framework. V.

Evaluating Frameworks to Perform Space Traffic Management

There are no uniform standards for what should be included as part of STM, or more importantly, how it should be executed.57 The frameworks can vary, and each will have their own advantages, disadvantages and chances of adoption. Space operator interests in avoiding spacecraft collisions and reducing EMI and RFI are compelling, but those interests must be balanced against the likelihood that programs can be adopted, and national security interests protected. There are a number of architecture combinations available for organizing global STM capabilities to make available the information necessary to support satellite collision avoidance operations and preserve successful access to the space domain. The architecture combinations considered must involve the confluence of U.S. and other countries’ national security, commercial, and civil SSA systems, leveraging the potential benefits of each. Of course, USSTRATCOM provides the most comprehensive SSA capabilities to global space operators. Integrating its capabilities may be desired in most circumstances. Accordingly, this paper addresses the following three options to integrating and improving these capabilities: 1. Evolve the status quo, employing the current DoD SSA Sharing Program as a foundation for STM. 2. STM intergovernmental organization. 3. Commercial operators provide their own STM. The options each have their own advantages, disadvantages and chances of adoption. The assignment and evaluation of technical and non-technical criteria is always valuable in evaluating any solution. Accordingly, essential criteria for evaluating future STM improvement options have been identified: (1) How well does the proposed option manage risks to space operations?

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Professor Paul Stephen Dempsey and Dr. Michael Mineiro suggest that there are four possible alternative actions the international community could take to address this issue: (1) maintenance of the status quo (the “do nothing” alternative); (2) uniform regulation on a case-by-case basis through bilateral or regional agreement; (3) establishment of a new international organization with jurisdiction over these issues; or (4) the exercise by the International Civil Aviation Organization (ICAO, a specialized agency of the United Nations charged with coordinating and regulating international air travel or a comparable alternative international organization currently in existence of authority to standardize orbital traffic management. Paul Stephen Dempsey & Michael C. Mineiro, “Space Traffic Management: A Vacuum in Need of Law,” International Institute of Space Law Colloquium, Glasgow, 2008, IAC-08-E3.2.3, p. 3.

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(2) How efficient is the proposed option? (3) How well does the option accommodate proprietary and security concerns? We will now grade each STM option using the above criteria with a score on a scale from negative one to positive three: • No improvement (0) • Some improvement (+1) • Good improvement (+2) • This is the answer! (+3) Option 1:

Evolve the status quo, employing the current DoD SSA Sharing Program as foundation for STM.

As noted, the current DoD SSA program publishes historical and current satellite data to Space-Track.org. It also provides decay and re-entry data and has a support request procedure, all at no cost. To obtain collision avoidance services a satellite operator/owner must execute a written agreement with USSTRATCOM. The system currently provides notification of close approaches three days in advance through direct emails to the operators. Users such as Intelsat and AGI have complained about shortfalls in this system, however. These include concerns that the program provides less than optimal notification. Operators prefer more than a minimum of three days to plan efficiently and make fuel-efficient maneuvers. They also desire much more collaboration as maneuvers are planned. Users also complain that the position information provided is not the most accurate data available. More precise and accurate information allows planning for maneuvers further into the future, saving valuable fuel and ensuring accuracy. Operators want more timely and accurate data concerning threatening spacecraft as well. Interoperator coordination can be time-consuming and information and services may not be available when needed. For LEO, the long-term accuracy of element sets is a continuing challenge. As the space environment approaches solar maximum, the variability of orbits due to atmospheric expansion may make orbital forecasting even less accurate for more than a few days into the future. The United States nearly always leads international initiatives when deploying complex systems. It does so because of its wealth and technology integration, but also because the framework allows it to exercise significant control over a program’s resources, schedules, technologies, and operations. Historically, at least during the last half of the 20th Century, the United States accepted these costs because it nearly always undertook the major risks of each venture. Given the allocation of risk, marginal or minimal contributors to efforts are not usually given veto power over the mission decisions. Opponents could argue that there would be security risks if the United States unilaterally controlled STM and somehow withheld its benefits. Similar arguments were made by proponents of Europe’s Galileo precision navigation and timing satellite program, arguing it should be funded because the United

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States could not be trusted to provide services with its USSTRATCOMoperated program.58 The objections to so-called “unilateral” U.S. control might be muted if participants were invited to serve as part of the staff and crews of whatever the STM system’s mission control station might be. While the U.S. Government has concluded that it should invest the resources to develop and operate USSTRATCOM’s significant SSA systems and services, it remains to be seen whether USSTRATCOM will continue as the key agency providing STM. The U.S. Government will still have to decide which Federal agency should “own” the STM program as it evolves. This would require careful evaluations of the purpose, resources, and institutional competencies of different departments and agencies. Should STM be the purview of the military, of a civil aviation authority such as the Federal Aviation Administration (FAA), of a civilian space agency such as NASA, or of a new organization or interagency body created specifically for the purpose?59 Also importantly, the U.S. Government seeks to protect the national security data inherent in its SSN, satellites, and their supporting systems, and garners some comfort in that. Despite the perceived drawbacks, and protests about secrecy, USSTRATCOM is moving forward to improve its systems, and has been successful in integrating its data and services at an accelerating pace with global operators and other SSA providers. Since this option is the current program, it can be scored as follows: • Manages risks: 1 • Efficiency: 2 • Proprietary and security concerns: 2 • Total score: 5 Option 2: STM intergovernmental organization.

Professor Dempsey and Dr. Mineiro propose that the International Civil Aviation Organization (ICAO) be granted the authority to regulate suborbital and orbital traffic management, at the least standardizing navigation for space vehicles traversing airspace. The Convention on International Civil Aviation, also known as the Chicago Convention, established ICAO.60 The Chicago Convention provides rules for airspace, aircraft registration and

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European Space Agency, “Why Europe Needs Galileo,” June 27, 2014, at www.esa.int/Our_Activities/Navigation/The_future_-_Galileo/Why_Europe_needs_ Galileo (last viewed Sept. 12, 2015). One senior U.S. military official has argued for shifting STM activities to a civilian government entity. Mike Gruss, “Strategic Command Envisions Civil Space Traffic Management” (June 16, 2015), at http://spacenews.com/strategic-commandenvisions-civil-space-traffic-management/ (accessed Sept. 17, 2015). Convention on International Civil Aviation, art. 3(c), Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295 (entered into force Apr. 4, 1947) [hereinafter Chicago Convention].

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safety, and details air travel rights of the signatories.61 Under Dempsey and Mineiro’s proposal, ICAO’s authority over space activities could be established either by amending the Convention, or by ICAO’s exercising its existing jurisdiction under the Convention over suborbital and orbital vehicles to the extent they impact the safety, regularity, and efficiency of commercial air navigation. They further suggest that such a system could integrate orbital vehicle navigation, maneuver and communications activities into a single unified system and regulate space activities to minimize chances of on-orbit collisions and EMI.62 Developing such a system could, in turn, fully embody the dream and objectives of three principles of Article IX and affirmative duty to consult. According to Ryan Zelnio, a coordination model of cooperation “is inviting in that it is easy for people to agree, as it allows each country to maintain its total independence and manage its own contributions. The disadvantage of coordination is that countries often push programs that greatly overlap efforts pursued by other countries, causing much duplication of efforts.”63 Coordinating groups exist in the international community, such as that provided by the IADC, ISO, and ITU. These groups have achieved considerable success in improving international dialogue on scientific efforts. Granting STM powers to an ICAO-like organization could provide opportunities to improve international cooperation on STM. Nevertheless, Dempsey and Mineiro suggest that creating a new international organization to perform STM functions would require significant political effort, and economic expense. They express concerns that this resistance might need an accident to provide the political impetus for supporting international standardization.64 Under the ICAO approach, each nation or region would be expected to enter into bilateral and multilateral agreements to achieve STM objectives related to launch and reentry activities, on-orbit collision avoidance protocols, and, if the ITU mechanisms are insufficient, EMI/RFI mitigation. Active debris removal activities, if they ever have technical merit, could be addressed. Each participating spacefaring nation or group of nations could be expected to operate their own STM program, or support a multi-lateral program. Such a

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See generally, Convention on International Aviation Doc 7300, found at the International Civil Aviation Organization website – www.icao.int/publications/pages /doc7300.aspx, accessed September 23, 2014. Dempsey & Mineiro, “Space Traffic Management [...]” supra note 57, p. 3. Efforts to reduce EMI via STM mechanisms would also need to be coordinated through the International Telecommunication Union (ITU), which already regulates access to GEO orbital slots and to the frequency bands used by space-based radiocommunication stations. See, e.g., Radio Regulations of the International Telecommunication Union (2012), app. 4, annex 2. Ryan Zelnio, “A model for the international development of the Moon,” The Space Review, December 5, 2005. Dempsey & Mineiro, “Space Traffic Management [...].”, supra note 57, p. 3.

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system of systems could be designed to leverage the best of network-centric operations theory, empowering STM with information sharing among the partners. The ICAO framework would not require USSTRATCOM to make major changes to its current systems and it would allow direct data integration from other spacefaring States and commercial operators. One would expect that exchanges would be more limited on information provided national security systems,65 but perhaps established on an experimental basis until standards, reliability, and confidence among partners have been fully established.66 National security spacecraft could be exempted from having to follow specific STM requirements, subject to a requirement to act with due regard for the safety of other space objects. The ICAO organization option can be scored as follows: • Manages risks: 2 • Efficiency: 1 • Proprietary and security concerns: 1 • Total score: 4 Option 3: Commercial operators provide their own STM.

The final approach for providing STM is for operators to contract out the capability to one or more international commercial concerns or nonprofit entities. The AGI ComSpOC and SDA initiatives are emblematic of this option. These entities provide close-approach warnings to a number of commercial satellite operators. There are limitations, but leveraging operator-produced orbital data allows them to provide participating satellite operators with accurate orbital predictions and collision warnings on conjunctions between participating satellite systems. Fortunately, the private sector offers a number of attractive models for STM. Market participants frequently choose to comply without any statutory mandates or government direction. They perceive the compliance costs of private regulation as a necessity for survival in the marketplace rather than as a burden. Since the price of privately regulated goods reflects the full cost of regulation, private regulators are very sensitive to the burdens they impose.67 In turn, private regulators minimize the costs of running their private regulatory organizations, and in doing so, decrease the costs of their regulatory activities where possible. Thus, whereas indirect costs of private regulation are often minimal, privately regulated entities usually understand the fees and the

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Just as State aircraft are exempt from the Chicago Convention under Article 3, national security space assets could be exempted from international coordination requirements, provided their operators exercise due regard for the safety of other satellites in accordance with Article IX of the Outer Space Treaty. Chicago Convention, Art. 3. Yesim Yilmaz, “Private Regulation: A Real Alternative for Regulatory Reform,” CATO Policy Analysis No. 303, April 20, 1998, p. 1.

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compliance costs in advance. As such, they better assess the expected costs and benefits. Regulation of space activities and movement into and through the domain need not be performed by a governmental or international agency. Indeed, much regulation throughout the global economy is privately performed – produced and enforced by the marketplace, independent parties, or trade associations. Recent activities of SDA point to possibilities of an independent and comprehensive private regulatory scheme, at least for the commercial satellite industry. Regulations provide users and consumers information and help them make informed decisions. Unfortunately, regulation is also an overpowering and intoxicating tool that bureaucrats and policymakers can employ to achieve a variety of objectives, either good or bad. Regulation can also be used to achieve political objectives. For example, some proponents for STM believe that if it can be implemented with international agencies, it will be an opportunity to demonstrate global governance can be effective and achieve a greater good on the grand stage of international relations. In establishing any STM regime, incorporating privately performed regulation, instead of a more traditional and onerous domestic or international governmental scheme, could provide a significant opportunity to select a more flexible, responsive, and evolutionary system. This, in turn, could drastically reduce operator regulatory compliance costs. Since such private regulation has been shown to work, it deserves close consideration as an option to perform STM. The downside of the commercial arrangement is that such an entity initially would have few comprehensive resources of its own (such as large-scale radars and telescopes)68 and would be compelled to rely upon governmentprovided data on debris and non-participating satellite operators. AGI solves some of this issue by contracting for its own sensor network. One might think the Air Force’s SSN system could be transferred to an independently-control entity. That is unrealistic because transferring control involves the systems that contribute to U.S. missile warning capabilities. It would require a revolutionary change in strategic thinking on how the United States treats systems that provide warning of attack by weapons of mass destruction. Ultimately, few national security systems are likely to depend on a commercial option. On the other hand, a commercial option could serve the needs of the majority of commercial space operators. Private organizations often oversee participants’ actions by processes such as standard-setting. Operating in this setting usually takes much less time and consumes fewer resources than coercive governmental regulation. The major challenge presented by governmental regulation is the costs imposed on the

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The sensors SDA uses, for example, are owned and operated by its members, not by SDA itself.

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regulated and regulators. Today, there is no comprehensive accounting system to fully assess the costs and benefits of what would be space regulatory actions. In contrast, privately managed and developed STM activities have the potential to reduce the burdens of regulations on operators while still keeping space systems safe and prosperous. Merely writing down more rules, or suffering through micromanagement by national or international agencies, cannot achieve this necessary goal. The integrated framework is scored as follows: • Manages risks: 3 • Efficiency: 3 • Proprietary and security concerns: 0 • Total score: 6 VII.

Concluding Thoughts

Developing a space traffic management system to manage launch, on-orbit, and reentry space activities would embody important principles of the Outer Space Treaty’s Article IX – cooperation, mutual assistance, and due regard – and the affirmative duty to consult. But performing any form of STM would be technically daunting. What is more, the national security and proprietary concerns would be difficult to navigate. Such issues would constrain the alternatives for whatever framework is chosen. A privately managed STM framework might provide a more flexible, responsive, and evolutionary process, and this in turn could reduce space operator compliance costs.

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Space Traffic Management and the United States Data Sharing Environment P.J. Blount*

I.

Introduction

The theme that space is congested, contested, and competitive is increasing in it prominence in the discourse of space security and space sustainability. Media accounts love to profile narratives of errant space junk wreaking havoc in outer space, but these accounts are often written more for the catchy headlines and their clickbait appeal than for real concern with substance. However, there has been consistent movement in the civil, military, and commercial arenas that indicates a genuine concern with the long term sustainability of the outer space environment and security of space assets. As a result of this stakeholder concern, space traffic management (STM) has become an issue on the agenda of numerous national and international entities. As more actors participate in space activities, problems of congestion will increase. As the IAA’s Cosmic Study on Space Traffic Management made clear, effective, holistic space traffic management can only be achieved through a network of legal, policy, and technical mechanisms that facilitate a cooperative effort to maximize the sustainability of the space environment. However, as can be seen from the fiasco at the Multilateral Negotiation on the European Union’s Code of Conduct for Space Activities held in July of 2015 in New York, there currently seems to be a lack of cooperation among states on space issues, making such holistic coordination seem unreachable as well.1 As a major space actor, the United States has a great deal to lose if the space environment degrades significantly. As a result, the United States is currently investigating mechanisms with which to manage its own space actors’

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University of Mississippi, USA, [email protected]. The author had the privilege of serving as an observer of the International Institute of Space Law to this “negotiation.” The negotiation itself was derailed almost immediately. See generally, Michael Krepon, Space Code of Conduct Mugged in New York,” Arms Control Wonk, Aug. 4, 2015, http://krepon.armscontrolwonk.com /archive/4712/space-code-of-conduct-mugged-in-new-york.

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on-orbit activities. This project is a complex, regulatory one that requires a legal structure that deploys effective jurisdiction over United States space objects in orbit and their operators, that effectively arranges for interagency coordination, and that creates proper authorization and appropriations for maintaining technical competence to carry out the mission. One of the core capabilities for any such system is effective data sharing among stakeholders. This paper argues that it is a prerequisite for establishing effective space traffic management and that an open source data policy both protects national security and furthers the goal of developing an international governance system of space traffic management.2 This paper will proceed first by briefly explaining the concept of space traffic management and illustrating how an effective data sharing regime is central to deploying such a system. It will then describe the current structure of the data sharing environment within the United States and note the gaps between military, civil, and commercial space situational awareness (SSA) data. This description will be followed with suggestions for creating a more effective SSA data sharing environment in the United States. The paper will argue that an open data policy will be the best way to manage data sharing and ensuring responsible, sustainable, and safe space operations. Finally, the paper will argue that the adoption of an open data sharing environment could be the necessary precursor to realizing the ultimate goal of international coordination of space traffic. II.

Space Traffic Management and Its Discontents

While there may be an infinite number of orbits around the Earth, there is not an infinite amount of space in Earth orbit. When the infinite number of orbits have been diminished down to the number of orbits that have value for human activities, we can see that it is likely that as the number of spacecraft increases so to does the likelihood that spacecraft might converge orbits with other space objects. This analytic act is backed up by empirical evidence that

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Since the original delivery of this paper, the US Congress has passed and the President signed the US Space Launch Competitiveness Act. Pub. L. 114-90 (Nov. 25, 2015). Title I, section 110 requires that the secretaries of Transportation and Defense to prepare a report on “study the feasibility of processing and releasing safety-related space situational awareness data and information to any entity consistent with national security interests and public safety obligations of the United States.” Id. at §110; See also id. at §109. This legislation shows the changes in the way that the United States is thinking about space security and that it is contemplating the idea of open sourcing its data. Of course, this is not meant to assert that there is any connection between this paper and the legislation, though it is hoped that the testimony referenced in footnote 1 was at to some extent instrumental in the development of this part of the legislation. Since this paper was presented before the legislation at the IAC, it has not been substantially reworked in light of this legislation.

SPACE TRAFFIC MANAGEMENT AND THE UNITED STATES DATA SHARING ENVIRONMENT

spacecraft do collide with other objects. While most of these collisions are of the nature of spacecraft with space debris, the Cosmos-Iridium collision serves as a reminder that large objects can converge in space.3 This is, of course, the problem that space traffic management seeks to address. Whereas debris mitigation guidelines seek to create uniform standards for reducing the creation of space debris, STM seeks to go a step further and create mechanisms for international coordination of the placement and movement of objects in space. STM can be understood as “the set of technical and regulatory provisions for promoting safe access into and out of space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference.”4 This broad definition covers a great deal of ground encompassing legal and operational mechanisms of control as well as all types of interference. While a broad definition is desirable at the outset, it also portrays the complexity of establishing such a system, especially at the international level. This is because it brings in too many moving parts, so to speak, making all encompassing law-making a difficult. The difficulty is the result of the nature of international law and politics wherein different states have different interests in the development of such a regime. The complex a regime is, the more difficult agreement and implementation become. In this context, dominant space actors are loathe to lose control of their space assets to an overriding system, while emerging space actors fear such a system might inhibit their technological progress. Because complex international regimes are difficult to adopt, progress is often incremental in nature. This is especially so in light of the effects of post Cold War globalization, which restructured international power and diversified the number of states with stakes in international politics. One of the effects of this restructuring has been an increase in the number of space faring nations.5 Formal lawmaking for outer space activities has slowed dramatically,6 and, as the EU Code of Conduct negotiation illustrates, there is a great deal of contestation over both the content and the process for any new laws. This is why states often turn to less formal processes that scholars have deemed soft law.7

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See generally, Brian Weeden, 2009 Cosmos-Iridium Collision: Fact Sheet (Secure World Foundation, Nov. 10, 2010) at http://swfound.org/media/6575/swf_iridium _cosmos_collision_fact_sheet_updated_2012.pdf. International Academy of Astronautics, Cosmic Study on Space Traffic Management (International Academy of Astronautics, 2006), 10. Spacefaring, here, is used to denote states that have on orbit assets, as opposed to indigenous launch capabilities. See generally, Sergio Marchisio, “The Evolutionary Stages of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS),” J. Space L. 31 (2005): 219. See generally, Kenneth W. Abbott and Duncan Snidal, “Hard and Soft Law In International Governance,” International Organization, 54, no. 3 (2000): 421-56 and

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While the term soft law is somewhat contentious,8 it does describe the current way in which states are seeking to increase stability in space. Soft law is incremental in nature. It first seeks agreement on principles without the power of law, and these principles are then either widely adopted or ignored by states. Those principles that are widely adopted indicate the value choices that states agree on, and are therefore more likely to be followed by states and also to eventually achieve some sort of binding force, either through their integration into international agreements or through the development of custom. Soft law, though, is not the only path to incremental lawmaking. A great deal of international law comes through the domestic law practice of states. States, serving as laboratories for regulation, often lead the way in the development of international law. An example of this is in the content of the Outer Space Treaty’s Article VI requirement of “authorization and continuing supervision.”9 States have repeatedly looked to each others’ domestic legislation with respect to licensing regimes. These regimes have grown in such a way that Article VI, must now be read in terms of state licensing, which sets out what best practices under the treaty are. STM in the current geopolitical context is a needed regime, but it is one that is likely to grow from mechanisms other than formal lawmaking. This means that initial efforts will need to find common ground among state actors in order to make headway in achieving the goal of STM, and avoiding issues that result in impasse among nations. It is submitted here that this common ground is likely to start with data sharing. STM is completely dependent on data. Neither legal nor technical solutions to STM are possible without good data. STM at its core presupposes a knowledge of the position of objects in space. However, states do not currently share this data openly meaning that no international system can even begin to form, despite the fact Data sharing

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P. J. Blount, “Renovating Space: The Future of International Space Law,” Denv. J. Int’l L. & Pol’y 40 (2012): 515-686. One finds oneself in a circular argument with soft law. Soft law is essentially regulatory content that is nonbinding in nature, but if it is non-binding it lacks a constitutive element of law (i.e. binding force), but if it indeed regulates then it fulfills legal ends. Regardless of whether one thinks soft law is law, soft law as a source of limitation on state action is indeed a reality, making some of the debate moot except in theoretical terms. In terms of policy, when states agree to nonbinding political agreements at least one scholar has argued that this gives states an obligation to give notice before they depart from those agreements. See Bin Cheng, “United Nations Resolutions on Outer Space:‘Instant’ International Customary Law?,” Indian Journal of International Law 5 (1965): 23. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” October 10, 1967, Art. VI.

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is the bedrock for STM.10 It should be noted here that a distinction between data sharing and open data sharing is being made. States do currently share data on the basis of bilateral agreements without each other, but this is different from open data sharing in which data is distributed freely to any entity without specific authorization. The coordinating process of the International Telecommunications Union (ITU) is instructive here. As the only formalized system that results in some degree of space traffic management, the ITU process illustrates the importance of data sharing. The ITU is said to allocate orbital positions along the geosynchronous orbit, but this system is partial at best because the ITU’s role is more coordinator than regulator. This system has been widely critiqued for its inequity and its openness to abuse.11 These critiques are rooted in the fact that the ITU process is a “coordinating” function. The ITU, while maintaining a great deal of legitimacy, is vested with no binding power when it allocates an orbital slot. There is a dispute resolution process, but states are not required to submit to it. Indeed, the entirety of the process serves to create an information exchange point for states through the master register, which records data from states and makes it available to other states. Through the high legitimating power of the ITU, this exchange point creates a working system, albeit an imperfect one, in which states can interact. Data sharing is at the heart of the ITU system, and effective data sharing is a prerequisite to the establishment of an international STM regime. III.

The United States and Data Sharing

The United States is a major space actor, and it holds an elite status among spacefarers. As such, it has a great deal to lose if the space environment becomes compromised through congestion from functional space objects and space debris. Indeed, the calls for STM are rooted in a need to maintain predictable space operations for civil, military, and commercial uses. The US has, as a result, begun conversations on the development of STM at the domestic level. For instance, in May of 2014 the Space Subcommittee of the US House of Representatives held a hearing on STM.12 This hearing served an exploratory role into the process of developing such a regime, and legislation

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Russia and China do not publish SSA data publicly, and the EU does not plan on doing so either. Matthew C. Smitham, The Need for a Global Space-Traffic-Control Service: An Opportunity for Us Leadership, Maxwell Papers (Air War College, 2012). See Lawrence D. Roberts, “Lost Connection: Geostationary Satellite Networks and the International Telecommunication Union, A,” Berk. Tech. LJ 15 (2000): 1095. Space Traffic Management: How to Prevent a Real Life “Gravity,” May 9, 2014, http://democrats.science.house.gov/hearing/space-traffic-management-how-preventreal-life-%E2%80%9Cgravity%E2%80%9D. See supra note 1.

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is not yet likely, but it did shed light on a number of issues connected with STM and the complexities in establishing STM at even the domestic level.13 A central issue for the United States is the dispersion of power across actors. Competency to regulate, in both a formal ‘legal’ sense and an informal ‘control’ sense, is dispersed across a number of government agencies, and there is not a clear control point for space activities. NASA controls civil space activities; the Department of Defense (DoD) controls government space activities; and a conglomerate of federal agencies regulate commercial activities. These agencies include the Federal Aviation Administration (FAA), which licenses launch, reentry, and spaceport activities; the Federal Communications Commission (FCC), which licenses telecommunication frequencies; the National Atmospheric and Oceanic Administration (NOAA), which licenses remote sensing activities; and the State Department (DoS) which coordinates international interactions. Importantly, all of these entities have jurisdiction over specific space activities, but none have overriding jurisdiction over space actors. This is problematic as there is no agency that has the positive authority to require a space actor to, for instance, move a satellite to avoid a collision. More importantly, there is no federal regulatory agency that collects and maintains the data needed to know whether a space object needs to be moved. These jurisdictional ambiguities are important, because all three types of operators (i.e. commercial, civil, and military) require predictability, but the nuances of US federal government mean that there will be an administrative and legislative battle to allocate jurisdiction among agencies for STM. In the meantime, however, predictability can be increased through data sharing so that all operators are informed about the space environment. Currently, DoD collects and maintains space situational awareness (SSA) data as part of its mission to ensure its own space operations. This data is shared with other actors on an agreement by agreement basis. This is due to the fact that DoD collects military sensitive data and keeps that data classified. However, DoD has created agreements with partners to share the data. These data sharing arrangements ensure national security in two ways. First, they establish the terms of the sharing to ensure the secrecy of the shared data. Second, they create stability by informing other actors about the space environment. Significantly, DoD recently completed one such agreement with the Space Data Association (SDA), a conglomerate of commercial space actors that have pooled data to better inform their operations. This is the first such arrangement that DoD has made with a non-satellite operator.14

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See supra note 2 for information on US legislation that was adopted after this paper was presented that requires government agencies to prepare reports on possible approaches to STM. SDA, “Space Data Association: SDA and U.S. Department of Defense Sign Space Situational Awareness Agreement,” Aug. 8, 2014,

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One of the reasons that this agreement is important is that both SDA and DoD are trying to get better data. One would think that DoD would not need SDA’s data, but despite the fact that US DoD has the most advanced SSA capabilities in the world, these capabilities are incomplete and the system is increasingly out of date.15 Though DoD has recently had a private contractor break ground on its fan-fared Space Fence system, it is likely years – if not decades – away from completion.16 The problem of incomplete data does not just injure commercial actors, it also compromises national security goals. A solution to this issue would be the adoption of an open data policy in which the US creates a regime for sharing the most data possible with all space actors, governmental and commercial. In such an arrangement, DoD would be authorized to share a maximum amount of data in a statutorily defined way that protects military sensitive data. In the interest of developing the most complete data set possible, this proposed regime would require US space actors to also take part in contributing data with proper protections for commercially sensitive data as well. This would give other federal agencies the information they need when executing their functions. For instance, SSA data could become an important part of the FAA’s payload review process. An open data policy, would set the foundation for determining how to structure an effective STM regime domestically. Interagency sharing as well as public-private sharing will enhance all actors ability to manage their own space operations which furthers the goal of predictability in space operations. IV.

International Open Data

As stated above, international law making is often incremental and can often find its seeds in domestic law making. For example, the concept of nondiscriminatory access found in the Remote Sensing Principles finds its sources in United States remote sensing law.17 Indeed, legal innovation from the United

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www.businesswire.com/news/home/20140808005645/en/Space-Data-AssociationSDA-U.S.-Department-Defense. See Brian Weeden, Going Blind: Why America Is on the Verge of Losing Its Situational Awareness in Space and What Can Be Done About It (Secure World Foundation, 2012), http://swfound.org/media/90775/going_blind_final.pdf and Matthew C. Smitham, The Need for a Global Space-Traffic-Control Service: An Opportunity for Us Leadership, Maxwell Papers (Air War College, 2012). Juliet Van Wagenen, “Race to the Space Fence: Lockheed Martin, US Air Force Break Ground on New Space Surveillance System,” Via Satellite, March 24, 2015, www.satellitetoday.com/technology/2015/03/24/race-to-the-space-fence-lockheedmartin-us-air-force-break-ground-on-new-space-surveillance-system/. See Joanne Irene Gabrynowicz, “Perils of Landsat from Grassroots to Globalization: A Comprehensive Review of US Remote Sensing Law with a Few Thoughts for the Future, The,” Chi. J. Int’l L. 6 (2005): 45.

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States, has routinely found its way into the laws of other states and influenced the creation and content of international law. The adoption of an open data policy by the US should not exclude international actors. Instead it should freely share its data with all space actors and encourage reciprocity. If such a policy has been properly structured to maintain only militarily sensitive data as classified, then such sharing is not problematic to the United States. A great deal of SSA data is already in the public domain. Private observers are able to track military satellites and release the data they collect.18 This means that only the most sensitive of information should be protected. Sharing with other state parties on a nondiscriminatory basis (to crib a phrase from the Remote Sensing Principles) places the US in a cooperative stance in regards to other space actors. Such a cooperative stance, would encourage actors to also share their data. International cooperation is called for across the treaty regime, which adds legitimacy to an open data policy. Instead, of fragmented data sets, space actors globally would be using a data set built from numerous sources. As argued above, information sharing is a precondition to establishing STM, and there is no international institution that has – or likely will have – the capabilities and resources to establish and maintain an SSA system in the near term. Any such system will have to be based on capabilities possessed by individual states, and the United States, as an elite space actor, is in a unique position to establish an open data policy that functions at a global level. The integration of multiple data sources can only increase all space actors’ ability to operate in space with the requisite predictability. This not only enhances the United States concerns with national security, but it also supports the commercial space industry within the US. US policy has the ability to shape best practices at the international level, through cooperative efforts. A globally integrated SSA data set will not solve the problems of orbital congestion any more than the ITU’s Master Register has solved the issue of GEO congestion. It will, though, help states to better coordinate their activities to avoid harmful interference as required uner Art. IX of the outer space treaty.19 There of course is risk in such a policy. Anti-satellite (ASAT) attacks depend on precise knowledge of a space object’s location, and open data reveals much of the information that a state might need to accomplish an ASAT attack. However, it is submitted here that states that have ASAT capabilities also have the ability to gain that information from a variety of sources, or in other words location in space is not the secret that it once was. Additionally, the states with these capabilities – namely Russia and China – also have a great deal to lose from the degradation of the space environment. An open

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See for example Justin Ray, “X-37B spaceplane’s orbit discovered,” Spaceflight Now (May 27, 2015) at http://spaceflightnow.com/2015/05/27/x-37b-spaceplanes-orbitdiscovered/. Outer Space Treaty, supra note 9.

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data regime may open risk, but that risk is minimal when compared to the risks involved with massive degradation of the space environment from satellite collisions, which would undercut civil, military, and commercial goals in outer space. V.

Conclusion

STM is a goal that is, legally speaking, far off, but the proper groundwork can begin to be laid. The groundwork requires cooperation among states, and the United States is in a unique position to lead this effort and help craft a regime that supports US national interests as well as supports global stability and predictability in the space environment. The open sourcing of data can be an important first step in establishing a global STM regime.

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The Current Practice of the European Space Agency in Registering Its Space Objects Launched into Earth Orbit or Beyond Alexander Soucek, Tim Flohrer, Stijn Lemmens, Marco Ferrazzani, Pierre Reynaud and Stefan Frey*

Abstract In 1978, the European Space Agency (ESA) declared acceptance of the rights and obligations provided for in the Convention on Registration of Objects Launched into Outer Space. In doing so, ESA became the first international intergovernmental organisation to respond to the registration requirements established under international space law. In 2014, based on more than three decades of best practice, ESA established a policy for the registration and notification to the UN Secretary-General of its space objects, complemented in 2015 by a comprehensive, multi-functional ESA Space Object Register. This Register, representing the “national registry” which ESA is obliged to establish and maintain under Article II para. 1 Registration Convention, marks a milestone development by being linked to ESA’s state-of-the-art technical space object database, DISCOS. The Agency’s new registration policy and the ESA Space Object Register have the potential to serve as a model of registration practice in the context of a dynamically developing space debris environment, the augmentation and diversification of space actors, the necessity of international cooperation in the peaceful uses of outer space and the concept of space traffic management. They represent a practical example of responding to the considerations of the ‘registration practice’ resolution A/RES/62/101 and a contribution to the responsible use of outer space by ESA and its Member States.

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Alexander Soucek, European Space Agency, Paris, France, [email protected]. Tim Flohrer, European Space Agency, Darmstadt, Germany, [email protected]. Stijn Lemmens, European Space Agency, Darmstadt, Germany, [email protected]. Marco Ferrazzani, European Space Agency, Paris, France, [email protected]. Pierre Reynaud, European Space Agency, Paris, France, [email protected]. Stefan Frey, Swiss Space Office, on secondment to the European Space Agency, [email protected].

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I.

The European Space Agency: Introductory Remarks on Its Structure and Functioning1

The European Space Agency (ESA) is an international intergovernmental organisation of regional, technical character founded in 1975 as successor to the earlier European Space Research Organisation (ESRO) and the European Organisation for the Development and Construction of Space Vehicle Launchers (ELDO).2 ESA is vested with legal personality (Article XV ESA Convention) distinct from that of its Member States; it is a derived subject of public international law. It functions through its two legal organs (Articles XXII ESA Convention), the Council, ESA’s ruling organ, i.e. the assembly of Member States, and the Director General, ESA’s executive organ, assisted by staff. As a result of its legal personality, both under public international law and various domestic jurisdictions, ESA can assume rights and obligations and therefore participate in a wide variety of legal acts; it can conclude international agreements and enter into contracts governed by private law. The purpose of ESA is to provide for and to promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, inter alia by elaborating and implementing activities and programmes in the space field (Article II ESA Convention). As of November 2015, ESA has 22 Member States. II.

ESA’S Response to Obligations Rooted in International Space Law

As part of its mandate, ESA takes part in space activities in their entirety, including the launch and operation of a large number of space objects, be it in various Earth orbits including the geostationary orbit, and some Lagrangian points3 or beyond. Consequently, ESA applies international space law in the widest appropriate form, taking into account its status as international intergovernmental organisation and the common will of its Member States as expressed through unanimous resolutions and decisions of the Council. The Outer Space Treaty does not open the possibility for international intergovernmental organisations to declare acceptance of the rights and obligations

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Parts of this paper are based on the Conference Room Paper “Space Object Registration by the European Space Agency: current policy and practice”, prepared by the first author on behalf of ESA for the 54th session of the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space, 2015 (A/AC.105/C.2/2015/CRP.18). Although conducting its activities under the name of ESA since 31st May 1975, it was not until 1980 that the ESA Convention actually entered into force. The period of five years between 1975 and 1980 was thus an ‘interregnum’ during which, from a formal point of view, ESRO continued to exist. Recent examples are the Herschel, Planck and Gaia missions at Lagrange Point 2 (Sun-Earth); note that at the end of its nominal mission, Herschel and Planck were moved into a heliocentric orbit.

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contained therein; in contrast, the subsequent four space treaties allow for this opportunity. However, the respective articles4 establish that three conditions must be met in order for treaty provisions to apply to international organisations: (i) the organisation must conduct space activities; (ii) it must declare its acceptance of the rights and obligations provided for in the respective agreement; and (iii) a majority of the States members of the organisation must be States Parties to the respective agreement and to the Outer Space Treaty. In the case of ESRO/ESA, these conditions were (and still are) met in respect to the Rescue Agreement, Liability Convention and Registration Convention. For that reason, in 1975, the ESRO Council declared acceptance of the Rescue Agreement. In December 1977, the Council adopted a resolution on the Agency’s legal liability by virtue of which it not only declared ESA’s acceptance of the Liability Convention but also laid down main principles applicable to the external and internal settlement of third party liability. Finally, in December 1978, the ESRO Council declared acceptance of the Registration Convention (see section III below). The Agency was therefore bound to some of the most fundamental obligations of international space law even before the ESA Convention had actually entered into force in 1980. It shall be added that such declarations do not place international organisations like ESA “on an equal footing” with States; only the latter are contracting parties of the respective treaties.5 ESA’s active role in space law goes beyond the declaration of acceptance of space law treaties. ESRO/ESA has been an observer to the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) since 1973 and a permanent observer since 1975. The Agency actively promotes the rule of law with regard to the conduct of space activities, supports its Member States, on their request, in the elaboration or implementation of domestic space legislation and promotes international cooperation in space activities as well as their longterm sustainability. ESA has taken an active role in the creation of international space debris mitigation mechanisms, guidelines and standards; it co-founded the Inter-Agency Space Debris Coordination Committee (IADC) and applies the European Code of Conduct for Space Debris Mitigation (2004). The Director General’s instruction “Space Debris Mitigation for Agency Projects” (2014) aligns ESA’s space debris mitigation policy to the European Cooperation for Space Standardization (ECSS) adoption notice of the International Organization for Standardization (ISO) standard 24113 “Space Systems – Space Debris Mitigation Requirements” and establishes the technical requirements for space

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Article 6 Rescue Agreement; Article XXII Liability Convention; Article VII Registration Convention; Article 16 Moon Agreement. Tronchetti, F., Smith, L., and Kerrest, A., Article XXII LIAB (International Intergovernmental Organizations), in: Hobe, S., Schmidt-Tedd, B., Schrogl, K.U., Cologne Commentary on Space Law, Vol. II, Cologne 2013, p. 204.

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debris mitigation for Agency projects, sets out the principles governing its implementation and the definition of internal responsibilities. Finally, as a space agency developing and implementing a wide range of space missions, ESA applies a comprehensive internal procedure for frequency requests and allocations, in line with international instruments and practice established under the International Telecommunications Union (ITU). ESA contributes to the deliberations of the ITU and promotes the space interests in the European coordination process for the World Radio Conferences. ESA also co-established the inter-agency Space Frequency Coordination Group, to which it provides the permanent Executive Secretary, and concluded bilateral agreements on the use and protection of radio frequencies for its Estrack network of ground stations. III.

ESA’s Former Practice in Registering Its Space Objects (1980-2013)

2015 marks the 40th anniversary of the launch of ESA’s ‘first’ satellite, COS-B.6 On 9th August 1975, Europe’s first gamma ray observatory was lifted into low Earth orbit on-board a Thor Delta launch vehicle from the Western Test Range in California, USA. The mission had been approved by the ESRO Council in 1969; at the time of its arrival in orbit, the ESA Convention had been signed for a few months only but not yet entered into force. The situation looked similar with regard to the Registration Convention, which had equally been opened for signature in 1975 but would not enter into force until a year later. Consequently, COS-B was not subject to registration; it re-entered in 1986.7 A few years later, the situation had evolved. In December 1978, the ESRO Council declared acceptance of the Registration Convention by virtue of the “Council Decision on the Declaration of Acceptance of the Convention on the Registration of Space Objects” of 12th December 1978. This decision was based on the provisions provided for in Article VII Registration Convention and was subsequently attributed to ESA after the entry into force of the Convention. Through this legal act, which it lodged on 2nd December 1979, ESRO became the first international intergovernmental organisation to accept the rights and obligations provided for in the Registration Convention.8 ESA began the practice of registering its space objects and notifying the UN Secretary-General of the related launch and orbital parameters in 1980, the year of the entry into force of the Convention. Some space objects launched in

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For further details, See the project details and history of COS-B, available under: www.esa.int/About_Us/Welcome_to_ESA/ESA_history/ESA_s_first_satellite_COS-B (August 2015). COS-B had consequently never been formally registered, until it was entered into the Annex section of ESA’s newly established ESA Space Object Register in 2015. ESA, Space Object Registration by the European Space Agency, UNCOPUOS Legal Subcommittee, 2015.

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the timeframe between 1976 (entry into force of the Registration Convention) and 1980 (entry into force of the ESA Convention), such as the first European meteorological satellite, Meteosat-1, and OTS-2, one of the first geostationary communication satellites, were registered by France on behalf of ESRO/ESA. Among the first space objects registered by ESA itself were some early Ariane1 upper stages, a series of technological capsules used for launch vehicle flight parameter verification purposes, the second European meteorological satellite, Meteosat-2, and Marecs-A, the first member of a group of geostationary maritime communication satellites used in the Inmarsat system. As of 2015, all of these early upper stages and payloads in low Earth orbit have de-orbited, and all early geostationary objects or those on LEO-MEO crossing orbits are inactive, though still in outer space. ESA further consolidated its registration practice during the 1980s and 1990s. Despite the Agency being highly committed to the accurate registration of its space objects, it can be observed that the notification of space object launches to the UN Secretary-General pursuant to Article IV Registration Convention was, at times, carried out in an irregular manner; there is evidence of several ‘grouped notifications’, i.e. letters submitted pertaining to a list of objects launched within a certain timeframe, sometimes spanning several years. IV.

ESA’s New Space Object Registration Policy (2014)

End of 2013, after more than thirty years of space object registration based on best practice, the ESA Director General decided to formalise this practice and to issue, to this end, a space object registration policy applicable to all future ESA missions. ESA’s Legal Services Department was tasked to elaborate the basis for such policy, based on the best practice of the Agency and developing the latter carefully further to meet the goals of guaranteeing, at any time, up-to-date, centralised information about all ESA space objects and giving a “guiding example in space object registration”.9 Within the ESA legal system, the Director General’s administrative instructions and policies are a way of implementing tasks that the ESA Convention, Rules and Regulations assign to the internal competence of ESA. They are binding for ESA staff, who, in applicable cases, have to ensure the correct implementation of such acts also in ESA’s relation with third parties.10 The Director General’s administrative instruction termed ESA Space Object Registration Policy (in the following: the Registration Policy) entered into force on 28th March 2014. The Registration Policy is applicable to all ESA missions and establishes the principles for the registration and notification of ESA space objects. To that end, it reiterates that it is the Agency’s policy that (a) all ESA space objects

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Ibid. See the Compendium on Space Debris Mitigation Standards adopted by States and International Organizations, UN document A/AC.105/2014/CRP.13.

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shall be registered in an ESA-internal register maintained by the ESA department in charge of legal affairs and that (b) registration-relevant information is to be provided for that purpose by the respective programme / project / mission manager in accordance with a structured process that is further detailed in a technical annex to the instruction (forming an integral part of it). Furthermore, the instruction establishes that (c) ESA will continue to notify the UN Secretary-General of ESA space objects in conformity with the Agency’s international obligations, and that (d) such notification shall be furnished to the UN in reasonable time after the launch or status change of an ESA space object, but not later than one month after the launch or status change. Letter (d) contains significant novelties in respect to ESA’s registration and notification practice until 2014: First, it explicitly lays down that the policy does not only apply to the launch (i.e. “bringing into orbit”) of space objects but also to status changes of space objects that already are in Earth orbit or beyond. Second, it introduces a timeframe for the notification to the UN Secretary-General. The one-month-limit may not be as ambitious as early proposals made during the negotiation and drafting history of the Registration Convention11 but represents a rare example of a binding commitment to effectuate space objects notifications in a timely manner. The rationale for not opting for an even faster notification limit is based on a careful balancing of administrative and spacecraft operation realities (space objects during the socalled Launch and Early Orbit Phase (LEOP) often need a period of a few hours up to a few weeks before they arrive at their destined orbital position). The Registration Policy assigns several internal responsibilities for its implementation and execution. Such, the ESA Director in charge of legal affairs is responsible for ensuring the overall implementation of the policy; the Department in charge of legal affairs is responsible for maintaining the ESAinternal register (see section VI below) and for notifying the UN SecretaryGeneral in accordance with the Agency’s international obligations, while the programme / project / mission managers are responsible for furnishing in time the relevant (technical) information to the Department in charge of legal affairs. It is only through that last responsibility that the chain of information provision is actually initiated and kept up-to-date. In its technical annex, the Registration Policy sets out the implementation requirements. It obliges the respective programme / project / mission managers to provide:

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Some proposals suggested that notifications should be effectuated simultaneously to the launch of a space object, or even prior to it; See: Schmidt-Tedd, B., Malysheva, N., and Stelmakh, O., Article IV (Information by Each State of Registry), in: Hobe, S., Schmidt-Tedd, B., Schrogl, K.U., Cologne Commentary on Space Law, Vol. II, Cologne 2013, p. 300.

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a) b)

c) d)

e)

6 months before a scheduled launch: the notification of the upcoming launch including planned dates and orbital parameters; immediately upon launch and orbit injection: the name and COSPAR denominator of the space object;12 all launch details, the main orbital parameters to be notified to the UN, as well as additional information as deemed appropriate or necessary; at any later point, without delay: information on the change in the status of an ESA space object; 6 months before a foreseen space object re-entry, whether controlled or uncontrolled: the notification of the re-entry including information such as the calculated re-entry time window or information about the expected object fragmentation; immediately after re-entry: the confirmation of the re-entry.

V.

Definitions and Clarifications Established by the Registration Policy

It is difficult to judge whether it should be called a strength or a weakness that the Registration Convention remains vague in various aspects. Such, it calls upon States Parties to establish an “appropriate” registry (Article II para. 1), to furnish to the UN Secretary-General space object-related information “as soon as practicable” (Article IV para. 1 Registration Convention) or to voluntarily provide “additional” information “from time to time” (Article IV para. 2 Registration Convention). Moreover, the Convention reiterates the definition of the term ‘space object’ as established by the Outer Space Treaty, namely that the term ‘space object’ “includes component parts of a space object as well as its launch vehicle and parts thereof” (Article I para. (b) Registration Convention), which has led to diverse academic interpretations. To allow for an accurate implementation of the Registration Convention, the Registration Policy establishes several working definitions, including of the term ‘ESA space object’.13 Also, it introduces innovative terminology with the description of ‘status change’ of an ESA space object as comprising: (i) significant, permanent changes of orbital parameters of a space object and (ii) permanent changes of the space object’s status and functionality. From a practical (and pragmatic) point of view, it was important to interpret the meaning of the term ‘additional information’ in the Registration Convention while at the same time excluding station keeping and collision avoidance manoeuvres, the natural decay of space objects and other more general perturbations. Such ‘everyday’ manoeuvres alter a space object’s orbit at frequent

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In practice, the launch and COSPAR details are usually provided by the ESA Space Debris Office which maintains the actual Agency interface to COSPAR in that respect. ESA space objects are: (a) ESA assets embarked on an ESA or non-ESA launch, entering an orbit around Earth; (b) launcher stages for launches under an ESA development programme, entering an orbit around Earth; (c) adaptors, fairings and other elements associated to a) or b). ESA space objects being launched beyond Earth orbit are also registered and notified accordingly.

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intervals, in addition to the permanent influence of natural forces such as Earth’s gravity or atmospheric drag. The exact orbital parameters of any space object as notified to the UN may thus be inaccurate right from the time of reception of the notification letter by the UN. Lastly, and as described under Chapter IV above, the Registration Policy provides for a pragmatic interpretation of the term ‘as soon as practicable’ as comprising not more than one calendar month. VI.

The ESA Space Object Register

A central element for implementing the Registration Policy was the establishment of a multi-functional ESA Space Object Register. This register represents the “national registry” required under Article II Registration Convention. Its implementation is based on the fact that the Registration Convention leaves ample room for determining the contents of each registry and the conditions under which it is maintained (“[...] shall be determined by the State of registry concerned”, Article II para. 3 Registration Convention). For decades, the ESA registry was maintained in the form of a simplified, serially numbered list of entries in paper, word or excel formats, containing precisely the parameters required under Article IV para. 1 Registration Convention. The introduction of the Registration Policy offered an opportunity for enhancing that practice. The ESA Space Object Register was developed over the course of 2014 and released in March 2015 as an internal administrative tool maintained by the Legal Services Department. It represents the authoritative list of all ESA space objects that currently are or ever have been in Earth orbit or beyond.14 It is divided in a Main Section listing all ESA space objects which have been registered and duly notified to the UN Secretary-General in response to the Agency’s obligations under the Registration Convention and an Annex Section listing additional, non-functional ESA space objects, in particular operational debris. For each listed ESA space object,15 an associated fact sheet section contains the following groups of technical and other parameters: 1. the space object name and international (COSPAR) designator; 2. physical,16 launch and orbit information;17 3. registration, notification and, where applicable, additional legal information. The list of ESA space objects registered in accordance with the Registration Convention is open to the public via the respective notifications submitted by

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ESA, The ESA Space Object Register: introductory remarks, in: ESA Space Object Register, rev.2015-09-23, p. 3. For debris objects (fragments), the physical properties are not always available. including the space object type, mass and even geometrical shape. including the current status, predicted re-entry date and orbit classification.

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ESA to the UN Secretary-General and can be accessed under the Online Index of Objects Launched into Outer Space maintained by the Office for Outer Space Affairs. The peculiarities of the ESA Space Object Register, in particular in contrast to a more ‘conventional’ implementation approach, are its structural subtleties and its technical link to the Agency’s state-of-the-art technical space object database maintained by the ESA Space Debris Office, as further described in section VII below. Such, the ESA Space Object Register is not only a comprehensive legal database but allows for full visibility and traceability, at all times, of relevant information related to the entirety of catalogued ESA space objects. Owed to this novel approach, it has become an inter-disciplinary database of highest functionality. VII.

The ESA ‘DISCOS’ Database

In order to facilitate operational, engineering, support and academic activities related to space debris, ESA is maintaining a Database and Information System Characterising Objects in Space (DISCOS). DISCOS is located at the European Space Operations Centre (ESOC) in Darmstadt, Germany. The DISCOS system is maintained and further developed by ESA’s Space Debris Office. It has been in operation since 1990 and undergoes continuous maintenance and upgrades to keep its valuable dataset up to date since then. Reference 18 gives an introduction to the DISCOS development and outlines the main functionalities and related applications through selected examples.18 ESA’s DISCOS database assembles launch information, object registration details, launch vehicle descriptions, spacecraft information (e.g. size, mass, shape, mission objectives, owner), as well as orbital data histories for all trackable, unclassified objects, which today sums up to more than 40,000 objects. To maintain these data records DISCOS relies on various sources from which information is automatically retrieved and ingested into the database, such as: (i) ‘Two Line Elements’ received by the US Strategic Command (USSTRATCOM); (ii) Satellite Situation Report; (iii) the ESA19 Table of Earth Satellites; (iii) the NASA History of On-Orbit Satellite Fragmentations; (iv) launch information provided under ESA contracts; and (v) own and contracted research at ESA. Today, DISCOS is a central tool for supporting the daily activities at the Space Debris Office. As such, it is the basis for: a) operational processes for the purposes of collision avoidance, re-entry analyses and for spacecraft contingency support; b) launch data supplied to the Committee on Space Research (COSPAR);

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T. Flohrer, S. Lemmens, B. Bastida Virgili, H. Krag, H. Klinkrad, E. Parrilla, N. Sanchez, J. Oliveira, F. Pina, ‘DISCOS – current status and future developments’, in: Proceedings of the 6th European Conference on Space Debris, SP-723, Darmstadt, April 2013. From 1957 to 1980: RAE Table of Earth Satellites.

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c) a re-entry events database to support internationally coordinated re-entry prediction campaigns of so-called ‘risk objects’; d) different reporting capabilities, e.g. on the achieved compliance of a given mission with international space debris mitigation guidelines. Part of the data is available for registered users in agencies, industry, academia and governments worldwide through a web front-end.20 The functional architecture of the DISCOS system comprises a back-end database, and a front-end webserver. The organisation of DISCOS data in a relational database management system combines information sources into a set of related tables with a minimum of duplication. VIII.

Linking the Esa Space Object Register with ‘Discos’: The Creation of a Multi-Functional Legal Database

In order to implement the new ESA Space Object Register, the DISCOS database is extended with a specific schema to host legal information, such as the UN notification and registration details, related document references, an owner/operator change history and additional legal information. This dataset is administered by ESA’s Legal Services Department and can be used in combination with orbit information and physical characteristics of the objects, maintained by the Space Debris Office through DISCOS. This relationaldatabase oriented approach enables convenient and up-to-date retrieval of the following general statistics: a) the amount of current, or former, ESA payloads, rocket bodies, and debris pieces in orbit, or decayed; b) the initial and current orbital distribution of ESA payloads, rocket bodies, and debris pieces; c) comprehensive listings of current and former ESA objects, on-orbit/decayed /inter-planetary ESA objects, and non-payload/rocket body ESA objects. Together with the following object specific information: a) launch information such as launch date, launcher, and launch provider; b) UN registration and associated legal acts, including ownership transfers, identified by associated dates and document numbers and an assigned ESA register number; c) physical characteristics such as mass and area, and an international identification designator (COSPAR) number; d) initial and current orbit characteristics, including a re-entry date (confirmed for past ones and predicted otherwise); e) operational history of a given space object.

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https://discosweb.esoc.esa.int.

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A further distinction can be made on the level of involvement of ESA or other agencies / organisations in the design, development, launching or operation of space objects. This facilitates the identification of the respective launching state, in line with the space treaties. The technical implementation of ESA Space Object Register also provides a reporting capability for the automated, scheduled or on-demand generation of a print-ready report on the complete registration status of all ESA space objects. That report is a single compact PDF document generated through the LaTeX typesetting language with convenient links and indexes to ease browsing the document, very similar to other available DISCOS reporting capabilities. The document includes different listings of all ESA objects, sorted by the COSPAR identifier and by the actual or predicted re-entry date, and the detailed object-specific fact sheets. The report closes with a concise summary of core statistics at the reporting epoch, and a set of figures, such as a classification per object type and by orbital regime. Further possible extensions of the technical capacities involve the definition of a web-based interface, enabling authorised access to the underlying data via a user-friendly, easy-to-access, front-end with daily refreshed content. IX.

Examples of ESA’s Registration Practice since 2014

Since the entry into force of its Registration Policy, ESA registered several newly launched space objects21 and submitted the corresponding notification letters to the UN Secretary-General; these registrations were effectuated within one month after the launch of the respective mission. One of these space objects was ESA’s ATV-5 cargo spacecraft “Georges Lemaître”, launched to the International Space Station (ISS) on 29th July 2014 using an Ariane 5ES carrier launch vehicle.22 That ISS supply mission lasted for a nominal period of six and a half months. Due to the unusually short orbital lifetime of the ATV supply ships, during most of which they remained coupled with ISS, some of the earlier ATV spacecraft had not been notified to the UN. However, the Registration Convention does neither set any minimum orbital lifetime requirement nor is its function that of providing for space surveillance data; the assignment of jurisdiction and control (see Article VIII Outer Space Treaty) over a space object is necessary even for times of short presence in outer space, in particular for venturous missions like the ATV, docking with and un-docking from ISS and re-entering Earth in a controlled manner. Independent from the expected or actual orbital lifetime, space objects must therefore be duly registered and notified under the regime established by the Registration Convention.

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Including Sentinel-1A, the 5th Automated Transfer Vehicle (ATV) “Georges LeMaitre”, Sentinel-2A and Sentinel-3A. Registered under UN document ST/SG/SER.E/733.

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Upon the return of a space object to Earth, Article IV para. 3 Registration Convention takes effect, obliging each State of registry to notify the UN Secretary-General, “to the greatest extent feasible and as soon as practicable”, of space objects concerning which it has previously transmitted information and which have been but no longer are in Earth orbit. Although mandatory in nature (“shall”), the de-orbiting information practice by States is not uniform;23 also ESA did not provide such information in a consistent manner in the past. As explained above, the Registration Policy explicitly foresees to furnish notifications to the UN not later than one month after the launch or status change of an ESA space object. To that effect, the respective programme / project / mission managers shall notify the department in charge of legal affairs six months before a foreseen controlled or un-controlled re-entry and provide additional information such as the predicted re-entry time window and the expected object fragmentation. Consequently, ESA commits to notify the UN of any re-entry within four weeks. ATV-5 re-entered the Earth’s atmosphere at around 19:00 CET on 15th February 2015; the corresponding notification letter was submitted to the UN Secretary-General four days later, on 19th February 2015. Since the entry into force of its Registration Policy, ESA submitted voluntary information pursuant to Article IV para. 2 Registration Convention, which foresees that each State of registry may, from time to time, provide the UN Secretary-General with additional information concerning a space object carried on its registry. The Agency did so in order to confirm that the Swarm satellites, launched into Earth orbit in 2013, had arrived at their final orbital destination after several months of approach. Furthermore, while the Registration Convention establishes that only those space objects shall be registered which are launched in Earth orbit or beyond, ESA informed the UN Secretary-General of the mission of a sub-orbital space object, the Intermediate eXperimental Vehicle (IXV). This spacecraft was launched on 11th February 2015 at 14:40 CET from Europe’s Spaceport in Kourou, French Guiana, with a Vega launch vehicle. The IXV performed a sub-orbital flight of 100 minutes including its re-entry, descent and landing in the Pacific Ocean. ESA provided the information related to the IXV beyond the obligations and scope of the Registration Convention. However, the responsible exploration and use of outer space for exclusively peaceful purposes goes hand in hand with transparent and proactive information provision. Another example of ESA’s current registration practice relates to Article II para. 2 Registration Convention, which establishes that where there are two or more launching States in respect of a space object, they shall jointly determine which one of them shall register the object. In 2014, ESA concluded an agreement with the European Union (EU), represented by the European

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Schmidt-Tedd, Malysheva, Stelmakh, p. 303-304.

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Commission, for the implementation of the European Copernicus programme.24 The Copernicus programme is based on a comparatively large number of Earth observation satellites, including the Sentinel missions which are developed by ESA. The agreement reached between ESA and the EU foresees, inter alia, that ESA registers those Sentinel satellites for which it has procured the launch service (cf. Article I para. (a)(i) Registration Convention) and that, upon acquisition of ownership of the respective satellite by the EU, ESA shall provide the UN Secretary-General with appropriate information identifying the EU as the owner of the space object. X.

Conclusion

As of 15th September 2015, ESA has a total number of 59 registered space objects in outer space, i.e. in Earth orbits, in other planetary orbits or in voyage across the solar system, out of which 24 functional space objects and 35 space objects not any longer functional. Furthermore, ESA has 13 registered objects that once were but no longer are in outer space, either because they have re-entered the atmosphere of Earth, impacted on a celestial body or otherwise ceased to exist. This results in an overall total number of 72 historic and actual ESA space objects listed in the Main Section of the new ESA Space Object Register. In addition, at the same reporting epoch, ESA has twelve designated and tracked objects in outer space which are listed in the Annex Section of the ESA Space Object Register; furthermore seven designated and tracked objects that once were but no longer are in outer space. This results in an overall total number of 19 historic and actual ESA space objects listed in the Annex Section of the ESA Space Object Register. ESA will continue attaching importance to the accurate registration of its space objects. It does so sharing the views expressed in resolution A/RES/62/101, namely that it is desirable to achieve the most complete registration of space objects and enhance adherence to the Registration Convention. ESA’s current practice of space object registration can be summarised by (i) an internal, binding policy to substantiate and develop modalities to satisfy the various obligations provided for by the Registration Convention; (ii) a new, multi-functional national registry according to Article II Registration Convention; and (iii) an internal interpretation of the terms “as soon as practicable” used in Article IV para. 1 Registration Convention and “additional information” used in Article IV para. 2 Registration Convention.

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Agreement between the European Union, represented by the European Commission, and the European Space Agency on the Implementation of the Copernicus Programme including the Transfer of Ownership of the Sentinels (Copernicus Agreement), entry into force on 28 October 2014.

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The current ESA practice in registering its space objects launched into Earth orbit or beyond underlines ESA’s on-going commitment to comply with obligations rooted in international space law. The sustainable use of outer space for peaceful purposes is key to ESA’s self-concept and viewed by the Agency as a pre-requisite of responsible behaviour towards the international community. References

European Space Agency, Space Object Registration by the European Space Agency: current policy and practice, A/AC.105/C.2/2015/CRP.18, 2015. Convention for the Establishment of a European Space Agency, ESA publication SP-1317/EN, December 2010. Tronchetti, F., Smith, L., and Kerrest, A., Article XXII LIAB (International Intergovernmental Organizations), in: Hobe, S., Schmidt-Tedd, B., Schrogl, K.U., Cologne Commentary on Space Law, Vol. II, Cologne 2013. Compendium on Space Debris Mitigation Standards adopted by States and International Organizations, submitted by Canada, the Czech Republic and Germany, A/AC.105/2014/CRP.13, 2014. Schmidt-Tedd, B., Malysheva, N., and Stelmakh, O., Article IV (Information by Each State of Registry), in: Hobe, S., Schmidt-Tedd, B., Schrogl, K.U., Cologne Commentary on Space Law, Vol. II, Cologne 2013. European Space Agency, The ESA Space Object Register, rev.2015-09-23 (internal document). T. Flohrer, S. Lemmens, B. Bastida Virgili, H. Krag, H. Klinkrad, E. Parrilla, N. Sanchez, J. Oliveira, F. Pina, DISCOS – current status and future developments, in: Proceedings of the 6th European Conference on Space Debris, SP-723, Darmstadt, April 2013.

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Looking into the Future The Case for an Integrated Aerospace Traffic Management Michael Chatzipanagiotis*

Abstract Space Traffic Management (STM) is being developed to deal mainly with the problems of satellite operations and space debris. Therefore, currently is being examined separately from air traffic management (ATM). However, the advent of reusable space vehicles (RLVs) and the increase of private spaceflight operations calls for a joined examination of the STM with ATM. Among others, airspace will be shared by both aircraft and RLVs, while outer space traffic in Low Earth Orbit (LEO) will increase and begin resembling air traffic. At the same time, modernization of ATM worldwide focuses also on satellite-based navigation. Therefore, developing a comprehensive AeroSpace Traffic Management (ASTM), to include both aviation and LEO space flights, could be useful. In this regard, some core concepts and technologies already developed or under development for ATM could set a useful example. The Automatic Depended Surveillance – Broadcast (ADS-B) technology uses satellite navigation to locate the position of a given aircraft and the aircraft flying nearby, and transmit it to other aircraft and the Air Traffic Control (ATC). The 4d-trajectory management is based on the integration of time into the 3D aircraft trajectory, to ensure flight on a practically unrestricted, optimum trajectory for as long as possible, provided that the aircraft meets accurately an arrival time over a designated point. The System Wide Information Management (SWIM) concept envisages prompt and efficient data sharing among airspace users and Air Navigation Services Providers (ANSPs) through a wide-array network or a centralized flight data processing system. Such concepts and technologies could prove useful to regulate spaceflight traffic to and from LEO as well as coordinate such traffic effectively with air traffic. Moreover, developing an efficient ASTM system requires designating competent authorities, which will supervise the service providers. The nature of outer space as res nullius is similar to international airspace, which falls under the jurisdiction of no State. Air traffic in such airspace is controlled through air navigation regional agreements, which designate a specific national or transnational authority as responsible to control the airspace and ensure flight safety, without affecting the international status of the airspace. Similarly, LEO could be divided into zones, for each of which a competent authority can be designated through special international agreements. Such authorities could be linked to a SWIM, which would include both air traffic and space traffic data available to all affected authorities, service providers and aerospace users.

______ *

Attorney-at-law, Athens Greece, [email protected].

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I.

Air Traffic Management and Space Traffic Management

Operations in both airspace and outer space are evolving. In airspace, a significant increase of air traffic is expected in the following decades. In outer space, the increasing involvement of private actors offering a variety of services is about to change the traditional operational concepts. Technological development is expected to decrease the cost of access to outer space regarding the transfer of both payloads and humans, which will increase significantly the number of space operations. Reusable Launch Vehicles (RLVs) operations, space tourism,1 Point-to-Point Earth transportation through outer space,2 private space stations3 and massive deployment of microsatellites (cube sats)4 are only but few of the new developments expected in the future. At the same time, some traditional satellite applications, like wide-band telecommunications, are going to occur through high altitude platforms in the atmosphere,5 to decrease operational cost and enhance accuracy of service. Such developments blend the boundaries between airspace and outer space operations, and create the need of developing unified tools for traffic management. We will examine how and to what extent some key concepts of future Air Traffic Management (ATM) could be used in Space Traffic Management (STM), to create an integrated Aerospace Traffic Management (ASTM). To this end, we need to examine first the notion and the objectives of both STM and ATM. I.1.

Space Traffic Management

Space Traffic Management (STM) has been defined as the set of technical and regulatory provisions for promoting safe access into outer space, operations into outer space and return from outer space to Earth free from physical or radio frequency interference.6 Thus, STM aims at ensuring the unimpeded use of outer space.

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See e.g. www.virgingalactic.com/human-spaceflight/your-flight-to-space/ (last visited on 30 Nov. 2015). E.g. US Department of Transport, Report on PTP commercial space transportation in the NAS (10 March 2010), available at: www.faa.gov/about/office_org/headquarters_offices/ast/media/point_to_point.pdf (last visited on 30 Nov. 2015). Messier, Douglas, Private space stations could become a reality by 2025, posted on 25 Aug. 2015 at www.space.com/30359-private-space-stations-reality-2025.html (last visited on 30 Nov. 2015). E.g. www.zmescience.com/space/elon-musk-spacex-satellite-fleet-0560421/ (last visited on 30 Nov. 2015). See e.g. Project Loon by Google www.google.com/loon/ (last visited on 30 Nov. 2015). International academy of Astronautics, Cosmic Study on Space Traffic Management, Paris 2006, p. 10.

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I.2.

Air Traffic Management

The International Civil Aviation Organization (ICAO) defines Air Traffic Management (ATM) as the dynamic, integrated management of air traffic and airspace, including Air Traffic Services (ATS), airspace management (ASM) and air traffic flow management (ATFM) through the provision of facilities and seamless services in collaboration with all parties, and involving airborne and ground-based functions.7 The objectives of ATS is are to (a) prevent collisions between aircraft; (b) prevent collisions between aircraft on the maneuvering area and obstructions on that area; (c) expedite and maintain an orderly flow of air traffic; (d) provide advice and information useful for the safe and efficient conduct of flights; (e) notify appropriate organizations regarding aircraft in need of search and rescue aid, and assist such organizations as required.8 The ATFM aims at contributing to a safe, orderly and expeditious flow of air traffic by ensuring that Air Traffic Control capacity is optimally utilized.9 II.

Key Concepts and Technologies in Future ATM Systems

In recent years, a transformation of the traditional ATM concepts has been taking place, to meet future challenges concerning airspace capacity, environmental protection and economic efficiency of air travel. ICAO has laid down a new global ATM concept, the key features of which include that: a) all airspace will be the concern of ATM and will be a usable resource; b) airspace management will be dynamic and flexible; c) restriction on the use of airspace will be considered transitory; and d) all airspace will be managed flexibly, in the sense that airspace boundaries will be adjusted to particular traffic flows and should not be constrained by national or facility boundaries.10 The ICAO concept has begun being implemented. The most ambitious programs in this regard are the US Next Generation Air Transportation System program (NextGen), and the European Single European Sky ATM Research program (SESAR).

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See the section Definitions in ICAO Procedures for Air Navigation Services, Air Traffic Management, ICAO Doc 4444, 15th ed. 2007. ICAO Annex 11 to the Chicago Convention, Air Traffic Services, 13th ed. 2001, para. 2.2. See ICAO Doc 4444, supra note 7, Definitions. ICAO Global Air Traffic Management Operational Concept, Doc 9854, AN/458, 2005, para. 2.1.2.

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II.1.

Dynamic and Flexible Airspace Use and Management

According to the ICAO Global ATM Concept, all available airspace should be managed flexibly. Any restriction on the use of any particular volume of airspace will be considered transitory. The airspace will be organized and managed in a manner that will accommodate all current and potential new uses of airspace, including unmanned aerial vehicles and transiting spacevehicles.11 Transition between areas will be transparent to users at all times.12 Airspace use will be coordinated and monitored, to accommodate the conflicting legitimate requirements of all users and to minimize any constraints on operations. When conditions require that different types of traffic be segregated by airspace organization (e.g. civil traffic, military traffic, transiting space traffic), then the size, shape and time regulation of that airspace will be set to minimize the impact on operations.13 There will always be airspace that is primarily used or organized for a specific purpose (e.g. trajectory-oriented airspace, high-density airspace, special-use airspace). However, this does not mean that aircraft neither operating in that particular mode nor equipped accordingly for such airspace will be excluded – they will be accommodated by the system where deemed safe and appropriate.14 In this regard, the concept of flexible use of airspace (FUA) stipulates that airspace should not be designated as purely civil or military, but rather as a continuum in which all user requirements are satisfied to the greatest extent possible.15 Airspace reservations should be applied only for limited periods of time and based on actual use of airspace.16 The FUA concept requires effective communication, cooperation and coordination between civil and military entities, which is necessary to ensure a safe, efficient and predictable use of airspace.17 Moreover, the FUA concept should, whenever possible, be applied across national borders and/or the boundaries of flight information regions (FIRs).18 In general, while acknowledging sovereignty, ICAO promotes the global organization of airspace: homogeneous ATM areas and/or routing areas will be kept to a minimum, and consideration will be given to consolidating adjacent areas.19 The most prominent example of FUA are the European Functional Airspace Blocks (FABs), which are unified airspace sections that comprise the airspace

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Ibid., para. 2.2.1. Ibid., para. 2.2.3. Ibid., para. 2.2.11. Ibid., para. 2.2.8. ICAO Cir 330, AN/189, Civil Military Cooperation on Air Traffic Management, 2011, para. 3.2.1. Ibid., para. 3.3.1 (c). Ibid., para. 3.2.2. Ibid., para. 3.3.1 (d). FIRs are airspace areas, where a particular State is responsible for providing ATS. FIRs may include both national and international airspace. Para. 2.2.2.

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of more than one State, to focus on traffic flows, rather than national boundaries, without affecting national sovereignty. FABs are managed by a single Air Navigation Services Provider (ANSP), which, however, can also use the services of other providers.20 This means that airspace users will be dealing with a single entity as to air navigation services, yet this entity may combine and receive information from other entities. The service providers are overseen by National Supervisory Authorities (NSAs) of the States concerned. II.2.

4D Trajectories and TBOs

The 4d trajectory concept is based on the integration of time into the 3D aircraft trajectory. We can consider a 4d trajectory as an enhanced flight plan with the addition of time details during the flight: at the moment T, the aircraft will be at X longitude, Y latitude and Z altitude. This concept aims to ensure flight on a practically unrestricted, optimum trajectory for as long as possible, provided that the aircraft meets very accurately an arrival time over a designated point.21 Such Trajectory Based Operations (TBOs) and the related Trajectory Management concept entail the systematic sharing of aircraft trajectories among various participants in the ATM process, to ensure that all partners have a common view of a flight and access to the most up-to-date data available to perform their tasks.22 Thus, dynamic 4d trajectories will be a key element in future air traffic synchronization.23 II.2.1.

Establishment and Implementation of 4D Trajectories

Non-detailed 4d trajectories are initially communicated to the “demand and capacity balancing service” of ATM, to facilitate strategic airspace organization and management. Such communication occurs several months before flight and provides information on intended operations, with accuracy appropriate to the planning stage.24 When the availability of forecasts allows for meteorological flight planning, the airspace user will negotiate the “user-preferred” 4d trajectory with the demand-and-capacity-balancing service of the ATM provider. The “userpreferred” 4d trajectory includes route, altitudes, speeds and, where feasible with respect to the planning horizon, runway and arrival times, taking into account weather, airspace constraints, aircraft performance capability and

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23 24

See Arts 8-10 of Regulation (EC) No 550/2004 (Official Journal L 096, 31.03.2004 pp. 10-19). www.skybrary.aero/index.php/4D_Trajectory_Concept#Further_Reading (last visited on 30 Nov. 2015). SESAR Concept of Operations, Step 1 para. 3.1.1, available at www.sesarju.eu/sites/default/files/documents/highlight/SESAR_ConOps_Document_ Step_1.pdf (last visited on 30 Nov. 2015). ICAO, Global ATM concept, supra note 10, para. 2.1.5. Ibid., paras. 6.11, 7.2.

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user constraints such as schedules.25 If users are aware of restrictions that will prevent the preferred trajectory, they may also propose a preferred alternative trajectory.26 Hence, the user-preferred trajectory is a flight route most closely matching user expectations. The ATM provider will communicate the available trajectory, complete with departure time, weather data and waypoints with estimated time/altitude/speed to the flight deck (aircraft) for acceptance.27 This “systemdelivered” trajectory should be as near to the requested 4d trajectory as possible.28 The airspace user can negotiate the system-delivered trajectory as part of the collaborative decision-making process.29 Once an agreement has been reached, the “negotiated” trajectory will be produced, which will be stored for access by all potential ATM service providers. The agreed 4d trajectory will be approved with tolerances, which will constitute a “4d trajectory contract” between the airspace user and the service provider. The intent of these tolerances is to provide the airspace user with some freedom for changes within the trajectory, without further reference to the service provider. The tolerances are intended to provide as much flexibility as the ATM system can allow, while balancing the requirements of other airspace users.30 II.2.2.

Implementation of 4D Trajectories

After the 4d trajectory has been agreed upon, there may be changes either in ATM resources or in the situation of the airspace user. Then, a new trajectory will be negotiated. The initially agreed 4d trajectory may be amended by the provider of aerodrome operations services regarding mainly the departure phase of the flight, in which interaction with other departing or arriving aircraft may occur. Further amendments are possible en-route due to unforeseen factors, e.g. adverse weather, equipment malfunction, destination arrival delays, the need for conflict management and resolution with other flights, changes in airspace capacity, changes to aircraft performance, etc. Eventual arrival delays should be absorbed during the amended en-route 4d trajectory.31 Any deviation from the negotiated trajectory will be negotiated anew directly between the flight deck (aircraft) and the ATM service delivery management.32 Collaborative decision making will consider alternative trajectories. If time permits, several

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Ibid., para. 7.3. Ibid., para. 6.12. Ibid., para. 7.4. Ibid., para. 7.6. Ibid., paras. 6.13-6.14. Ibid., para. 6.15. Ibid., para. 7.9. Ibid., para. 7.7.

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options may be considered; however, if time is limited, this process may be replaced by pre-agreed procedures and preferences.33 Any amended trajectory will be dynamically provided to the ATM system, to become available for other ATM processes and airspace users that may be affected.34 II.3.

System Wide Information Management

System Wide Information Management (SWIM) is a technology enabler that provides the Information Technology (IT) standards, infrastructure and governance necessary for ATM systems to share information, improve interoperability, and reuse information and services.35 It is a net-centric system of sharing information in real-time among all ATM stakeholders (ANSPs, aircraft operators, airport operators, military authorities etc.), so that each user has the information it needs at the time it needs it. ICAO defines SWIM as “an advanced technology program designed to facilitate greater sharing of ATM system information, such as airport operational status, weather information, flight data or status of special use airspace”. SWIM will replace the current system of sharing information, in which information is provided point-to-point between two specific users that have to be connected using the same protocol and the same data interface.36 Under SWIM, all airspace users and service providers will be able to communicate with each other through a centralized platform, using interoperable systems. They will have access to the same information on the current and forecast status of the ATM system. As a result, the SWIM will improve collaborative decision making and situational awareness.37 It will contribute significantly to the safety of the flights, because shared data reduce the chances of misinterpretation, improve awareness of weather hazards (e.g. thunderstorm activity) and mitigate the risk of traffic overloads.38 In order to achieve the objective of providing each ATM stakeholder timely with pertinent and accurate information, information provision will be separated from information consumption: information will not be provided through bilateral point-to-point connections between stakeholders, but through net-centric operations.39 In the ATM network, almost every participant is a producer as well as a consumer of information. Decoupling producers of information from potential consumers avoids the need of deciding in

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Para. 6.16. Paras. 6.18, 7.7. https://www.faa.gov/nextgen/programs/swim/overview/ (last visited on 30 Nov. 2015). Ibid. ICAO Global ATM Concept, supra note 10, para. 6.18. SESAR ConOps, supra note 22, para. 3.7.1. SESAR SWIM Factsheet, pp. 2-3, available at www.sesarju.eu/sites/default/files /documents/reports/factsheet-swim.pdf (last visited on 30 Nov. 2015).

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advance who will need what information, obtained from whom and when. As a result, the number and nature of the consumers can evolve through time.40 II.4.

ADS-B

Automatic Dependent Surveillance – Broadcast (ADS-B) is a surveillance technique that transmits the identity of the aircraft and data derived from Global Navigation Satellite Systems (GNSS),41 especially position and velocity, to Air Traffic Control (ADS-B Out) and to other aircraft (ADS-B In).42 ADS-B In can be used for multiple applications, including Cockpit Display of Traffic Information, which provides a graphical depiction of air traffic, and Guidance Display, which provides relative guidance, predominantly based on speed control, to maintain a given spacing from a selected target.43 ADS-B is automatic, because no external stimulus is required, and dependent, because it relies on on-board systems to broadcast surveillance information to other parties.44 As a result, ADS-B is a key technology to future ATM and is going to replace current surveillance radars, providing more accurate data on airborne traffic situational awareness and facilitating spacing, separation and self-separation. II.5.

Data Communications

Data communications are going to replace current voice communications between air traffic controllers (ATCO) and cockpit. Pilots and ATCO will communicate using electronic data, which can convey information of much larger volume and complexity, as well as of higher quality. Such information can be processed by ground and on-board information management systems.45 Data communications are one of the crucial technology enablers of the planned integrated and collaborative ATM. They enable real-time negotiation of 4d trajectories between ANSP and pilots, and real-time sharing of information for all aircraft on aircraft position, navigation and identification, information on weather and security, on the operational status of the aircraft and the ATM.46

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SESAR ConOps, supra note 22, para. 3.7.1. E.g. GPS, GALILEO, GLONASS etc. See www.skybrary.aero/index.php/Automatic_Dependent_Surveillance_Broadcast _%28ADS-B%29 (last visited on 30 Nov. 2015). FAA/AST Point-to-Point Commercial Space Transportation in National Aviation System, Final Report, March 10, 2010, available at www.faa.gov/about/office_org /headquarters_offices/ast/media/point_to_point.pdf (last visited on 30 Nov. 2015), p. 12. Ibid. See https://www.faa.gov/nextgen/update/progress_and_plans/data_comm/ (last visited on 30 Nov. 2015). See details in Concept of Operations for the Next Generation Air Transportation System, Version 3.2, Washington 2005, pp. 4-6 et seq., available at http://docplayer.net/927153-Concept-of-operations.html (last visited on 30 Nov.

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III.

Future ATM and STM

The above concepts and technologies could be useful in STM. Space objects transiting airspace should be accommodated in the new ATM system. At the same time, future ATM concepts and technologies could be adjusted for use at least in Low Earth Orbit operations. III.1.

Accommodation of Space Traffic in Future ATM

The implementation of future ATM technologies and concepts to space vehicles transiting airspace is being studied extensively, especially in the United States (US). The US envisages using in the its National Airspace System (NAS) Space Transition Corridors (STCs) and Flexible Spaceways for frequent space operations.47 STCs will be defined according to the needs of the specific operations and will be dynamically issued and withdrawn, as necessary, to maximize safety while minimizing the impact to air traffic.48 Such corridors currently represent mainly segregated airspace, i.e. airspace closed to air traffic, either permanently in the form of Special Use Airspace, or temporarily in the form of Temporary Flight Restrictions.49 However, the current practice will not be sustainable in the future, when a significant increase in both air traffic and space traffic is expected. Therefore, the principles of Functional Use of Airspace are expected to apply, according to which airspace segregation in both spatial and temporal terms will be minimized. Flight through space transition corridors could be conducted using 4d trajectories, which is also being studied by the FAA. However, the implementation of Trajectory Based Operations (TBO) in transiting space traffic may have certain limitations, related mainly to the flight profile and maneuverability of certain types of vehicles, such as ballistic launching and re-entry, as well as unpowered flight after re-entry (gliding in the atmosphere). Thus, TBO for space vehicles will need to be organized taking these limitations into account and upon thorough technical research.50

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2015). As to Europe, See also Art. 3a of Regulation (EC) No 551/2004 (OJ L 096, 31.3.2004, p. 20), as amended by Regulation (EC) No 1070/2009, which foresees the provision of electronic aeronautical information to airspace users. FAA, Concept of Operations for Commercial Space Traffic in the National Airspace System, v. 2.0, May 11, 2001, p. 4, available at https://www.faa.gov/about/office_org/headquarters_offices/ast/media/CST_CONOPS _v2.pdf (last visited on 30 Nov. 2015). Murray, Daniel P./ van Suetendael, Richard, A Tool for Integrating Commercial Space Operations into the National Airspace System, paper presented at the AIAA Atmospheric Flight Mechanics Conference and Exhibit, 21-24 August 2006, Keystone, Colorado, p. 3, available at https://www.faa.gov/about/office_org/headquarters_offices/ast/reports_ studies/media/aiaa-2006-6378-450.pdf (last visited on 30 Nov. 2015). Murray/ van Suetendael (supra note 48), p. 2. FAA/AST PTP Study (supra note 43), p. 16.

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At the same time, the need of space vehicles, especially manned ones, to have ADS-B equipment on board has been recognized.51 This way, pilots of aircraft and space vehicles, as well as the Air Traffic Controllers will have increased situational awareness.52 In the same vein, data communication equipment and connection to SWIM is also deemed necessary.53 Concerning space traffic transiting the airspace of more than one State, the US envisages managing air and space traffic by dividing Earth into six regional operational segments.54 III.2.

Expansion of Future ATM Concepts to LEO

A further step would be to expand and adjust the above future ATM concepts for operations in Low Earth Orbit (LEO), concerning mainly manned space operations. Operations in LEO are operations in outer space environment and are quite different from operations in airspace: there is zero gravity; space objects, the vast majority of which are unmanned, orbit the Earth; Radio-Frequency communications may be affected during re-entry55 in the atmosphere or because of interference with the ionosphere of the Earth.56 Therefore, not all future ATM concepts are applicable to LEO, while adjustments to the operational environment of outer space are necessary. Since space objects move in stable orbits, transferring the concept of dynamic and flexible use of airspace to outer space operations does not appear very feasible. The same goes for 4d trajectories and TBOs, in principle. Earth orbits are natural 4d trajectories. Nonetheless, 4d trajectories make sense for re-entry operations, in which entry to a specific Space Transition Corridor has to occur at a specific time and place to ensure safety.

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FAA/AST Study (supra note 43), p. 12. Orndorff, Gregory/ Boone, Bradley/ Kplan, Marshall, Space Traffic Control: Technology thoughts to catalyze a future architecture, Paper presented at AIAA SPACE 2009 Conference & Exposition, 14-17 September 2009, Pasadena, California, available at http://enu.kz/repository/2009/AIAA2009-6485.pdf (last visited on 30 Nov. 2015), pp. 6-7. FAA/AST Study (supra note 43), pp. 12, 15-16. FAA/AST Study (supra note 43), p. 12. FAA, Space Transportation Concept of Operations, Annex for NextGen, available at https://www.faa.gov/about/office_org/headquarters_offices/ast/reports_studies/library /media/Space_Transportation_Concept_of_Operations_Annex_for_NextGen.pdf (last visited on 30 Nov. 2015), p. 34. See Hartunian R.A. et al. Causes and mitigation of Radio Frequency (RF) Blackout during Reentry of Reusable Launch Vehicles, Aerospace Corporation Report No ATR-2006(5309)-1, 26 January 2007, available at www.researchgate.net/publication/254895057_Causes_and_Mitigation_of_Radio_Fr equency_%28RF%29_Blackout_During_Reentry_of_Reusable_Launch_Vehicles (last visited on 30 Nov. 2015). See e.g. www.ips.gov.au/Educational/1/3/2 (last visited on 30 Nov. 2015).

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On the other hand, a System Wide Information Management (SWIM), in which all orbital data of both functional and non-functional space objects are entered, would be an extremely useful tool. A SWIM would boost situational awareness in LEO for all users, like operators of satellites, Reusable Launching Vehicles, space stations etc. The same applies to ADS-B, which would promote significantly human spaceflight safety. Especially ADS-B Out technology could provide spacecraft pilots and operators of space stations with valuable information from both manned and unmanned space objects. Data communications between spacecraft and STM authorities will also be of primary importance in information sharing. III.3.

Regulatory Requirements

In order to implement the above concepts and technologies, regulatory changes would be necessary. III.3.1.

Delimitation of Outer Space

Delimitation of outer space is necessary, in view of the fundamental differences between aviation and space law as to national sovereignty. The State retains national sovereignty in the airspace above its territory (Art. 1 CC). Thus, ATM remains a primarily sovereign function, even when it is exercised through international cooperation. On the contrary, outer space cannot be appropriated by any State and it remains free to use and explore (Art. I OST). Thus, effective STM can only be based on international agreements. An integrated AeroSpace Traffic Management (ASTM) requires the delimitation of outer space, in order to set the limits to the right of unilateral action of States. III.3.2.

Transit Rights

Under current international law, space objects have no right to transit foreign airspace (“right of innocent passage”), because of the established principle of absolute State sovereignty in the airspace above national territory, recognized by Art. 1 CC.57 However, establishing such right is supported by various

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E.g. Wassenbergh, Henry A., Principles of Outer Space Law in Hindsight, Dordrecht 1992, p. 37; Schwenk, Walter, Der Durchflug von Weltraumgegenständen durch den nationalen Luftraum, Zeitschrift für Luft- und Weltraumrecht 1982, pp. 1 et seq.; Cheng, Bin, Studies in international space law, Oxford 1997, p. 649; Benkö, Marietta / de Graaf, Willem, Questions relating to the definition/delimitation of outer space and outer space activities and the character and utilization of the geostastionary orbit in: Benkö Marietta et al. (eds), Space Law in the United Nations, p. 121 (135). Compare, however, Cosmic Study on STM, supra note 6, pp. 88-89, which doubts the applicability of the 1944 Chicago Convention to spacecraft.

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scholars and the Russian Federation has already granted such right concerning its own airspace.58 Transit rights of foreign space objects through national airspace should be established, because they would facilitate relations between States. Nevertheless, each State is internationally responsible for assuring the safety of air traffic in its national airspace.59 At the same time, States bear a notification duty towards other States for eventual risks their operations pose (Art. XI OST). Therefore, the expected dense traffic in the upper airspace would necessitate prior clearance from aerospace traffic control center for safety reasons. As a result, spacecraft operators will have to issue at least a form of previous notification to the territorial State, regardless the issue of transit rights, to receive clearance and enable coordination with air traffic and maritime traffic.60 III.3.3.

Development of STM Principles and Technical Rules

Integration of space traffic into ATM and establishment of a STM system require comprehensive planning at both strategic and tactical level. Hence, adjustment of ATM concepts to the needs of space vehicles and possibly development of new concepts are necessary. These concepts should be combined with technical requirements on equipment and procedures for their implementation. Therefore, technical standards and recommended practices should be developed also for space vehicles and space traffic, in order to have a functioning traffic management system.61 III.3.4.

International Coordination

The above standards and recommended practices could function most effectively, if they are based on international cooperation and coordination. Ideally a global STM master plan, which will explain the concept of operations, should be laid down. This could be the work of a global international organization, based on existing structures (ICAO, UNCOPUOS) or even on a new structure like the International Space Flight Organization, envisaged by the FAA in the past.62

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Art. 19 of the Russian Law on Space Activity. See Arts 12 and 28 of the Chicago Convention and Annex 11 thereto, supra note 8, para. 2.1.1. Compare Cosmic Study on STM, supra note 6, p. 89, which recommends notification of and coordination with local maritime traffic and air traffic authorities. Cosmic Study on STM, supra note 6, p. 89. FAA, Concept of Operations for Commercial Space Traffic in the National Airspace System, supra note 47, p. 8.

LOOKING INTO THE FUTURE

This global STM master plan ought to be combined with regional aerospace navigation plans and agreements.63 Guidance could be drawn from the existing regional air navigation agreements.64 It might be helpful if such plans and agreements were the extension and modification of the already existing regional navigation agreements, since transiting space traffic would necessarily be part of the air traffic in the lower airspace. Such regional agreements could be combined with Integrated Functional Aerospace Blocks (IFABs) at the example of the European FABs. These IFABs could ensure international cooperation of the underlying States on a functional level without affecting national sovereignty. IV.

Conclusion

Both STM and ATM share the objective of ensuring the safety of flights and operations from collisions with other vehicles. The advent of new technologies and the increasing use of both airspace and outer space by a growing number of actors render necessary not only the accommodation of space traffic into ATM concepts, but also the elaboration of an Integrated Aerospace Traffic Management. In this respect, some of the main concepts and key technologies of future ATM could be adjusted for application to space objects, especially manned ones. Flexible Use of Airspace and Trajectory Based Operations would be very useful during access and return from outer space. System Wide Information Management, Data Communications and Automatic Dependent Surveillance – Broadcast could increase significantly situational awareness as to operations in both airspace and Low Earth Orbit. The successful implementation of these concepts and technologies requires the development of appropriate legal and technical rules through extensive international cooperation. From a legal view, delimitation of outer space and establishment of transiting rights through national airspace upon appropriate notification would be very useful. From a technical view, the development of uniform technical standards and recommended practices, as well as of a global ASTM Master Plan, implemented through regional international agreements, would be necessary.

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64

In this regard compare FAA, Space Transportation Concept of Operations, Annex for NextGen, supra note 54, p. 34, which proposes six global STM regions of responsibility. A regional air navigation agreement is an agreement approved by the Council of ICAO usually based on the outcome of the findings of Regional Air Navigation Meetings. Regional air navigation agreements determine the portions of international airspace where ATS will be provided as well as the State or interstate agency responsible for the provision of such services – See Annex 11, Air Traffic Services, supra note 8, paras. 2.1.2-2.1.3.

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An Economic Analysis of the Legal Liabilities of GNSS Hatsuru Morita*

Abstract GNSS (Global Navigation Satellite System) technology is widely used presently and many private as well as national actors are entering the market. While national actors such as the United States in the case of GPS are generally exempted from both tort and contractual liability, private actors, such as Galileo in the EU and QZSS in Japan, are generally not immune from liability. In order to enhance private GNSS businesses, there is an international debate as to whether it is necessary to set up a new treaty on the liability of GNSS managers. This paper provides a basic economic analysis of the legal liability of the various parties. While the international debate focuses on the strict liability of GNSS managers and the exclusive channeling of liability, this paper argues against these ideas. It is well known in the literature that strict liability schemes are desirable in unilateral care cases, while negligence liability schemes are desirable in bilateral care cases. Since most of the cases in which GNSSs raise liability issues involve bilateral care in the sense that GNSS receiver makers and consumers, as well as GNSS managers, need to engage in precautionary behavior, it is socially optimal to adopt negligence-based liability schemes in general. Strict liability schemes would cause insufficient precaution on the part of GNSS receiver makers and consumers and would result in increasing the number of GNSS-caused accidents. In contrast, negligence liability schemes would provoke effective precautionary behavior on the part of GNSS receiver makers and consumers as well as GNSS managers and would thus deter GNSS-caused accidents efficiently.

I.

Introduction

GNSS (Global Navigation Satellite System) technology is widely used presently. The most popular GNSS is the GPS (Global Positioning System) of the U.S., and innumerable services rely on GPS, such as automobile navigation services, ship navigation services, smartphone applications, and time adjustment services. While GPS is operated by the U.S., many other countries are also entering the GNSS market: GLONASS of Russia, Galileo of the EU, BeiDou and Compass of China, QZSS of Japan, DORIS of France, and IRNSS of India.

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Tohoku University, Japan, [email protected].

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GNSSs are expected to send out signals regularly, but it is not possible to send out accurate signals all of the time: space debris may hit GNSS satellites, causing their malfunctioning; solar storms may change the state of the ionosphere and influence the accuracy of GNSS signals; some components of GNSS satellites may come to the end of their product lifetimes and stop working; operators on the earth may send wrong instructions to GNSS satellites; and persons on the earth may be using GNSS jammers or other equipment that causes nearby receivers to malfunction. When signals from GNSS satellites are inaccurate, receivers can show considerable errors. For example, on January 2, 2004, one of the GPS satellites sent out incorrect signals that caused errors of up to 600km. When GNSSs send out incorrect signals and GNSS receivers cannot acquire exact position or time information, such errors can lead to a variety of accidents. Automatically driven cars may go out of lane, drones may crash into buildings, aircrafts may crash while attempting to land, the coast guard may not be able to search for and rescue people on wrecked ships, and highfrequency traders may lose earning opportunities because of their inaccurate clocks. In such cases, the injured parties are expected to require the GNSS operators or the receiver manufacturers to compensate them for their losses. In the case of GPS, which is operated by the U.S. government, the solution is simple. As Gabriel (2011) explains, the U.S. government basically does not assume liability under U.S. law. Only the receiver manufacturers may face liability against the injured parties. However, other GNSS operators such as Galileo and QZSS are not state operators, and nor are they governed by U.S. law. These “private” GNSS operators, unlike GPS of the U.S. government, are not exempted from civil liability against the injured parties. Because most GNSS services are provided without a fee, the risk of civil liability may deter private GNSS operators from providing general GNSS services. At the same time, the need to compensate victims and to achieve efficient precaution is apparent. In order to balance these conflicting factors, there is an international debate on the third party liabilities of GNSS services (UNIDROIT (2013)). However, the debate so far lacks an economic analysis of the issue. This paper provides the first attempt to analyze economically the issue of third party liability of GNSS services. The paper proceeds as follows. First, section II describes a situation in which an inaccurate signal from a GNSS service causes an accident. The illustration is necessary in setting up an analytical framework to examine the third party liability in GNSS services. Next, section III provides an economic analysis of the issue. Building on this analysis, section IV critiques the UNIDROIT1 debate. Finally, section V concludes.

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UNIDROIT (the International Institute for the Unification of Private Law) is an independent intergovernmental organization, whose purpose is to study needs and

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II.

Illustration

As mentioned above, GNSS services are not expected to send out accurate signals at all times. Some of these risks are predictable beforehand and can be controlled by GNSS operators, while others are unknown and are beyond their control. It is impossible to ensure the accuracy of GNSS signal 100 percent of the time under current technology and GNSS operators usually offer Interface Specifications (IS) and Performance Standards (PS), which provide users with information such as the interface and service performance specifications required to develop GNSS receivers and applications. Specifically, most GNSS services recognize the possibility of incorrect signals and try to inform receivers about the status of GNSS signals by sending alert flags and integrity status flags. When a receiver picks up an alert flag, it regards the sending satellite as unreliable and drops its signal from the position/time calculation. IS and PS define the lag between the status change of a satellite and the sending out of flags. During the lag, receivers cannot recognize that the signal is wrong and may miscalculate position and time. When flags are sent out in timely fashion as the IS and PS specify, the risk of miscalculation is relatively small. However, when the sending of flags is delayed, the risk can become substantial. When such miscalculations occur, GNSS-navigated objects, such as drones, cars, and aircrafts, can invite accidents. The victims of accidents require compensation from the owners of the GNSS-navigated objects, the manufacturers of the GNSS-navigated objects, and the GNSS operators. The owners, who pay compensation to the victims, in turn require compensation or indemnification from the manufacturers and the GNSS operators. When a victim sues multiple defendants, it is a joint tort and we need to consider how the liability is shared among the joint tort feasors. When a victim sues only the owner, then we need to consider whether and how the owner can claim compensation from the manufacturers and the GNSS operators. In both cases, the important legal issue is how the loss is allocated among the victims, the owners, the manufacturers, and the GNSS operators. III.

Economic Analysis

In this section, we want to provide an economic analysis of the case depicted in section II. The basic assumption of our economic analysis is that the main purpose of tort law is to deter GNSS-related accidents and to achieve socially optimal levels of care and activity (Shavell (2004)).

______ methods for modernizing, harmonizing and coordinating private law and to formulate uniform law instruments, principles and rules.

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III.1.

Level of Care

We first discuss how the liability system affects the level of care of various parties. As noted above, it is impossible for a GNSS service to send out accurate signals 100 percent of the time under current technology. If we wanted to avoid GNSS-related accidents completely, we would need to stop using GNSS technology, which would be socially inefficient. GNSS technology brings benefits to society and we need to balance its cost and benefits. The goal is to achieve socially efficient levels of accuracy of GNSS signals. In order to achieve a socially efficient level of accuracy, we need to consider which liability system provides the most efficient level of precaution to reduce GNSS-related accidents. Understanding the multiple layers of GNSS-related accidents is helpful in analyzing the incentive issue. The first layer of GNSS-related accidents is at GNSS operator level. If a GNSS operator increases the integrity of its GNSS service, the service becomes more reliable and the social benefit increases. In addition, the sending of timely alert and integrity status flags helps GNSS receivers to avoid miscalculations and leads to fewer accidents. Therefore, a GNSS operator can control the risk of GNSS-related accidents at a certain level. However, most GNSS operators are already exercising sufficient precaution and it is difficult for them to decrease the probability of incorrect signals even further. The second layer of GNSS-related accidents is at manufacturer level. Because the fact that GNSS signals are not always accurate is widely known at manufacturer level, a manufacturer can reduce the risk of GNSS-related accidents by embedding a fail-safe system or avoiding the use of GNSS technology in the first place. For example, most car navigation systems rely on map data and gyroscopes as well as on GNSS technology. When the GNSS signal is inaccurate and tells a car navigation system that the car is going out of a road lane, the car navigation system stops relying on the GNSS signal and relies on map data instead. Most drones employ not only GNSS technology, but also cameras and sensors in order to avoid hitting objects. ICAO rules require an aircraft not to rely solely on GNSS technology while attempting to land, but to employ other technologies such as ground-based radars. However, ICAO rules do allow an aircraft to rely solely on GNSS technology while cruising. These rules are based on the idea that landing is a high-risk activity and that the reliability of GNSS is not sufficient by itself to support landing. Given the incompleteness of GNSS signals, receiver manufacturers are the most important layer in deterring GNSS-related accidents. They can produce safer receivers by installing fail-safe systems and by limiting the use of GNSS technology. They can also tell purchasers of their products that these products are not perfect and that purchasers need to use them according to the instructions from the manufacturers. The final layer of GNSS-related accidents is at owner level. Even when a manufacturer provides a receiver with fail-safe systems and detailed instructions, its purchaser (owner) may not use it in a proper manner. For example,

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she may purchase a receiver of poor quality without a fail-safe system and climb a snow-covered mountain in winter, finally losing her way. She tries to send a distress call, but her receiver sends incorrect position information because the GNSS signal is unfortunately inaccurate and her receiver cannot interpret the position information correctly. The rescue team cannot reach her and she dies. If she had purchased a more expensive, high-quality receiver, she would not have died. Thus, owners can reduce the risk of GNSSrelated accidents by acquiring the appropriate receivers for their particular situations and following the manufacturers’ instructions. Thus, in order to reduce the risk of GNSS-related accidents, it is necessary to let GNSS operators, manufacturers, and receiver owners take precautions. It is not sufficient to incentivize only GNSS operators, but to incentivize all relevant parties. A GNSS-related accident is not a unilateral care case, but is a bilateral, or more precisely, a multilateral care case. What type of liability system induces more efficient precautionary behavior in this case? It is well known in the law and economics literature that strict liability does not achieve an efficient outcome in bilateral care cases. In contrast, strict liability with contributory negligence and negligence liability can achieve an efficient outcome. The reason why strict liability does not lead to efficient outcomes is that strict liability only requires one party to take precautions and allows the other parties a free ride, while strict liability with contributory negligence and negligence liability can induce all parties to take optimal levels of care in the equilibrium. In other words, strict liability gives no incentives to victims, which leads to socially suboptimal outcomes. The next step is to consider whether strict liability with contributory negligence or negligence liability is better. The main difference between the two liability systems is that the former puts the residual risk on GNSS operators and manufacturers, while the latter puts the residual risk on owners. Another difference is that a negligence-based system, whether it is contributory negligence or negligence liability, can only influence the actor as long as she knows that all the relevant factors will be taken into consideration when judging her potential negligence. If particular factors that can influence this incentive and change the risk of GNSS-related accidents are not taken into account, a negligence-based system cannot induce optimal behavior. Comparing the risk attitude of GNSS operators, manufactures, and owners, it is reasonable to assume that owners, who in general own the least in terms of personal assets, are the most risk-averse party, while GNSS operators and manufacturers are more risk-neutral parties.2 Then the strict liability with contributory negligence under which GNSS operator or manufacturer is the

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There are exceptions. For example, airline companies, which are owners of GNSS receivers and own large assets, can be regarded as risk-neutral.

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residual risk bearer is more desirable than negligence liability under which the owner is the residual risk bearer. Finally, we need to decide which party is the most efficient residual risk bearer under strict liability with contributory negligence. It should be considered that most GNSS operators are already doing their best to make their GNSS services more reliable. This is because GNSS operators are competing with each other and the reliability of their service is the most appealing point for their customers. GNSS operators already have sufficient incentive to reduce the risk of GNSS-related accidents even without the threat of civil liability. In contrast, manufacturers may not have sufficient incentive to take precautions, because consumers (owners) presumably do not have complete information about the risks of GNSS receivers and competition in the product market tends to be incomplete. Thus, under strict liability with contributory negligence, the manufacturer should be the residual risk bearer. III.2.

Levels of Activity

Next, we discuss the activity levels. In the case of GNSS-related accidents, we do not need to consider the activity level of GNSS operators. GNSS operators are sending signals to their target area and they cannot vary the quantitative rate of signals they provide. If a GNSS operator stopped sending a signal during a certain period each day, customers would not use its signal, instead relying on signal from other GNSS operators. A GNSS operator can control only the level of care – the quality of its signal. In addition, it is also meaningless to consider the activity level of manufacturers. Of course, a manufacturer can decide how many receivers to produce and sell. However, the amount of sales depends on many other factors, such as the number and quality of competitors and demand from consumers. It is difficult for a manufacturer to control its activity level. Rather, its activity level is decided by the consumers (owners). A consumer can decide whether he purchases a GNSS receiver and how often he uses it. Thus, the only party that can control its activity level is the owner, not the GNSS operator or the manufacturer. Based on this assumption, what type of liability system will achieve efficient activity levels? It is well known in the law and economics literature that strict liability achieves optimal activity levels of the tort-feasor, but excessive activity levels of the victim, while negligence liability achieves optimal activity levels of the victim, but excessive activity levels of the tort-feasor (Shavell (2004)). This is because those parties that bear the residual risk of accidents have an incentive to adjust their liability levels, while others do not have such an incentive. Then strict liability (with or without contributory negligence) puts the residual risk onto GNSS operators or manufacturers and causes inefficient activity levels of owners. In contrast, negligence liability puts the residual risk on the owner and induces optimal activity levels of owners. Because GNSS operators and manufacturers cannot change their activity levels, negligence liability does not cause excessive activity for them.

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Therefore, when we consider achieving socially optimal levels of activity, negligence liability is the most desirable scheme. Strict liability, with or without contributory negligence, would cause excessive activity levels of owners. Owners may use GNSS receivers inappropriately too often under strict liability. III.3.

Price and Risk Evaluation

In order to analyze the relationship between manufacturer and owner, it is also necessary to observe the price levels of products (Shavell (2004)). First, when consumers’ knowledge about the risks of GNSS receivers is perfect, the liability system does not matter. Under any liability system, the level of care of the manufacturer becomes socially optimal and the amount purchased by the consumer also becomes optimal. This is because the level of risk a consumer assumes is reflected in the product price. For example, even if a manufacturer assumes no liability and exercises suboptimal precaution, the product price becomes higher and the manufacturer cannot maximize its profit. Second, under more realistic settings, consumers’ knowledge about the risks of GNSS receivers is not perfect. Consumers do not know how much risk they are assuming nor do they evaluate the amount of risk involved. When consumers’ knowledge is not perfect, the risks assumed by consumers are not reflected in the product price; and manufacturers without liability to consumers do not have incentives to provide safer products. In order to induce efficient care on the manufacturers’ side, it is necessary for manufacturers to assume liability (either strict liability or negligence liability). In addition, manufacturers’ liability can induce efficient transmission of risk information. Under strict liability with contributory negligence, a manufacturer can reduce the risk of assuming liability either by providing safer products or by providing risk information to consumers. Negligence liability also gives manufacturers incentives to provide risk information to consumers. Among various liability systems, negligence liability puts the residual risk on consumers and can bring about inefficient purchasing behavior on the part of consumers, because consumers cannot evaluate the risks they are assuming. In contrast, strict liability with contributory negligence puts the residual risk on manufacturers and all that consumers need to do in order to achieve optimal purchasing behavior is to observe the market price. Thus, considering the amounts purchased by owners (consumers), strict liability with contributory negligence is the most desirable liability system. III.4.

Effect of Insurance

Finally, it is necessary to analyze the effect of insurance. While the use of insurance may not be popular among owners,3 most GNSS operators and manufacturers are likely to purchase liability insurance. The existence of

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There are some exceptions. For example, airline companies usually purchase insurance that covers liability against third parties.

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liability insurance can change the incentives of various parties (Abraham (1986)). Whether liability insurance can change the incentive of GNSS operators and manufacturers depends on the content of thier insurance policies. When an insurance company sets effective categories and charges different insurance premiums, its liability insurance can induce efficient behavior on the part of GNSS operators and manufacturers. In contrast, when the categories are coarse and the insurance company cannot differentiate among the insured parties, these parties engage in suboptimal behavior. Thus, it is desirable for insurance companies to control the insured parties through insurance policies. IV.

Critical Analysis of the UNIDROIT Debate

IV.1.

Strict Liability vs Negligence Liability

There is a strong argument for strict liability in the UNIDROIT debate. It is argued that GNSS services can invoke serious and broad ranges of losses including disasters like nuclear power plant accidents, which should be deterred as much as possible by imposing strict liability on the GNSS operator. However, GNSS operators argue against this idea and support their exemption from liability. They argue that the GNSS service is usually provided without a fee and that any imposed liability on GNSS operators would reduce the supply of GNSS services to a socially suboptimal level. From the viewpoint of economic analysis, both arguments are wrong. First, whether the losses caused by GNSS services are serious or not does not influence the choice of liability system, apart from the bankruptcy-proof issue. The important point is establishing which factors we need to control in order to reduce the likelihood of GNSS-related accidents. Such accidents can be reduced by changing the precaution levels of GNSS operators, manufacturers, and owners. They can also be reduced by changing the activity levels of owners. Strict liability cannot control the precaution levels of owners, nor their activity levels. Therefore, strict liability of GNSS operators is not socially optimal. In contrast, strict liability with contributory negligence and negligence liability can control the precaution levels of multiple parties at the same time. Second, because GNSS operators can reduce the risk of GNSS-related accidents, complete exemption of liability would cause inefficient precaution on the part of GNSS operators.4 For example, GNSS operators can employ more reliable satellites and can emit an alert flag and integrity status flag as soon as possible when a GNSS satellite becomes unreliable. The possibility of liability, even quite a limited one, can induce efficient behavior in GNSS operators.

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However, the argument against strict liability is appropriate in that the GNSS operator should not be the residual risk bearer.

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IV.2.

Exclusive Channeling of Liability

In the UNIDROIT debate, there is an argument that exclusive channeling of liability to the GNSS operator is desirable. The argument relies on the idea that GNSS receiver manufacturers may not have sufficient funds to compensate victims of GNSS-related accidents, while the magnitude of liability caused by GNSS-related accidents can be quite large.5 However, exclusive channeling of liability does not achieve a socially efficient outcome. Exclusive channeling of liability is another version of vicarious liability. When liability is exclusively channeled to a GNSS operator, it first compensates the victims and then files a claim for recovery against the manufacturer of the receiver. If the amount of the recovery claim exceeds the solvency of the manufacturer, the GNSS operator is forced to incur the remaining amount. Thus, exclusive channeling of liability to the GNSS operator has the same function as vicarious liability by the GNSS operator. Whether vicarious liability is desirable or not depends on how effectively a principal can control the behavior of an agent (Shavell (2004)). When the principal can effectively control the agent, the former can induce the efficient behavior of the latter. In case of a GNSS-related accident, the GNSS operator cannot control the behavior of manufacturers in general. It is true that most GNSS operators publish IS and PS and request manufacturers to follow them. However, most manufacturers do not have contractual relationships with GNSS operators; they use GNSS signals unilaterally and do not have contractual obligations to comply with the requests of GNSS operators. Therefore, vicarious liability of GNSS operators cannot induce efficient behavior in manufacturers. There are other legal techniques to overcome the problem of insolvency. For example, imposing minimal asset requirements, mandatory insurance, or direct regulation of manufacturers can achieve optimal behavior of manufacturers. Considering the possibility that GNSS signals diffuse across national borders, some of these regulations may not be implementable. However, others may still be implementable through import controls and may prove more effective than exclusive channeling of liability. V.

Conclusion

This paper analyzes the third party liability problem of GNSS services from an economic viewpoint. When we consider controlling the level of care as the most important factor, and where the risk-averse nature of owners is significant, strict liability with contributory negligence – where manufacturers of GNSS receivers are the residual risk bearers – is the most desirable liability

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For example, when a GNSS-navigated aircraft crashes with the loss of life of all passengers and the destruction of ground ojbects, the overall losses will amount to billions of dollars.

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system. However, when we want to control the activity levels at the same time, negligence liability becomes the most desirable option. The difference between the two alternatives is the allocation of residual risk. Whether we stress the risk-averse behavior or the control of activity levels determines the choice of alternatives.6 Considering the fact that most countries adopt optimal deterrence as the main purpose of tort law,7 the economic analysis of this paper is expected to correspond to the interpretation of tort law in most countries, although there may exist subtle differences such as strict liability with contributory negligence versus negligence liability. When laws of most countries basically coincide and their content is expected to be socially optimal, there is little need to employ an international treaty to achieve harmonization of law. The decisions of the ICAO and UNIDROIT not to take any initiatives for making an international instrument for the moment are appropriate.8 References

Abraham, Kenneth S., 1986, Distributing Risk: Insurance, Legal Theory, and Public Policy (New Haven: Yale University Press). Fried, Charles, and David Rosenberg, 2003, Making Tort Law: What Should be Done and Who Should Do It (Washington, D.C.: The AEI Press). Gabriel, Henry Deeb, 2011, “The Global Positioning System: United States Government Liability – Real and Potential,” Paper available at http:// www.unidroit.org/english/workprogramme/study079/presentations/gabriel. pdf (Accessed September 4, 2015). Shavell, Steven, 2004, Foundations of Economic Analysis of Law (Cambridge: Belknap/Harvard University Press). UNIDROIT, 2013, “Third-Party Liability for Global Navigation Satellite System (Gnss) Services: The Proposed Unidroit Project,” available at http://www.unidroit.org/work-in-progress-studies/studies/civil-liability/96about-unidroit/workprogramme/530-third-party-liability-for-globalnavigation-satellite-system-gnss-services-the-proposed-unidroit-project (Accessed September 4, 2015). Widmer, Pierre (ed.), 2005, Unification of Tort Law: Fault (Hague: Kluwer Law International).

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In general, the control of activity seems to be the more important problem and the negligence liablity tends to be desirable. See Fried and Rosenberg (2003) and Widmer (2005). The earlier version of this paper is benefitted from many helpful comments by seminar participants at Keio University and Economic Analysis of Law Workshop. The research is financially supported by JAXA (Japan Aerospace Exploration Agency).

The Impact of Growth Markets in the Downstream Sector The Parameters for Connectivity and Services: Beyond Outer Space Law Lesley Jane Smith*

Abstract The downstream sector, as it develops further, is casting clearer light on legal issues surrounding the demarcation between space-based and terrestrial services, particularly in relation to connectivity and outage. Loss of connectivity may have a variety of causes; it can be the result of natural or debris-induced interference. Other potential occurrences are frequency interference, jamming, hacking and black-outs. Interruptions in service can lead to errors in data monitoring and collection. The loss of signal in space (SiS) is not an issue governed by classic space law under the international treaties; the treaties focus on impact-related damage, and have a victim-orientated character. Their provisions are less suited for non-core space activities such as the downstream sector provides; physical damage to or from a space object does not generally occur at that level, unless collision or debris-based. The legal position remains a subject of much discussion; it is also linked to space traffic management (STM); in the absence of binding STM rules, fault and allocation of liability remains a toothless tiger for negligence based damage in outer space. This paper looks at the increasingly important service level agreement (SLA) regulating the delivery of downstream services. It emphasises the need for greater perception about the demarcation of duties relating to space and non-space based services, as well as precision in the term `user’; it also looks at the interaction between service level agreements (SLA) and general rules of law. With integrated sat-based navigation/communication apps on the increase, and the resort to liability disclaimers and waivers, the question of who ultimately remains responsible, if not liable, for ensuring connectivity despite interference continues to remain relevant.

I.

Introduction

I.1.

Developments in Satellite Based Services

Satellite operators traditionally sell data service provision on the basis of contracts regulating satellite capacity. Geostationary communication satellites

______ *

Leuphana University of Lueneburg, [email protected].

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operate the main networks for primary services which feed the secondary services. These satellite communication operators deliver at primary level to their customers (governments, broadcasters, enterprises).1 The telecommunication satellites provide the connections through their in orbit communication fleets and ground station networks infrastructure. Much of the capacity is leased to customers such as broadcasting companies to provide the required capacity using transponders.2 The customer uses uplink frequencies for transmissions to the satellite, which are then transmitted by the satellite back to Earth.3 Signals and data, once processed, can be integrated into a variety of further tools. I.2.

Digital Agenda

Communication networks provide a vast spread of telecommunication-based services, of which integrated satellite-based signal positioning, timing and navigation services and satellite based internet are but a few. At the same time, software development has opened up a range of general and special services available through the infrastructures provided by these networks. The ongoing trends towards a digital society, fully dependent on internet-based information services, means that connectivity, as a system of individual connections made available through technical and logistical infrastructures linking devices and people, has become an essential commodity for all, whether governments, financial and industrial sectors, administrative institutions, or citizens. Implementation of the Digital Agenda for Europe has been set a deadline of 2020.4 Satellite technologies played a decisive role in achieving the first Digital Agenda target, closing the remaining gap through blanket coverage of the EU with basic broadband (2 Mbps) in 2013.5 At terrestrial level, the internet service provider (ISP) assumes the principal obligations of ensuring connectivity towards the downstream customer. Behind this service, however, is the original

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Despite the signs of market growth in the so-called secondary or downstream EO markets that are developing in line with technology, commercial revenue from EO satellites is not yet on a par with that of the major communication satellite fleets. For recent advances in the DCM3 EO satellites, See below, n. 12. Growing interest in acquiring EO data will enable observation satellites to lease out capacity to customers interested in particular, See www.bbc.com/news/world-asiaindia-33473694 [last accessed 1st September 2015]. Huth, Oliver and Roelandt, Rafael (2011). Specific Aspects and Characteristics of Satellite Capacity Agreements in the Satellite Communications Business. In: Smith, Lesley Jane and Baumann, Ingo (eds). Contracting for Space, Contract Practice in the European Space Sector. Farnham: Ashgate, pp. 395-396. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, “A Digital Agenda for Europe”, COM(2010) 245. http://europa.eu/rapid/press-release_IP-13-968_en.htm [last accessed 1st September 2015].

THE IMPACT OF GROWTH MARKETS IN THE DOWNSTREAM SECTOR

provider of the primary network facility. At that level, space activities are involved. II.

Markets for Satellite-Based Services

II.1.

Distinguishing between Primary and Secondary Markets

Primary and secondary communication services markets should be distinguished. Primary networks deliver satellite based infrastructures that feed via ground stations into terrestrial networks. Secondary markets exist where space-based signals and data (of whatever type) are processed, distributed and integrated into further terrestrial based services and products, normally developed by internet-driven software tools. Not all devices, however, offer real-time based services. Whether for ‘smart city’ concepts, autonomousdriven cars, or other digitally managed facilities, access to and use of these products and services depend on the provision of the major communication networks.6 Broadband Internet provision, already part of the existing digital agenda,7 is now to be extended in the form of mobile platforms for Internet communication into areas of the world where communities are not yet covered by the larger communication networks.8 Nanotechnology will drive such downstream digital projects further downstream. II.2.

Special Features of Secondary Markets

Some downstream services are real-time based; GNSS tracking systems, integrated with high resolution EO data, can be combined to deliver positioning, navigation and tracking services. They can be integrated with information overlays, whether with weather forecasts or environmental indicators; much of the data used in such products is based on the data collected by meteorological satellites. Newer integrated applications are becoming available via smart phones or internet-accessible ‘apps’ which are rapidly forming a tertiary sector. Internet service providers, (ISPs) secure its availability, relying on the major telecommunication providers. A few examples of the broad range of satellite driven integrated tools include precision farming software, environment-based

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On the full impact of loss of satellite connection, See the 2013 BBC report, www.bbc.com/future/story/20130609-the-day-without-satellites [last accessed 1st September 2015]. On the exact content of the smart city and future agenda items, See e.g. http://ec.europa.eu/digital-agenda/en/smart-cities; on their limitations, See www.economist.com/news/briefing/21585002-enthusiasts-think-data-services-canchange-cities-century-much-electricity. Planet Labs is a highly innovative US based company specialising in nanosatellite technology and launches; it recently purchased the Rapid Eye constellations from the communication giant Blackbridge, with a view to expanding its market in spatial imagery, See https://www.planet.com/pulse/blackbridge/ [last accessed 1st September 2015].

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security activities and other forms of ‘security’ or operational monitoring systems.9 All these systems are subject to regulatory provisions governing the authorisation of electronic communications for the relevant markets;10 downstream digital products are serviced via licensed communication and information platforms.11 Distribution takes place thereafter via terrestrial transmitter networks, relaying signals to the networks serving the individual communication platforms. More recently, information services are combining EO data with terrestrial communication systems to develop new types of products and services for a broader customer spectrum.12 This in turn is giving rise to further, tertiary markets. III.

Game Change

III.1.

‘Agile Aerospace’

As a result of downsizing, access to broadband satellite connectivity is becoming more manageable and less expensive. This marks a new game change for traditional operators, as well as satellite manufacturers now wishing to join the growth of downstream providers.13 Traditional operators are witnessing new forms of competition from start-ups, looking to combine classic space industry experience with the latest software technology solutions.14 Moore’s law predicates changes in the oligopolistic sources of connectivity and supply, offering alternatives to traditional operator/provider sourcing

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The ESA and EU Copernicus websites contain further information on the various types and sectors of downstream technologies for the categories of programme services and users (land, marine, emergency, security and atmosphere). Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services, OJ L 108 of 24.04.2002. The regulations governing electronic communications are harmonised for the EU in the so-called Regulatory framework for electronic communications, available online at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:l24216a #amendingact [last accessed 1st September 2015]. See information on the latest EO satellite constellation launched in July 2015 by the UK Surrey Satellites, www.sstl.co.uk/News-and-Events/2015-News-Archive/SSTLannounces-the-successful-launch-of-the-DMC3-T [last accessed 1st September 2015]. This is the name given to the strategy developed by Planet Labs in relation to their focus on developing newer markets combining communication and imagery to deliver secondary and tertiary services. Canadian based Urthcast, which is active in the imagery market with cameras on the ISS, can be accessed under https://www.urthecast.com/; Planet Labs is developing marge constellations of nano-satellite ‘doves’ to provide connectivity and imagery, https://www.urthecast.com/, both falling into the start-up categories [last accessed 1st September 2015].

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that is strongest when made available from powerful outer space feeds, for which new alternatives are now being sought.15 III.2.

Cross-Over Markets

The secondary and tertiary sectors are interesting sectors for existing incumbents who are currently exploring their own market potential.16 This will lead to changes between the larger industrial players within the sector, and to the economics of aerospace.17 The extent to which some services are offered free, or in exchange and/or combination with other products, reflects a new form of value exchange. At individual consumer level, it involves relational contracts; personal data has become a new currency, enabling participation in information and service markets, giving access to new player mix. IV.

Downstream Markets as Demarcation of Space to Non-Space Risk

The foregoing explains why it is important to distinguish between space based and non-space based services. Risk and liability for space-based services may arise across the three domains of navigation, communication and observation. The exact position in law in each case of loss of service depends on the damaged party’s role and duties within the chain of service or product delivery. Distinctions are drawn between those who are parties to the services contracts (operators/customers), those who are mid- to end users (purchasers of integrated service products and information), as well as those external to and not involved in the operations (third parties). The downstream sector that is not operating with real-time linked data is one step removed from the direct delivery chain, both from the perspective of causation, as well as contract law. Technology development is driving this sector fast. The interruption of a downstream service is and cannot be imputed by contract provisions to the primary level satellite operator provider. This

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‘Airbus Group starts $150 mln. venture fund, Silicon Valley base, www.reuters.com/article/2015/05/29/airbus-group-idUSL5N0YK4XF20150529 [last accessed 1st September 2015]. Google is developing new forms of broadband supply to be delivered from stratospherebased satellite balloon facilities, See Project Loon at www.google.de/loon/how/ [last accessed 1st September 2015]; Elon Musk, founder of SpaceX, is providing capital to such ventures, See Der Spiegel, January 27th, Heft 5/2015, pp. 75-78. The concerns of potential abuse of dominant positions by information platforms; the European Commission has re-opened its investigation into the systematic programming by Google which recommends the use of its own preferred information services. The initial investigation started in 2010, and proceedings are still underway See Commission Commissioner statement at http://europa.eu/rapid/pressrelease_MEMO-15-4781_en.htm [last accessed 1st September 2015].

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also applies in relation to satellite based services, and particularly those provided to the general public free of charge.18 V.

Service Level Agreements (SLAs)

A service level agreement (SLA) is a dedicated technical agreement for managing other aspects of operations. SLAs are used to provide and deliver large telecommunications infrastructures and services. They are technical instruments commonly used to specify, agree and control performance levels, traditionally within larger space projects, as well as for ISPs when delivering connections to their customers. These agreements are designed to ensure operative monitoring, control and technical coherence. SLA’s generally specify technical requirements for operational levels with percentages of connectivity, and the standards required for the individual service level in question. The leverage used to achieve performance under contract is by pegging the service with so-called key performance indicators (KPIs); these KPIs specify the operative and connection level required in percentages. Exact details depend on the service, including the links to in situ or on orbit services. These specify minimum and maximum outage tolerance, as well as cases of justified interruption, such as maintenance. VI.

Interruption

VI.1.

From Space Law to Contract

Interference at primary source level (at the level of capacity provision) is treated separately from interruptions suffered at downstream or secondary terrestrial level. This is because of the demarcation drawn once the signal, and particularly data, is processed and distributed downstream. Different legal rules apply to these different market sectors. The more recent downstream markets operating at stratospheric level are moving the boundaries between international and national space law closer to the law of communication. This is assuming a central regulatory position at international and national level in the digital context.19 Further demarcation is made for the provision between those services falling within the provider’s reasonable

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Smith, (2015) Liability for Satellite Navigation Systems, in: Frans von der Dunk (ed.), Handbook on Space Law, Edwin Edgar, USA; further, id., “Where’s Paradise or Paradise Lost?” The EU’s Satellite Navigation System Galileo – some comments on inherent risk, Paper, in: Proceedings of the 50th Colloquium on the Law of Outer Space (2007), IISL/AIAA, 346-358. Article 1.160 ITU Radio Regulations (RR) describes harmful interference as: ‘Interference which endangers the functioning of a radio-navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunications services service operating in accordance with Radio Regulations.’

THE IMPACT OF GROWTH MARKETS IN THE DOWNSTREAM SECTOR

control at the level of derivative satellite-data based services and products towards customers. The loss of service availability at the level of smart phones or receiver devices is therefore administered without any reference to the classic contractual concepts of underperformance, or breach of contract. A specific coverage is agreed under the SLA; any downtime is referred to as outage, which includes justified outage. Generally, remedies are given in the form of credits, operated through reduction in payments, or retention of an equivalent portion of the fee. VI.2.

Guaranteed Service

Communication capacities can only be guaranteed to the extent that there are back-up facilities to cover any outage caused by the partial or total loss of signals in space (SiS), or loss of satellite services. Since not all forms of interference fall within the concept of harmful interference – which places responsibilities on member states to ensure its elimination under ITU law at national level,20 the risk of interruption is carried by the providers.21 Outages are dealt with by relying on notions of force majeure, interruptions beyond the provider’s reasonable control, and justifiable interruptions for maintenance. Force majeure for example covers outage beyond the control of operators, such as the impact of space weather. The loss of primary services can in practice lead to an inability to secure e.g. the utilities grid, timely financial transactions, or entire communication networks.22 In such cases, short notice and short term capacity is likely to be in place already to avoid outage for specific important services and events.23

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The relationship between the ITU Constitution and the Radio Regulations is as follows; ‘The legal framework of ITU comprises the basic instruments of the Union, which have treaty status and are binding on ITU Member States. These instruments are the Constitution and Convention of the International Telecommunication Union and the Administrative Regulations, which complement the Constitution and the Convention. The Radio Regulations (RR) form an integral part of the Administrative Regulations.’ The Regulations therefore are fully binding on members; See www.itu.int/pub/R-REG (accessed 1st September 2015). On the notion of harmful interference under ITU law, See Smith, Lesley Jane, (2015) Contractual responses to the loss of satellite based services, in: M. Hofmann (ed), Harmful interference from a regulatory perspective, 3rd Luxembourg Satellite Symposium, 2014, Baden-Baden, Nomos, 65-83. National and international bank transfers are operated via the code system developed by the Society for Worldwide Interbank Financial Telecommunication, SWIFT, details of which are available at www.swift.com/ [last accessed 1st September 2015]. See Huth, Oliver and Roelandt, Rafael (2011). Specific Aspects and Characteristics of Satellite Capacity Agreements in the Satellite Communications Business, n. 3 above pp. 395-396.

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VII.

Driving Downstream Markets and Liability

VII.1.

Satellite Data Policies

Satellite programmes such as the EU’s Copernicus have been specifically introduced to drive the development of new downstream digital information product and service markets. The Copernicus programme on environment and security, formerly known as GMES, is the dominant focus for research and environmental monitoring projects operating with the Sentinel satellites and various contributory missions.24 Such policies look to re-use and integrate processed data into subsequent products and services, allowing Europe’s SMEs in particular to take up the technology-development challenge. Each specific downstream market created, depending on whether it is realtime operated, and whether or not its uses original or derivative data, opens up considerations relating to the impact of interference and the interruption of services. Whether and the extent to which data can be used and integrated into downstream services depends in part on the relevant satellite data policies. As a general principle, these policies all restrict unauthorised use and, in particular, the adaptation of satellite-based data. Further reference is made here to other work relating to the impact of data policies on availability of space based data.25 Copernicus remains the exception rather than the rule relating to re-use of data in the field of data policies. The restrictions on the re-use of data are dictated in part by considerations relating to copyright,26 and the mission costs, as well as the law of liability; in some cases, there may be additional security considerations. It can nevertheless act as a break on development of secondary and tertiary downstream products. Where there is no direct control over subsequent processing, exploitation and distribution of data, generators and providers of data cannot assume any risk for defects or erroneous information that may result from the value-added process involved in developing the new product or service. This is why rights of redress are excluded against the prior contracting chain from the communication service to the data processor and provider.

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See Regulation (EU) No 377/2014 of the European Parliament and of the Council of 3 April 2014 establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010 available http://copernicus.eu/pages-principales/overview/ [last accessed 1st September 2015]. Examples of data policy are given in Smith, (2015) in: The UN Remote Sensing Principles (with Gabrinowizc, Harris, Schmid-Tedd), in: Cologne Commentary on Space Law, Vol. III, (CoCoSL) (eds. Hobe/ Schmidt-Tedd /Schrogl), Heymann. Proposal for a Directive of the European Parliament and of the Council on the dissemination of Earth observation satellite data for commercial purposes, COM(2014) 0344 final.

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VII.2.

Liability

Clarifying the rules of law applicable to the downstream sector is attractive, and necessary. As indicated, the international treaty rules do not apply to activities not directly related to space. Instead, the rules of e-communication applicable for the EU member states at EU level – these include data protection and retention of data rules, laying down the technical side of how information is dealt with.27 Interestingly, the Data retention Directive was declared invalid by the ECJ in 2014, so work is underway to develop a new system for addressing the subject.28 Nor do these newer technologies lead to the application of classic media and broadcasting laws. Streaming is not broadcasting, but a special carrying technology; broadcast producers use streaming to distribute their produced content. The same applies to video on demand and youtube, along with other services: they provide a link and a platform, without editing control. In their place, the rules of competition law, contract and self-regulation apply.29 The general principles of contract law continue to apply in relation to services. A consumer purchase is effectively also a reduced form of service level agreement, although remedies are typically disclaimer or waiver-based. General rules of tort (or delict), whether manufacturers’ or product liability, will apply to the equipment provided. The concept of ‘defective product’ applies to software, so defects at downstream level could even lead to interesting developments in this field in future. The position on fault-based liability to all downstream service inputs and data has not yet been stated clearly. The rules applicable at the level of downstream service markets do not, however, equate product or services liability with liability arising from the loss of signal in space. Space law does not regulate product liability.30 The newer move towards stratosphere-based downstream services may bring further insights into the reliance on classic concepts of product and services liability law.

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Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, OJ L 281 of 23.11.1995; Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services, amended by Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile telephone networks within the Community, OJ L 108 of 24.04.2002. See http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/police-cooperation/dataretention/index_en.htm [last accessed 1st September 2015]. See generally, Batura, Olga: Universal Service in WTO and EU law; Liberalisation and Social Regulation in Telecommunications (Springer) forthcoming (2016). Nevertheless, product liability claims relating to space activities are not excluded from domestic courts under Art XI.2 Liability Convention.

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Liability can only arise by virtue of a rule of law (international, national) or by contractual agreement on risk allocation. In its absence, parties are required to bear their own loss, a situation not new in the space sector, or resort to commercial insurance to cover the potential economic losses at stake.31 VII.3.

Copernicus: Liability Disclaimer

The approach adopted within the EU-Copernicus programme32 to avoid potential contractual and fault or negligence liability issues for space-derived information in the downstream sector was to introduce a programme-wide exclusion or disclaimer for the re-use of Copernicus data. By requiring its registered client-customers to impose these disclaimers when Sentinel satellite-based content is extracted, processed and combined within further commercial service tools, the EU interrupts the chain between original and final sources of information data. This practice is not uncommon; other data policies are seen to adopt the same position regarding extraction and re-use of data in the development of commercial applications based on satellitegathered information.33 Any remaining issues of liability are therefore subject to the terms of contract between supplier and customer. Whether a disclaimer will hold for all potential forms of liability, however, remains a question for the domestic courts. VIII.

Conclusion

The contractual situation for real-time commercial customers serviced by satellite operators is dictated by their capacity requirements and the service levels agreed. SLAs are technical instruments regulating levels of performance, remedies in the form of credits, up to and including termination of contract. Interference is resolved from a functional perspective. For downstream products and services, the impact of interference, whether or not harmful in terms of ITU law, falls within the sphere of responsibility of those further down the distribution chain from the satellite operators; they are responsible for what is within their ‘reasonable control’. Only if spacecraft-induced damage occurs and the interests of ownersoperators and insurers start to drive indemnification will negligence or fault

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See the provisions of Outer Space Treaty and the Liability Convention relating to a party bearing its own loss, e.g. Art IV OST; Art VII LIAB. Copernicus, previously known as GMES (Global Monitoring for Environment and Security), is the European Programme for the establishment of a European capacity for Earth Observation; accessible via www.copernicus.eu/[last accessed 1 September 2015]. See Art 7 of the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77/20 of 27.3.1996.

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liability be examined in this sector; whether this occurs will also depend on other sources of interruption such as debris-related interference.34 Whether smart-use downstream services eventually combine their service provision to liability insurance will depend on the relevance of such services and the regulatory context, and increasing risks of debris induced downtime or outage. These are interesting times for technology and the law; for downstream services, the undoubted benefits of online marketing, technologies enabling various types of data to be combined, whilst relying on the forces of new market exchange, may mould new customs for new markets. This in turn might lead to new interpretations of what relational contracts and user expectations actually involve in the digital era. Until such time as space traffic management becomes binding, the focus will remain on general principles of commercial law. References

Batura, Olga: Universal Service in WTO and EU law; Liberalisation and Social Regulation in Telecommunications (Springer) 2016. Huth, Oliver, Roelandt, Rafael (2011). Specific Aspects and Characteristics of Satellite Capacity Agreements in the Satellite Communications Business, in: Smith, Lesley Jane and Baumann, Ingo (eds) (2011). Contracting for Space, Contract Practice in the European Space Sector. Farnham: Ashgate. Smith, (2015) Liability for Satellite Navigation Systems, in: Frans von der Dunk (ed.), Handbook on Space Law, Edwin Edgar, USA. Smith, Lesley Jane, (2015) Contractual responses to the loss of satellite based services, in: M. Hofmann (ed), Harmful interference from a regulatory perspective, 3rd Luxembourg Satellite Symposium, 2014, Baden-Baden, Nomos, 65-83. Smith, Lesley Jane and Kerrest, Armel (2013). UN Convention on Liability Caused by Objects in Outer Space 1972. In: Hobe, Stephan (ed). Cologne Commentary on Space Law (CoCoSL), vol. II, Köln: Heymanns. Smith, Lesley Jane (2008), “Where’s Paradise or Paradise Lost?” The EU’s Satellite Navigation System Galileo – some comments on inherent risk, Paper, in: Proceedings of the 50th Colloquium on the Law of Outer Space (2007), International Institute of Space Law / American Institute of Aeronautics and Astronautics, 346-358.

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For an overview of the interaction between the national provisions of space law and the provisions of the Liability Convention, See Smith, Lesley Jane and Kerrest, Armel (2013). UN Convention on Liability Caused by Objects in Outer Space 1972. In: Hobe, Stephan (ed). Cologne Commentary on Space Law (CoCoSL), vol. II, Köln: Heymanns.

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Legal Regulation of the Commercial Use of the Radio-Frequency Spectrum Elina Morozova*

Abstract Owing to the physical properties of the geostationary orbit1 (GSO), it is the most sought-after part of outer space and an indispensable resource for the development of satellite telecommunications. Although the radius of the GSO is quite expansive,2 it does not allow for an unlimited number of satellites. This makes orbital positions3 increasingly in demand. At the same time, as an integral part of outer space, the GSO is not subject to national appropriation.4 States may only be temporarily granted the right to use certain frequencies and technical parameters in GSO in strict compliance with the procedures set forth by the International Telecommunication Union (ITU). Such temporary right does not empower its holder to make any transactions related to the alienation of an orbital position. However, one must admit that there exists a “secondary market”, where one can “lease orbital positions”.5 So what does this phenomenon mean and is it legally regulated? To answer these questions one needs to review several examples of transactions aimed at leasing orbital positions, understand their practical advantages, and consider legal issues.

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5

Head of International & Legal Service, Intersputnik International Organization of Space Communications, [email protected]. The geostationary satellite orbit is a circular orbit 35,786 kilometers above the Earth’s equator and following the direction of the Earth’s rotation. An object in such an orbit has an orbital period equal to the Earth’s rotational period (one sidereal day), and thus appears motionless, at a fixed position in the sky, to ground observers. The GSO has a radius of 42,164 kilometers. Orbital position means a location in the GSO that may be used for locating a telecommunications satellite. Article II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27, 1967. More in section III.1. Hereinafter, the words “lease” and “leasing” with respect to orbital positions are used without quotation marks, but this does not mean a lease in the legal sense or imply granting the use of or occupying property. Alternative similar names also exist (e.g., “sale of orbital positions” and “spectrum trading”).

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I.

Intersputnik’s Experience

The experience of the Intersputnik International Organization of Space Communications (Intersputnik), where the author has worked for ten years, will help look at this phenomenon from the inside. I.1.

General Information

Intersputnik is an intergovernmental satellite organization founded in 1971.6 As set forth in the Agreement on its Establishment,7 Intersputnik’s main objective is to ensure cooperation in designing, procuring, operating and developing the satellite telecommunications system of its member states. To cover the territories of all member states and offer a sufficiently wide range of telecommunications services, Intersputnik for a long time used to lease satellite capacity from satellite fleet operators. At the same time, the use of Intersputnik’s own satellite capacity could reduce its dependence and help grow on its own in the interests of the member states. It is important in this respect that Intersputnik has not embarked on a path towards privatization as some other international organizations, which separated intergovernmental organizations and satellite operators. Instead, Intersputnik keeps its status of an intergovernmental organization, which performs the functions of a satellite operator. I.2.

Own Radio-Frequency Spectrum

This status made it possible that starting from the mid-90s Intersputnik, within the framework of its technological policy and in accordance with its mission, filed with the ITU satellite networks8 in various orbital positions for their further development. At all times Intersputnik invited its member states to take part in joint projects aimed at manufacturing, launching and operating satellites. Regretfully, for a number of objective reasons it was impossible to draw enough investors from among Intersputnik member states.

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As of 2015 Intersputnik has the following twenty six member states: Republic of Azerbaijan, Islamic Republic of Afghanistan, Republic of Belarus, Republic of Bulgaria, Hungary, Socialist Republic of Vietnam, Federal Republic of Germany, Georgia, Republic of India, Republic of Yemen, Republic of Kazakhstan, Kyrgyz Republic, Democratic People’s Republic of Korea, Republic of Cuba, Lao People’s Democratic Republic, Mongolia, Republic of Nicaragua, Republic of Poland, Russian Federation, Romania, Syrian Arab Republic, Federal Republic of Somalia, Republic of Tajikistan, Turkmenistan, Ukraine, Czech Republic. Intersputnik is headquartered in Moscow (Russian Federation). Agreement on the Establishment of the Intersputnik International System and Organization of Space Communications, November 15, 1971. Satellite network means a satellite system or a part of a satellite system, consisting of only one satellite and the cooperating earth stations (No. 1.112, Section I, Article I, Radio Regulations of the International Telecommunication Union).

LEGAL REGULATION OF THE COMMERCIAL USE OF THE RADIO-FREQUENCY SPECTRUM

Unable to fully finance a new satellite on its own, but willing to keep the possibility of using Intersputnik’s radio-frequency spectrum in their interests, Intersputnik member states adopted a strategy for Intersputnik’s growth. According to this strategy, the radio-frequency spectrum can be developed by Intersputnik in cooperation with outside partners. I.3.

Principles and Benefits of Cooperation

Essentially, such cooperation boils down to the following. Intersputnik grants to the outside partner the right to operate a satellite and earth stations using Intersputnik’s radio-frequency spectrum. At the same time, Intersputnik continues to be fully responsible for their operation in compliance with the ITU Radio Regulations9 and provide the international legal protection of the radio-frequency spectrum, including frequency coordination and contacts with the ITU, administrations,10 and satellite operators. This means that Intersputnik’s contribution is not limited to the granting of the right of use of the radio-frequency spectrum, rather it includes related intellectual products, professional expertise, and long-term experience. The outside partner, in turn, is responsible for the manufacture, launch and deployment of a new satellite. To make sure that a future satellite system fully complies with Intersputnik’s frequency filing and meets the interests of its member states to the maximum possible extent, Intersputnik participates in defining the configuration and technical parameters of the satellite. The benefits of cooperation based on the use of Intersputnik’s radiofrequency spectrum are obvious. On the one hand, it let Intersputnik obtain satellite capacity and provide its member states with all the necessary advanced telecommunications services, thus fulfilling Intersputnik’s mission. On the other hand, such cooperation slashes costs and risks of the deployment of a new satellite system. Intersputnik has made much progress in this kind of cooperation. Today, seven orbital positions are developed by Intersputnik jointly with the outside partners. Satellites have been already deployed in three of these positions while in the other ones satellites will be placed in the near future.

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The Radio Regulations is an intergovernmental treaty text of the International Telecommunication Union. Covering both legal and technical issues, the Radio Regulations serve as a supranational instrument for the optimal international management of the radio spectrum. The most recent published version of the Radio Regulations is the “Edition of 2012”. More at www.itu.int/pub/R-REG-RR-2012. Administration means any governmental department or service responsible for discharging the obligations undertaken in the Constitution of the International Telecommunication Union, in the Convention of the International Telecommunication Union and in the Administrative Regulations (No. 1.2, Section I, Article I, Radio Regulations of the International Telecommunication Union).

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I.4.

First Project

The first joint satellite project was successfully carried out as long ago as 1999, when a new satellite called LMI-111 was launched to 75 degrees East longitude geostationary orbital position12 for further operation using Intersputnik’s radio-frequency spectrum. This satellite was built for a joint venture which was established by Intersputnik and Lockheed Martin Corporation in 1997. After the joint venture had changed its owner, the 75 degrees East continued to be used with a new partner – ABS Global, Ltd.13 Due to this partnership Intersputnik started using more radio-frequency spectrum in that orbital position. In 2014 a new powerful satellite ABS-2 replaced the one that was launched in 1999. In the first half of 2016 it is planned to launch the ABS-2A satellite, which will operate at 75 degrees East simultaneously with ABS-2. For Intersputnik it is of utmost importance that this joint satellite project makes it possible to meet the requirements of Intersputnik member states. This conclusion is confirmed by the following numbers. Currently, Intersputnik uses more than eighteen equivalent transponders14 on the satellite located at 75 degrees East, just short of 100% out of which are used to provide upto-date satellite telecommunications services in the Intersputnik member states. II.

Other Practice

More states that have never been members of the “space club” are now willing to have their own satellite telecommunications systems. The placing into orbit of national satellites, first and foremost, is of particular strategic importance to eliminate the dependence on foreign countries and ensure information security. II.1.

Türkmen Älem / MonacoSat at 52 Degrees East

In April 2015, the first Turkmen telecommunications satellite was successfully launched. The decision to move forward with the national satellite project follows the creation in early 2011 of a Turkmen space agency. The TurkmenÄlem satellite is owned by Turkmenistan’s Ministry of Communications, which signed an agreement with Space Systems InternationalMonaco S.A.M. (SSI), under which the satellite will be stationed at the Monaco-registered 52 degrees East for its 15-year lifetime.15

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Today called ABS-1. Hereinafter, “degrees East” or “degrees West” means a location in GSO. Formerly known as Asia Broadcast Satellite, Ltd. Hereinafter, “ABS”. In order to compare the total capacity available on a satellite, a “transponder equivalent” or TPE is defined to consist of 36 MHz of satellite capacity. http://spacenews.com/thales-alenia-build-turkmenistans-first-satellite/.

LEGAL REGULATION OF THE COMMERCIAL USE OF THE RADIO-FREQUENCY SPECTRUM

The satellite is equipped with thirty eight transponders, twelve of which have been leased to SSI for the life of the satellite, in exchange for the use of Monaco’s orbital position.16 Under the collaboration agreement with SSI, SES of Luxembourg has the rights to commercialize the entire of these twelve transponders under the name of MonacoSat.17 The TurkmenÄlem satellite will be used to transmit national radio and television channels, both standard and high definition. Considering that the remaining transponders are more than enough for the above needs, part of them are going to be leased to interested parties.18 II.2.

Belintersat-1 at 51.5 Degrees East

For the beginning of 2016 there is slated the launch of the first Belarusian telecommunications satellite to 51.5 degrees East. Belintersat-1 satellite is manufactured by China Great Wall Industry Corporation, which signed a cooperation agreement on the orbit position usage with China Satellite Communication Co. Ltd.19 However, in late 2014, the administration of Belarus filed its own satellite network at 51.5 degrees East. It is interesting that Belarus’s national telecommunications and broadcasting system project is being carried out by China on a turnkey basis. China not only builds and launches the satellite but also funds the entire project.20 II.3.

Lybid-1 at 48 Degrees East

Until recently, Ukraine planned to procure its own satellite Lybid-1. The initially designated orbital location at 38.2 degrees East could interfere with the existing satellites of French operator Eutelsat S.A. at 36 degrees East. In March 2012, Ukrcosmos State Enterprise and Eutelsat S.A. agreed that the Ukrainian satellite would operate from 48 degrees East, which belonged to Eutelsat S.A. but was not fully utilized by the French company.21 II.4.

Bangabandhu at 119.1 Degrees East

Bangladesh becomes one of the most recent in the list of nations that have decided to build their own satellites. Currently, the country’s demand is met by leasing satellite capacity from commercial satellite fleet operators, which

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17 18 19 20 21

Hereinafter, references to anybody’s orbital position are for simplification only and do not imply any actual ownership of a given position by anybody, rather it is the right of use of frequency assignments to satellite networks filed in a given orbital position. www.ses.com/4233325/news/2013/15559071; www.nasaspaceflight.com/2015/04/spacex-falcon-9-loft-turkmenistans-first-satellite/. http://tdh.gov.tm/ru/2013-04-13-07-33-61/13275-2015-05-17-12-05-42. www.belintersat.com/en/content/history. www.interfax.by/news/belarus/1124367. www.nkau.gov.ua/gateway/news.nsf/NewsTodayR/F892AE7E9F0B4197C2257 9B8004FD96D!open.

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cost almost 14 million US dollars each year, with the amount increasing progressively.22 The country first applied for an orbital position at 102 degrees East in 2007, but did not succeed in international frequency coordination.23 As Bangladesh wanted to launch its own satellite by March 2017,24 they decided to procure an orbital position.25 Therefore, in January 2015, an agreement on the use of 119.1 degrees East was signed between Bangladesh and Intersputnik. In the future, Bangladesh is planning to increase the radio-frequency spectrum available at this orbital position by filing its own frequency assignments. The Bangabandhu satellite to be launched in 2017 will serve the SAARC26 countries along with Indonesia and the Philippines as well as the “Stan” countries – such as Turkmenistan, Kyrgyzstan, and Tajikistan.27 It is noteworthy that five of these countries are members of Intersputnik. II.5.

Azerspace-1 / Africasat-1a at 46 Degrees East

Azerbaijan’s first telecommunication satellite Azerspace-1 was launched in February 2013 and brought into commercial operation in the Malaysian 46 degrees East.28 The satellite was developed as a result of collaboration between Azercosmos Joint Stock Company, a company set up by the Ministry of Communications and Information Technologies of the Republic of Azerbaijan, and MEASAT of Malaysia, which enjoys the rights to use the orbital position.29 MEASAT has been assisting Azercosmos in implementing the Azerspace-1 project not only by means of providing the radio-frequency spectrum at 46 degrees East, but also by improving skills of technical staff and exchanging space industry experience. MEASAT is also a major client to use the Azerspace-1, which MEASAT calls Africasat-1a.30 The two companies share the payload.

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www.dhakatribune.com/business/2014/dec/08/russian-firm%E2%80%99s-slot-betaken-first-satellite. www.dhakatribune.com/bangladesh/2015/jan/01/government-okays-satellite-orbitalslot-procurement. www.dhakatribune.com/bangladesh/2014/jul/14/pm-disappointed-over-progresslaunching-satellite. www.dhakatribune.com/business/2014/dec/08/russian-firm%E2%80%99s-slot-betaken-first-satellite. South Asian Association for Regional Cooperation (SAARC) is an economic and political organization of eight countries in Southern Asia which are Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka. www.dhakatribune.com/bangladesh/2015/jan/01/government-okays-satellite-orbitalslot-procurement. www.measat.com/pdf/press/2013/pr080213.pdf. https://www.orbitalatk.com/space-systems/commercial-satellites/communicationssatellites/docs/ AzerspaceAfricasat-1a.pdf. www.news.az/articles/tech/76283.

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II.6.

Azerspace-2 / Intelsat 38 at 45 Degrees East

Successful cooperation with MEASAT of Malaysia at 46 degrees East inspired Azercosmos to deploy a second national satellite – Azerspace-2. In February 2015, Intelsat S.A., the world’s leading provider of satellite services, and Azercosmos announced that the two companies had signed a strategic agreement for the 45 degrees East.31 There a filing was published for the advance publication of an Azerbaijani satellite network, a request for coordination of this satellite network is pending processing. At the same time, there are several EUROPE*STAR filings in use at 45 degrees East earlier submitted by Germany. In 2006 Intelsat S.A. bought PanAmSat Holding Corporation,32 which, in turn, bought in 2005 operator EuropeStar Ltd.,33 and thus gained control over EUROPE*STAR frequency assignments. Intelsat and Azercosmos will collaborate on the design of the new satellite, which will have a double name Azerspace-2 / Intelsat 38, and leverage their respective strengths and capabilities during the manufacturing and operational phases of development. The satellite will replace the aging Intelsat 12 satellite now at that slot and extend Azercosmos’s reach beyond its current 46 degrees East, where its first satellite, Azerspace-1, is located. Azerspace-2 / Intelsat 38 is scheduled to be launched in 2017.34 III.

Legal Regulation and Nature

After reviewing a sufficiently large number of examples, it would be appropriate to describe legal aspects. III.1.

Outer Space Treaty and ITU Documents

The principal source of international space law one can not but turn to is the Outer Space Treaty.35 It specifies that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.36 At the same time, the GSO is considered an integral part of outer space.37 The above

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http://spacenews.com/intelsat-azercosmos-partnering-on-new-satellite-at-45-east/. www.intelsat.com/about-us/our-history/2000s/. http://spacenews.com/europestar-give-panamsat-middle-east-african-reach/. www.intelsat.com/news/intelsat-and-azercosmos-partner-to-deliver-new-satellite-at45-degrees-east/. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27, 1967. Article II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27, 1967. In 2001, in the course of its 44th session the United Nations Committee on the Peaceful Uses of Outer Space agreed on the following statement, which had been discussed by the 38th session of the Scientific and Technical Subcommittee held earlier that year: “The geostationary orbit, characterized by its special properties, is part of

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leads to an unequivocal conclusion that orbital positions can not be owned by anyone and, consequently, no one can dispose of them by way of alienation that is by selling, exchanging, donating or leasing them, etc. It is a fundamental understanding, which found its way both into the United Nations treaties and principles on outer space and the basic texts of the ITU, that all countries, irrespective of their degree of economic or scientific development, have equal rights to make use of GSO resources.38 In order to exercise these rights, states acting through their national administrations may registering their frequency assignments with the ITU Radiocommunication Bureau39 (Bureau), which assignments do not grant any permanent priority to any individual country or groups of countries, but have a limited period of validity. During this period of validity for any third parties, including the ITU, administrations and satellite operators, that national administration remains the holder of the radio-frequency spectrum including all related rights, obligations, and liability, regardless of the exact manner of its use. The ITU legal framework does not make it possible to change the holder of a satellite network at one’s own discretion and convenience by assigning the rights and liabilities of an administration to another administration. There is a special rule of procedure40 dealing with a replacement of the administration, which acts as the notifying administration41 of a satellite network on behalf of an intergovernmental satellite telecommunication organization;

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outer space.” More at www.unoosa.org/pdf/reports/ac105/AC105_761E.pdf (A/AC.105/761, para. 143) and www.unoosa.org/pdf/gadocs/A_56_20E.pdf (A/56/20, paras. 125 and 126). Article I, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27, 1967; No. 78, Article 12, Chapter II and No. 196, Article 44, Chapter VII, Constitution of the International Telecommunication Union; No. 177, Article 12, Section 5, Convention of the International Telecommunication Union. The Radiocommunication Bureau is one of the working bodies of the Radiocommunication Sector of the ITU. More at www.itu.int/en/ITUR/information/Pages/default.aspx. Rules of Procedure, approved by the Radio Regulations Board, for the application by the Radiocommunication Bureau of the provisions of the Radio Regulations, Regional Agreements and Resolutions and Recommendations of World and Regional Radiocommunication Conferences, available at https://www.itu.int/pub/R-REG-ROP. Certain provisions of the ITU Radio Regulations, for example, Nos. 9.1, 9.6.1, 11.15.1, Appendix 30 (4.1.25, 4.1.3, 4.2.6, 5.1.1), Appendix 30A (4.2.6, 4.1.25, 4.1.3, 5.1.2), Appendix 30B (2.6, 6.1), allow an administration to act on behalf of a group of named administrations for the purpose of notifying the Radiocommunication Bureau of frequency assignments to satellite networks. In such cases, the administration acting on behalf of the group is designated as the notifying administration for the group within the meaning of the ITU Radio Regulations. The abovementioned provisions are also used for the benefit of intergovernmental satellite telecommunication organizations.

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however, this rule may only be addressed whenever the satellite network in question remains within the intergovernmental organization. At the same time, there exist some exceptional cases, which were reviewed by the ITU Radio Regulations Board42 (Board) on the basis of their specific circumstances.43 But the Board’s acceptance of the transfer of satellite networks from one administration to another in said exceptional cases should never be regarded as setting a precedent. Also, it is advisable to analyze if there exist any restrictions that say how exactly the radio-frequency spectrum must be used – is the administration that filed a satellite network obliged to only have it used by a space station which is under the responsibility of that administration? During the World Radiocommunication Conference 201244 (WRC-2012) it was recognized that an administration can bring into use, or continue the use of, frequency assignments for one of its satellite networks by using a space station which is under the responsibility of another administration or intergovernmental organization.45 This also means that by allowing the deployment and operation of “somebody else’s” satellite in one’s “own” orbital position, the ITU admits the possibility of a reverse situation where one’s “own” satellite uses “somebody else’s” orbital position. At the same time, the Board accepts and acknowledges that the above cases of temporary use of a space station, which is under the responsibility of another entity, are subject to the terms of a relevant agreement,46 which is considered not to be in violation of the ITU Radio Regulations and other ITU texts in the current practice of ITU.47 However, ITU does not delve into this

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44 45 46 47

The Radio Regulations Board is one of the working bodies of the Radiocommunication Sector of the ITU. More at www.itu.int/en/ITU-R/conferences/RRB/Pages /default.aspx. The most recent case concerns the change of the notifying administration of the ARTEMIS-21.5E-DR, ARTEMIS-21.5E-LM and ARTEMIS-21.5E-NAV satellite networks from the administration of France, acting as the notifying administration for the intergovernmental organization European Space Agency (ESA) on behalf of the ESA administrations and Canada (F/ESA), to the Administration of the United Kingdom (G) as from 1 January 2014. Full list of publications relating to change of notifying administration can be found at www.itu.int/ITU-R/go/space-publicationchange-of-administration/en. Held in Geneva, Switzerland on 23 January-17 February 2012. No. 3.12, Minutes of the Thirteenth Plenary of the World Radiocommunication Conference 2012. No. 4.7.1, Report by the Radio Regulations Board to WRC-15 on Resolution 80 (Rev.WRC-07). No. 4.7.2, Report by the Radio Regulations Board to WRC-15 on Resolution 80 (Rev.WRC-07).

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matter supposing that commercial aspects of the use of radio-frequency spectrum are not covered by the ITU’s terms of reference.48 III.2.

Legal Nature

Considering the existing legal regulation, one can conclude that the leasing of orbital positions is just an established and most widely used name of the phenomenon in question, which has nothing to do with its legal nature. The examples given earlier show that this phenomenon is a type of cooperation between parties in using an orbital position in the GSO where one of the parties enjoys a temporary right of use of the radio-frequency spectrum and enlists the other party for the use of that spectrum on agreed terms. These terms, inter alia, provide for certain consideration for the enlistment for the use of the spectrum, which consideration may be executed in any form – in cash, satellite capacity, or another, or even a mixture of several of them, and constitute an agreement of a commercial nature in accordance with which a joint satellite project is implemented. On the one hand, implementation of joint satellite projects does not prejudice the fundamental principles of the Outer Space Treaty and is not in violation of the ITU Radio Regulations and the basic texts of the ITU. On the other hand, the above sources of law do not regulate commercial relations, whose conditions are defined solely by parties of joint satellite projects. III.3.

Correlation with “Paper Satellites”

It is impossible to address the subject of the lease of orbital positions without correlating it with “paper satellites”, meaning cases when administrations file satellite networks with the ITU in order to block certain radio-frequency spectrum, rather than have it used in the future by an operational satellite. Such blocking is possible due to the priority of a satellite network filed earlier over satellite networks filed later until the deadline set by the ITU Radio Regulations for bringing the radio-frequency spectrum into use. For many years such frequency filings just remain on paper49 impeding international frequency coordination with the adjacent satellite networks and making the use of an orbital position less efficient. In contrast to that, the purpose of joint satellite projects based on the enlistment for the use of the radio-frequency spectrum is to team up so that an operational satellite can start to actually use radio-frequency spectrum. Thus, such projects aim at preventing any “paper satellites” from coming into being, and in this context it is not an abusive practice. Some may recall another example of filing satellite networks with no intention of their use. The TongaSat case seems to be one of the most famous ones. Relatively

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No. 4.7.2, Report by the Radio Regulations Board to WRC-15 on Resolution 80 (Rev.WRC-07). This is why such satellites started to be called “paper satellites”.

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recent cases also exist. However, we do not know exactly what made a country invite bids for the radio-frequency spectrum – desire to earn money or adverse circumstances when outside partners are the only way to activate satellite networks and prevent “paper satellites”. The more so that any specific case has its own background and a multitude of different features, and it is impossible to indentify and apply any universal criteria to distinguish good practices from unfair ones. In the absence of clear rules and principles prohibiting joint use of the GSO, there exist no reasons for accusing anybody of breaking them. However, it would be appropriate to encourage states to ensure that national opportunities for abusive practice are minimized. III.4.

Alternative Ways

Assessing the legitimacy of the joint satellite projects, one should also bear in mind that there are other quite lawful ways to get quick access to the radiofrequency spectrum. These are corporate mergers and acquisitions. Apart from the above example where Intelsat S.A. acquired the rights to EUROPE*STAR satellite networks there are some others. In 2014, Eutelsat S.A. bought Satelites Mexicanos S.A. (Satmex), which had orbital positions over North America. By buying Satmex, Eutelsat S.A. not only added more satellites to its fleet but also gained access to three contiguous orbital positions – 113, 114.9, and 116.8 degrees West.50 Thus, there are alternative ways to meet the demand for orbital positions. IV.

Practical Advantages

Speaking of practical advantages of joint satellite projects, it should be noted that any cooperation, which means working together for a common purpose, implies pooling resources – financial, technological, intellectual, and any others. So what are the practical advantages of such projects? IV.1.

Simpler Financing

Maybe, the first advantage that springs to mind is that the implementation of joint satellite projects helps acquire sufficient financing. Depending on various factors, the average total cost of satellite manufacture, in-orbit delivery, and insurance may be in the range of 200-300 million US dollars. On top of this hefty sum, just throw in the cost of ground infrastructure and other related expenses. It turns out that one’s own satellite is a luxury both for governments and for satellite operators. Simpler funding makes new satellite systems more affordable. In turn this is advantageous for customers because satellite operators are able to regularly augment and timely update their fleets expanding their coverage and broad-

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www.eutelsatamericas.com/home/support/resources/press-release-archives/20141/press-list-container/press-release.html.

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ening the range of telecommunication services, as well as improving service quality. This also makes it possible to overcome a high degree of GSO monopolization with more users having access to the radio-frequency spectrum on a “secondary basis”. This helps new players enter the satellite telecommunications services market and makes competition stronger. IV.2.

Gain in Time

Whenever a national satellite system needs to be procured within a limited period of time or there exists other objective time factors, implementation of a joint satellite project may be a perfect solution. Formally, any new states or satellite operators that are willing to launch their own satellites have to follow the routine of filing, coordinating and notifying their new satellite networks in the GSO.51 However, they clearly understand that, on the one hand, this would take much time and require much effort. On the other hand, considering the current overpopulation of the GSO, the results of the international frequency coordination may be strict enough and greatly limit the capabilities of a future satellite system. Also, the following positive practice is worth noting. Having obtained quick access to the radio-frequency spectrum, its users do not rest on their oars but enhance the potential of the orbital position by filing their own frequency assignments. This means that the use of the existing spectrum is just a starting point for a future full-fledged satellite project adapted to the needs of a specific state or satellite operator. IV.3.

Effectiveness of GSO

In certain cases a state’s needs or a satellite operator’s requirements can be met by several transponders, fewer than a satellite usually carries. Joint satellite projects, which often imply sharing of a new satellite’s payload, make it possible to provide sufficient space for several partners on a single satellite thus reducing the total number of satellites in GSO and avoiding overoccupancy. Moreover, cooperation helps apply scientific and technological achievements and the latest advances and, consequently, limit the radio-frequency spectrum used by a single satellite to the minimum required. This saves the limited GSO resource and makes its use more efficient. IV.4.

Developing Countries’ Needs

Practice shows that joint satellite projects are widely spread among the developing countries that either directly participate in their implementation or take advantage thereof by getting access to satellite telecommunications systems installed by neighboring countries. Anyway, an opportunity for a developing

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With the exception for planned band frequencies.

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country to gain access to new technologies and advanced services reduces its lag and lays the groundwork for further growth of its space potential. V.

Conclusion

In conclusion, let us turn to Section 0.3 of the preamble of the ITU Radio Regulations, which stipulates the following: “in using frequency bands for radio services, members shall bear in mind that radio frequencies and the geostationary-satellite orbit are limited natural resources and that they must be used rationally, efficiently and economically [...] so that countries or groups of countries may have equitable access to both, taking into account the special needs of the developing countries and the geographical situation of particular countries”.52

The examples and numerous practical advantages listed in the previous sections show that the purposes and results of joint satellite projects based on the enlistment for the use of the radio-frequency spectrum are in line with the spirit of Section 0.3 of the preamble of the ITU Radio Regulations. At the same time, analysis of the existing legal regulations indicates that joint satellite projects are per se absolutely free of any violations. Taking into account the above, is it worthwhile to criticize the genuine drive of administrations and satellite operators for cooperation in outer space and minimize the opportunities of GSO? The scarcity of the radio-frequency spectrum and the existing high demand for such unique limited natural resource as orbital positions will inevitably result in many more mutually beneficial joint satellite projects. It is quite natural as we can achieve more in cooperation. Joint satellite projects could offer a win-win solution to future achievements for the benefit of all.

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Article 44, Chapter VII, No. 196, Constitution of the International Telecommunication Union contains a similar provision.

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Right of Way for On-Orbit Space Traffic Management Nathan A. Johnson*

Abstract There is currently no single, legally-binding authority to issue instructions for two satellites on a collision course to take evasive maneuvers. Satellite operators are under the authorization and continuing supervision of their separate launching states, whose authority to direct their satellite operators is defined by their own national legislation. But each state is guided by self-interest to oversee satellites launched from their jurisdiction because of a unique provision of Space Law, which holds the launching state, and not the private operator, directly liable for damage caused by a satellite. And as a practical matter, each satellite operator is also presumably guided by their own commercial selfinterest to preserve the usefulness of their satellite. Likewise, all parties would be motivated to avoid need for a fault determination of in-space damage under the Liability Convention. This paper will outline different suggestions for right-of-way rules for space objects, as a “set of technical and regulatory provisions,” based on a limited history of practice, rules in comparative transportation regimes, and previous studies by other groups such as the ISU. And for each suggestion, further outline the implications for space operations, fault-based liability, and effectiveness in “promoting safe [...] operations in outer space [...] free of physical or radio-frequency interference.”

I.

Introduction

At first, it sounds like a problem from a math textbook. A satellite in lowEarth orbit (LEO) is traveling at 17,000 miles, or 27,400 kilometers, per hour. A second satellite, from a different country, is also traveling in lowEarth orbit, but at a different inclination, and is also traveling at 17,000 miles per hour. That is when the problem takes a turn. The first satellite operator receives a call from the US Military’s Joint Space Operation Center (JSpOC). They have completed a conjunction analysis, which solves the original math problem, and have warned you that there is a significant possibility your satellite will travel dangerously close to the second satellite. Now the problem becomes whether you choose to move your satellite in the hope of avoiding a collision.

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University of Nebraska, College of Law, United States, [email protected].

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This is only one of the problems listed under the heading of Space Traffic Management. But all of the problems exist because Outer Space is a different environment, both from an operational and legal perspective, than Air Space. In terms of law, the major difference between National Air Space and Outer Space is the difference between sovereign jurisdiction and res communis, or common property. While the Chicago Convention recognizes that “every state has complete and exclusive sovereignty over airspace above its territory”,1 the Outer Space Treaty explicitly recognizes Outer Space as “the province of all mankind.”2 So, from a legal perspective, there is currently no single binding authority to issue instructions for two satellites on a collision course to take evasive maneuvers. Satellite operators are under the authorization and continuing supervision of their separate launching states,3 whose authority to direct their satellite operators is defined by their own national legislation. But each state is guided by self-interest to oversee satellites launched from their jurisdiction because of a unique provision of Space Law, which holds the launching state, and not the private operator, directly liable for damage caused by a satellite.4 And as a practical matter, each satellite operator is also presumably guided by their own commercial self-interest to preserve the usefulness of their satellite. So in the event that two actively operated space vehicles were to cross paths, there are also no clear rules-of-the-road to tell those operators who should move first. They would be motivated to preserve their vehicles, and avoid any need to trigger the need for fault determination of in-space damage under the Liability Convention.5 But they would also be motivated to preserve the usefulness of their vehicle, and expend as little fuel as possible, and move as little as necessary out of their operating parameters. And just like that, the math problem becomes an economic and legal problem. A problem that seems increasingly likely, as more and more observers note that “[a]s the number of orbiting objects increases with the launching of new applications and the accumulating debris of old ones, spacefarers [...] will need to agree on the codes of behavior that will permit them to ensure compliance with one critical law: two objects cannot occupy the same space

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International Civil Aviation Organization (ICAO), Convention on Civil Aviation (“Chicago Convention”), 7 December 1944, (1994) 15 U.N.T.S. 295, at Art. I; available at: www.refworld.org/docid/3ddca0dd4.html [accessed 2 Nov 2014]. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205, at Art. I; [hereinafter Outer Space Treaty]. Outer Space Treaty, supra note 2, at Art. VI. Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, T.I.A.S. No. 7762, 961 U.N.T.S. 187, at Art. II; [hereinafter Liability Convention]. Id., at Art. III.

RIGHT OF WAY FOR ON-ORBIT SPACE TRAFFIC MANAGEMENT .

at the same time.”6 These concerns that the space environment is becoming more crowded lead to calls for a new solution to Space Traffic Management. This paper will outline the realities of this Space Traffic Management problem in both the economic and legal sense, which overlap in multiple ways. First, any Space Traffic Management solution must be cost-effective, without inhibiting access to space, but actually ensuring the safety of the operational environment. Second, any Space Traffic Management solution must recognize the freedom of all states to exercise jurisdiction over their own satellites, while respecting the interests of other states in orbit. In the end, the current practices of satellite operators and space-faring states may prove a sufficient basis for standards of right-of-way in orbit, without requiring new difficultto-ratify treaties, or costly new infrastructure and institutions. In the end, there will be more questions than there are answers. But the goal is to find the right questions to ask in order to develop the best standards for a future Space Traffic Management solution. II.

The Economic Argument for Space Traffic Management

As previously stated, both the launching state and the satellite operator have a financial self-interest in avoiding collisions in Outer Space. The operator’s self-interest is based on their business in having a satellite in the first place. Individual satellites can range in cost from $ 290 million,7 down to the current trend of cube or picosats as low as $ 7500.8 Add to that the cost of launch, which can also range from $ 50 million up to $ 400 million;9 and the cost of operation, which can vary depending on the business model. Of course, a satellite operator will weigh the cost of their system against the hopeful revenue the business will generate. Satellite operators have the option of purchasing insurance to secure their financial interest in the profit generated through operation of the satellite, against any potential loss. So, for the satellite operator, their financial interest in avoiding a collision in outer space is based first on how much profit they stand to lose from the possible loss of their satellite, against the cost of moving their satellite. And moving a satellite does have its costs. If the operational parameters of the satellite

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Michael K. Simpson, “The Need for Space Traffic Management,” Space Safety Magazine, Iss. 4 Summer 2012, available at www.spacesafetymagazine.com/wpcontent/uploads/2012/06/Space%20Safety%20Magazine%20-%20Issue%204%20%20Summer%202012.pdf [last viewed 02 Nov 2014]. “The Cost of Building and Launching a Satellite” GlobalCom, available at www.globalcomsatphone.com/hughesnet/satellite/costs.html [last viewed 2 Nov 2014]. Sandy Antunes, “Your Own Satellite: 7 Things to Know Before You Go,” Make, Apr. 11, 2014, available at http://makezine.com/2014/04/11/your-own-satellite-7things-to-know-before-you-go/ [last viewed 2 Nov 2014]. Supra note 7.

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require it to remain in a certain trajectory, then moving it out of that trajectory could mean loss of service. Also, physical maneuvering requires fuel, which could be used later to extend the life of the satellite. So an avoidance maneuver could shorten the useful lifespan of the satellite. The launching and/or operating state’s financial self-interest is twofold. First, a launching state is likely interested in the economic success of an industry launching out of its jurisdiction. The operating state is likewise interested in maintaining whatever domestic services those satellites may be providing, and keeping their population invested in the reliability of that industry. Consumer confidence should mean stable markets and increased prosperity for any state. The second reason for a launching state’s financial self-interest is based on what defines a launching state. Article VII of the Outer Space Treaty declares that any state “that launches or procures the launching of an object into outer space ([...] or) from whose territory or facility an object is launch, is international liable for damage to another [state.]”10 This liability is further defined in the Liability Convention, which differentiates between absolute liability for damage “on the surface of the Earth or to aircraft in flight[,]”11 and fault-based liability for damage “caused elsewhere than on the surface of the Earth[.]”12 These provisions together mean that the launching state of a satellite facing a possible collision must consider whether damage will occur for which they will be held financially at-fault. The problem with this risk analysis is that there are no identifiable standards for determining fault for in-orbit damage. And there is no binding mechanism for two launching states to settle a potential dispute for an in-orbit collision. The Permanent Court of Arbitration in The Hague has published “Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.”13 However, these rules, like the many other available international dispute settlement mechanisms, are optional. And options decrease certainty, which is necessary for any state to make a determination for financial risk. So, the launching state’s financial self-interest in acting to avoid a satellite collision comes down to whether they believe there will be any need to determine fault; and if fault is found against them, whether they will be bound to pay. This is also assuming that any loss resulting from an in-orbit collision will be claimed through Space Law, and redress will not be sought through other channels, such as economic loss through another body like the World Trade Organization. Or that the collision will not result in a less adjudicatory and more political conflict.

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Outer Space Treaty, supra note 2, at Art. VII. Liability Convention, supra note 4, at Art. II. Liability Convention, supra note 4, at Art. III. Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities, Dec. 6, 2011, available at www.pcacpa.org/showfile.asp?fil_id=1774.

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Even if a launching state does submit to pay an internationally binding award, they are not necessarily bound to take the loss alone. The launching state may, as a matter of their own internal domestic law, require that the satellite operator pay back the government for the amount of the international award. In this way, the satellite operator would be indirectly liable for the damage caused. And in establishing this indirect liability, the launching state would give the satellite operator a new economic incentive to avoid an inorbit collision, if it too determines that they will be found at fault, and their launching state may come back to them to help pay the award. These are considerations satellite operators and launching states must always consider. However, when considering this against the cost of any potential new Space Traffic Management regime, the focus must be put back on the potential loss. If a satellite operator loses their satellite in a collision, regardless of whether they are at fault for the damage to the other satellite, their cost may be mitigated by any insurance they purchased, or may be mitigated by the depreciated value of their satellite. Likewise for any damages sought by an adverse satellite operator in a claim for liability payment. The bottom line is, if the cost of losing a satellite and/or paying for the loss of someone else’s satellite, is still less than the cost of a new Space Traffic Management regime, then the satellite operator and the launching state will not support it. A number of these economic factors depend on the outcome of legal determinations. And many of the proposals for how to avoid future damages equally depend on new legal standards for how satellite operators and launching states should direct their actions in the face of possible collision. III.

The Legal Arguments for Space Traffic Management

As stated in the introduction, Outer Space exists in a legal status of res communis,14 where every state’s law applies, but only as to space objects under their jurisdiction.15 Each state must co-exist in the space environment. First, it is important to understand the importance of sovereign jurisdiction on the one hand, and international obligation on the other. Second, a small number of examples exist of international organizations promoting standards in space operations. Finally, there are current suggestions for future Space Traffic Management standards, but their adoption still depends on the mechanisms of international law. III.1.

Sovereign Jurisdiction and International Obligations

Space Law is a product of modern international law, which recognizes the concept of Westphalian sovereignty: each nation-state should enjoy the freedom to control its own territory, without its integrity being threatened by

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See generally, Outer Space Treaty, supra note 2, at Art. I. Outer Space Treaty, supra note 2, at Art. VIII.

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outside forces.16 At the same time, Space Law exists in one of the most unique environments in modern international law. Res communis means that space belongs to all nations,17 as opposed to res nullius, meaning the lack of ownership or law, which was usually an excuse for a state to conquer and fill the void. So, space is not to be conquered by any state, but rather enjoyed by every state. The problem becomes, how do multiple states enjoy the space environment under separate and simultaneous sovereignty? Separate sovereignty, over their individual space objects, but simultaneous to other sovereign space objects in the space environment. International Law exists to deal with the interaction of two sovereign states. However, those interactions occur, more often than not, on someone’s territory, in someone’s jurisdiction. Take for instance Air Space Law, which is largely governed by the Chicago Convention. By international agreement, separate sovereign states agree to certain rules and behaviors for when an aircraft from one state crosses the national air space of another. However, in Outer Space, there is no delineated national air space for one state to be granted jurisdiction. The Space Law treaties settled for a system of general international obligations, some of which have been mentioned, including most importantly the Liability Convention.18 Other obligations include a general prohibition on interfering with another state’s operations,19 a duty to provide aid if possible,20 and a requirement to register the launch of a new space object.21 Of these obligations, the registration requirement is applicable to the problem of Space Traffic Management because it includes a list of orbital parameters which must be part of the registration.22 This represents the beginning of a system to track, or at least predict, where other space objects are supposed to be. In essence, the beginning of space situational awareness. The Space Law treaties are formal, officially worded, and binding on signatory states. And most argue that the provisions in the Outer Space Treaty, based on the overwhelming support of almost every spacefaring state, rise to the level of customary international law; which is to say that the provisions of the Outer Space Treaty are binding even on countries who have not signed it. However, they represent only one kind of international obligation.

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22

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United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, at Art. 2, available at www.un.org/en/documents/charter/ [accessed 2 Nov 2014]. See generally, Outer Space Treaty, supra note 2, at Art. I. See generally, Liability Convention, supra note 4. Outer Space Treaty, supra note 2, at Art. IX. See generally Outer Space Treaty, supra note 2, at Art. IX (“principle of cooperation and mutual assistance”). Convention on Registration of Objects Launched into Outer Space, Nov. 12, 1974, 28 U.S.T. 695, T.I.A.S. No. 8480, 1023 U.N.T.S. 15 [hereinafter Registration Convention]. Id., at Art. IV(1)(d).

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States can enter into non-treaty agreements, or “soft law”; sometimes a bilateral agreement between just two states, and sometimes a multilateral agreement between a small group of states. One such agreement which has been in development is the International Code of Conduct for Outer Space Activities.23 What started as the European Code of Conduct has grown to include input from states outside the EU, and represents a growing consensus by the various stakeholders in new standards for enhancing the “safety, security, and sustainability of all outer space activities.”24 The Code of Conduct is itself partially based on a set of UN Guidelines for Space Debris Mitigation, which was drafted by the Committee on the Peaceful Uses of Outer Space.25 And while these voluntary guidelines, drafted by various states with the involvement with different levels of officials does not represent the same exercise in diplomacy as an official treaty negotiation, they can have an effect. Many observers have noted that these “soft law” obligations can be “incorporated into the means by which normative standards of appropriate international action is regulated.”26 In essence, the new rules have to start somewhere. III.2.

Examples of International Organizations Promoting Space Traffic Management Standards

The UN Committee on the Peaceful Uses of Outer Spaces (COPUOS) is one of the longest operating international bodies in the field of international Space Law. Their power to effect law is limited, as they can only research and develop drafts to submit to the larger UN body. At which point, the UN member states have the power to adopt new law and treaties to varying extent. But the Committee’s standing and influence is still felt by spacefaring states. Another body, which actually predates the UN, is the International Telecommunications Union (ITU). What started as the International Telegraph Union in order to harmonize standards and increase communication between states, took on new relevance in the age of radio signals and later satellite signals. Today, the ITU is a sub-body of the United Nations, and is another system of voluntary entry, by which states agree to allocate positions in Geostationary Orbit (GEO). By its nature, GEO is a valuable orbit, allowing for fixed satellite positioning to

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24 25

26

“DRAFT International Code of Conduct for Outer Space Activities,” European Union (March 31, 2014), available at www.eeas.europa.eu/non-proliferation-anddisarmament/pdf/space_code_conduct_draft_vers_31-march-2014_en.pdf. Supra note 23, at Preamble. “Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space,” United Nations Office for Outer Space Affairs, Vienna, January 2010, available at http://orbitaldebris.jsc.nasa.gov/library/Space%20Debris%20Mitigation %20Guidelines_COPUOS.pdf. Gérardine Meishan Goh, “Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law,” 87 Neb. L. Rev. 725, 2009.

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provide continuous connection and service with points on the ground. And rather than becoming a crowded mess, the ITU assigns slots to companies that apply to use them, within certain guidelines. These include frequency and spectrum use, as well as general physical parameters.27 The goal is to provide the sort of certainty one would have in property rights, of freedom from harmful interference and interloping. And by most accounts, all states seem to comply with the ITU system. It is a successful joint effort by all states who voluntarily enter into the organization. However, the ITU does include certain provisions for dispute settlement, should one arise. The efficacy of dispute settlement in a non-binding, “soft law” organization is not as encouraging. Take for instance the case of France versus Iran, in which the Eurobird 2 satellite, operated by Paris-based Eutelsat, is suffering from signal interference by Iran’s Zohreh 2, hosted by Arabsat’s Bard spacecraft.28 After French officials submitting a complaint to the ITU, the response has been less than effective. The ITU has urged Iran to stop using the frequency causing the interference, but Iran has contested that they have maintained their right to do so.29 Without any binding enforcement authority, the ITU is powerless to force anyone to stop doing anything in GEO. However, to the credit of the ITU regime, GEO has provided 50 years of valuable service to the world’s population, and has benefited the many states who have launched and operated satellites there. Of course, another detraction of the ITU is the claim that it has benefited some states over others, namely colonial, 1st world states over emerging, 2nd world states. This led to an effort by some equatorial states to change Space Law with the Bogota Declaration. It would have taken back the res communis status of GEO, and ceded it exclusively to the states along the equator, above whose territory GEO exclusively exists. This attempt at changing the “hard law” was unsuccessful, and the ITU still stands as the practical regulator over GEO. There are many more orbits for satellites to use, and even as the ITU regime is extended to apply to non-GEO orbits,30 no single, unified, centralized international authority oversees their use. But some satellite operators have started to band together to provide useful information to each other. The Space Data Association (SDA) operates as a sort of bridge between the Registration Convention and JSpOC. Where the registration convention is sup-

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28

29 30

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“Space Traffic Management: Final Report”, International Space University, Summer 2007, at §1.6.2; available at https://isulibrary.isunet.edu/opac/doc_num.php? explnum_id=99. Peter B. de Selding, “Iran’s Claims About Satellite Service Try International Regulatory Regime,” SpaceNews, April 8, 2011, available at http://spacenews.com/iransclaims-about-satellite-service-try-international-regulatory-regime/. Id. Constitution of the International Telecommunications Union (2010 Ed.), available at www.itu.int/en/history/Pages/ConstitutionAndConvention.aspx.

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posed to provide a basic flight plan for a registered space object, the SDA is meant to “coordinate operator-provided data and use it to supply the best possible estimates.”31 And where JSpOC is actively monitoring hundreds of thousands of space objects (including debris), the SDA is meant to track satellites based on the theory that “no one knows better than the operators where their satellites are at any moment.”32 The SDA is a private, non-for-profit organization of 14 satellite operators, which is not a comprehensive list of all parties with interests currently in orbit, nor represents a comprehensive dat. However, it is the sort of voluntary organization which can provide increasingly useful information to private operators and public state agencies in avoiding potential collisions, and form the basis of a new Space Traffic Management network. III.3.

New Standards for Space Traffic Management

While state parties have explored the use of soft law, and private satellite operators have explored working together, other interested parties have made great strides in studying the problem of Space Traffic Management, and have been delivering concrete suggestions for new rules and regimes to implement. The International Academy of Astronautics (IAA) published a Cosmic Study on Space Traffic Management back in 2005.33 The created clear definition to focus on as their starting point: Space traffic management means the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference.34 And with this in mind, they produced a number of findings, and drafted a model international inter-governmental agreement in three parts: 1. Securing the Information Needs 2. Notification System 3. Traffic Management The draft also includes steps to hand over the operative oversight of such a regime to “an already existing forum or organization ([...] or) handled by a non-governmental entity tasked by the State parties[.]”35 Most valuable to this paper are the elements listed under Traffic Management, particularly: Zoning (selection of orbits), Right of way rules for in-orbit

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Simpson, supra note 6. Id. “Cosmic Study on Space Traffic Management,” International Academy of Astronautics, 2006, available at http://iaaweb.org/iaa/Studies/spacetraffic.pdf. Id., at Executive Summary Part II. Id., at Executive Summary Part V.

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phase(s), and Prioritization with regard to maneuver.36 First, the IAA notes that an effective Space Traffic Management regime would restrict activities to certain orbits, to decrease interference and increase predictability. They also note that some national licensing of space activities does effectively limit some activities in different orbits. However, a comprehensive effort by more spacefaring states would increase the stability of use in those orbits.37 Second, the study promotes the adoption of right of way rules and prioritization for maneuvers by comparing the space environment to both maritime and air traffic.38 Specifically in air traffic, the IAA notes that state authorities have applied, “as much as possible, the uniform ‘standards and recommended practices’ developed by ICAO.”39 ICAO is the International Civil Aviation Organization, a specialized agency of the UN, somewhat similar to COPUOS. But the focus should be on ICAO’s example of relying on “standards and recommended practices.” The history of those standards are based on years of operation of civilian aircraft, including all of the incidents, non-incidents, and regulations tested and improved over time. To apply this to the space environment, satellite operators and state agencies will need to compile, compare, and continue their process of drafting new standards, based on their cumulative experience in operating in the space environment. After the IAA Cosmic Study, another group from the International Space University, published their own Space Traffic Management Final Report, in 2007.40 They considered the findings and recommendations of the IAA, conducted an independent analysis of the Space Traffic Management problem, and issued their own recommendations for technical traffic rules and environmental rules. They specifically addressed the issue of collision avoidance, and determined the best rules would “provide the spacecraft owner-operators with the information and tools to help make educated choice and to improve satellite safety.”41 The conclusion was that the satellite operator is currently in the best position to make the cost/benefit analysis to determine if and how to maneuver to avoid a collision. And that good data was necessary to enable them. As stated in Part I, any operator decision to maneuver away from a collision is weighed against the cost of the fuel involved versus the cost of a satellite loss. The ISU report outlines three scenarios, each with a different suggest outcome. (1) In the case of two maneuverable satellites, they should each

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Id., at Chapter 4.2. See generally “Cosmic Study” supra note 33, at Executive Summary IV (“question of harmonizing … the building blocks for assuring technical safety”). Id., at Executive Summary IV. Id., at 12. “Space Traffic Management: Final Report,” supra note 27. Presentation, “Space Traffic Management,” International Space University, 2008, available at www.unoosa.org/pdf/pres/stsc2008/tech-05.pdf.

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maneuver to avoid collision, and thereby share in the costs. (2) In the case of two maneuverable satellites, but only one actor maneuvers to avoid collision, then the cost should be borne by the actor who does not have the right-ofway. (3) In the case of only one maneuverable satellite, then the nonmaneuverable satellite should indemnify the other actor for any resulting loss of service.42 The ISU report also outlines currently available forums for dispute settlement, to which a future Space Traffic Management regime could turn to.43 However, as previously discussed, voluntary soft-law organizations have proven ineffective so far in settling space law disputes. That is why the ISU outlines a path to turn over any Space Traffic Management regime to an international third-party organization, with the major benefit being a binding, or at least more authoritative set of Arbitration Procedures.44 In the end, both the IAA and the ISU support restricted activities in zoned orbits, promoting data sharing between states and private operators to raise everyone’s space situational awareness, and both foresee spacefaring states at some point in the future reaching a more comprehensive and binding agreement on the management and adjudication of traffic in space. But the standards for determining right of way still rests upon compiling the best practices of both states and private operators. III.4.

Comparative Standards in Other Modes of Transportation

In studying the potential development of a Space Traffic Management regime, it is helpful to look at the rules that have developed in other modes of transportation, particularly aviation and maritime. Both examples showcase the culmination of decades of use and best practices, but also have limitations in their application to the unique characteristics of orbital traffic. III.4.1.

Aviation

The International Civil Aviation Organization has represented a unified codification of principles and techniques for air navigation for over 65 years.45 Countries participate in these standards to participate in an integrated global aviation network. And in those standards, the definition of right-of-way states: “The aircraft that has the right-of-way shall maintain its heading and speed.”46

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“Space Traffic Management: Final Report,” supra note 27, at 5.2.5. Id., at 5.1. Id., at 5.1.10. “About ICAO,” International Civil Aviation Organization, available at www.icao.int/about-icao/Pages/default.aspx (last visited April 20, 2015). Convention on International Civil Aviation, Annex 2 (10th Ed. July 2005) [hereinafter ICAO Annex 2] at 3.2.2, available at www.icao.int/Meetings/anconf12/Document%20Archive/an02_cons%5B1%5D.pdf.

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As applied to Space Traffic Management, this definition would provide greater certainty to spacecraft operators in what party would bear the burden of maneuvering to avoid collision. To that end, the ICAO standards state that the non-priority aircraft “shall avoid passing over under or in front of the other, unless it passes well clear and takes into account the effect of aircraft wake turbulence.”47 The standards include default courses of action for both parties in a potential collision, depending on the situation. For head-on collisions, the standards direct both air craft to “alter its heading to the right.”48 This is likely not applicable to most potential situations in Space Traffic Management, since orbital mechanics dictate that satellites all travel in the same direction. The ICAO standards do address two other scenarios that are more likely to be seen in orbital traffic, based on visual avoidance confirmation. First, for two aircraft that are “converging,” the standards direct “the aircraft that has the other on its right shall give way (with exception).”49 And for an aircraft “overtaking” another, the right-of-way is given to the “aircraft being overtaken,” and directs the other aircraft to “alter its heading to the right.”50 These collision trajectories are more likely to be found in orbital traffic patterns, but as will be discussed, their solutions may not also be as applicable or easy to execute in the space environment. However, these standards and best practices give clear guidance to individual operators on the best course of action to take in case of a projected collision, and an agreed course of action between all operators, so that no coordination is necessary between aircraft to predict what the other party will do. This type of certainty and predictable action helps support a safe and stable air traffic system. Technology has also advanced to give aircraft more sophisticated ad-hoc solutions to individual situations. The Airborne Collision Avoidance System (ACAS) is a piece of equipment on board an aircraft, independent of air traffic control ground systems, which uses transponder signals of nearby aircraft to track their altitude and range.51 When the system detects another aircraft in the vicinity, the two systems will coordinate to find a solution for both

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50 51

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ICAO Annex 2, supra note 46, at 3.2.2.1. Id., at 3.2.2.2. Id., at 3.2.2.3 Those exceptions include a hierarchy based on type of aircraft, including “power-driven heavier-than-air aircraft” giving way to “airships, gliders and balloons;” within which airships give way to gliders and balloons, and gliders giving way to balloons. Id., at 3.2.2.4. See generally Airborne Collision Avoidance System (ACAS) Manual, ICAO Doc. 9863 AN/461 (1st ed. 2006), available at www.icao.int/Meetings/anconf12/Document%20Archive/9863_cons_en.pdf.

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aircraft to avoid collision. This solution is delivered to the aircraft operators as a Resolution Advisory (RA), and the operators are required to comply.52 The ACAS standard is a promising concept for Space Traffic Management, giving spacecraft operators the individual power to assess and coordinate solutions to possible conjunction. However, before being able to implement an ACAS system for orbital traffic, spacecraft operators will need to advance technology for individual space situational awareness, which can compensate for the exponentially greater speed, and related greater distances for safe operation. These same limitations apply to spacecraft operators being able to use the previous visual avoidance standards on their own, but would still be useful with enough advance warning from tracking systems like JSPOC and SDA. III.4.2.

Maritime

Analogous standards for maritime traffic were codified in 1972 in the Convention on the International Regulations for Preventing Collisions at Sea.53 Maritime traffic typically travels at speeds slower than aviation, making it less applicable to high-speed orbital traffic. However, certain single-plane principles of surface vessels may find applicability to zoned orbital traffic. First, the Convention is made applicable to “all vessels upon the high seas,”54 which mirrors the non-sovereignty of the space environment. The Convention also gives leeway to special rules “made by an appropriate authority,” and vessels “of special construction,” requiring that they “conform as closely as possible.”55 This type of flexibility would be very important for Space Traffic Management for purposes of permanent spacecraft, like the ISS, and applying the international agreement of the ISS as an “appropriate authority.” One of the first requirements is for every vessel to “maintain a proper lookout by sight and hearing as well as by all available means[,]”56 as well as “use all available means appropriate [...] to determine if risk of collision exists.”57 This would apply to Space Traffic Management requirements for operators to have access to space situational awareness, either aboard their own spacecraft, or through tracking organizations. The most applicable scenario to orbital traffic would be what the Convention calls a “crossing situation.”58 The rule states that “the vessel which has the other on her own starboard side shall keep out of the way.”59 This designation

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Id., at Table 6-1. Convention on the International Regulations for Preventing Collisions at Sea, 1972 [hereinafter COLREGS]. COLREGS, supra note 53, at Rule 1. Id. Id., at Rule 5. Id. Id., at Rule 15. COLREGS, supra note 53, at Rule 15.

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of which vessel has right-of-way comes with subsequent responsibilities, for the non-priority vessel to “take early and substantial action to keep well clear,”60 and the right-of-way vessel to “keep her course and speed.”61 The right-of-way vessel does have options to take their own corrective action, where “it becomes apparent to her that the [other] vessel is not taking appropriate action[,]” or when “collision cannot be avoided by the action of the [other] vessel alone[.]”62 There are other recognitions of responsibility in the Convention, including the standard for vessels “to keep out of the way of: (i) a vessel not under command; [and] (ii) a vessel restricted in her ability to manoeuvre[.]”63 These qualifications require a certain amount of actual, reasonable, or observable knowledge of the other vessel, and would require the same for spacecraft in orbit. These maritime standards offer the same predictability and stability for individual operators on the high seas, without a centralized authority to direct and adjudicate traffic, and allow operators across sovereignties and languages to coordinate traffic. III.5.

Role of Standards in Determining Responsibility and Liability

The standards for right-of-way as discussed in this paper focus on determining between two parties in a possible conjunction who should have priority in maintaining their trajectory, and who should bear the responsibility to undertake collision avoidance maneuvers, and who should bear the burden of cost. But in discussing right of way in those terms, it is important to distinguish the legal consequences of how those terms are defined and applied. The purpose of developing a right-of-way standard is to provide certainty to operators in how they can operate and maneuver in the space environment. That certainty is further supported by applying legal enforcement and consequences. The Outer Space Treaties provide for a direct means of enforcement in terms of liability, in particular fault-based liability for damage which occurs elsewhere than on the surface of the Earth.64 These possible standards for who should have right-of-way are a means to help determine that fault. Where fault can be described as the failure to maintain a standard of conduct,65 then determining which party has the responsibility to move to avoid collision would provide a standard for determining who is at fault for a collision, and liable to pay damages under the Liability Convention.

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Id., at Rule 16. Id., at Rule 17. Id. Id., at Rule 18. Liability Convention, supra note 4, at Art. III. Black’s Law Dictionary 683 (9th Ed. 2009).

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As this paper uses the term responsibility, it is important to differentiate between the responsibilities of space craft operators in how they conduct their activities, from the very specific doctrine of state responsibility. International law recognizes claims for “internationally wrongful acts,” with two elements: (1) “a breach of an international obligation” (2) that is “attributable to the [responsible] State.”66 Under the doctrine of state responsibility, damages could include immaterial damage, indirect damages, or even punitive damages.67 Under the Outer Space Treaty, state parties do bear international responsibility for the activities of non-governmental actors, and are required to provide authorization and continuing supervision of those non-governmental activities.68 This level of supervision could be considered as “due care” of the state party to reasonably prevent non-governmental actors from violating the terms of the Outer Space Treaty.69 However, the claim most useful to providing the legal certainty and recourse for space craft operators is not state responsibility, but of liability. Liability claims, with a narrower view of damages, would still be adjudicated between state parties if claimed under the Liability Convention. But the narrower scope of damages would provide a less contentious claim, and would better fit the domestic regulatory regimes of most countries,70 and the terms of most insurance policies. For the purposes of this paper, the term responsibility does not refer to the doctrine of state responsibility, but only to determining fault-based liability. IV.

Application of Proposed Right-of-Way Rules

While industry development and activity in space continues to grow, there is no guarantee that governments and state parties to existing treaties will take up the task to establish new laws, treaties, or regimes for on-orbit traffic. As laid out in the previous studies, the best option for spacecraft operators facing a possible conjunction with another spacecraft is to make a decision based on the best available information they can acquire. The usefulness of that information also depends on the operator’s amount of control over their spacecraft, and ideally an ability to predict or expect certain corresponding action from the other spacecraft. This is hopefully facilitated by open communication between separate spacecraft operators. However, the

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Art. 3, Draft Articles on State Responsibility. von der Dunk, Frans G., “Liability versus Responsibility in Space Law: Misconception or Misconstruction?” (1992). Space and Telecommunications Law Program Faculty Publications. Paper 21, at p. 367. Outer Space Treaty, Art. VI. See e.g. Art. 11(2), Art. 23, Draft articles on State responsibility, Part 1. See generally FAA Regulations.

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realities of identification, communication, and timeliness usually mean that operators are on their own to decide what action to take. Both the IAA Cosmic Study, and the ISU Report hesitated to promulgate right-of-way rules for these operators, instead deferring to developing a record of best practices by operators over time, as has been done in both sea and air transportation. However, any right-of-way rules that would develop over time would likely fall into one of three categories: granting right-of-way to (A) one party, (B) both parties, or in a special variation (C) to the least-able party (primarily for inactive space objects). Each of these categories would have different implications for responsibility, liability/fault, arbitration, and damages. This paper will now discuss each of the three categories, and how they would affect the economic and legal issues of Space Traffic Management previously mentioned. IV.1.

Granting Right-of-Way to One Party

The first category for right-of-way would grant the right to one party, over another. This could be implemented a number of different ways, including: first in time,71 largest mass, fastest speed. (For a variation of this, see category (C) for least-able party.) The one thing all of this metrics have in common is that they require a comparison between the two objects in possible conjunction. So in order for this category to be implemented, it would require that as many parties as possible have access to as much information as possible, including real-time information, on all spacecraft in orbit. One way to limit the scope of how much information a party must have access to on an emergency basis is the practice of zoning, which has been suggested in the previous studies. The reality of regular operation in orbit is that a spacecraft is not crossing paths with every object, but only with those objects in its zone. A central database for all spacecraft and space object information would still be preferable, in the event that an object controllably or uncontrollably changes zones. However, as far as private parties accessing this information, they would only need to have provisional access limited to their current zone. If both parties have access to this information through a shared database, they should also quickly have a determination for which spacecraft qualifies for the right-of-way, depending on the eventual criteria. Once it is clear which operator has right-of-way, then it falls to the other operator to move their spacecraft out of conjunction.

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The first-in-time standard itself could have different variations, including: first to register, to launch, to operation, all of which serve as starting points to length of time.

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This determination then creates a responsibility on the part of the second spacecraft operator. Whereas under res communis, neither party can be denied access and use of outer space, the right-of-way determines who is harmfully interfering with the other’s activities, and therefor bears the burden under the Outer Space Treaty to avoid such interference. Such a unilateral responsibility would also result in a unilateral cost for maneuvering to avoid conjunction. Such a cost could easily be included in most private operating budgets, considering the practice of operators of large satellite constellations to launch and hold spare satellites in orbit. While the practice may be based on the fear of mechanical failure, it is imaginable that the cost of such a back-up could also be allocated to moving operating satellites out of the way and back in to place for fear of conjunction. The unilateral responsibility would also extend to the spacecraft’s possible interactions with uninvolved spacecraft. For instance, if spacecraft A were maneuvered to avoid conjunction with spacecraft B, because B had right-ofway, then spacecraft A would also be responsible for any interactions with spacecraft C, a spacecraft not previously in conjunction, but for spacecraft A’s avoidance maneuver. In other words, spacecraft B would bear no responsibility to spacecraft C, even though it was because of B that spacecraft A had to move.72 One solution to this hypothetical would be to flow-down the right-of-way to spacecraft A. Again, in the hypothetical, spacecraft B had the first right-ofway. Now that spacecraft A has moved because of its responsibility, spacecraft A could have right-of-way in a possible conjunction with spacecraft C. This chain of action could all happen very quickly, and require real-time updates and real-time communication between all parties involved. If a central database did indeed have as much possible information on all spacecraft and space objects in orbit, then it is possible to project the possible implications of the first avoidance maneuver, and contact any third-parties which would be implicated in subsequent avoidance maneuvers. If on-orbit traffic were to become so congested, it would be an economic argument between spreading the cost of avoidance amongst multiple parties, or requiring the first party to bear all costs. Imagine spacecraft A bearing the responsibility and cost of avoidance not only in regards to spacecraft B, but to spacecraft C as well, and any other spacecraft it may bounce between before arriving again at a safe position. Regardless of how many times a spacecraft without the right-of-way would have to move, each conjunction responsibility would likely also carry with it liability, particularly for inaction. The concept of having right-of-way also implies that opposing party is at fault for crossing paths. In the Liability Convention, damages caused in space are attributed by fault.

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If not for B, A would not have come into conjunction with C.

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It is possible for state practice to say that even if both parties recognize a right-of-way, they do not recognize an attached liability or fault for an actual collision. The current practice of collision avoidance includes a probabilistic conjunction assessment. As large as space is, and as fast as spacecraft and space objects are moving, there is never a guarantee that two objects will actually collide. Data used to predict conjunctions is based on best available observations, because every operator and threat assessor must depend on instrumentation on the ground or on board the spacecraft, or quickly evolving space satellite networks. No one has the scope to directly observe both spacecraft in real time in fine enough detail to give exact predictions. As applied to liability and fault for collision avoidance, parties could agree that even though only one operator has right-of-way, the other operator has no greater control or accuracy to truly avoid a collision. Everyone is operating as best as they can. If an operator in good faith tries to follow the suggested avoidance maneuver, and inadvertently causes the conjunction everyone was trying to avoid, it would be unjust to still hold them completely at fault. There is less and less ambiguity, however, for parties who are given a conjunction assessment, who abide by the practice of determining right-of-way, and on finding out they have the responsibility to maneuver, objectively choose not to. For parties who by their own opinion choose not to move out of the way, their rejection of their clear responsibility would amount to fault. With responsibility and fault determined by who has right-of-way, any arbitration and claims for damage should be fairly clear. Previous theoretical hurdles to adjudicating on-orbit or in-space accidents included ability to collect evidence and analyze the event. However, if this Space Traffic Management regime were implemented, than all relevant information to determining the cause of the accident would not only already be collected, but it would also be validated and accepted by the practice of both parties involved. Other mitigating and intervening factors could still be considered, such as the actual remaining value of the complainant’s spacecraft, and whether by best practices the satellite could have been built or operated in such a way as to survive the damage. But nevertheless, the fault for which party should have maneuvered out of the way would be clear and predetermined. In the end, operating on-orbit traffic under a right-of-way to one party would require a great deal of knowledge and real time analysis and communication in order to determine and effectively direct one party to commit to an avoidance maneuver. The benefit would be a clear assignment of responsibility, cost, and most likely liability. The problem would be a unilateral burden for operating on-orbit, and a possible chilling effect on maneuvering in the face of subsequent conjunction assessments. IV.2.

Granting Right-of-Way to Both Parties

The second category would grant the right-of-way to both parties. This could also be conceptualized as granting the right to neither. (However, a more

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compatible reading with the Outer Space Treaty would suggest that all parties have a right to outer space, and so all parties would have a right-of-way, even if the practical result is nullification.) As opposed to the previous category, where the responsibility to make an avoidance maneuver clearly rested on one party, here the responsibility weighs ambiguously on both parties. The ambiguity lies only on the proportion of cost each operator will take on in conducting a coordinated avoidance maneuver. Many of the same considerations from the first category remain. A truly comprehensive Space Traffic Management regime, especially one which requires independent operators to make their own decisions, requires real-time data acquisition, tracking, analysis, and sharing, as well as effective and coordinated communication between both parties involved. Another similarity between the first and second category is the possible need to make a comparative analysis. For instance, spacecraft A and B may have an equal right-of-way in a possible conjunction, but the two spacecraft may be physically different. Spacecraft A may be a large conventional communications satellite, while spacecraft B may be a newer small satellite. Or spacecraft A may be designed for maximum maneuverability, and spacecraft B may only be designed for infrequent correctional maneuvers. Such differences in physical characteristics and ability would result in different cost-effectiveness determinations. While granting right-of-way to both spacecraft gives each the responsibility to avoid conjunction, it does not necessitate that both operators must incur equal cost. Nor does it require that both spacecraft move an equal distance. In fact, through communication and collaboration, the two spacecraft operators may find a minimally invasive avoidance maneuver, by evaluating and comparing their respective operational requirements. If the parameters of spacecraft A require it to stay closer to its current trajectory, while spacecraft B operates in a network that allows greater variance, then the total cost of avoidance may be lower if only spacecraft B executes a change of maneuver. With this much coordination, it is easier to imagine both parties sharing the cost of the maneuver equally, by having one operator financially contribute to the operator who initially bore the greater cost. This solution does also require a greater amount of trust between operators, or a greater reliance on arbitration and adjudication to recoup that cost in a timely manner. Not all avoidance maneuver cost calculations are self-contained. As mentioned in the previous category, in a crowded traffic situation, one avoidance maneuver may place a spacecraft in a subsequent possible conjunction. In which case, the spacecraft operators must not only weigh the cost of avoiding the first conjunction, but subsequent cost, responsibility, and possible liability in a second conjunction. One solution for simplifying the decision model is to follow the same mandatory practice developed at sea, in particular the conduct of vessels in head-on

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situations.73 The practice developed over time, and shared by all operators, is for two active vessels to turn in opposite directions. In particular, both vessels turn starboard. This works for vessels in head-on situations due to the 2-dimensional nature of travel on the sea’s surface. The difficulty would be in adapting this to the 3-dimensional and more unidirectional nature of on-orbit traffic. While there are different types of orbits, the nature of staying in orbit typically requires satellites in the same zone to all be traveling in the same direction, the direction of Earth’s rotation. In this case, conjunctions typically do not happen in head-on trajectories, but sideto-side trajectories. This means that if both spacecraft “turned starboard” by drifting right, they would not necessarily solve the conjunction. One way to adapt the rule would be to have the spacecraft each move in opposite directions of their conjunction. For instance, if spacecraft A and B were in low Earth orbit, and in their trajectories before conjunction, spacecraft A was further North and spacecraft B was further South, then they could each effect a maneuver to travel more in those directions. The complexity of orbital mechanics make these maneuvers no small feat. Nor does this even solve the conjunction. In all likelihood, if two spacecraft were projected to collide, having them maneuver to alter their trajectory further in opposite directions will not reverse their conjunction, but may only delay it. In such case, a delay may give the two parties more time to collaborate on a solution. If the two parties cannot communicate to come to a solution, cannot agree, or if one party refuses to take any action to help avoid conjunction, then the same issues on determining fault and liability remain. As mentioned in the previous category, proving fault in an orbital collision while the investigators are on Earth has been a hypothetical hurdle. And unlike the first category, there is no agreed-upon determination of responsibility. The only agreed upon facts would be that a collision happened, and neither party had a priority right-of-way. In the end, granting right-of-way to both parties in a possible conjunction does less to encourage parties to abide by a predetermined allocation of responsibility, but does more to encourage parties to collaborate in real-time to find the most cost-effective solution. It similarly requires a great deal of data collection and real-time analysis. And the lack of predetermined responsibility also hinders any subsequent arbitration of claims resulting from a failed avoidance maneuver. IV.3.

Granting Right-of-Way to Least Able Party

The final category appears to be a variation of the first, in which right-of-way is granted to one party. However, there is a very important difference.

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In choosing the criteria by which to determine which party is given priority right-of-way, granting it to the least able party comes with the implication that they also should bear the cost of avoidance (as opposed to the first category which grants both right-of-way and freedom from cost). At the same time, the party that is most able to move bears a positive responsibility to undertake collision avoidance measures, or face a burden of unclean hands in the event that they suffer a loss for failure to act. In other words, granting right-of-way to the least able party is a predetermined split of responsibility to move to avoid collision, and responsibility to pay for that collision avoidance. As opposed to the second category, where burden of movement and cost is determined on a more ad-hoc basis; or the first category, where the same party bears both. This final category is most applicable to the actual history of on-orbit collisions, which have occurred most often not between two operational and maneuverable spacecraft, but more likely involving at least one inoperable spacecraft, or a piece of uncontrollable space object. The assignment of responsibility is somewhat split. Here, the responsibility to maneuver out of the way rests on the more able spacecraft, even though the determination shows the conjunction might not have happened but for the inoperability of the second spacecraft. Finding an inoperable spacecraft or space object in an active orbital zone does not mean they are immediately recognized as at fault; however, the trend in space debris mitigation and end of life practice would suggest that state parties are developing that standard of fault. In the end, granting right-of-way to the least able spacecraft to avoid a conjunction would reinforce a strong presumption against operators who leave inoperable spacecraft or uncontrollable debris in highly trafficked orbital zones. As in all categories of right-of-way rules, and any truly comprehensive Space Traffic Management regime, operators need as much data, analysis, and real-time updates as possible. But developing these best practices and assumptions of how risk and cost will be apportioned will help provide certainty to all parties in their exploration and use of orbit. V.

Conclusion

Back to the original problem. Two satellites, from different launching states, operating nominally at the same orbit but at different inclinations, are projected to collide based on an outside conjunction analysis. Who moves first? As of right now, there is no clear legal answer. There are plenty of legal reasons, and economic ones, for both the private operator and the state responsible to consider. In the end, it usually comes down to two elements: is it worth it, or who will be liable? A satellite collision, involving the loss of one or both satellites, or even a wrong maneuver, resulting in the total or premature loss of service, is a difficult

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scenario to even predict. But many observers turn to the increasing probability of such events occurring, even if they cannot identify when or to whom they will occur. And even the most robust Space Traffic Management system will not be able to keep track of every danger. Each legal and policy analysis that address the problem of Space Traffic Management comes back to the operator. The standard of care for in-orbit operations depends on the history of in-orbit actions, and the consensus of a history of decision making. Now, legal scholars and policy makers can suggest new rules, regimes, and organizations, to oversee and direct future Space Traffic Management decisions. Each new regulation can come with more oversight, more enforcement at both a national and international level. And if disputes become more common, then more dispute settlement and arbitration forums can be created, increasing the cost of finishing business. But before any new suggestions are implemented, stakeholders must come back to the cost-benefit question. If the cost of losing a satellite, or paying for someone else’s satellite, is still less than any new Space Traffic Management regime, is it worth it? Are incremental costs, like joining a new space situational awareness network, improving collision detection sensors, and making more efficient avoidance maneuvers, preferable? And would a new international consensus on right of way solve the liability question, and create a more predictable in-orbit space environment?

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE Session 5 RECENT DEVELOPMENTS IN SPACE LAW Co-Chairs: Martha Mejía-Kaiser KR Sridhara Murthi Rapporteur: Andreas Loukakis

The Controversial Rules of International Law Governing Natural Resources of the Moon and Other Celestial Bodies Maureen Williams*

Abstract In 2010, at the 53rd Colloquium on the Law of Outer Space (IISL, Prague), the present writer addressed the shortcomings of the Moon Agreement and reasons for the fragile support from the international community to this instrument. Indeed its provisions are open to a wide range of interpretations, some of them highly controversial. In some countries a general feeling appears to indicate that the 1967 Outer Space Treaty (OST) is sufficient to govern these matters today, and that there are no valid reasons to ratify the Moon Agreement which fails to bridge the gaps left by the 1967 OST. In 2015 this discussion continues and, far from beginning to see daylight, ideas – let alone innovative suggestions – remain immersed in a penumbra of doubt. In the meantime, space technology is growing exponentially. This article explores the current situation on the basis of new discoveries and programmes in progress on the Moon and Mars. It includes, among others, issues surrounding possible rights of property in those areas, the legal status of natural resources and the very thorny question of asteroid mining in light of contemporary international law. Moreover this paper will analyse, in new light, the longstanding debate surrounding the scope and implications of Article 11.1 of the Moon Agreement which – unlike the title of this Agreement – leaves out all reference to ‘other celestial bodies’ when providing that the moon and its natural resources are the common heritage of mankind. In fact, so does Article 14 of this Agreement, when addressing international responsibility, and confines its meaning to activities on the moon alone. Finally, the conflicting views concerning the reach of Article 11.5 of the Moon Agreement shall be examined with a view to establishing what does this provision really imply in today’s international settings when speaking of the establishment of an international regime to govern the exploitation of the natural resources of the moon as such exploitation is about to ‘become feasible’. This provision lends itself to a myriad of debatable interpretations.

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University of Buenos Aires / Conicet, Chair, ILA Space Law Committee, [email protected] [email protected].

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In addressing the foregoing matters a document by this author submitted to the 54th Session of the LSC on 22 April 2015 will be taken as basis.1 The answers – to be developed further in this paper – were written in reply to a questionnaire by Jean F. Mayence, chair of the LSC Working Group on Status and Application of the Five United Nations treaties. In the first place a short – and by no means exhaustive – list of landmarks achieved in the discussion of these problems will be highlighted as follows.

I.

The Early Days (1968-2002)

I.1.

Journal de Droit International, Paris 1968

At the dawn of the spage age, shortly after the coming into force of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space – hereinafter the OST – in October 1967, Bin Cheng’s article in the Journal de Droit International (Paris 1968) went a long way in shedding light on the most controversial sections of the OST and major issues involved, particularly the legal status of the moon and celestial bodies and their natural resources. It should be noted that Cheng’s views on these questions remain valid today. It should be borne in mind from the outset that the OST does not use the term ‘exploitation’ one single time. As to ‘sovereignty’ the term is only used to deny any such possibility in outer space, the moon and other celestial bodies by means of use or occupation, or by any other means (Article II). On this basis Cheng concludes that “as there is to be no territorial jurisdiction in those areas there can be no prívate ownership of parts of outer space or celestial bodies, which presupposes the existence of a territoriasl sovereign itself competent to confer titles of such ownership. In this sense, outer space and celestial bodies are not only not subject to national appropriation, but also not subject to appropriation under prívate law”.2

As previously stated, this position is still valid in the present time. In 2009 it was written into a statement from the Board of Directors of the International Institute of Space Law (IISL) made that year at the 48th Session of the Legal Subcommittee of COPUOS. These thoughts were confirmed in a presentation by the present writer in the UN/Iran Workshop on International Legal Framework Governing Space Activities – Current Status and Trends3 and again in 2013 as a speaker on an interdiscplinary panel presided over by

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Doc. A/AC.105/C.2/2015/CRP.25, 54th Session of the Legal Subcommittee of COPUOS. The answers included in this document were prepared by the present autor in her individual capacity. Wthin the ILA Space Law Committee opinions remain divided regarding the legal status of natural resources of the moon and celestial bodies. See Jounal du Droit International 1968, N°3, Editions Techniques S.A., Paris, 574. Williams, M ‘Declarations and Legal Principles on Outer Space Today’, November 2009, Tehran.

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cosmonaut Valentina Tereshova in commemoration of the fifty years of women in space.4 Be that as it may, the legal nature of the natural resources of outer space, the moon and other celestial bodies remains undefined so far, in spite of Cheng’s authoritative opinion expressed in 1968 whereby “[...] to the extent to which outer space and celestial bodies consitute ‘res extra commercium’, by analogy with the rules underlying the freedom of the high seas, the appropriation of the natural resources thereof merely forms part of the freedom of exploration and use, and is not prohibited”.5

Yet, and with due respect to the Master, the analogy with the freedom of the high seas as applied to resources from outer space, the moon and other celestial bodies, is far more complex than in 1968 – a time when Cheng’s contention mayhave been better understood and accepted. In fact, the appropriation of natural resources from the high seas is referring to a limited area on planet Earth whereas in the case of outer space and celestial bodies the area is incommensurable. In today’s world, particularly when the Moon Agreement confirmed by its title it would cover ‘other celestial bodies’ as well – whether discovered or otherwise – the international community fell into a penumbra of doubt regarding a possible application of the first come-first served criterion to incommensurables. One cannot escape the fact that, from the very beginning of the space era, industrialised states championed the idea of full freedom of appropriation of natural resources, a contention strongly questioned by the developing world. As experience and the doctrine have shown there still is a lot to be said about this permissibility concerning natural resources from outer space. Interpretations, as observed earliert, lend themselves to an increasing number of conflictive views in the current scenarios. Indeed, the outreaching possibilities, in the field of energy, of Helium 3 on the moon surface, coupled with announcements from prívate companies planning to engage in the mining of asteroids, are no longer a matter of science fiction. I.2.

The Principle of Non-Appropriation in the Space Law Committee of the ILA: The 1970 Hague Conference and the Legal Subcommittee of COPUOS

If we turn the pages of history to the early days of space exploration, the Fifty-Fourth Conference of the International Law Association (ILA 1970) held in The Hague, provides an interesting illustration. At that time the Space Law Committee of this institution – chaired by Daan Goehuis – was involved in

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Fifty-Sixth Session of the UN Committee on the Peaceful Uses of Outer Space, 12-21 June 2013, N°2, Vienna, Opening Session on 12 June 2013. ‘Journal de Droit International…’, op. cit. note 2 supra, 574.

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establishing the meaning and implications of the principle of nonappropriation as laid down in Article II of the OST and the permissibilty of the appropriation of resources.6 A questionnaire, which excelled for its depth when addressing questions of substance, was circulated among the members and, after going into subtleties such as a non-appropriation of outer space ‘stricto sensu’ and an appropriation of resources of outer space ‘sensu lato’, revealed that the doctrine was sharply divided.7 That same year a Draft Agreement on the Principles Governing Activities in the Use of the natural Resources of the Moon and other celestial bodies was submitted to COPUOS8 whereby the Moon and other celestial bodies would be the ‘common heritage of mankind’. To date, and in spite of the doctrine having directed its efforts to defining the scope and legal implications of this formula, the question is so far unresolved. I.3.

28 March 1973: Legal Subcommittee of COPUOS

Heated arguments were registered within the Legal Subcommittee of COPUOS (LSC) over the meaning of ‘common heritage of mankind’ in a discussion of historical interest. At that time the then Soviet Union submitted a Working Document to the LSC whete the concept of reference was severely questionned holding that, in accordance with the OST, the moon and other celestial bodies could not become anyone’s property. Moreover, it was stated that the idea of ‘common heritage’ was closely interwoven with the right of ownership or property, arguing further that if something was nobody’s property it could never become someone’s heritage.9 In turn, the Argentine delegation expressed its views in a similar document analysing the meaning of a number of terms related to property, ownership, heritage, successsion and so forth, contained in different legal systems around the world and recommending the replacement of the formula ´province of all mankind’ (as stated in Article I of the OST) with ‘common heritage of mankind´ as appeared in the 1970 Draft Agreement on the Moon under discussion at that 1973 Session of the LSC. I.4.

The 2002 ILA New Delhi Conference

The meeting focused, inter alia, on the 1979 Moon Agreement and came under the heading ‘Review of Space Law treaties in view of Commercial Space Activities – Concrete proposals’. The controversial issues surrounding the moon and its natural resources were revisited in a Final Report of the Space Law Committee to the 2002 ILA Conference prepared by the present

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Report of the Fifty-Fourth Conference of the International Law Association, The Hague 1970, 408-415. See ibid. 424. UN Doc. A/AC.105/C.2/L.75, June 1970. Doc. A/AC.105, 24-25.

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writer.10 In this framework Frans von der Dunk had contributed a special report on the Moon Agreement examining ‘the need to improve it or discard it’. Having in mind the timid support of the international community to this document, following its adoption in 1979,11 a few changes were suggested, particulary to Article 4.1 and Article 11.1, 11.2, 11.3, 11.5 and 11.7.12 The raison d’être was, no doubt, to keep the Moon Agreement afloat by means of a ‘Revised Text’ or, perhaps better, an international separate instrument. The Committee members were, however, cautious in considering amendments to this multilateral treaty which would amounted, in practice, to agreeing on an altogether new agreement. Hence the New Delhi Conference Resolution, inasmuch as the 1979 Moon Agreement was concerned, went no further than saying that “[...] the common heritage of mankind has developed today as also allowing the comercial uses of outer space for the benefit of mankind and that certain adjustments are suggested to Article XI of this Agreement concerning the international régime to be set up for the exploitation of moon resources, which will make it more realistic in today’s international scenario”.

Even though the common heritage concept continued to be explored by the doctrine and discussed within governmental and prívate contexts, no concrete steps were taken as a consequence of the 2002 ILA Resolution, to define the legal essence of natural resources in those regions – and from those regions – in practical terms. So far the selection of classical examples chosen by this writer from a large list of thought-provoking suggestions and contributions voiced on the international arena in 1968-2002. At that point in time the discussion over the legal nature of natural resources from outer space and celestial bodies – in spite of scholarly contributions from the doctrine – seemed to be losing its political momentum [...] II.

The Aftermath (2009)

II.1.

Statement of the Board of Directors of the International Institute of Space Law (IISL)

The year 2009 marked the dawn of a new era. The search for realistic legal solutions to meet the advances of science and technology in the exploration

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See ‘Review of Space Law Treaties in View of Commercial Space Activities – Concrete Proposals’, Report of the Seventieth Conference of the International Law Association, New Delhi 2002, 192-227, published by the International Law Association, London 2002. The 1979 Moon Agreement entered into force on 11 July 1984. By 2002, at the time of the ILA New Delhi Conference, only 13 states had ratified this Agreement. Ibid. 201-2007.

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and use of other planets and their resources became, at that time, a major challenge. One of the main targets was to fill the serious gaps left by the five UN Space Treaties. In this framework a statement from the Board of Directors of the International Institute of Space Law (IISL) on 22 March 2009 began showing the way. The objective of this document was to clarify frequent misleading views from the press and, at the same time, reaffirm fundamental principles underlying the law of outer space, such as the freedom of exploration and use and the unlawfulness of any claims of sovereignty, as no territorial jurisdiction exists in outer space or celestial bodies. Regarding the rights of ownership over the moon and other celestial bodies the Statement follows and confirms Bin Cheng’s position depicted in 1968 – and to which reference has been made in Part I.1 of this paper. In fact it expresses, in no uncertain terms, that no claims of prívate ownership over those areas and parts thereof are posible as this would presuppose the existence of a territotial sovereign competent to confer any such titles of ownership. The Statement observes that no international space legislation includes detailed provisions on the exploitation of natural resources of outer space, the moon and other celestial bodies but it does provide a general framework for the conduction of all space activities, including those of prívate persons and companies, regarding such natural resources. And, interesting for its implications, the IISL considers that a specific legal régime for the explotation of those recources should be elaborated on the basis of present international space law, for purposes of clarity and legal certainty in the near future.13 The Statement of the IISL Board of Directors has opened a new chapter in the law of outer space. It eases the way for achieving more certainty on the legal status of resources from the moon and other celestial bodies making the matter less controversial. In the interest of continuity a follow up of to this Statement appears essential, especially in response to the recent announcements, both from governments and prívate companies, on the mining of asteroids and other related activities on the moon and other celestial bodies. Finally, an encouraging reaction to the IISL 2009 Statement was the prompt response from the doctrine. In fact, the following year, on the occasion of the 53rd Colloquium on the Law of Outer Space (Prague 2010), a number of papers addressing these problems in new light, and showing innovating ideas, were submitted to the Session 2 of the Colloquium, under the heading ‘30 Years of the Moon Agreement: Perspectives’.

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The full text of the Statement of the IISL Board of Directors may be found on its website, at wwwiislweb.org/publications.html.

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III.

State-of-the-Art (2015)

III.1.

UN DOC. A/AC.105/C.2/2015/CRP.25 (54th Session of the Legal Subcommittee of COPUOS)

In light of the foregoing overview, and as announced at the outset, comments will follow on a questionnaire by the Chair of the Working Group on ‘Status and and Application of the Five United Nations treaties’, Jean F. Mayence, circulated during the 2015 Session of the Legal Subcommittee of COPUOS in April 2015. These comments will be strictly confined to the sections of CRP.25 addressing the legal staus of the natural resources from outer space, the moon and other celeatial bodies. The present author has summarised – and updated where appropriate – her answers to the questionnaire of reference. III.2.

Points of Contention and Responses by the Present Writer

1.

Effectiveness of the provisions of the 1967 OST for application to the use and exploration of the Moon and other celestial bodies, as compared to those of the Moon Agreement

On general lines they are effective, in spite of some gaps left by the OST which are open to interpretation and which the Moon Agreement has failed to cover. The provisions of the Moon Agreement could be seen as slight step forward in the progressive development of international law but still have not solved some lacunae left by the OST. First, the longstanding debate over rights of ownership on the Moon, as embodied in Article II of the OST, is still unclear. Secondly, the definition and legal status of natural resources on the moon and celestial bodies is unresolved. This is a matter of concern given the outstanding technological development and programmes – both underway and envisaged for the short and medium terms – regarding the exploration, exploitation and possible mining activities on the moon and other celestial bodies. It is no exaggeration to insist that, at all times, the scope and application of the OST and the Moon Agreement extend to outer space, the Moon and other Celestial Bodies as well. Moreover, Article 11 of the Moon Agreement has introduced elements of doubt when stating that the Moon and its resources are the common heritage of mankind. In addition, paragraph 5 of this Article, when speaking of an ‘international régime, including appropriate procedures to govern the exploitation of the natural resources of the Moon’, inspired – doubtless – in the provisions of Part XI of the 1982 Convention on the Law of the Sea when dealing with the ‘Area,’ was untimely then and possibly today as well. As experience has often shown, states appear reluctant to engage in further binding obligations on the international arena when they do not know exactly what the balance sheet will be as technology continues to develop. Another drawback shown not only by the Moon Agreement but by all five UN Space Treaties was that dispute settlement mechanisms were only open to sovereign states and international intergovernmental organisations. This situa-

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tion, even at the time, was inconsistent with the regional and international settings where commercial space activities were growing exponentially. Thus the reason for the ILA having embarked in 1998 in the drafting of a ‘Revised Convention on the Settlement of Disputes Related to Space Activities’ which included provisions enabling the access of private parties to the dispute settlement procedures specified in that Convention This document was approved by the Sixty-Eighth ILA Conference without dissent (ILA Report to the SixtyEighth Conference, in book format, Space Law Committee, 239-298). Following this line of thought on 6 December 2011 the Permanent Court of Arbitration (PCA) adopted the ‘Optional Rules for Arbitration of Disputes Relating to Outer Space Activities’ open to states, international organisations and private parties as well, thus reflecting a sign of the times. These Rules, procedural in nature, stand out for their flexibility and are seen as a significant step forward which brought to an end the above mentioned limitations underlying the UN Space Treaties in the field of dispute resolution procedures. Perhaps these Rules could help at some stage in shedding light on controversy over the legal nature of natural resources from space. 2.

Benefits of being a party to the Moon Agreement

This depends very much on the country or group of countries we are thinking of. Among the fifteen States having ratified the Moon Agreement so far examples of both developing and industrialised States may be found. The existence of a ‘quid pro quo’ should therefore be established in a case by case examination taking into account the different elements converging in each particular instance. Some of the States Parties to the OST are on solid grounds to say that joining the Moon Agreement at this stage would hardly be an advance in the development of international law. Thus, the legal framework provided by the OST would appear good enough for the exploration and use of the Moon and Other Celestial Bodies. 3.

Provisions of the Moon Agreement that should be clarified or amended to enable wider adherence thereto

The weak support given to the Moon Agreement is possibly linked to some of the reasons listed above which are standing in the way of wider adherence to the Moon Agreement, On this point it may be added that the low number of ratifications required for the coming into force of the UN Space Treaties was unrealistic, especially in the specific example of the Moon Agreement – where very few of its provisions reflect customary international law. This led to conflicting views and interpretations still unresolved. At this point in time it is recommended to review this Agreement in new light taking into account current state practice and the recent developments of space activities and their impact on regional and international settings.

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4.

Could non-compliance with General Assembly Resolutions or instruments adopted by subsidiary bodies related to space activities be considered to constitute ‘fault’?

Only in cases where the UNGA Resolution is declaring customary international law, namely a general practice plus an opinio juris generalis, would a non-compliance with the UNGA Resolution constitute a breach of international law. 5.

International customary law in outer space: provisions in the five United Nations SpaceTreaties forming part of international custom

Numerous examples in the previous comments are clearly indicating that customary international law has a fundamental role in the field of Space Law. Pride of place is given to international cooperation, a common denominator in the five United Nations Treaties, Principles and Declaration to which good faith, self defence, international responsibility and others may be added. The OST stands out as model of the kind. By and large the rules of customary law ingrained therein override those of conventional law. One of the few exceptions is Article II when addressing the principle of non-appropriation and banning claims of sovereignty over those regions. This Article carries elements of customary law and conventional law as well. From the early days this provision was not seen with favour by some of the delegations to COPUOS, particularly France when pointing out certain ambigüities in its interpretation.14 Belgium, for its part, supported the general idea that ‘nonappropriation’ covered both the establishment of sovereignty and the creation of titles of property in private law.15 Opinions were harshly divided in the Legal Subcommittee of COPUOS at the time. To be precise, Article II is reflecting customary international law only when referring to outer space stricto sensu which, by nature, and by analogy with the high seas, cannot be appropriated. Article II only lays down new rules when applied to the moon and other celestial bodies which before the OST were res nullius and, therefore, claims of sovereignty would have been legitimate pursuant to the traditional rules of international law governing occupation and claims of sovereignty on Earth. When the OST came into force the legal status of the moon and other celestial bodies changed radically. To quote Bin Cheng once again, there is no territorial jurisdiction in outer space or celestial bodies so it follows that there could be no private ownership of parts thereof which presupposes the existence of a territorial sovereign itself competent to confer any such titles.16 Yet, the precise legal nature of natural resources is still an open question, and this is a recurrent note throughout this paper. It may be argued that article 11

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See Doc. A/AC.105/PV.44, p. 41, 19-09-66. See Doc. A/AC.105/C.2/SR.719 and Add.1, p. 7, 04-08-66. See Journal de Droit International 1968, N°3, Editions Techniques S.A., Paris, 574.

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of the Moon Agreement goes beyond Article II of the OST in that it speaks of the ‘Moon and its natural resources’ in Art. 11.1. However, when banning claims of sovereignty by means of use, occupation or by any other means, only the Moon is mentioned (in 11.2) but not its resources. On the other hand, Article 11.6 of this Agreement envisages the possibility of collecting Moon samples which could be interpreted as a kind of ‘right of property’ on the part of the State collecting those samples in spite of, as Bin Cheng points out, that the word ‘property’ has been cautiously avoided.17 It is interesting observe that the OST does not use the term ‘exploitation’ one single time whereas the Moon Agreement does in 11.5 when referring to the ‘exploitation of the natural resources of the Moon’. As part of the doctrine concurs, this possibility is envisaged for the future in accordance with article 11.5, when stating ‘when such exploitation is about to become feasible’. It therefore follows that the way ahead is long and turbulent when trying to define these concepts with precision. However, we cannot ignore the fact that the Moon Agreement sheds no light on what should be considered ‘natural resources’ from a legal optic. Indeed, the OST suffices. If the prevailing view today is to keep the Moon Agreement afloat, the points of contention brought up in these comments and perceptions, particularly on Article 11 and the outstanding issues surrounding natural resources and mining activities on the moon and celestial bodies, would be best included in a separate document, replacing – and indeed overriding – the limited reach of the Memorandum of Understanding ‘annexed’ to the Moon Agreement. This Memorandum may have been useful for clarification purposes at the time of adoption of the Agreement but is very rarely attached to the Agreement when circulated or published. Time seems ready – although perhaps not the political moment – to give Article II of the OST and the controversial sides of the Moon Agreement a more positive spin. In this quest a down-to-earth discussion surrounding some special kind of ‘ownership’ appears opportune – perhaps using different or new terminology to avoid confusion and misinterpretations. This would help addressing the problem in its prime colours as distinct from the infinity of cross shades held by the doctrine, where lines of fracture are expected to continue. Likewise, and for practical reasons, a watching brief should be kept over current state practice regarding the Moon Agreement. So this is where we stand now. As once suggested by this author18 the moment has come for discussing some kind of sui generis right of ownership – using perhaps different terminology to avoid confusion – in view of the

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See ‘The Moon Treaty’, Current Legal Problems, Stevens & Sons, London 1980, Vol. 33, 213-237. Williams, M. ‘The Moon Agreement in the Current Scenarios’, 117-125, 53rd Colloquium on the Law of Outer Space, Prague 2010, Published by the American Institute of Aeronautics and Astronautics 2011.

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growth of space activities and new technologies at speeds without precedent. This is a reality of our time and it is for international law to have the last word in providing suitable answers.

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How Simple Terms Mislead Us The Pitfalls of Thinking about Outer Space as a Commons Henry R. Hertzfeld, Brian Weeden and Christopher D. Johnson*

Abstract The space treaties include several different phrases defining the exploration and use of outer space. These include: “[...] for the benefit of all peoples (countries)”, and “[...] shall be the “province of all mankind.” The Moon Agreement extends these ideas in the phrase, “the Moon and its resources are the common heritage of all mankind.” Various legal and economic terms are now used as parallels in outer space to these phrases (but do not appear in the treaties themselves). They include: “space is a global commons,” “common pool resources,” “anticommons,” “res nullius” and “res communis.” In reality, none of these terms clearly fits the full legal or economic conditions of outer space, and none of them provide an adequate framework for the future handling of space resources, space exploration, or even for resolving the unavoidable future issues when there will be competing interests or major accidents occurring in outer space. This paper will review the definitions that are often misused for space activities and suggest that more pragmatic ways of insuring that the outer space environment will be effectively managed to avoid misuse, overuse, or abuse be developed. These methods include the recognition of limited property rights and developing new binding dispute resolution techniques.

I.

Introduction

The space domain is currently undergoing a period of significant change. Part of this change includes certain activities that were long considered to be in the realm of science fiction are now potentially becoming feasible. And certain space activities that were once solely the domain of governments will soon be performed by the private sector.

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Henry R. Hertzfeld, Research Professor, Space Policy Institute, George Washington University, Washington, DC; [email protected]. Brian Weeden, Technical Advisor, Secure World Foundation, Washington, DC; [email protected]. Christopher D. Johnson, Project Manager, Secure World Foundation, Washington, DC; [email protected].

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The space community is now grappling with how to adapt the current legal regime to deal with these new activities, and in particular the growing private sector presence in space. Within this debate, legal and economic concepts that involve the notion of outer space as a “commons” are often cited. The space treaties1 include several different phrases defining the exploration and use of outer space. These include: “[...] for the benefit of all peoples (countries)”, and “[...] shall be the “province of all mankind.” The Moon Agreement extends these ideas in the phrase, “the Moon and its resources are the common heritage of all mankind.” Nowhere in the treaties are the following phrases used: • Res communis • Res nullius • Global commons • Res extra commercium • Common pool resources • Anticommons • Public good(s) • Free goods Some of the above are legal terms, and some are economic concepts. They all have meanings and connotations that extend the words in the space treaties to fit many different conditions. Most of these interpretations, this paper will argue, add nothing to the treaty language and actually are used in ways that go beyond the directives of the Vienna Convention on Treaties: “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.”2 It is also important to note that the noun, commons, never appears in any space treaty. Furthermore, the word, common, is used in the treaties only

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]; The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119; The Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187; The Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15; The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 18 I.L.M. 1434 [hereinafter Moon Agreement]. Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679.

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twice as an adjective, a descriptor, in the following way: • Common interest3 • Common heritage.4 And it also appears in various, related U.N. General Assembly Resolutions dealing with outer space issues as: • Common procedures5 • Common understanding6 None of the usages provides any direct guidance for the future handling of space resources, space exploration, or even for resolving the unavoidable future issues when there will be competing interests or major accidents occurring in outer space. The only possible exception to this is the use of common heritage in the Moon Agreement. As outlined in many other articles, this has been a very controversial issue with many different interpretations. One must also note the lack of acceptance of the Moon Agreement among major space-faring nations, as well as the history of Art. XI of the Convention on the Law of the Seas – where amendments were needed to clarify possible commercial use of the deep seabed when technologies were developed to allow this. Another example of the overuse of the term, global commons, can be found in U.S. military statements about space. For example, “To enable economic growth and commerce, America, working in conjunction with allies and partners around the world, will seek to protect freedom of access throughout the global commons”.7

Or, the following N.A.T.O. workshop release: “Termed the “connective tissue” of our vibrant global economy, the four domains of the Global Commons – maritime, air, outer space, and cyber space – constitute a universal public good [...]”.8

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4 5

6

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Preambles to the Outer Space Treaty, Liability Convention, and Registration Convention, supra note 1 (“Recognizing the common interest of all mankind in furthering the exploration and use of outer space for peaceful purposes”). Moon Agreement, supra note 1, at art. II. Resolution 62/101 of 17 December 2007. Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects. Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, as Endorsed by the Committee on the Peaceful Uses of Outer Space at its fiftieth session and contained in G.A. Res. A/62/20, annex. U.S. Dept. of Defense, Sustaining U.S. Global Leadership: Priorities for 21st Century Defense, Jan. 2012. North Atlantic Treaty Organization, Assured Access to the Global Commons Final Report, Apr. 18, 2009, available www.act.nato.int/globalcommons (last visited Sept. 18, 2015).

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These types of broad-brushed uses of very specific legal or economic terminology have led to a misunderstanding of the treaties and subsequently to proposals for legal regimes and the management of space that are virtually impossible to achieve. Therefore, these phrases and use of terms must be put into context and better understood before useful progress can be made in the next era of activities in outer space. The goal of this paper is to help clarify the origins and definitions of the commons terminology, and its applicability (or inapplicability) to outer space. It begins by analyzing the existing language relating to the “commons” in current international law. The paper then delves deeper into the legal and economic foundations of the commons. It concludes by proposing that more pragmatic approaches for viewing the legal framework for outer space be considered. II.

Legal Terms and Concepts of a Commons Applicable to Outer Space

A number of sources of international law address the legal state of outer space, with outer space meant to include both “void space” such as the zones between planets and orbits around them, and also that of celestial bodies themselves, including the planets and minor bodies of our solar system. As mentioned above, within the legal discourse, the phrases “province of all mankind” and “common heritage of all mankind” are used. While these terms sound similar and may have similar origins and meanings, the use of multiple phrases adds confusion to an already complicated concept. II.1.

Province of All Mankind

Article I of the 1967 Outer Space Treaty9 states that: “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind.”

The following sentence of Article I further elaborates this freedom to access space: “Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”

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Outer Space Treaty, supra note 1, at art. I.

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Consequently, it is not the physical domain of outer space itself – the three dimensional expanse, beginning above airspace and extending infinitely outwards – which is the province of all mankind, but the activity itself, the “exploration and use” of outer space, which is addressed. This subtlety seems all too often lost on those whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both void space and celestial bodies) is free to be explored and used by States Parties to the treaty. Because the OST has been ratified or signed by all space-faring nations and this particular provision in Article I considered to have risen to the level of customary international law, all States across the world (and by inference, all peoples), enjoy this privilege to explore and use outer space. All too often, commentators and pundits remark that outer space itself belongs to everyone. It is in fact just the opposite. Space itself belongs to no one and the right to access, explore, and use space is granted to everyone. The full title of the treaty should also be noted. It is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Shortening the title to “Outer Space Treaty,” or even just the OST aids brevity, but obscures the emphasis on exploring and using outer space. Exploration and use are contained in the very title, so as to highlight the notion that States have the explicit right to both explore space, and to use space. The Outer Space Treaty entered into force on October 10, 1967. The treaty was signed by all the major space powers, including the United States of America, the U.S.S.R., and by the major European spacefaring States, along with China, India, Japan, and many others. Today, of the 193 sovereign States in the United Nations system, 103 States have fully accepted the rights and obligations of that treaty (as a source of treaty law) and 25 more have singed it.10 Additionally, commentators have expressed the view that significant portions, including Articles I through IV, have passed into the realm of customary international law, reflecting both State practice and opinio juris.11 Consequently, the treaty is both a source of law as binding treaty rights and obligations, and as a text reflecting principles of customary international law. This then is the weight to which we should attach to any understanding that the use and exploration of outer space is the province of all mankind. However, within the context of space activities, “province of all mankind” is not defined within the formal documents. It might be defined elsewhere, either within the body of international law, or outside of the law, but because it is not defined within any of the valid and applicable textual sources available to

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United Nations, United Nations Handbook (2014-15). Francis Lyall & Paul B. Larsen, SPACE LAW – A TREATISE 54, 180 (2009) [hereinafter Lyall & Larsen – Treatise].

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provide an interpretation of it as a treaty term in the Outer Space Treaty, these secondary sources are of lessened value in interpreting its meaning. Black’s Law Dictionary defines province as “an administrative district into which a country has been divided,” and the Merriam-Webster Online dictionary gives a similar standard English definition, as an “Administrative district of division of an country.”12 However, it is an open question as to what rights, or obligations, are established by “province of all mankind”. It might be that the phrase is hortatory in nature, akin to referring to astronauts as “envoys of all mankind13“. However, in light of the phrase being used so prominently, in the first sentence of the first article of the treaty, some special weight must be afforded to it. In light of the freedoms established elsewhere in the Article, and across the rest of the treaty’s text, “province” must reflect some forward-looking vision of humankind’s use and exploration of outer space, and of that use and exploration held by all States and their peoples. II.2.

Common Heritage of Mankind

However, the province of mankind must be contrasted with a phrase contained elsewhere, and often repeated, of space as the “common heritage of mankind.” This phrase is contained in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (often shortened to “the Moon Agreement”) in its Article 11.14 Article 11.1 reads: “The Moon and its natural resources are the common heritage of mankind, which finds its expression in the provisions of this Agreement, in particular paragraph 5 of this article.”

As stated previously, the phrase “common heritage of mankind” is often substituted for, used interchangeably with, and otherwise conflated with “province of all mankind”. However, there is no legal justification for the use of this phrase as dispositive law. It should be reserved only for academic treatises and historical discussions. The Moon Agreement is seen, rightly, as a failed exercise in treaty-making. Its negotiation and drafting was complex and was and still is controversial, taking over 5 years between when it was opened for signature in 1979, and 1984 when it entered into force. Even today, only 20 nations have ratified or signed it.15 Juxtaposed to these 20 States are the remaining 173 States

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A GUIDE TO SPACE LAW TERMS 97 (Henry Hertzfeld ed., 2012). Outer Space Treaty, supra note 1, at art. V. Moon Agreement, supra note 1, at art 11. Committee on the Peaceful Uses of Outer Space, Status of International Agreements relating to activities in outer space as at 1 January 2015, A/AC.105/C.2/2015 /CRP.8*, Apr. 8, 2015, available at www.unoosa.org/pdf/limited/c2/AC105 _C2_2015_CRP08E.pdf.

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(89.6%) in the international political system, which have refused to accept the Moon Agreement. This speaks clearly to its failure, in any fashion, to constitute either a successful treaty or customary international law.16 As such, any discussion of the phrase “common heritage” in the context of space activities is of minor and academic importance.17 Those who propose using the provisions of Article XI of the Moon Agreement to establish a regime of collaborative (among nations or through the United Nations) oversight of the use or exploitation of celestial bodies must keep in mind the limits of the existing treaty system in attempting to treat all of outer space as a legal commons. This is also emphasized in Article XI itself when a principle of equity is stated – clearly indicating the difference that recognizes national investments and capabilities that are not equal across space-faring nations. III.

The Historical Context for Legal Concepts of the Commons

A full description of the development of the concept of a commons is well beyond limits of this short paper. However, it is important to highlight that the origins of deeming territory as a commons to benefit all peoples of a particular region or nation likely goes back into pre-historical times and traces its use and development to reasons of necessity, mainly for hunting, fishing, and farming. By Roman times the development of property rights (separated from public law) had become very complex, with classifications including tangible property, intangible property, whether property was in commercio or extra commercio, and if it was outside of commerce, whether it was res divine (in the control of the gods), res publicae (things open for public use and regulated by the government and not available for private ownership), res omnium communes (things legally not property because they were incapable of dominion and control); and res nullius, (things not possessed by an individual but capable of possession).18 Beyond these categories there are others, including various servitudes, which are similar to what we currently call easements, the right of a person to use another’s property. Similarly in English Common

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See also LYALL & LARSEN – TREATISE, supra note 11, at 178-179. Ibid., at 196 (“It is unsurprising that no currently space-competent state (i.e. one able to get to the Moon by its own efforts) has committed itself to the MA [Moon Agreement], and the history of the developing countries’ argumentation makes future commitment to it by space-faring states unlikely. The concept of ‘common heritage’ hinders rather than encourages development.”). Lynda L. Butler, The Commons Concept: An Historical Concept With Modern Relevance, 23 WM. & MARY L. REV. 835 (1982), available at http://scholarship.law.wm.edu/wmlr/vol23/iss4/8.

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Law, the development of common areas was complicated, involved many caveats and different legal terms and conditions. What is important to note is that all of these legal concepts of a commons need (1) a sovereign power to grant the territory to open use and to then grant whatever limited property rights are necessary for the continued existence of the commons over time, (2) an area of land or a region with welldefined borders, and (3) an economic foundation that requires or facilitates some basic human need (often food) that is more productive or efficiently performed collectively. Outer space has note of the above. By treaty language, there is no sovereignty in space, the edges of space are not defined (either where space begins above the Earth or the outer limits of space), and the terrestrial economy may benefit from, but does not need outer space for survival. Another important point is that all commons are fragile over time. They are created in a time and place. As technology and populations change, along with political changes, they fail to be maintained or fall victim to the pressures of developing private market use of the territory. And, when governments collapse, are taken over, or public will changes, so may the governance of any commons. In international law, early scholars looked for what they perceived as “natural law” (unwritten but discoverable law), and found signs of it in both medieval church law, and from earlier Roman law that survived and influenced various European and British legal traditions.19 In this fashion, the artifacts from Roman law were incorporated into concepts in international law.20 This question on the continuing precedential value, or usefulness, of these ancient Roman property concepts is perhaps more salient today for those

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J.L. BRIERLY, THE LAW OF NATIONS 13 (3rd ed. 1942) (“Thus Roman law reduced the difficulty of finding the contents of natural law almost to vanishing point; and in fact the founders of international law turned unhesitatingly to Roman law for the rules of their system, wherever the relations between states seemed to them to be analogous to those of private persons. Thus, for example, the rights of a state over territory, especially when governments were almost everywhere monarchical and the territorial notions of feudalism were still powerful, bore an obvious resemblance to the rights of an individual over property, with the result that the international rules relating to territory are still in essential the Roman rules of property… We have to inquire further, however, whether this foundation is valid for us today.”). Ibid., at 119 (3rd ed. 1942) (“Territorial sovereignty bears an obvious resemblance to ownership in private law, less marked, however to-day than it was in the days of the patrimonial state, when a kingdom and everything in it was regarded as being to the king very much what a landed estate was to its owner. As a result of this resemblance early international law borrowed the Roman rules for the acquisition of property and adapted them to the acquisition of territory, and these rules are still the formation of the law on the subject.”).

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from non-western countries, such as Asia or Africa, who may have alternative legal and cultural traditions and values. Commentators have grappled with this tension and sought ways around them, including fine distinctions between legal title and usufruct, the right to use and exploit.21 Certainly these ancient Roman concepts can have persuasive value, as they have been used to order the development of past societies for many centuries. However comforting ancient concepts may be, perhaps they should not be mechanically dispositive or bindingly precedential in their conceptions, nor of their outcomes. In distinction to this is the negative prohibition on national appropriation of the physical domain of space itself, whether void space or celestial bodies (i.e., Outer Space Treaty Art. II). Those physical places are not subject to national appropriation. Res nullius

III.1.

As discussed above, the Latin phrase res nullius is a term borrowed from Roman law, and means a thing (res) without an owner. It is used in international law to mean a thing outside the jurisdiction of a subject of international law, and hence susceptible in law to being acquired by a subject of international law (such as a State).22 The term does not appear in either the Outer Space Treaty, or in any other treaty applicable to outer space. However, it is used within the academic discourse related to international law concerning a State’s territorial rights, and in the discourse in space law. Because res nullius (or a terra nullius, when pertaining to land) is not under the jurisdiction of a State, but is subject to appropriation – and therefore the potential to be appropriated, this term does not apply to the physical domain of space. Article II of the Outer Space Treaty prohibits the conception of space as a res nullius or a terra nullius. This preventative step was taken to prevent a “colonial” land rush on celestial bodies.23 Although controversial and subject to interpretation by nations, res nullius does not address the use of resources on celestial bodies. Since exploring and using space is specifically encouraged in the treaties, the extraction and use of minerals and other resources on or in celestial bodies implies that they may be taken or owned by a nation in the course of their use of space, even though the actual celestial body is not under the sovereignty of any nation. Res communis

III.2.

Analyzing the Outer Space Treaty’s phrase “province of all mankind”, especially in light of the rights and obligations enshrined in that article and across

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LYALL & LARSEN – TREATISE, supra note 11, at 197, and footnote 94. Bin Cheng, STUDIES IN INTERNATIONAL SPACE LAW Glossary – liii (1997) [hereinafter BIN CHENG]. Ibid., at 229.

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the Treaty, elucidates that the activity of exploring and using outer space is a right held by all, and that no State can lawfully deny another State’s freedom to access space. The most closely-related legal term for this freedom to conduct activity, as a right is held by all, is that it is a res communis.24 This phrase does not appear in the Outer Space Treaty, or in any other treaty related to outer space. The phrase res communis, or res communis omnium, relates to a thing held by all. However, in general international law, there is no res communis omnium – no thing which is under the joint sovereignty of all subjects of international law. In light of the discussion above on “province of all mankind”, res communis omnium might be the more applicable Latin term since it more pointedly suggests that the “use and exploration” of outer space, specifically the activity of human or robotic presence in space, is the res communis omnium Res extra commercium

III.3.

Res extra commercium is a concept which is similar but distinct from res nullius and res communis. While res nullius can come under the sovereignty of a singular State, and res communis is under the joint sovereignty of all States, res extra commercium is not subject to national appropriation by any State. It cannot be held by any one State, nor is it held by all States together. It is held by no one, and it cannot be held by anyone. Like the high seas, it is territory that cannot be appropriated. Writing immediately after the entry into force of the Outer Space Treaty, Bin Cheng asserted the suitability of this term for both void space, and celestial bodies themselves: “Thus, under international customary law, whilst outer space constitutes res extra commercium, that is to say, areas not subject to national appropriation, celestial bodies are res nullius, that is to say, areas which may be subject to national sovereignty. However, as among contracting States [to the Outer Space Treaty], however, the status of the latter has now been changed. Under the treaty, both outer space and celestial bodies are declared res extra commercium, thus forestalling any possible recurrence of colonialism in extraterrestrial space, as some delegates did not fail to point out.”25

As Article II of the Outer Space Treaty prohibits national appropriation, while Article I declares that the use and exploration is the province of all mankind, it seems to follow that outer space is a res extra commercium.

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A subtlety to this exists. A res is a thing, and here we are concerned with a right to explore and use. Perhaps the term quasi (Latin: as if) might be amended to this conception. BIN CHENG, supra note 22, at 229, See LYALL & LARSEN – TREATISE, supra note 11, at 184 (“The Moon and other celestial bodies are res extra commercium, to use the Roman law term.”).

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However, rather than being a place where State sovereignty is absolutely prohibited, some components of state sovereignty exist. They are enshrined in Article VIII of the Outer Space Treaty, extending state jurisdiction into space in an extraterritorial fashion. While Article II prohibits territorial jurisdiction, both personal and quasi-territorial jurisdiction persist over both space objects and personnel thereof (with quasi-territorial jurisdiction overriding personal jurisdiction, in cases of conflict).26 In a similar fashion, other aspects of state sovereignty persist. Keeping in mind the ample freedoms and expansive rights expressed in Article I, space itself, as a physical domain of void space and celestial bodies, may be res extra commercium. Looking to other domains called res extra commercium gives many examples. The high seas are res extra commercium. Notably, fish in the sea do not belong to fisherman, but once caught, they can be sold. However, as Judge Manfred Lachs asserted in 1972: “It has been suggested that outer space and celestial bodies be considered res extra commercium, res communis, or res communis omnium. It is true that some of these definitions have been accepted in other areas of international law. However, their application to outer space and celestial bodies is conditioned by a reply to a basic question: ‘Is outer space with the celestial bodies a ‘thing’ – res within the meaning of the law?’ It is this that raises serious doubts. The term itself has many meanings. Municipal law qualifies res in the context of its institutions – in particular of real rights established. Though the notion has also been adopted by international law, one can hardly argue that outer space and celestial bodies, through physically the latter may be reminiscent of some parts of the globe, can be encompassed by this term. None of them being a res, they cannot in fact become res extra commercium or communis.”27

Consequently, it appears that again, res extra commercium does not perfectly fit either void space or celestial bodies. IV.

Economic Terms Extended to the Idea of Outer Space as a Commons

Just as with legal terms, there are economic terms used in association with a concept of a commons that are also used incorrectly. This adds to misconceptions and may also lead to questionable public policy. This section provides a brief overview of some of these terms and why they are ill suited for direct application to space resources and activities. IV.1.

Public Goods

Economics is the study of the distribution and allocation of goods and services that satisfy human wants and that provide utility.

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Ibid., at 77-79. Manfred Lachs, THE LAW OF OUTER SPACE – AN EXPERIENCE IN CONTEMPORARY LAWMAKING 46 (Tanja Masson-Zwaan & Stephan Hobe eds., 2010) (1972).

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Economists classify goods into categories that are measured by (1) rivalry (the degree to which one person’s use of a good prevents others from using the same good) and (2) exclusivity (the difficulty of preventing users from benefiting from a good). These categories of goods have implications for both pricing and for effective management. The differing degrees of rivalry and exclusivity lead to different incentives, which in turn have an impact on regulatory and government policy. For example, private goods are left to compete in a free market system while those goods and services that would not be forthcoming in a price system but are deemed to benefit all, are often managed by governmental intervention. Outer space is sometimes referred to as a public good, i.e. that the use of space (consumption) is not rival and users cannot be easily excluded from engaging in space activities. Non-excludability arises from the Outer Space Treaty, which states that outer space is free for exploration and access by all countries. Since countries are free to explore and access space, not individual consumers (the basis of the theory of free markets and economic competition) and nations are very easily able to exclude citizens and even other nations from space activities through technology and pricing,28 neither condition of a true public good exists when applied to outer space. There already exist a number of policy and legal mechanisms in the world that exclude certain users or uses. There is no single governmental entity that can exert control over all users of space. While some may wish to see the United Nations become that entity, the reality is that the current international system of governance precludes it. The core unit of sovereign behavior is the nation state, and states only subject themselves to UN authority when it suits their interests. The tragedy of the commons, a phrase coined by Garrett Hardin, is the result of the overuse of an area that is open to all to use.29 The most common example is defined acreage available to all citizens to use for grazing cows. When too many take advantage of the area, clearly crowding occurs and none of the users can fully benefit from that land. Managing and governing a commons is difficult but has proven possible under some conditions, most notably when a sovereign government oversees the use and develops a system for resolving disputes peacefully. A less recognized challenge with economic and legal management of a defined area is the concept of an anticommons. The seminal article on the

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Note that these exclusions are practical and technological, not legal; the treaties call for nondiscrimination in the freedom of access to outer space for all nations a principle that still applies, even in the context of economic differences among nations. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 3859 (1968), available at www.sciencemag.org/content/162/3859/1243.

HOW SIMPLE TERMS MISLEAD US

anticommons was written in 1998 by Michael Heller and discusses the “tragedy of the anticommons” where multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When there are too many owners holding rights of exclusion, the resource is prone to underuse – a tragedy of the anticommons. Legal and economic scholars have mostly overlooked this tragedy, but it can appear whenever governments create new property rights.30 IV.2.

Common Pool Resources

Some recent analyses have attempted to view particular space activities and usage as a form of common pool resources (CPR) instead of a distinct public good.31 A CPR is a resource that is sufficiently large that it is difficult, but not impossible, to define recognized users and also difficult to exclude others. CPRs also exhibit a high level of competition among users. Some classic examples of CPRs are fisheries, forests, underwater basins, and irrigation systems.32 CPRs have long thought to be the “ideal” case of a tragedy of the commons, but recent research such as that of Nobel Prize winner Elinor Ostrom has demonstrated that is not always the case. She showed that the tragedy of the commons could be avoided. Ostrom argued that many CPRs have been successfully governed without resorting either to a centralized government or a system of private property, and cites cases where resource users have effectively self-organized and sustainably managed a CPR in spite of centralized authorities and without instituting any form of private property.33 Ostrom developed an eight-principle framework that outlines the conditions necessary to sustainably manage commons resources without a centralized government or private property regime. They are: 1. Clearly defined boundaries of the CPR; 2. Congruence between rules and the resource context; 3. Collective-choice arrangements that allow most resource appropriators to participate in the decision making process; 4. Effective and accountable monitoring; 5. Graduated sanctions for resource appropriators who violate community rules; 6. Low-cost and easy-to-access conflict resolution mechanisms;

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32 33

Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 621-688 (1998). Brian Weeden & Tiffany Chow, Taking a common-pool resources approach to space sustainability: A framework and potential policies, 28 SPACE POLICY 3, 166-172 (2012). Encyclopedia Britannica, Common-pool resource, www.britannica.com/science/common-pool-resource. Elinor Ostrom, GOVERNING THE COMMONS. 1998.

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7. Self-determination of the community, recognized by higher-level authorities; 8. In the case of larger common-pool resources, organization in the form of multiple layers of nested enterprises.34 The particular usefulness of Ostrom’s approach is that it is developed for situations where neither of the two traditional solutions to the tragedy of the commons, complete privatization or a Leviathan to impose rule of law, are feasible, as is the case for Earth orbit. However, even Ostrom’s principles do not address all the challenges of the future of a space regime. They provide only broad outlines of potential frameworks and each solution needs to be individually crafted for a specific CPR and its users. That itself requires prior identification of a specific CPR, of which there are many in the context of space, just like there are many on Earth. Moreover, we cannot characterize all of outer space and its various activities and usages as a single type of economic good which then requires a single type management structure. Outer space and the applications with clear market demand that are derived from using outer space (e.g. telecommunications, direct broadcast TV, etc.) are clearly not public goods. Space is also not a free good. Again, the treaties call for the freedom of access for all nations to explore outer space. But that free access has a high cost in terms of launch and operational technology and risks. In fact, in economics, there are virtually no free goods. Many years ago air and water were considered to be free, but today it is clear that clean, breathable air and unpolluted, abundant water do not come without a cost. V.

Summary

History has shown that the idea of a commons, let alone a global commons, is fragile: none have survived throughout time: some for reasons of political and economic upheavals and some through major technological advances.35 Perhaps the only component of a commons with any traction has been the concept of freedom of passage on seas. But even that has been limited by the term, “innocent passage.” The notable Dutch scholar, Grotius, eloquently advanced the concept of the freedom of the seas.36 But even in the 1600s there were many discussions and

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B. Weeden and T. Chow (2012) Taking a common-pool resources approach to space sustainability: A framework and potential policies, Space Policy, 28(3), pp. 166-172. Even Hardin’s tragedy of the commons is recognition of this instability and temporary nature of a commons. His examples of various commons are local or regional, not global. Clearly, if a commons cannot be stable for a small area, how can it be for a very large area?

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dissents from the idea that the sea is a commons; not so much when applied to the rights of freedom of passage, but when applied to territorial fishing rights. These arguments have been expounded in legal literature before Grotius and still prevail today. There really is no authoritative agreement on how to allocate resources on the open seas, even with the modern technologies that have depleted the supply of some species. In the world of the law of outer space, fortunately we have in the Outer Space Treaty Art. I, which guarantees the “freedom for any nation to access, explore, and indeed use outer space.”37 Furthermore, there is a logical contradiction in this discussion about outer space being treated as a commons. If a commons needs a sovereign government to grant the open territory to the use of all people, it is that government that has to oversee, regulate, and enforce that charter. Art. II of the OST prohibits national sovereignty in outer space. Thus, it is an area without a government. Even if all nations regard outer space as a “commons,” it is a very different concept from any commons that has been established in the past. There is no real legal precedent, no true means of oversight or enforcement, and therefore should not be confused with any of the many ways that concept has been applied to the territory or oceans of the Earth. Thinking about space as a global commons may be a laudatory ideal, and one that perhaps can be regarded as a very long-term goal for society. But, it is hardly a practical solution or goal for the problems we face today, witnessed by at least a thousand years of precedent in law and practice coupled with radically different technologies, exponential world population growth from 500 million people (at most) in Roman times and the Middle Ages to over 7 billion people today,38 and other radical political and social changes. But all of the ways we try to phrase “benefits to all mankind,” “province of all mankind,” etc. have their limits. Treaty guarantees such as no sovereignty are not the same as limiting ownership, property rights, and establishing the concept of national liability for activities and human behavior in space. Attempts to develop some sort of overall “governance” of space based on a res communis principle will not succeed in today’s political environment. (Or, quite likely in any form where nations have the ability to interpret treaty language differently and where different forms of government exist.)

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HUGO GROTIUS, MARE LIBERUM (Richard Hakluyt trans., Liberty Fund, 2004) (1609). Outer Space Treaty, supra note 1, at art. I. United States Census, World Population-Historical Estimates of World Population, https://www.census.gov/population/international/data/worldpop/table_history.php (accessed 9/6/2015).

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VI.

Recommendations

This discussion is not an argument that leads to anarchy in space. The authors fully accept and advocate taking whatever steps possible to bring uniform, fair, equitable, and responsible behavior norms to the realm of outer space. And, we fully support the current efforts to put in place guidelines for transparency, best practices, and peaceable workable methods for resolving the inevitable common problems and issues that will occur both among governments and among commercial endeavors. Outer space is neither a commons nor a public good. It is a geographic location with many different regions. Exploring and using each region of interest to humankind will require different legal and practical approaches. Those may include: • Extending the already present concept of limited property rights in space beyond GEO orbit positions and space objects as they transition from science to economic goods. • Studying the applicability of Ostrom’s framework to high value, commonly used areas of space with delimited borders as CPRs. • Using established contract law as well as national licensing procedures to develop a binding and enforceable regime of dispute resolution procedures.

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Who Owns the Natural Resources on Asteroids? Guoyu Wang and Yangzi Tao∗

Abstract The development of space technology and non-traditional commercial space activities have brought challenges to space law, one of which is the uncertainty of ownership over natural resources on asteroids. This paper focuses on three core questions. The first question is that if and to which extent a national legislation granting ownership to that space actor, or relevant national practices could “contribute to” or stimulate the development of space law. In addition, the political risks that might be triggered by the given national legislation or practices should be taken into consideration as well, both nationally and internationally. The last question is that what kind of international regime is expected and practical as to the exploitation and mining of natural resources on asteroids. Firstly, this paper points out the legal ambiguity under the Outer Space Treaty, due to the omission of “natural resources” at the beginning of Article II which raises the divergence concerning the scope of non-appropriation principle thereof. The Moon Agreement, as one of the legal resources of international space law, presents arguments against ownership of space actors on natural resources on the Moon and other celestial bodies within solar system (Art. 11). However, this position is weakened by the vagueness of the legal meaning of “common heritage of mankind (Art. 11)” and the commitment about disposal right on the “Moon samples of its mineral and other substances (Art. 6)”. The paper then analyzes the effects and limits brought by national practices on the interpretation of relevant treaty terms. The United States has explicitly qualified samples from Apollo mission as property, whereas material extracted by Soviet probes has lawfully entered free market under domestic law. Recently, it should be noted that the needs for the legal certainty on mining extraterrestrial resources are increasing, even though the “asteroid act” is not passed by the U.S. congress. The function of national practices as to the interpretation of treaty should be highly valued, but it should be also prudently examined concerning the desired and due balance of interests of private sectors, states, international organizations and all mankind.

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Guoyu Wang, Ph.D. assistant professor, deputy dean of institute of space law of BIT, visiting scholar of National Center for Romote Sensing, Air, and Space Law Mississippi University School of Law (2011-2012), Senior Acadamy Fellow, Chatham House (2014-), [email protected]. Yangzi Tao, Master in International Law, Beijing Institute of Technology Law School.

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The paper holds a world-wide accepted solution that only through bilateral or multilateral agreements could the relevant rights and obligations be well arranged. Although the Moon Agreement is far from being generally accepted, the idea to establish an international regime indicates the way ahead.

I.

Needs and Feasibility of Asteroid Mining

A preliminary question is why a government should consider providing incentives for resource use and exploitation in outer space? As far as the author is concerned, aseroid mining caters for the need of developing a positive space strategy. It contains three factors, the first of which is economic strategic need. The exploitation of natural resources in outer space could lead to a revolution of resource energy utilization, producing enormous economic and social interest. The second factor is technological strategic need. The technology for the exploitation of natural resources is usually dual-use, namely it is both civil-use and military-use. It is noteworthy that the exploitation of natural resources in outer space is not a one fold activity but a complex, involving launching, space transportation, asteroid retrieval, capture, space station construction (that is capable of transiting and storing), base construction on the Moon and other celestial bodies, deep space exploration and NEO defense, etc. This mission would also allow the testing of automated mining and processing equipment, reducing the risks of future large-scale asteroid mining operations. Technological strategy also refers to national security interests, as well as civil and commercial interest. The third factor is political strategic need. On one hand, the strategic competitions between space-faring countries reveal in outer space as well. After all, natural resources in outer space are limited. Strategically, the precursor would definitely set restrictions for the newcomer to jump in the game, while the strategic option for the newcomer is to postpone the exploitation of the former. On the other hand, international reputation, symbolic value, is also a goal of politically strategic need. There are some researches providing an overview of the rationale for and the feasibility of asteroid mining, based on current technology and information. It concludes that the mining of asteroids is a medium-term to long-term project (20 to 30 years) that requires a stepwise approach.1 Even so, several private corporations, such as Planetary Resources and Deep Space Industry had already expressed interests in asteroid mining of one kind or another.2

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Andrea Sommariva, Rationale, Strategies, and Economics for Exploration and Mining of Asteroids, Astropolitics: The International Journal of Space Politics & Policy Volume 13, Issue 1, 2015, pages 25-42. The relevant plan, roadmap and demonstrations of the missions of these two companies are available at: www.planetaryresources.com, http://deepspaceindustries.com/.

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Meanwhile, some official lunar or deep space projects are implemented or announced, for instance, China’s three-phase moon exploration plan, which is known as Chang’e Mission,3 OSIRIS-REx, an asteroid sampling mission of NASA;4 Besides, on March 25, 2015, NASA announced the details of an asteroid-capturing plan at the budget of $ 1.25 billion.5 Officials from both ESA and Russia announced plans of lunar base building in the near future. Besides, some other states like U.K.,6 India,7 Japan8 aslo have their own deep space projects. As mentioned above, space resources exploitation, in particular with asteroid mining, has brought regulatory and legal challenges due to vacuum or ambiguity of space law, both domestically and internationally. Without a clear domestic authorization, it’s hard to persuade veture capital to believe their investment could get an expected return. Thus, an acdamic campaign was undertaken in the U.S. And even interntioanlly drove by some private actors, aiming at sloving this legal problem by national legislation. II.

Asteroids Act

A bill cited as “the American Space Technology for Exploring Resource Opportunities in deep space act”, or the “ASTEROIDS Act” was introduced to the House of Representivities in the U.S. in September last year, and it failed to pass. However, the similar Space Resources Exporation and Utilization Act of 2015 (hereafter cited as 2015 Act) was approved by the House in May 13 this year, together with other three bills. The four bills are formaly know as the Spurring Private Aerospace Competitiveness and Entrepreneurship Act, or SPACE Act.9 The act provided property rights to space resources obtained by American companies. It’s no wonder that it generated debates widely. Democrats on the committee, though, raised concerns about whether the bill would comply with international treaties, like the Outer Space Treaty. “We’re not going to be able to resolve any of these issues today, and so I think we need to take a step back and get the information we must have to

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The latest process and plan of this mission is available at: www.cnsa.gov.cn/n360696/n361228/n361378/371772.html. See www.nasa.gov/mission_pages/osiris-rex/index.html. See www.cnsa.gov.cn/n1081/n7529/n7950/755272.html. Lunar Mission One, See www.dailymail.co.uk/sciencetech/article-2868740/Nextstop-moon-Lunar-Mission-One-reveals-plans-build-human-base-10-years.html. India’s plan on Mars, See www.dailymail.co.uk/sciencetech/article-2982537/IndianMars-spacecraft-snaps-breathtaking-images-red-planet-including-dormant-volcanotiny-moon-orbit.html. Japan’s Hayabusa mission, See http://spaceflightnow.com/2015/03/09/japanshayabusa-2-asteroid-mission-checks-out/. The details and relevant information of these acts are available at: http://science.house.gov/sites/republicans.science.house.gov/.

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make an informed policy decisions,” Johnson said, introducing and amendment to replace the bill with one that called for an interagency study on the legal issues of space resource property rights.10 Posey, who serves on the science committee, objected to the amendment, saying the reports would take years to complete and could delay the progress of commercial asteroid mining ventures. “We won’t be providing any of the leadership or certainty that American companies need to move forward,” he said. Sen. Ted Cruz (R-TX), chairman of the space subcommittee of the Senate Commerce Committee, formally introduced the Commercial Space Launch Competitiveness Act. That bill contains many of the same provisions as the House’s SPACE Act. Unlike the House bill, the Senate bill, S. 1297, had bipartisan support. The full Senate Commerce Committee approved the bill with virtually no debate during a markup session on May 20, 2015.11 On November 16 2015, the ‘‘U.S. Commercial Space Launch Competitiveness Act’’ was signed by the President Obama, of which is the Title IV “Space Resource Exploration and Utilization”. Title IV contains most of the articles in the Asteroid Act. Up to now, these acts in the U.S. are the only attempt to eliminate legal uncertainties about ownership of space resources through national legislation. III.

The Insufficiency of International Space Law

III.1.

The Ambiguity of Legal Bases of Asteroid Mining

Nevertheless, it’s still an open question in international law that whether state is permitted to allow granting private ownership over space resources. As far as the author is concerned, the most significant and relevant artical to judge whether such legislation infringe international law is Art. VI of OST. “States Parties to the Treaty shall bear international responsibility for national activities in outer space, [...], whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty.” Obviously, it articulates State has the obligation to assure private actor’s activities are carried out in conformity. In other words, as long as private actor’s activities controvey international law, there will be a possibility that its responsible State violates its obligation about assuring. And it might be in a high possibility if a State procures the activities, such as through a national legislation to facilitate such activities.

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Jeff Foust, Congress launches commercial space legislation, Space Review, May 26, 2015, www.thespacereview.com/article/2759/1. Ibid.

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On this account, it is still necessary to examine whether private appropriation on space resources voilate international law, by claiming ownership or by any other means. Therefore, Art. II of OST which stipulates the pinciple of nonappropriation is nodoubtly the spotlight of this discussion. This principle is stipulated in Art. II OST: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” The interpretation and application of this principle is the legal prerequisite of asteroid mining and any other relevant activities. However, it happened that the term of “natural resources” is literally missing in the treaty language. Then whether natural resources falls with the scope of the prohibition, is still uncertain. Besides, literally this article only prohibit “national appropriation”, thus whether “private appropriation” falls within the scope of Art. II is still debatable. It’s noteworthy that the Moon Agreement articulates that both “natural resources” and “private appropriation” shall be the subject to nonappropriation principle. Article 11(3) of the Moon Agreement stipulates: “Neither the surface nor the subsurface of the moon, nor any part thereof or natural resources in place, shall become property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”

However, whether the international community could get consensus on this interpretation is still in question, since it took the context of the Moon Agreement as a reference, rather than the Outer Space Treaty per se. As far as the author is concerned, as a subsequent treaty, the Moon Agreement inherits the object and purpose of of the mother law, the Outer Space Treaty. The five space treaties should not be disconnected, but should be taken as a whole. Thus it’s appropriate to take its context as a reference to interpret Art. II of OST. In general, Art. 11(3) of the Moon Agreement tends to be read as an negative way towards the ownership title to abstracted resources. III.2.

The Absence of Specific Rules of Asteroid Mining

Even if the international community could get consensus on the legitimacy of the title to space resources, there are still lacking specific rules of asteroid mining. There are still many uncertainties about the rights and obligations arrangement during launching, on-orbit operation, detecting, landing, mining, manufacturing and transmission regarding to asteroid mining. For instance, which space actor should be granted the ownership over space resources, the one who first detects it, who first lands on it or abstract it? Is there kind of prior landing or mining right on an asteroid in case of two or more space actors involving in such space activities?

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Once asteroid mining come ture, the legal and regulatory framework of relevant STM would be necessary. IV.

A Desired International Mechanism of Asteroid Mining Relevant Activities

IV.1.

The Necessity and Rationale of Establishing an International Mechanism of STM on the Exploitation of Natural Resources in Outer Space

Article II along with the provisions of Articles I paragraphs 1 and 2 of the Outer Space Treaty has created a “balance of interests” of space powers and non-space powers.12 Any attempt to appropriate outer space would upset that balance and could thus threaten the rule of law established for the governance of outer space. As articulated in Paragraph 5 Article 11 of the Moon Agreement, States Parties hereby undertake to establish an international mechanism to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible. However, there is yet no explicit provision on the determination of “feasible”. In the author’s opinion, an international mechanism like this should be based on technical feasibility, market demand and strategic needs. Some spacefaring nations, inter-governmental organizations and private entities have already obtained the technical capacity to develop natural resources in outer space, particularly among which private entities have shown more intense development needs, proving the existence of a strong market demand, no matter it presents commercial interests or political aspirations. On the other hand, when it comes to general international law, not to mention international space law, there is no clear prohibition on the exploitation and even commercial use of natural resources in outer space. Meanwhile, due to the vacancy of current international space law, the capacity of regulating future activities concerning exploitation of natural resources in outer space is rather limited. From an international perspective, in order to

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After the completion of the Draft Outer Space Treaty in UN COPUOS, the United States delegate, Mr. Goldberg, underlined that the ‚spirit of compromise shown by the space Powers and the other Powers had produced a treaty which established a fair balance between the interests and obligations of all concerned, including the countries which had as yet undertaken no space activities‘: ‚Official Records of the General Assembly, Twenty-First Session, First Committee, Summary Records of Meetings, Meeting 1492‘ (17 December 1966) UN Doc A/C.1/SR.1492 page 427 (emphasis added). Similarly, the delegate of Brazil, Mr. de Carvalho Silvos, stressed ‚the necessity of maintaining a proper balance between the rights and obligations of the space Powers and those of non-space Powers‘: ibidem, 432; See also UN Doc A/AC.105/C.2/SR.64 page 9 (24 October 1966). The Soviet delegate, Mr. Morozov, responded by emphasising on the ‚principle of equality between space and non-space Powers, to which the Brazilian representative just referred‘: UN Doc A/AC.105/C.2/SR.64 page 9 (24 October 1966). See S Hobe on Article I.

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ensure an orderly development of activities concerning exploitation of natural resources in outer space, it is essential to establish an appropriate international mechanism, which should also be antecedent. As Halley, the founder of U.S. space law pointed out in 1950s: “Law shall proceed into outer space ahead of human.” From a national perspective, on one hand, the exploitation of natural resources in outer space is closely related to strategic resources in outer space in a political way. Prof. Joanne Gabrynowicz ever warned a House subcommittee on September 10, 2014, that a proposed bill to grant property rights to materials mined from asteroids could face legal and political challenges if passed in its current form. Apparently, unilateral behavior will certainly lead to a competition of the exploitation of natural resources in outer space, Asteroid Mining Race, from which no one is going to benefit in the long run. It will be a Zero-sum game and all the players will be trapped into prisoner dilemma. On the other hand, according to Article VI of the Outer Space Treaty, States bear international responsibility for space activities carried out by non-governmental entities. The prerequisite of improving domestic managing system is ensuring its acceptance from international society; otherwise, both political and legal risk could rise. Therefore, from a national perspective, it is also essential to foster or participate in an international mechanism. Meanwhile, such an international mechanism would not violate the principle of equality in the Outer Space Treaty. As paragraph 2 Article I articulated, outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law. On one hand, as same as “for the benefit and in the interests of all countries”, the term “equality” presents a stronger nature of declaration than binding force, the specific content of which should also be interpreted by national practice. According to status in quo, with regard to limited orbit and spectrum resources, the International Telecommunication Union (ITU) is still implementing the principle of “first come, first served”. This basis implies a future where the same principle rules the exploitation of natural resource in outer space. The difference is that the occupation of orbit and spectrum resources is a necessary premise for exploring and using outer space, especially for space application. The reality is contrary to the principle of equality, but it has to be accepted. However, the exploitation of natural resources in outer space is a different issue. It is not necessary for the exploration and use of outer space. In another terminology of economic, orbit resources are necessities, the demand of which would barely change despite of the prices. Yet the natural resources of outer space are luxuries, the increase of price (for example, legal

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restrictions) can lead to the decrease of demand (i.e., capable nations or private entities may revoke the exploitation plan of natural resources in outer space). On the other hand, differing from “for the benefit and in the interests of all countries”, the philosophical basis of “equality” provides reasonable interpretation for the “unequal” status in quo of exploration and use of outer space. For instance, athletes in the same starting line would achieve different scores due to different capacities. “Equality” is not equal to “equal distribution” or “same profit sharing”, making it different from “for the benefit and in the interests of all countries”. This provides a positive theoretical interpretation for the theory of “first come, first served” in the field of asteroid mining. The so-called “for the benefit and in the interests of all countries”, for aerospace pioneers, is only for declarations when in need of political or international relations. The terms “basis of equality” and “province of all mankind” are merely superficial words, while “first come, first served” is the practice pursued in reality. From the perspective of the economics of law, a rule is to be judged from whether it grants positive incentives. Apparently, in the time of early human exploration and use of outer space, the right incentives should be to encourage countries to actively explore and use outer space and to promote the development of human cognition. However, if inappropriate emphasis is added on “for the benefit and in the interests of all countries” or “use on the basis of equality” and even using them as prerequisite for the freedom to explore and use outer space, it would reduce the enthusiasm of States greatly. After all, it is unfair for nations that have devoted a lot of manpower, material and financial resources for the exploration and use of outer space. These limits can only be regarded as a means of encouragement, but not legal binding force. In addition, the convention itself is legally binding for signatories, which has formed the so-called “soft provisions in hard law”. For the development of exploitation of natural resources in outer space, the interpretation of existing rules and the establishment of future rules depend on the ultimate direction. From a perspective of political concern and strategic resources, a final consensus or compromise is likely to appear as limited exploitation. If oriented by market, aiming at promoting space technology and the commercialization of space activities, it is likely that the exploitation would be encouraged. Different orientation would lead to a fundamental result concerning interpretation of existing international and future establishment of international mechanism with regard to the asteroid mining.

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IV.2.

The Approaches of Establishing an International Mechanism on the Exploitation of Natural Resources in Outer Space

Undoubtedly, it is ideal to regulate the exploitation of natural resources in outer space through treaties, but at this stage it is unrealistic, because capable countries of the exploitation of natural resources in outer space are in the minority. In addition, differing from space activities in the past, natural resources in outer space are theoretically limited and non-renewable. Therefore, the development of conventions is facing enormous resistance. Stepwise, the establishment of an international mechanism over the exploitation of natural resources in outer space can be divided into three approaches. First: to clarify rights and obligations through bilateral or multilateral agreements. It is necessary to conduct in the means of agreement, especially in the case of exploiting the same object. This approach is mainly for current nations and international organizations that own capability of asteroid mining. Second: to clarify rights and obligations through joining and amending the Moon Agreement when conditions are satisfied. Although the Moon Agreement has right now only 16 States parties, this has still outnumbered nations that own capability of the asteroid mining. Encouraging the latter to join the Moon Agreement could coordinate relations between developed countries and developing countries regarding space technology within the framework of the treaty. It could also bring internationality, representativeness and stability to the said international mechanism. As for developing countries, they could put limited resources into space technology cooperation with developed countries and share the benefits of the exploitation of natural resources in outer space through the mechanism of cooperation. When conditions are satisfied, it is worthy to consider mirroring the Law of the Sea and establishing implementing agencies similar to the International Seabed Authority, namely, International Outer Space Resources Authority. Third: to clarify rights and obligations through joining treaties on commercial activities in outer space. There are heavy needs for international agreements in various areas of commercial activities in outer space in addition to the exploitation of natural resources, such as commercial launch, commercial remote sensing, navigation, etc. Due to historic restrictions, the existing international framework enacted in 1960s lacks effective and clear regulative measures, particularly specific provisions concerning rights and obligations, as well as responsibility determination and dispute resolution. Therefore, in a long-term vision, it is quite reasonable to expect future demands for a unified treaty on commercial activities in outer space. It is also inevitable for the convergence between domestic and international law.

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IV.3.

Basic Contents of the International Mechanism on the Exploitation of Natural Resources in Outer Space

Whether the international mechanism would be established by means of international agreements or international treaties, basic contents should be included. For example, principles, specific rights, obligations, liabilities, provisions, dispute settlement measures, etc. As for principles, paragraph 7 Article 11 of the Moon Agreement provides a useful reference. It establishes an orderly, secured, reasonable and fair principle for exploitation. Besides, the author recommends that the principle of “efficiency/effectiveness” should be included either, which is a prerequisite for the establishment of an effective incentive mechanism. As for specific content, obligations should be clarified such as notification, consultation, negotiation and environmental protection; explicit rights and benefits should be included, such as ownership, the right to use and privileges; the contents should also provide for the duty of care of predecessors and newcomers; there are also responsibility determination approaches and dispute resolution measures to be included.

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Hypothetical “Exploration and Use of Outer Space Act of 2015” Dennis J. Burnett*

I.

Introduction

This paper presents the text of a hypothetical legislation that was drafted, not as a model for legislation by the U.S. or any other nation, but as a vehicle for stimulating a discussion by members of the International Institute of Space Law (“IISL”) about the issues inherent in the consideration of any such legislation. The drafting of the original version of a hypothetical legislation was stimulated by the discussion of proposed U.S. legislation during the Annual IISL Eilene Galloway Memorial Symposium on Critical Issues of Space Law held in Washington, D.C. in December of 2014. The original version was made available to IISL members in a Linked-In discussion group. The version of the hypothetical legislation presented in this paper incorporates a number of changes that are the result of private discussions between the author and individual members of IISL and students of the University of Nebraska College of Law who participated in the author’s course on Commercial Satellite and Space Law. It should be noted that an earlier version of this paper was presented at the International Astronautical Congress (“IAC”) in Jerusalem. Since that time, U.S. Congress passed Title IV (Exploration and Utilization Act of 2015) of the “U.S. Space Launch Competitiveness Act”, which was signed into law by the U.S. President.1

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1

Adjunct Professor, University of Nebraska College of Law, USA, [email protected]. This paper deals with the issue of national compliance with Article VI of the Outer Space Treaty, which requires authorization and supervision of the activities of nationals in the exploration and use of outers space, including the moon and other celestial bodies. The discussion deals with the issue of whether existing U.S. legislation is adequate or whether additional legislation is required. The provisions of recent legislation and the text of a hypothetical legislation are examined as a vehicle for presenting issues that may or may not need further national legislation. The author also serves a Chief Counsel, Regulatory and Government Affairs, Kymeta Corporation and as Secretary and Board Member of the International Institute of Space Law. The views expressed in this paper are the personal views of Mr. Burnett and do not represent the views of the University of Nebraska, Kymeta Corporation or the International Institute of Space Law. Public Law 114-90 (November 25, 2015).

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The Exploration and Utilization Act of 2015 (hereinafter “Act”) address some, but not all, of the issues presented in the hypothetical legislation. Some of the differences between the hypothetical legislation and the Act will be noted, not as a critique, but to highlight options for answering some of the issues presented. The text of the hypothetical legislation and the Act are reproduced at the end of this paper. II.

Discussion

II.1.

Background

Article VI of the Outer Space Treaty2 requires: “The activities of non-governmental entities in outer space [...] shall require authorization and continuing supervision by the appropriate State Party to the Treaty [...]”.

The U.S. has a very comprehensive regulatory regime requiring licensing by the U.S. Federal Communications Commission (“FCC”) of space stations using radio frequencies,3 licensing of remote sensing satellite activities by the National Oceanic and Atmospheric Administration (“NOAA”), U.S. Department of Commerce,4 and licensing by the Federal Aviation Administration (“FAA”), U.S. Department of Transportation of launches and reentries by U.S. persons and operation of U.S. launch sites.5 An interesting aspect of the FAA licensing of launches by “U.S. Citizens” and all launches from the United States, is that all launch payloads must go through a payload review, which includes a review of the FCC or the NOAA license for the payload. However, if the payload does not require an FCC or NOAA license, then the FAA regulations provide: “For a payload not subject to FCC or NOAA regulation, the Office [FAA] must determine whether to prevent launch of the payload because to launch it would jeopardize public health and safety, the safety of property, or any national security or foreign policy interest of the United States.”6

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3 4 5 6

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies London, Moscow, Washington, adopted 19 December 1966, opened for signature 27 January 1967, entered into force 10 October 1967; 6 ILM 386 (1967); 18 UST 2410; TIAS 6347; 610 UNTS 205 (hereinafter “Outer Space Treaty”). See, The Communications Act of 1934, as amended, 47 U.S.C. §151 et seq. See, The Land Remote Sensing Policy Act of 1992, 15 U.S.C. §5621 et seq. See, Commercial Space Launch Act of 1984, as amended, 51 U.S.C. §50901 et seq. 14 C.F.R. §415.21.

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Part of the launch license process also includes the collection of information necessary for the U.S. to maintain its registry of space object as required by the Registration Convention.7 Excepting object owned and registered by the U.S. Government and objects owned by a foreign entity, the launch operator must provide: 1. The international designator of the space object(s); 2. Date and location of launch; 3. General function of the space object; and 4. Final orbital parameters, including: a. Nodal period; b. Inclination; c. Apogee; and d. Perigee.8 With all of these regulatory requirements in place, one may ask whether additional legislation or regulation of space activities is required. II.2.

Holes in Existing Legislation and Regulation

The FCC does not necessarily have jurisdiction over the operation of all commercial communications satellites and all radio stations on space station operated by U.S. nationals. Section 301 of the Communications Act establishes the jurisdiction which does not extend to all U.S. “nationals” but instead extends to all persons that are using or operating “any apparatus for the transmission of energy or communications or signals by radio” when – • the transmission is with, to or from the U.S., • a transmission outside the U.S. has effects or causes interference within the U.S., • a transmission in the U.S. has effects or causes interference outside the U.S., • the transmission is from the U.S. to a vessel, • when the apparatus is located on any vessel or aircraft of the U.S., or • the apparatus is on a mobile station within the jurisdiction of the U.S. Space objects are not vessels. Furthermore, radio stations in outer space are not mobile stations within the territorial jurisdiction of the U.S. Consequently, it is possible that a radio station located on a space station operated by a U.S.

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CONVENTION ON REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE, New York, adopted 12 November 1974, opened for signature 14 January 1975, entered into force 15 September 1976; 14 ILM 43 (1975); 28 UST 695; TIAS 8480; 1023 UNTS 15, (hereafter Registration Convention). 14 C.F.R. §417.19.

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national would not be regulated by the FCC if the station does not communicate with other stations in the U.S. or with a vessel or aircraft of the U.S. Similarly NOAA does not have jurisdiction over the operation of all remote sensing activities in space by U.S. nationals. Section 5622(a) of the Land Remote Sensing Policy Act provides: “No person who is subject to the jurisdiction or control of the United States may, directly or through any subsidiary or affiliate, operate any private remote sensing space system without a license [...]”

However, NOAA interprets their jurisdiction to cover any system “capable” of remotely sensing Earth. If the system is not capable of remotely sensing Earth, then NOAA jurisdiction would not apply. Similarly, the FAA does not have jurisdiction over the operation of all payloads of U.S. nationals. If the payload is launched on a foreign launch vehicle, there is no requirement for a payload review by the FAA. Even if these holes in the existing regulatory framework are ignored, the question of whether new legislation is required. What is the need? II.3.

New Space – Vision or Reality

Are the proposed new space activities merely visions for the future (vaporware) or they concrete and imminent enough to warrant attention? There is no international obligation for the U.S. to authorize “potential” activities in outer space. There are numerous proposals for new space activities in Earth orbits, orbits other than Earth orbits or on celestial bodies. These include, but certainly are not limited to, services such as microgravity research, propellant transfer, transportation nodes, on-orbit assembly, commercial operation of space stations for recreation, research and development or tourism and commercial resource extraction from celestial bodies. Bigelow Aerospace has invested over $ 500 million in the development of inflatable space stations to be used in LEO and potentially as habitats on the Moon. Planetary Resources has launched satellites into low earth orbit and has tested 3D printing in space to demonstrate the feasibility of manufacturing in space using space resources. Real money is being invested in new space and more investment is required. Of course, whether these ventures will be successful will only be determined in the future. No doubt, many will fail. However, there appears to be enough prospect of success so that no one in the government, whether in the legislative branch or the executive branch wants to run the risk of being accused of causing of the failure of a new space venture.

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The Act appears to cover that political risk, at least with respect to resource extraction, by recognizing certain rights in those resources and mandating the President to promote such activities.9 However, one can ask whether recognizing the right of private parties the resources that are extracted from celestial bodies is the same as authorizing a private party to extract those resources? From a political or a legal point of view is there a difference between not preventing an activity and authorizing an activity? Is there a difference between promoting an activity and authorizing an activity? As noted, the Exploration and Utilization Act of 2015. recognizes certain rights in resources extracted from asteroids and other space resources: “(a) A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”

The Act also clearly authorizes the President to promote commercial recovery of space resources. In Section 51302(a), the Act requires that the President “through appropriate Federal agencies shall [...] promote the right of Unites States citizens to engage in commercial exploration for and commercial recovery of space resources ... subject to authorization and continuing supervision by the Federal Government.”

The use of the language “subject to authorization and continuing supervision by the Federal Government” implies that the Act does not itself authorize these activities. That interpretation is supported by the language in Section 51302(b) requires the President: “To submit to Congress a report on commercial exploration for and commercial recovery of space resources by United States citizens that specifies – (1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government; and (2) recommendations for the allocation of responsibilities among Federal agencies for the activities described in paragraph (1).”

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Luxembourg also has announced its intention to set out a formal legal framework that ensures that private operators working in space can be confident about their rights to the resources they extract, i.e. rare minerals from asteroids. The expressed intent of the Luxembourg Government is to position Luxembourg as a European hub in the exploration and use of space resources. www.gouvernement.lu/5653386.

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If the Act does not grant the authorization for the activities of resource extraction, does the language of Section 51302(b) above also imply that neither the President nor any part of the Executive Branch has the authority to authorize such activities. The legislative history and the statement of Congressional staff indicate that there was no such intention. It appears that Section 51302 was not a statement of the existence of authority or the lack of authority. Instead, it is a requirement for the President to report on what authorities are necessary and how should the responsibility be allocated. In other words, Congress is keeping an open mind until it receives the report from the President. One might expect that the report will address the issue of whether a payload review by the FAA that determines that a payload should not be prohibited from being launched is sufficient to meet the requirements of Article VI of the Outer Space Treaty for authorization and supervision. The FAA has repeatedly stated that they do not have authority to grant authorizations for new space activities that are not licensed by NOAA or the FCC. The FAA Associate Administrator for the Office of Space Transportation, George Nield recently stated that he wants his office to be given the responsibility for issuing a “mission license” for in-space operations not already regulated by the Federal Communications Commission (FCC) or NOAA.10 It must be concluded that the FAA does not believe that a decision not to prevent the launch of a payload in a launch payload review is the not an authorization of the activities to be undertaken by the operation of the payload. This appears to be the conclusion also of the Department of State, which has stated that the national regulatory framework, in its present form, is “illequipped” to enable the U.S. Government to fulfill its obligations under the Outer Space Treaty with respect to private sector activities on the moon or other celestial bodies.11 Mike Gold, V.P. of Bigelow Aerospace calls situation a “regulatory gap” and has urged Congress “to explicitly give AST the responsibility and authority to license LEO and beyond LEO activities that are not currently addressed by the FCC, NOAA, or other agencies,”12 Will the report of the President required by the Act support the conclusions expressed above or will the President reach a different conclusion? We will have to await the release of the report to know.

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11 12

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www.spacepolicyonline.com/news/nield-bridenstine-make-case-for-expanding-faaasts-authorities?utm_source=feedburner&utm_medium=feed&utm_campaign =Feed%3A+Spacepolicyonline+(SpacePolicyOnline+News). http://news.yahoo.com/business-moon-faa-backs-bigelow-aerospace220838313.html. http://spacenews.com/faa-review-a-small-step-for-lunar-commercialization-efforts/.

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II.4.

Issues of Legislation

At the outset of this discussion, readers are reminded that the text of the hypothetical legislation is not a proposal but only vehicle to stimulate discussion with IISL and within the classroom. In many ways the Act and the hypothetical legislation represent opposite ends of the spectrum. The ultimate decision of whether the issues addressed in the hypothetical legislation should be included or how they should be resolved in actual legislation, is the province of the Congress. The following examines some of the differences. II.4.1.

Findings

Section 2 of our hypothetical legislation sets forth findings of Congress. There is no separate section on “findings” in the “Exploration and Utilization Act.” Commercial Exploration and Use of Outer Space is in the U.S. National Interest – Section 2 (1) of the hypothetical legislation finds that commercial exploration and use of outer space by nationals of the U.S. is in the interest of the U.S. There is no such statement in the Act. Is such a finding required for compliance with Article VI of the Outer Space Treaty? Clearly not. Acknowledgement of the Obligation to Authorize and Supervise the Activities of Nationals in the Exploration and Use of Outer Space – Section 2 (2) of the hypothetical legislation is a statement to recognize the international agreements to which the U.S. is a Party and which have bearing on the hypothetical legislation. This is a formal acknowledgement that the U.S. has international obligations related to the subject matter of the legislation with which the U.S. must comply. The Act cites the international obligations of the U.S. in several places. In Section 51302(a)(1) of the Act, the President is mandated to discourage government barrier to “commercial exploration for and commercial recovery of space resource in manners consistent with the international obligations of the United States.” Section 51302(a)(2) of the Act, the President is mandated to promote the right of United States citizens to engage in “commercial exploration for and commercial recovery of space resource, free from harmful interference, in accordance with the international obligations of the United States...”

As noted previously, in Section 51302(b) of the Act, the President is required to submit a report to Congress that specifies “(1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government.”

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Presumption of Authorization – Section 2 (3) of the hypothetical legislation would establish a presumption that proposed activities of nationals of the U.S. should be authorized unless there is a specific finding that such activity is: (1) contrary to or inconsistent with U.S. law, which includes international law; (2) harmfully interfere with prior lawfully established space activities of other persons; or (3) endanger public health or safety. This presumption is further defined in Section 4.2 of the text of the hypothetical legislation. While there is no such statement in the Act, Section 51302 of the Act may be considered to achieve the same result by requiring the President to “facilitate”, “discourage government barriers” and “promote” the rights for commercial exploration for and commercial recovery of space resources. However, the Act is not as explicit as the hypothetical legislation. No U.S. National Appropriation or Claim of Sovereignty. Section 2 (4) of the hypothetical legislation is an affirmation that the commercial exploration and use of outer space by nationals of the United States is not a national appropriation or claim of sovereignty by the United States, consistent with the requirements of Article II of the Outer Space Treaty. The Act has a provision that appears to have a similar intent. Section 403 of the Act states: “It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

It is interesting to note that Section 403 of the Act does not use the words used in Article II of the Outer Space Treaty. In particular, the Act is silent on “national appropriation”. It can be argued that reference to “national appropriation” is not necessary but perhaps this is an issue that needs further examination. No Recognition of National Appropriation or Claim of Sovereignty – Section 2(5) of the hypothetical legislation states that the U.S. does not and shall not recognize national appropriation or claim of sovereignty in outer space by any other nation. The Act does not contain a similar statement. Rights of Use and Property Rights – Section 2(6), 2(7) and 2(8) of the hypothetical legislation deal with rights of use and property rights. It is important to note that a distinction is made between a “right of use” and a “property right” in extracted or refined resources. These issues, of course, are the most controversial issues included in the hypothetical legislation and in the consideration of the Act. The argument has been made by a number of scholars that the assertion of either a right of use or a property right in extracted resources is inconsistent with Article II of the Outer Space Treaty that prohibits national appropriation by assertion of sovereignty by means of use or occupation, or by any other means.

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Arguments to the contrary are that a right of use is not a national appropriation and that property rights in extracted resources are not prohibited by the Outer Space Treaty. These arguments are thoroughly examined in the legislative history of the “Exploration and Utilization Act of 2015”. That legislative history clearly establishes a record of the policy of the U.S. that is consistent with the language included in the text of the hypothetical legislation. Section 5103 of the “Exploration and Utilization Act of 2015” appears to settle this question by stating that a U.S. Citizen “shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource...” While the Act does not recognize a property right per se in an asteroid resource or space resource, it does recognize the bundle of rights usually considered to constitute a property right. Another criticism of the Act is that it is unnecessarily narrower than it needs to be. In particular, that commercial exploration for and commercial recovery of “space resources” and “asteroid resources” is narrower than commercial “exploration and use of outer space, including the moon and other celestial bodies.” II.4.2.

Definitions

The definition section of the hypothetical legislation and in the Act are, on the surface, quite different. However, the definition of “national of the United States” in the hypothetical legislation and the definition of “citizen of the United States” in the Act are similar except with respect to the extraterritorial jurisdiction over foreign corporations who are controlled by U.S. interests. The definition of “citizen of the United States” as used in the Act can be found in 51 U.S.C 50902 as follows: “(1) citizen of the United States” means – (A) an individual who is a citizen of the United States; (B) an entity organized or existing under the laws of the United States or a State; or (C) an entity organized or existing under the laws of a foreign country if the controlling interest (as defined by the Secretary of Transportation) is held by an individual or entity described in subclause (A) or (B) of this clause.”

It should be noted that the definition used in the Act was originally part of the Commercial Space Launch Act and it may be assumed that the extraterritorial jurisdiction was intended because of the subject matter. However, it is not clear whether the extraterritorial jurisdiction was intended with respect to the Commercial Exploration and Use Act or just an unintended consequence of using a convenient definition. There is nothing in the legislative history to indicate the intent. The hypothetical legislation uses a slightly different approach by defining the term “national of the United States” instead of “citizen of the United States”.

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The difference is intentional. The term “national” and not “citizen” is used in Article VI of the Outer Space Treaty. Under general principles of international law, the issue of “nationality” is determined by national law and not international law. Not all nationals are necessarily citizens. Consequently, to avoid any doubt about the compliance of the U.S. with Article VI of the Outer Space Treaty, the term “national” instead of “citizen” is used in the hypothetical legislation. The issue of the extraterritorial reach of the is a domestic policy issue of how far U.S. law should reach. Congress, obviously has the last say on this issue and it appears that they have spoken. II.4.3.

Authority to Authorize

There is some disagreement about whether there needs to be a Congressional authorization to the Executive Branch for the Executive Branch to authorize “new space” activities. One school of thought is that the President has the inherent authority to grant such authorizations and that authorizations that meet the requirements of the Outer Space Treaty are granted either when the payload is approved as part of the payload review required for all launches regulated by the FAA or when the spacecraft is registered on the U.S. registry maintained as required by the CONVENTION ON REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE (the “Registration Convention”).13 The Act does not resolve this issue; at least not resolve it with any clarity. In Section 51302(a), the Act requires that the President “through appropriate Federal agencies shall [...] promote the right of Unites States citizens to engage in commercial exploration for and commercial recovery of space resources ... subject to authorization and continuing supervision by the Federal Government.”

Does the President have the authority to authorize and supervise such activities? Does he have authority to delegate that authority? As noted previously, Section 51302(b) requires the President to “To submit to Congress a report on commercial exploration for and commercial recovery of space resources by United States citizens that specifies – (1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government; and (2) recommendations for the allocation of responsibilities among Federal agencies for the activities described in paragraph (1).”

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CONVENTION ON REGISTRATION OF OBJECTS LAUNCHED INTO OUTER SPACE, New York, adopted 12 November 1974, opened for signature 14 January 1975, entered into force 15 September 1976; 14 ILM 43 (1975); 28 UST 695; TIAS 8480; 1023 UNTS 15, (hereafter Registration Convention).

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As stated previously, it appears that Congress intends to consider the issue what authorities are required and which agency should have what authority after receiving the report of the President. The hypothetical legislation adopts a different approach: assign the authority to the President and let him delegate some or all of that authority to one or more executive agencies. This is the approach taken in the Arms Export Control Act where the authority to regulate the exports and imports of defense articles and defense services was granted to the President and various parts of that authority have since been delegated to various agencies, including the Secretary of State, the Secretary of Defense, the Secretary of Treasury and the Secretary of Commerce. This approach is followed in the text of the hypothetical act as a possible option to Congress assigning the responsibility. Which approach is preferred? The answer to that question depends on the report of the President and consideration of all of the policy issues that must be considered by Congress and the President. II.4.4.

Activities to Be Regulated

Article VI of the Outer Space Treaty requires Signatories to authorize and supervise the activities of non-governmental entities in the exploration and use of outer space but does not define what is meant by the term “activities.” Authorization and supervision of literally all activities would be absurd as the word “activities” would extend to trivial and inconsequential acts. One way to resolve this issue is to mandate that the President (or his delegate) define which activities require authorization and supervision. However, one must be careful about which one wishes. The risk, of course, is that unneeded and unwanted regulation may be the result. In all cases in which delegation of power is made by Congress to the President, there may arise a question of whether such a delegation is an unconstitutional delegation of legislative powers from Congress to the President. Nevertheless, this author believes that such an approach is a viable option that could withstand a constitutional challenge. However, the Act does not address this issue. The reason this issue is not addressed is that the Act is narrowly confined to acts related to the exploration for and use of space resources. The Act avoids the issue of what, if any, other activities should require authorization and supervision. II.4.5.

Authority to Adjust or Meet General or Special Conditions Unfavorable to the Exploration or Use of Outer-Space by Nationals of the U.S.

An issue that is not covered by the Act but that may need to be considered is what recourse and authority to take recourse should be granted to counter actions by foreign governments or foreign nationals that harm the authorized activities of nationals of the U.S. in the exploration and use of outer space. This issue has been faced in other areas of the foreign commerce of the U.S. and there are precedents.

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In particular, Section 19(1)(b) of the Merchant Marine Act of 1920 (46 U.S.C. §42101) provides that the Federal Maritime Commission may enact regulations, not in conflict with law, “to adjust or meet general or special conditions unfavorable to shipping in the foreign trade of the United States [...] which arise out of or result from foreign laws, rules, or regulations or from competitive methods, pricing practices, or other practices employed by owners, operators, agents, or masters of vessels of a foreign country.”

Section 4.6 of the hypothetical legislation is modeled after Section 19 of the Merchant Marine Act of 1920 and would grant similar powers to the President to adjust or meet general or special conditions unfavorable to the exploration or use of outer-space by nationals of the U.S. II.4.6.

Avoid Duplicative Regulation

A nightmare scenario for a new space actor would a requirement to obtain an authorization from a newly appointed agency and also be required to obtain authorization for the same subject matter from other agencies. On the other hand, it may not make sense to consolidate all authorities in one agency basket. Subject matter expertise has been built up in the FCC, NOAA and the FAA that cannot easily be transferred. In the case of the FCC, it also would highly impractical to transfer licensing authority over space stations to another agency while keeping authority over all other radio stations. Sections 6, 7 and 8 of the text of the hypothetical legislation are designed to avoid conflicts between agencies and to maintain the existing authorities of the FCC, NOAA and the FAA. The Act does not address the issue of possible overlaps in jurisdiction of multiple government agencies. III.

Text of the “Exploration and Utilization Act of 2015” “SEC. 401. Short Title. This title may be cited as the “Space Resource Exploration and Utilization Act of 2015”. SEC. 402. Title 51 Amendment. (a) IN GENERAL. – Subtitle V is amended by adding at the end the following: Chapter 513 – Space Resource Commercial Exploration and Utilization Sec. 51301. Definitions. 51302. Commercial exploration and commercial recovery. 51303. Asteroid resource and space resource rights. §51301. Definitions In this chapter:

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(1) ASTEROID RESOURCE. – The term ‘asteroid resource’ means a space resource found on or within a single asteroid. (2) SPACE RESOURCE. – (A) IN GENERAL. – The term ‘space resource’ means an abiotic resource in situ in outer space. (B) INCLUSIONS. – The term ‘space resource’ includes water and minerals. (3) UNITED STATES CITIZEN. – The term ‘United States citizen’ has the meaning given the term ‘citizen of the United States’ in section 50902. §51302. Commercial Exploration and Commercial Recovery (a) IN GENERAL. – The President, acting through appropriate Federal agencies, shall – (1) facilitate commercial exploration for and commercial recovery of space resources by United States citizens; (2) discourage government barriers to the development in the United States of economically viable, safe, and stable industries for commercial exploration for and commercial recovery of space resources in manners consistent with the international obligations of the United States; and (3) promote the right of United States citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with the international obligations of the United States and subject to authorization and continuing supervision by the Federal Government. (b) REPORT. – Not later than 180 days after the date of enactment of this section, the President shall submit to Congress a report on commercial exploration for and commercial recovery of space resources by United States citizens that specifies – (1) the authorities necessary to meet the international obligations of the United States, including authorization and continuing supervision by the Federal Government; and (2) recommendations for the allocation of responsibilities among Federal agencies for the activities described in paragraph (1). §51303. Asteroid Resource and Space Resource Rights (a) A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States. (b) TABLE OF CHAPTERS. – The table of chapters for title 51 is amended by adding at the end of the items for subtitle V the following: 513. Space resource commercial exploration and utilization [...].51301 SEC. 403. Disclaimer Of Extraterritorial Sovereignty. It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”

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IV.

Text of Hypothetical Legislation “Section 1. Short Title. This Act may be cited as the “Exploration or Use of Outer Space Policy Act of 2015”. Section 2. Findings. The Congress finds and declares the following: (1) The commercial exploration and use of outer-space by nationals of the United States will further the national security, foreign policy and economic interests of the United States. (2) United States have agreed in the Convention on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies to authorize and supervise the activities of nationals of the United States in the exploration and use of outer-space. (3) The proposed activities of nationals of the United States in the exploration and use of outer-space should be authorized unless such activities are inconsistent with United States’ law, harmfully interfere with prior lawfully established space activities of other persons, or endanger public health or safety. (4) The exploration and use of outer space, including the moon and other celestial bodies, by nationals of the United States shall not constitute national appropriation by the United States and shall not constitute a claim of sovereignty by the United States. (5) The United States shall not recognize any national appropriation of outer space, including the moon and other celestial bodies, and shall not recognize any claim of sovereignty in outer space, including the moon and other celestial bodies, by any other nation. (6) The use, extraction, refinement, or conversion of resources in outer space, including the moon and other celestial bodies, by nationals of the United States shall not be prohibited unless the President finds that such use, extraction, refinement or conversion of resources in outer space, including the moon and other celestial bodies, is contrary to the law of the United States or is contrary to the national security or foreign policy of the United States. (7) Nationals of the United States may acquire rights of use of resources in outer space, including the moon and other celestial bodies, and that the United States shall honor and protect those rights. (8) Nationals of the United States may acquire rights of use, including property ownership interests, in resources in outer space that are extracted, refined or converted from resources in outer space and that the United States shall honor and protect those rights. Section 3. Definitions. In this Act, the following definitions apply: (1) The term “juridical person” for the purposes of this Act shall mean any legal entity duly constituted or otherwise organized under applicable law, whether for profit or otherwise, and whether privately-owned or governmentallyowned, including any corporation, trust, partnership, joint venture, sole proprietorship or association. (2) The term “national of the United States” for the purposes of this Act shall mean:

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(a) any natural person who: (i) is a citizen of the United States; (ii) although not a citizen of the United States, owes permanent allegiance to the United States; or (iii) is permanent resident of the United States; and (b) any juridical person that is formed pursuant to or under the laws of the United States or any of its political subdivisions. Section 4. Authorization of Commercial Activities in the Exploration or Use of Outer-Space 1. The President is authorized to designate those activities of nationals of the United States in the exploration or use of outer-space that shall be authorized and supervised by the United States and to promulgate regulations for the authorization and continuing supervision of such activities. The President is authorized to amend the list of activities requiring authorization and supervision and to modify or amend such authorizations as may be required to further the purposes of this Act. 2. The President shall authorize activities designated by regulation promulgated pursuant to this Section of nationals of the United States in the exploration or use of outer-space unless the President finds that such activity is: (i) is inconsistent with United States’ law (including United States’ Treaties and international obligations); (ii) harmfully interferes with the prior authorized space activity of another national of the United States; (ii) harmfully interferes with the prior authorized activities of a national of nation that: (A) is a signatory to the Outer Space Treaty; (B) has lawfully authorized the activity by its national; and (C) has entered into an agreement with the United States ensuring that the rights of nationals of the United States recognized by this Act will be recognized and enforced; or (iii) endangers the public health or safety of the United States or any nation that has entered into an agreement with the United States to ensure the public health or safety of the United States by the activities of its nationals in the exploration and use of outer space, including the moon and other celestial bodies. 3. The President may condition authorizations issued pursuant to this Act to ensure compliance with any provision of this Act. 4. The President shall condition authorizations issued pursuant to this Act to require that any national of the United States receiving any such authorization coordinate with other United States nationals subsequently requesting authorization. 5. The President may suspend or revoke, in whole or in part, any authorization granted pursuant to this Act for violation of: (i) this Act, (ii) any regulation promulgated pursuant to this Act, or (iii) any condition of the authorization pertaining to the authorized activity to be suspended or revoked. 6. To further the objectives and policy set forth in this Act, the President shall prescribe regulations, not in conflict with law, to adjust or meet general or special conditions unfavorable to the exploration or use of outer-space by nationals of the United States, whether unfavorable to a particular activity or unfavorable in commerce generally, and which arise out of or result from laws or regulations of a foreign country or the activities in the exploration or use of outer space by nationals of a foreign country. If the President finds

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that conditions unfavorable to the exploration or use of outer space by United States nationals exist, the President may – (i) Prohibit exports or reexports of United States goods or technology to persons or countries creating or furthering such unfavorable conditions; (ii) Impose a fee not to exceed $ 1,000,000 per day for such period of time as the unfavorable conditions are not mitigated; or (iii) Take any other action the President finds necessary and appropriate to adjust or meet any condition unfavorable to the exploration or use of outer space by nationals of the United States. Section 5. Prohibition against Unauthorized Exploration or Use of Outer-Space Except as otherwise specifically provided in regulations issued pursuant to this Act, no national of the United States shall engage in any activity designated by the President under Section 4, Paragraph 1 of this Act without an authorization issued in accordance with this Act, except that no authorization shall be required for activities of or for an agency of the United States Government for official use by a department or agency of the United States Government. Section 6. Authority of the Federal Communications Commission 1. Nothing in this Act shall affect the authority of the Federal Communications Commission pursuant to the Communications Act of 1934, as amended (47 U.S.C. 151 et seq.). To the extent required by the Communications Act of 1934 (47 U.S.C. 151 et seq.), an application shall be filed with the Federal Communications Commission for any radio facilities involved with activities required to be authorized pursuant to this chapter. Authority shall not be required from the Federal Communications Commission for the development and construction of any space system (or component thereof), other than radio transmitting facilities or components, while any licensing determination is being made. No separate license or authorization shall be required from the President for radio transmitting facilities and components thereof and no separate license or authorization shall be made by the President for operation of any radio facilities subject to the licensing authority of the Federal Communications Commission. 2. It is the intent of Congress that the Federal Communications Commission complete the radio licensing process under the Communications Act of 1934 (47 U.S.C. 151 et seq.), upon the application of any private sector party or consortium operator of any space system subject to this chapter, within 120 days of the receipt of an application for such licensing. If final action has not occurred within 120 days of the receipt of such an application, the Federal Communications Commission shall inform the applicant of any pending issues and of actions required to resolve them. Section 7. Authority of the Department of Commerce Nothing in this subchapter shall affect the authority of the Secretary of Commerce pursuant to the Land Remote Sensing Policy Act of 1992, as amended (15 U.S.C. 5601 et seq.). To the extent required by the Land Remote Sensing Policy Act of 1992, as amended (15 U.S.C. 5601 et seq.), an application shall be filed with the Secretary of Commerce for operation of any land remote sensing system required to be authorized pursuant to this chapter. Authority shall not be required from the Secretary of Commerce for the development and construction of any space system (or component thereof), other than land remote sensing facili-

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ties or components, while any licensing determination is being made. No separate license or authorization shall be required from the President and no separate license or authorization shall be made by the President for operation of any satellite remote sensing system subject to the licensing authority of the Secretary of Commerce. Section 8. Authority of the Department of Transportation Nothing in this subchapter shall affect the authority of the Secretary of Transportation pursuant to the Commercial Space Launch Act of 1984, as amended (51 U.S.C. 50901 et seq.). To the extent required by the Commercial Space Launch Act of 1984, as amended (51 U.S.C. 50901 et seq.), an application shall be filed with the Secretary of Transportation for launch of a launch vehicle, operation of a launch site, reentry of a launch vehicle or operation of a reentry site required to be authorized pursuant to this chapter. Authority shall not be required from the Secretary of Transportation for the development and construction of any space system (or component thereof), other than launch vehicles, reentry vehicles, launch sites or reentry sites, while any licensing determination is being made. No separate license or authorization shall be required from the President and no separate license or authorization shall be made by the President for operation of any launch or reentry system or launch or reentry site subject to the licensing authority of the Secretary of Transportation. Section 9. Criminal Violations Any person who willfully violates any provision of this Act, or any rule or regulation issued pursuant to this Act, including any rule or regulation issued to implement or enforce a treaty or an implementing arrangement pursuant to such treaty, or who willfully, in a request, application or required report, makes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be fined for each violation not more than $ 1,000,000 or imprisoned not more than 20 years, or both. Section 10. Civil Penalties In carrying out functions under this Act, the President may assess civil penalties for violations of this chapter and regulations prescribed thereunder and further may commence a civil action to recover such civil penalties. The civil penalty for each such violation may not exceed $ 500,000.”

V.

Conclusion

There should be no doubt that the issues presented in this paper will be the subject of further discussion and dispute. The report of the President required by the Act should give Congress further insight into the policy issues that need to be considered before deciding on how to comply with the requirements of the Outer Space Treaty and at the same time promote the foreign policy, national security and economic interests of the United States.

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Space Legislation for Developing Countries Lessons from Europe Kumar Abhijeet*

Abstract Today outer space has a vast potential of solving the social problems on Earth and is upcoming lucrative business for private participants. With the advancement in technology many developing nations are entering into space activities. To reap the commercial benefits of outer space many states have promoted or desiring to allow private players participation. The Outer Space Treaty demands the respective state to continuously authorize and supervise their national activities failure of which may make them liable. Though Private participation is desirable but it has to be in accordance with rule of law and international obligations. Since the motivation to go into space is commercial aspects, it is the interest of developing nations to lay down their respective national space legislation. In Europe many countries are not so active in space per se but through European Space Agency they play a significant role. Perhaps they have realized liabilities may be imputed to them for space activities and accordingly the respective nations have adopted their national space legislation. This paper shall explore the basis for national space legislation and determine the minimum legislative agenda. It shall study the national space legislation of space faring nations in Europe and will draw lessons for them, which can be suited for developing countries. The reason for choosing Europe is that national space legislation has been recently drafted suited as per the need of current time. The researcher has a hypothesis that European space legislations are progressive in nature which can significantly inspire developing nations. Countries like India and China are in the process of drafting their national space legislation and European legislation can be a path shower.

I.

Introduction

At the beginning of space era, only states were active in outer space and capable to meet the enormous financial commitment involved. Today private investment is significant and as such has a profound influence on the nature of space activities and space based applications. Although non-state actors

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Doctoral Candidate, Institute of Air and Space Law, University of Cologne, Germany, [email protected].

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have freedom to participate in the space exploration but states have to authorize and even bear responsibility for their activities. Thus space activities governed by private players are also governed by public international law. Due to rapid change in space technology, at present it is not possible to regulate them exclusively by international public law, new legal rules belonging to insurance law, law of contracts, intellectual property rights, among others, must be added and the integration by national legislation becomes urgently necessary.1 States have a general obligation to supervise and continuously authorize activities of their non-governmental entities failure of which may make them internationally liable. In Europe the States are active in space largely through European Space Agency. They have realized even if they do not perform space activities themselves or participate in limited extent, responsibility and liability may be imputed by virtue of procurement of space activities, thereby the necessity of national space legislation. The legislation in Europe appears to be progressive in nature encouraging space commerce and promoting private participants within the contours of public international law. This paper shall explore the basis for national space legislation and determine the minimum legislative agenda. It shall study the national space legislation of space faring nations in Europe and will draw lessons for them, which can be suited for developing countries. The reason for choosing Europe is that national space legislation has been recently drafted suited as per the need of current time. II.

The Basis for National Space Legislation

States bear international responsibility for national activities in outer space.2 Interestingly outer space treaty presumes both governmental and nongovernmental activity as national activity. Since space activities are inherently dangerous, therefore it is the responsibility of respective state under whose jurisdiction non-governmental entity operates, to ensure that their activities are in conformity with international obligations, largely treaties governing space activities. Some of the provisions of Outer Space Treaty have become customary in nature and have even acquired the status of jus cogens.3 By and large State must ensure activities of non-governmental entities are for peaceful purpose,4 does not amount to appropriation of space,5 is in accordance

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2 3 4

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Elisabeth back Impallomeni, Necessity for the Development of National Space Law in Christian Brunner & E Walter (Eds.) National Space Law Development in Europe – Challenges for Small Countries, Bohlau verlag Wien. Article VI OST, 1967. V. S. Vereschetin and G. M. Danilenko, Custom as a Source of International Law of Outer Space, 13 Journal of Space Law (1987) at p. 87. Article IV OST, 1967.

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with international law6 and does not cause any irreversible harm to the environmental of outer space.7 Any damage caused by a private space actor may make the state internationally liable because the activity is private but liability is public.8 The liability becomes much clearer if the respective state is also the launching state. A launching state is always liable for damage resulting from its launched space object. This liability being unlimited in time and amount9 make it necessary that non-governmental activities are regulated. Article VI of the Outer Space Treaty has devised a safety valve by which liabilities may be avoided if due diligence is exercised. Article VI of the Outer Space Treaty imposes an obligation upon the respective state to authorize and continuously supervise the activities of non-governmental activities. Authorization and supervision being procedural aspect creates the fundamental basis to legislate.10 Since non-governmental activity demands authorization it means though they have freedom of participation in exploration of space but they need prior approval from the respective State under whose jurisdiction they operate. This approval may be in the form of a license or even by way of a contract but if nation wants to promote space commerce and privatization, it is necessary to have ‘rule of law’ and not ‘rule of men’ because the former shall promote transparency and define an institutional mechanism granting access to space. Therefore National Space Legislation shall prescribe the conditions for access to space. As a licensing condition the primary concern of any State shall be its national security, safety and compliance with international obligation.11 The other conditions might be protection of environment, the technological and financial

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Article II OST, 1967. Article III OST, 1967. Article IX OST, 1967. “Those states that has a launching capability residing in their territory and has opened or is willing to open it up to private operators, have all found it necessary to establish some sort of licensing control over these operations, all including at least the launches of space objects from their territory in view of the unequivocal qualification of any state whose territory is so used as a “launching State” under the Liability Convention, and hence is liable for damage caused by these space objects under that Convention” Frans G. von der Dunk, The International Law of Outer Space and Consequences at the National Level for India: Towards an Indian National Space Law? In India Yearbook of International Law and Policy (2009). Armel kerrest, Special Need for National Legislation: the Case for Launching in K.H. Bockstiegel (eds.) ‘Project 2001 – Legal Framework for the Commercial Use of Outer Space, 2002 p. 27. Michael gerhard, Article VI – Outer Space Treaty in Hobe, Schmidt-Tedd, Schrogl (eds.) Cologne Commentary on Space Law, Carl Heymanns Verlag, Volume 1 2009, p. 103-125. Ronald. L. Spencer, Jr. International Space Law: A Basis for National Regulation in Ram Jakhu (Eds.) National Regulation of Space Activities, Springer 2010 p. 7.

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capacity of private operator, indemnification in case of damage being paid because of the liability any arising. Since the damage resulting from space activities is unlimited in time and amount, it is likely a corporate entity which has financial capacity at the time of license seeking may not have the same financial capability when damage occurs in future. In such case it will be a burden upon the State to meet financial obligation. Such a scenario may be avoided considerably if National Space Legislation prescribes mandatory insurance depending upon the risk involved. If the Government has to pay in remotest possibility it can always seek indemnification from the insurer. But as space insurance will involve a large capital, the success of insurance company will depend upon the lesser claims being brought i.e. minimum damage occurrence. Once again herein the role of State becomes prominent. The obligation of ‘continuous supervision’ of non-governmental entity shall ensure minimum damage occurrence. For effective supervision it shall be incumbent upon the respective private players to timely furnish all necessary information related to the space object. Information shall be needed for registration of space object as well. Registration of a space object enables the State of registry to retain jurisdiction and control over such space object.12 This puts the State in an advantageous position with regard to private players. If a licensed activity fails to comply with licensing condition State always retains the jurisdiction over such space object. At the same it keeps a proper check on the private players as well that if they do not want State to take over their licensed space activity they must comply with the licensing conditions. Thus National Space legislation is an enabling tool for space commerce promoting private space activity. III.

The Legislative Agenda

Having established the basis of national space legislation, now I shall reveal the contours of national space legislation. As discussed earlier the primary concern for any state promoting private space activities is national security, safety and compliance with international obligation national space legislation must give these issues topmost priority. The other licensing conditions may be compliance with registration requirements, insurance and indemnification factors, and environmental safeguards, financial and technological capacity of private space actors. Since it is the age of commercialization and privatization, space objects are likely subject to sale and transfer. So long the sale/ transfer is within the national jurisdiction problem may not be there but if there is an international sale/ transfer problem may arise. In case of international transfer the launching state remaining the same without have any actual control will still remain

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SPACE LEGISLATION FOR DEVELOPING COUNTRIES

internationally liable for damage caused by such object.13 Therefore for international transfer it is necessary the respective transferee State take up the responsibility for damage caused by space object. Thus national space legislation must define the conditions of transfer as well. The UNGA Resolution on national space legislation14 has recommended eight ‘elements’ that states could consider when enacting regulatory frameworks for national space activities: (1) the scope of application; (2) the definition of national jurisdiction over space activities; (3) the authorization procedure; (4) conditions for authorization; (5) ways and means of supervision of space activities; (6) establishment of national registry of object launched into space; (7) possible recourse mechanisms and insurance requirements; (8) transfer of ownership or control of a space object in orbit. State practices also suggest that national space legislation has generally addressed these issues. IV.

National Space Legislation in Europe

In Europe, seven member states of the European Space Agency (ESA) have enacted national space laws so far. In a chronological order they are Norway, Sweden, the United Kingdom, Belgium, the Netherlands, France and Austria. Norway

Norway was the first state to enact its national space legislation primarily with the objective to regulate private space activities. The Norwegian Act consist of only three articles prohibiting launch of any object into outer space from Norwegian territory or Norwegian vessels, aircrafts and such like without the permission from the concerned ministry. The scope of application of the law is limited to ‘launches’, so that other space activities are not covered. The act does not specify the licensing conditions giving large discretion to the concerned Ministry.15 Norway only applies territorial jurisdiction and not personal jurisdiction. Also it does not talk about registration, liability or insurance. Sweden

The Swedish Act on Space Activities encompasses territorial and personal jurisdiction over space activities. Launching of space objects and all measures for maneuvering such launched space objects by non-governmental entities

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14 15

See Michael Gerhard, Transfer of operation and Control with respect to Space Objects – Problems of responsibility and Liability of States, German Journal of Air and Space Law, ZlW 51.Jg.4/2002 p. 571-581. Also See Michael Chatzipanagiotis, Registration of Space Objects and Transfer of Ownership in Orbit, German Journal of Air and Space Law, ZlW 56.Jg.2/2007 p. 229-238. UNGA adopted on 11 December 2013, UN Doc. A/RES/68/74. Irmgard Marboe, National Space Law in Frans von der Dunk (et al.) Handbook of Space Law, Edward Elgar Publishing, 2015 pp. 127-204.

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require a license from the Swedish National Space Board.16 However since the Swedish Act does not provide details of the conditions of authorization, a large discretionary power vest with the board. With regard to international liability the Swedish State has reserved its right for indemnification from such persons on whose behalf Sweden incurs any liability but it does not contain an express provision for insurance. Nevertheless this does not disable the licensing authority to include it in the conditions for authorization.17 The United Kingdom

The United Kingdom’s Outer Space Act of 1986 has been enacted in response to British companies engaged in launch or procurement of launch, operation of space objects and any activity in outer space.18 The UK Outer Space Act is relatively an elaborate act prescribing detailed inclusive condition for licenses. The general conditions addressed are public health and safety. Contamination of outer space or adverse changes in the environment of the Earth, international obligation of UK and national security concerns. Registration of space object is in accordance with the Registration Convention. As a licensing condition the Act prescribes for compulsory insurance against liability in respect of damage or loss suffered by the third parties and the Government reserves its right to seek indemnification in case of any liability incurred on behalf of private players. As of now the right to seek indemnification is unlimited but proposals are there to limit it to 60 million euro. France

The French Space Act 2008 establishes the rules with appropriate legal safeguards for public and private players in space. The new French outer space law consist of eight titles: i) definition & concepts; ii) regime for authorization for outer-space operations; iii) registration; iv) liability; v) research code; vi) IPR issues; vii) space-based data and viii) transitory and final provisions. The Act is concerned with outer-space operations namely launching/ attempted launching of space object; control over an object in outer space for the period it is there and control over an object during its return.19 It also applies in the case of a transfer of a space object. An authorization is granted by the administrative authority by way of license for a determined period of time. The licensing conditions include moral, financial and professional guarantees of the applicant, compliance with tech-

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17 18

19

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N. Hedman, Swedish Legislation on Space Activities in C. Bruneer & E. Walter (Eds.) National Space Law Development in Europe – Challenges for Small Countries, Bohlau Verlag Wien 2008. Supra n. 15. Roger Close, Outer Space Act 1986: Scope and Implementation, in K.H. Bockstiegel (eds.) ‘Project 2001 – Legal Framework for the Commercial Use of Outer Space, 2002. See Article 1(3) of the Space Operations Act 2008.

SPACE LEGISLATION FOR DEVELOPING COUNTRIES

nical regulation, safety of persons and property, protection of public health, environment protection in particular to limit risks related to space debris, National defence, France’s international commitment, furnishing of information and document in support of license application, insurance covering the risk of having to compensate for the damages, transfer conditions, Registration of space object. An operator subject to authorization has to maintain insurance or other financial guarantee as approved by the competent authority. The insurance or financial guarantee should cover the risk to compensate for damages that could be caused to third parties. The amount of insurance coverage is dependent upon the risk involved. In case the Government of France makes any payment towards its international liability arising for such authorized space activities, the Government reserves its right to seek indemnification from such operators. While seeking indemnification due consideration is to be given for the amount which the Government has already recovered from the insurance agency.20 A monetary penal sanction is levied in case of unauthorized activities including unauthorized transfer of space object21 and data operation.22 Noncooperation with authorized agents or disobedience to the administrative or court orders and data operators operating in non-compliance of the conditions imposed also invite the same penal sanctions. In case the holder of authorization contravenes the provisions of the Act the authorization may also be suspended or revoked.23 The French law on Space Operations represents a comprehensive legal basis for the implementation both of the French aspirations in space sector, its national safety and security concerns and its international obligations and foreign policy priorities.24 Belgium

Though Belgium does not have its national space programme per se but through European Space Agency it has continued to participate in space activities. The Law on the Activities of Launching, Flight Operation or Guidance of Space Object, 2005 together with the Royal Implementing Decree 2008 constitutes the Belgium Space Law. The Belgium Space Act is based on three pillars25 – Authorisation and supervision of operational space activities

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Art. 15. of the Space Operations Act 2008. Art. 11 (I) &(II) of the Space Operations Act 2008. See Art. 23-25 of the Space Operations Act 2008. Art. 9 of the Space Operations Act 2008. Supra n. 15. Jean-Francois Mayence, Introduction To Belgium Space Act in Space Law Basic Legal Documents Voulme 5 Karl-heinz Bockstiegel, Marietta Benko, Stephan Hobe (Eds.) Eleven International Publishing 2013.

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performed under Belgian jurisdiction; the National Registry of Space Objects, allowing the registration of space objects launched into space by Belgium; the special liability of the operator towards the Belgian State in case of damage caused by the space objects to the third parties. Authorisation may be granted subject to the Belgium’s international obligation, national security and safety of people. Belgium has also given prime consideration to environment apart from considerations like registration of space objects, insurance & indemnification, return of space objects. A detail plan for environmental impact assessment has been envisaged in the act. Another highlight of the Act is provisions for transfer of space object which can be done only with the authorisation of Minister. The violation of any provision of the act will invite penalty for such offenders ranging from suspension of authorisation to imprisonment. The Belgium’s Law on the Activities of Launching, Flight Operation or Guidance of Space Object, 2005 reflects Belgium’s commitment to continued supervision of space activities. The Netherlands

The Dutch Space Activities Act of 2007 represents a comprehensive act of implementing the major obligations stemming from the UN space treaties in the light of Dutch companies engaging in space activities.26 The authorization and continuing supervision obligation has been taken care of by means of an elaborate licensing system with, at least with a view to foreseeable future, rather comprehensive scope, and in the process adequate liability, reimbursement and insurance related tools have been inserted as well as establishment of a national register.27 Violation of licensing conditions or registration condition may invite monetary sanctions. But Netherland has restricted the applicability of the Act to the European part of the Netherlands, not to its overseas territories. Also Netherland does not take up responsibility of registering the space object whose launch has been procured by its private national.28 As a result, the danger rises that no state registers such space objects.29 The Dutch Space Act introduces compulsory insurance for space activities and the liability for damage caused by space activities of license holder is limited only up to the value of sum insured.

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27 28

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Frans G. von der Dunk, Implementing the United nations Outer Space Treaties – The Case of the Netherlands in C. Bruneer & E. Walter (Eds.) National Space Law Development in Europe – Challenges for Small Countries, Bohlau verlag Wien 2008. Ibid. D. Howard, A Comparative Look at National Space Laws and Their International Implications. Report of the 6th Eileen Gallow Space symposium on Critical Issues in Space Law, in Proceedings of the International Institute of Space Law 2011 (2012). Supra n. 15.

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Austria

The Austrian Law on Space Activities of 2011 is the most recent of the space law s in Europe. The salient feature of the Act is it even covers small satellites. The Act provides for an authorization regime for space activities. The conditions for authorization refer to the qualification of the operator, the safety of the operation, Austria’s international and national interest, protection of the environment, and emphasize compliance with internationally recognized guidelines for the mitigation of space debris. All space objects for which Austria is a launching state is to be registered in the national registry in accordance with the Registration Convention. Like other European Space Law, Austria has also reserved its right to seek indemnification from such operator on whose behalf Austria has paid compensation. In order to cover liability for damage caused to persons and property, the operator is under an obligation to take out insurance. However if space activity is in public interest serving science, research and education, the insurance amount may be reduced to the extent of complete waiver. Austrian has been engaged in space activities mainly within the framework of European Space Agency and other international cooperative projects, in which the regulatory issues were taken by the partners.30 The need for regulation was felt because the small satellite projects were being developed by Austrian Universities. V.

Lessons for Developing Countries

Many developing countries have an operational vibrant space programme without having any domestic law. For the reasons discussed in this paper gradually the nations have realised the necessity of law. Countries like India and China are in the process of drafting their respective national space legislation. The European model might be of some significance for these countries. Though the basic contours of national space legislation has been highlighted by the UNGA resolution on national space legislation. The interstitial step for these countries is how these issues are addressed in legal language. Do they intend to enact law for promoting private space players or want to frame law as an impediment? Should the private players bear absolute liability for damages or should there be a cap? Whether the Government can waive of insurance condition if the space activity is in public interest? How best the environment could be safeguarded? In case of violation of law should there be a penal sanction or a civil sanction? Should it be monetary compensation or imprisonment?

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Irmgard Marboe, Introduction to Austrian Space Act in Karl-heinz Bockstiegel, Marietta Benko, Stephan Hobe (Eds.) Space Law Basic Legal Documents vol. 5 Eleven International Publishing 2013.

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Such challenges will be there while drafting a space act but study of existing legislation might be path shower. However while drafting the legislation ultimately it has to kept in mind what best suits the domestic need of a country.

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Spain: Towards a National Space Legislation and a Spanish Space Agency? María-del-Carmen Muñoz-Rodríguez*

Abstract Although Spain is a Party in most of the Corpus Iuris Spatialis (the 1967 Outer Space Treaty; the 1968 Rescue agreement; the 1972 Liability Convention; and the 1974 Registration Convention), Spain has not yet adopted a national space legislation with a few exceptions. Moreover, two important national institutions, related to the exploration and exploitation of the outer space, have been created: the National Institute of Aerospace Technology (INTA) that reports to the Ministry of Defence; and the Centre for Technological and Industrial Development (CDTI) that reports to the Ministry of Economy and Competitiveness. Furthermore, Spain is a State Member of European Union, the European Space Agency and other international organizations and has ratified many bilateral and multilateral international agreements related to the outer space activities and policy. The need for a unified Spanish Space Legislation and a Spanish Space Agency becomes more evident every day. This paper will analyze some recent law developments and the increasing public debate about the necessity of the creation of a Spanish Space Agency.

I.

Introduction

In May 2010, in answer to eight questions prepared by the Chair of the Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space,1 Spain explained that it was not necessary to enact extensive outer space legislation for three reasons:

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1

Associate Professor of Public International Law and European Union Law, University of Jaén, Spain, [email protected]. The author wishes to express her gratitude to Rafael Moro-Aguilar for his editorial assistance with this paper and his comments. The Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space was established by the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space in 2009. The Working Group agreed that the exchange of information relevant to the peaceful exploration and use of outer space provided an important basis for its work under the multi-year workplan and allowed it to continue examining the main developments taking place at the national level in

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“a) Spain has not launched any space objects. The preliminary analysis made by the Working Group on this topic at the forty-eighth session of the Legal Subcommittee showed that the space activities most commonly subject to regulation are launch activities; (b) There is no sizeable private sector for such legislation. As all domestic space activities to date have either been public or have had significant public sector participation, there has been no incentive to enact such legislation; (c) According to the Spanish Constitution, international treaties ratified by Spain become law (i.e. they become part of the domestic legal system) once they are published in the Official State Gazette.”2

Nevertheless, Spain described in its report some national law and institutional developments, the international treaties on outer space ratified by Spain and its participation in international organizations involved in space cooperation. Indeed, it is pointed out in the report that debate has begun in Spain on “the need to legislate and on the advisability of drafting national space legislation with a view to enabling Spain to discharge its international obligations more effectively and also because of the growing presence of private space operators in the country”;3 it can be added, nowadays, a second increasing public debate about the necessity of the creation of a Spanish Space Agency. II.

Spain and Space: A Brief Story

The space adventure began in the fifties and Spain formed part of it from the outset. In 1951, INTA4 contacted with NACA5 to exchange information on aeronautical matters, – thanks to a sustained and fruitful professional relationship, maintained along the late forties between Prof. Esteban Terradas i

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order to identify common principles, norms and procedures (A/AC.105/935, annex III, para. 16). Information on national legislation relevant to the peaceful exploration and use of outer space, doc. A/AC.105/957/Add.1, 2011, p. 4 (www.unoosa.org/pdf/report s/ac105/AC105_957Add01E.pdf). Ibid., p. 4. Instituto Nacional de Técnica Aeronáutica, created as an autonomous public organism, within the framework of the Air Ministry (Air Force) by Decree 7 May 1942 (BOE n. 141, 21.05.1942). INTA has developed an intense activity, first in the aeronautical field, and later on, in the ambit of space as the Instituto Nacional de Técnica Aeroespacial (Decree 2845/1963, 31 October, BOE n. 268, 08.11.1963). NACA, the National Advisory Committee for Aeronautics, was created by U.S. Congress in 1915 as an independent government agency for aeronautics research reporting directly to the President; it officially turned over operations to NASA (the National Aeronautics and Space Administration), the new agency responsible for civilian, human, satellite and robotic space programs and aeronautics research, on 1 October 1958 (See E. Suckow, Overview, 2009, at http://history.nasa.gov/naca/overview.html).

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

Illa6 and Prof. Theodore von Kármán7-. Since then, the relationship, first, with NACA, then, with NASA continued without a break in several areas, i.e.:8 the Seminar on Space Science and Technology (1960); the MOU between the Spanish and the US Governments in 1960 to establish the first NASA satellite tracking station in Spain, in Maspalomas (Las Palmas, Canary Islands); the MOU between the Spanish and the US Governments in 1964 to establish the Robledo de Chavela Station (Madrid) as an integral part of NASA’s Deep Space Network; the Arenosillo Launch Range, from 1966;9 the Exchange of Notes signed between the Spanish and US Governments in 1965 to enlarge the Robledo station and to build the Cebreros station (Ávila) and Fresnedillas station (Madrid); the free launch of the first Spanish satellite INTASAT in 1974; the MOU between the Spanish and the US Governments in 1983 and 1984 to designate the Spanish Air Force bases at Saragossa and at Morón (Seville) as a emergency landing runway for the Space Shuttle. At the same time, Spain began to cooperate with other European countries in space-related matters; however, in this case, the way was not so easy at the beginning, because, on the one hand, the country, after more than 20 years of political isolation,10 was virtually unrepresented in Western European fora,11 and, on the other hand, the country suffered from a serious technical, technological and scientific backwardness and a severe economic recession. Never-

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A Spanish mathematician, physicist and engineer who promoted the creation of INTA and was the first President of the “Advisory Board” (Order by the Air Ministry, 13 July 1942, BO del Ministerio del Aire, n. 85, 16.07.1942); after Terradas's death in 9 May 1950, the Institute received his name (July 1950). See Millán Barbany, G., “Los Orígenes del INTA”, Ingeniería Aeronáutica y Astronáutica, n. 331, 1992, pp. 53-60 (http://oa.upm.es/2106/2/MILLAN_ART_1992_01a.pdf). A Hungarian-American mathematician, aerospace. engineer and physicist, who as Director of the Guggenheim Aeronautical Laboratory of the California Institute of Technology (GALCIT) founded, with other colleagues, the Jet Propulsion Laboratory (JPL), which is now a federally funded research and development centre managed and operated by CALTECH under a contract from NASA. He was a good friend of Spain and a regular visitor to the country from 1947 (See Millán Barbany, G., “Von Karman y la investigación aeronáutica española”, Ingeniería Aeronáutica y Astronáutica, n. 60, 1961, pp. 15-17, http://oa.upm.es/2081/1/MILLAN_ART_1961_01.pdf). Dorado, J.M., Bautista, M., Sanz-Aránguez, P. Spain in Space. A short history of Spanish activity in the space sector, History Study Reports (HSR), n. 26, August 2002, ESA Publications Division, pp. 3-7 (www.esa.int/esapub/hsr/HSR_26.pdf). See Vázquez Velasco, M., “De El Arenosillo al CEDEA”, INTA, Catálogo de Publicaciones Oficiales, 2010 (www.inta.es/noticias/documentos/ARENOSILLOCEDEA.pdf). Until 1950, when the US supported a United Nations (UN) resolution lifting the boycott on Franco’s regime and in 1951 resumed full diplomatic relations with Spain. Moreover, Spain became a member of UN on 14 December 1955 (www.spainun. org/en/spain-at-the-un/history/). Dorado, J.M., Bautista, M., Sanz-Aránguez, P., op. cit. p. 9.

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theless, in 1960, admission to any European Organization was a highly attractive political proposition and COPERS12 was an unique opportunity. That is why Spain became a member of COPERS, whose main objective was to prepare the way to a more established European Space Organization, signing the so-called Meryin Agreement, after a very intense diplomatic pressure.13 Notwithstanding this political success, it was not possible to avoid another domestic debate between those who argued that the high cost of space development and the purely scientific nature of the investigations appear to exclude nations with a weak economy and limited scientific and technical resources, as the economic sacrifice involved does not appear to be offset by the results that may be expected; and those who justified Spanish membership on practical grounds, i.e., the President of CONIE:14 “in the scientific revolution that is taking place in the present world, where progress is so rapid that no-one can afford to remain on the side-lines as a passive spectator, a choice must be made, either to share in this progress or be condemned irrevocably to underdevelopment”.15 Later on, the Western European nations decided to have two different agencies: ESRO,16 – that emerged from COPERS-, and ELDO,17 whose aim was to

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Commission Préparatoire Européenne de Recherche Spatiale / European Preparation Commission for Space Research. COPERS was created by the International Conference of Space Research hold at Meyrin – near Geneva – (Switzerland) from 28 November to 1 December 1960. The Meryin Agreement was signed by 11 countries – Austria, the twelfth State, did it some months later –, and came into force on 27 February 1961. COPERS gave back its duties in 1964. See the Historical Archives of the European Union, European University Institute (http://archives.eui.eu/en/fonds/95303 ?item=COPERS). José Manuel Aniel-Quiroga, the Minister Plenipotentiary at Spain's Permanent Delegation to the International Organisations in Geneva, found out that Spain could be invited as an observer to the Meyrin meeting, if the Spanish Embassy in Bern asked it by a simple note verbale. The Political Department of the Swiss Government's General Directorate of International Organizations granted the status of observer sending the invitation to the Spanish Ambassador. Some countries raised objections of a legal nature “primarily because it could set a precedent, which could be used by other countries whose presence is not desired”; however, as a result of the Delegation's good work, Spain was finally accepted as a member and signed the agreement (See for more details, Dorado, J.M., Bautista, M., Sanz-Aránguez, P., op. cit. p. 9). The Comisión Nacional de Investigación del Espacio (National Commission for Space Research), created by Spanish Government, within the framework of Air Ministry (Air Force), by Act 47/1963, 08.07.193 (BOE n. 164, 10.07.1963). Under that Act, INTA became the Technological Centre of CONIE. Dorado, J.M., Bautista, M., Sanz-Aránguez, P., op. cit. p. 9. European Space Research Organization, created by the Convention signed on 14 June 1962 and came into force on 20 March 1964. See the Historical Archives of the European Union, European University Institute (http://archives.eui.eu/en/fonds/139034?item=ESRO); Krige, J., Russo, A., (with contributions of De María, M. & Sebesta, L.), A history of the European Space Agency,

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

develop a launch system and whose structure was defined in parallel negotiations between a smaller group of governments and which included a nonEuropean country, Australia, among its Member States.18 Spain, facing the same dilemma referred supra, joined ESRO in 1962,19 because political considerations prevailed, but did not join ELDO, as, in this case, economic considerations prevailed since the first moment.20

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1958-1987, (Vol. I – The story of ESRO and ELDO, 1958-1973), ESA Publications Division, 2000 (www.esa.int/esapub/sp/sp1235/sp1235v1web.pdf). European Launch Development Organization, created by the Convention signed on 29 March 1962 and entered into force on 29 February 1964. See the Historical Archives of the European Union, European University Institute (http://archives.eui.eu/en/fonds/105683?item=ELDO.C-01.05); Krige, J., Russo, A., (with contributions of De María, M. & Sebesta, L.), op. cit. www.esa.int/About_Us/Welcome_to_ESA/ESA_history/History_Meyrin_ conference_1960. Spain signed the Convention on 14 June 1962 and ratified it on 19 December 1963 (BOE n. 178, 27.07.1965). Spain was to contribute 2.54% to the ELDO budget, – due to the exception made for countries with per capita income below US$ 300 (Spain and Austria) –; however, it increased to 2.66% when Austria and Norway failed to sign the Convention. In 1967, a huge accumulated debt to ESRO, the poor industrial return, and the payment crisis (because of the devaluation of the Spanish peseta and the reduction of the public spending) made the Spanish government to consider seriously to withdraw from ESRO; finally, an agreement was reached and by 1973, the return coefficient was 97%; See Dorado, J.M., Bautista, M., SanzAránguez, P., op. cit. p. 11; Madders, K., A New Force at a New Frontier (Europe's Development in the Space Field in the Light of its Main Actors, Policies and Activities from its Beginnings up to the Present), Cambridge University Press. 2006. “Powerful drivers existed for Spain joining the new European space organization but reasons also existed for not joining it [...] These mentioned drivers were in the first place of political nature; we should remember that the initiative to attend the Meyrin Conference came from Foreign Affairs Ministry. Spain was very much interested in approaching the European countries as a means to strengthen its possibilities of becoming a member of the European Economic Community. In the second place, there was a very positive experience from the relation with NASA in both political and economical aspects (NASA was starting to spend an important amount of money in Spain every year and employing an increasing number of INTA people. In the third place, there were other mixed interests (technology for military applications, NASA recommendations to INTA to participate in the European space effort, a much needed place for INTA in a new scenario, public image of the regime, etc.). In the opposite side, there were reasons such as the reluctance of the Finance Ministry to invest in an activity of uncertain interest, the pressure to devote money to other scientific areas, and the low capacity and interest of Spanish industry and science so as to justify the economical soundness of this investment”, Dorado Gutiérrez, J.M. “The first Spanish space programme (1968-1974)”, Acta Astronautica, 61(2007), p. 538.

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In 1975, ESA21 was created by agreement signed on 30 May by 10 European States, – including Spain –22 and came into force on 30 October 1980. Up to now, Spain has maintained its membership within mutually satisfactory limits,23 benefiting the Spanish industry and science, through its participation in mandatory activities and optional programmes, concerning transport vehicles, communications platforms, observation platforms and earth observation.24 Spain became a member of COPUOS in 1980 with the UNGA Resolution 35/16, when the General Assembly decided to increase the membership in COPUOS from 47 to 53,25 although Spain rotated seats every three years with Portugal until 1994, when the General Assembly decided to expand the membership from 53 to 61.26 Finally, Spain became party of ITSO (1973),27 IMSO (1979),28 EUTELSAT (1985),29 EUMESAT (1986)30 and ITU (1996)31 and as a State member of the European Union, since 1986, it has to comply with the TEU and TFEU.32

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European Space Agency. See Krige, J., Russo, A., Sebesta, L., A history of the European Space Agency, 1958-1987, (Vol. II – The story of ESA, 1973-1987), ESA Publications Division, 2000 (www.esa.int/esapub/sp/sp1235/sp1235v2web.pdf). Spain ratified the ESA Convention on 15 January 1979 (BOE, n. 11, 13.01.1981). Dorado, J.M., Bautista, M., Sanz-Aránguez, P., op. cit. p. 11. Spain has traditionally stood among the five or six highest contributors to the ESA, with a contribution between 5% or 7% of the total funding allocated to optional programmes; at the last Ministerial Council of the ESA, December 2014, the Spanish Delegation (SG Industry and SMEs/CDTI) announced an investment of 344.5M € (www.lamoncloa.gob.es /lang/en/gobierno/news/Paginas/2014/20141202-eu-space-agency.aspx). See www.esa.int/esl/ESA_in_your_country/Spain. For more detailed information about the collaboration between ESA and Spain, See, inter alia, Claros Guerra, V., León Serrano, R., “Historia de la Estación de Seguimiento de Satélites de Villafranca del Castillo “VILSPA” (1975-2009), INTA-INSA, 2011. UNGA Res. 35/16, 03.10.1980, Enlargement of the Committee on the Peaceful Uses of Outer Space. The General Assembly decided to increase, first, from 47 to 48, at the request of China for admission as formal member (it began to take part of COPUOS as an observer in 1980), and, then, from 48 to 53, due to the fact that other States had also expressed interest: Greece (to fill the vacancy caused by the withdrawal of Turkey – member since 1977 – given that both States rotated seats every three years until 1994-), Spain (for the regional group “Western Europe and other”, Syrian Arab Republic, Burkina Faso (Upper Volta, at that time), Uruguay and Viet Nam. UNGA Res. 49/33, 09.12.1994. See the membership evolution of COPUOS at www.unoosa.org/oosa/en/ourwork/copuos/members/evolution.html. International Telecommunications Satellite Organization. Spain signed the Agreement on 20 August 1971 and ratified it on 16 November 1972 – instrument deposited on 30.11.1972 – (BOE n. 66, 17.03.1973). See www.itso.int/. International Mobile Satellite Organization (at that time, International Maritime Satellite Organization – INMARSAT-). Spain signed the 1976 Agreement on 30 January 1978 and ratified it on 16 August 1978 – instrument deposited on 05.09.1978 – (BOE n. 189, 08.08.1979). See www.imso.org/public. Spain signed the 1982 Agreement on 24 November 1983 and ratified it on 9 January 1985 – instrument deposited on 31.01.1985 – (BOE n. 235, 01.10.1985).

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

It is necessary to complete this brief history of Spain and the space sector with a reference to the Corpus Iuris Spatialis. Spain is a Party to four of the five Treaties:33 the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space (1969);34 the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (2001);35 the 1972 Convention On International Liability for Damage Caused by Space Objects (1980);36 and the 1974 Convention on Registration of Objects Launched into Outer Space (1979).37 With respect to the General Assembly Resolutions relating to outer space activities, most of them have been adopted by consensus,38 however, when there was a vote concerning the 1982 Principles Governing the Use by

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Spain signed the Agreement on 24 May 1983 and ratified it on 22 January 1985 – instrument deposited on 4 February 1985 – (BOE n. 225, 19.09.1986). Spain signed the Agreement on 22 December 1992 and ratified it on 28 March 1996 – instrument deposited on 15 April 1996 – (BOE n. 130, 29.05.1996). See www.itu.int/. Treaty on the European Unión and Treaty on the Functioning of the European Union (consolidated version), OJ 326, 26.10.2012. See Muñoz Rodríguez, M.C., “El Tratado de Lisboa: la acentuación de los límites estatales a la política espacial europea”, in El Tratado de Lisboa: la salida de la crisis constitucional (coord. J. Martín y Pérez de Nanclares), Asociación de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI) – IUSTEL, 2008, pp. 309-317. Spain did not sign the 1979 Agreement Governing the Activities of the States on the Moon and Other Celestial Bodies and, until now, has not acceded to it. This Agreement came into force on 11 July 1984 and, so far, has 16 Parties. Spain acceded to the 1967 Treaty by instrument deposited on 27 November 1968 (BOE n. 30, 04.02.1969). Spain acceded to the 1968 Agreement on 23 January 2001 by instrument deposited on 26 February 2001 in London, Moscow and Washington (BOE n. 137, 08.06.2001). Spain signed the Convention on 29 March 1972 and ratified it on 6 December 1979 by instrument deposited on 2 January 1980 (BOE n. 106, 02.05.1980). Spain acceded to the 1975 Convention on 4 December 1978 by instrument deposited on 20 December 1978 (BOE n. 25, 29.01.1979). UNGA Resolution 41/65, 03.12.1986, Principles relating to remote sensing of the Earth from outer space; UNGA Resolution 47/68, 14.12.1992, Principles Relevant to the Use of Nuclear Power Sources in Outer Space; UNGA Resolution 51/122, 13.12.1996, Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, taking into particular account the Needs of Developing Countries; UNGA Resolution 59/115, 10.12.2004, Application of the concept of the “launching State”; UNGA Resolution 62/101, 17.12.2007, Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects; UNGA Resolution 62/217, 22.12.2007, International cooperation in the peaceful uses of outer space (Space Debris Mitigation Guidelines developed by the COPUOS); UNGA Resolution 68/74, 11.12.2013, Recommendations on national legislation relevant to the peaceful exploration and use of outer space.

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States of Artificial Earth Satellites for International Direct Television Broadcasting, Spain has voted against.39 At last, but not least, concerning the space industry, there has been an spectacular progress over the last 20 years (around twenty companies employ about 3,500 people – high-qualified jobs, 2014 – and invoice 740 M €),40 in which the Spanish space industry has moved from playing a secondary role in the value chain to one of leadership in complete systems. Besides the capacity to lead complete space systems, there is a raft of independent medium-sized companies that have developed important technologies and components that are now used successfully in both the commercial and institutional markets.41 III.

A National Space Legislation?

The issue of national space legislation has, during the past two decades, become a relevant topic. It has been stated that the reason was the governmental character of space activities for the first thirty to forty years of spacefaring, and, even though commercial activities were established quite early, the privatization of space activities dates only from the past two decades.42 Spain, despite this long and intense space history, is one of a number of relevant spacefaring nations like Italy, Germany, Canada, China or India, which have not yet enacted a comprehensive national space law, but have started to regulate certain aspects of the conducts of space activities.43 According to Spain’s answer to Working Group on National Legislation Relevant to the Peaceful Exploration and Use of Outer Space, the 1975 Registration Convention is the only space treaty – in which Spain is a Party – that clearly requires domestic implementing legislation;44 that is why the national register of space

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UNGA Resolution 37/92, 10.12.1982. 107 States voted for, 13 voted against (including Spain) and 13 abstained. http://marcaespana.es/en/news/society/sector-growth. www.lamoncloa.gob.es/lang/en/gobierno/news/Paginas/2014/20141202-eu-spaceagency.aspx. Sánchez-Aranzamendi, M., Economic and Policy Aspects of Space Regulations in Europe. Part 1: The Case of National Space Legislation – Finding the Way Between Common and Coordinated Action, ESPI Report 21, 2009, p. 8. Marboe, I., “National Space Law”, in von der Dunk, Tronchetti, F. Handbook of Space Law, Edwar Elgar Publishing, 2015, pp. 171-176. Dempsey, P.S., “National Laws Governing Commercial Space Activities: Legislation, Regulation and Enforcement”, Northwestern Journal of International Law & Business, 1(2016, pp. 1-44). The document says that Spain itself has not launched any space objects, but it has procured the launch of a series of space objects. In fact, before the Registration Convention, the first Spanish technological Satellite – INTASAT – was successfully launched on 15 November 1974, through the collaboration INTA-NASA (NASA contributed with the free launch as a secondary payload on board the Delta vehicle used to launch the ITOS-G weather satellite); however, after the accession to the Registration Convention and before the establishment of the National Register, Spain

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

objects was established by the Royal Decree 278/1995,45 that is maintained by the General Directorate for International Economic Affairs of the Ministry of Foreign Affairs and Cooperation and it covers satellites launched from Spanish territory and satellites whose launch has been procured by Spain. It does not include control measures or sanctions. As stated above, although there are legal and institutional developments,46 debate has begun in Spain on “the need to legislate and on the advisability of drafting national space legislation with a view to enabling Spain to discharge its international obligations more effectively and also because of the growing presence of private space operators in the country”.47 Since 2014, “the most significant development is the existence of a draft bill regulating private space activities”.48 Although the draft is not yet publicly available,49 it is possible to know some details in press news. The Spanish Ministry of Public Works is responsible for the initiative, but also other Ministries are concerned (Defence, Treasury & Public Administration Services, Industry, Energy &

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procured the launch of two telecommunications satellites: Hispasat 1-A (10.09.1992) and 1-B (22.07.1993) and one scientific and communication satellite UPMSAT 1(07.07.1995); See www.unoosa.org/oosa/osoindex/. Royal Decree 278/1995, 24th February (BOE n. 58, 09.03.1995). Minisat 01 was the first Spanish satellite to be launched on 21 April 1997 and registered on 8 July 1997: See the Note verbale dated 9 October 1997 from the Permanent Mission of Spain to the UN (Vienna) addressed to the Secretary-General (www.unoosa.org/documents /pdf/ser326E.pdf) and Gutiérrez Espada, C., “Los grandes retos del Derecho del Espacio Ultraterrestre (aprovechando el lanzamiento del Minisat 01)”, Anuario de Derecho Internacional de la Universidad de Navarra, XIII (1997), pp. 177-212. See for more details, Faramiñán Gilbert, J.M. de, “Análisis jurídico sobre el concepto de objeto aeroespacial (desde la legislación y la doctrina española)”, Revista Española de Derecho Internacional, vol. XLIX, n. 1, 1997, pp. 333-341. National Law related to space activities (Act 9/2014, of 9 May, Telecommunications, Act 37/1995, of 12 December, Satellite Communications, modified by Act 7/2010, of 31 March [...]; it should be added the Autonomous Community Law, i.e. Catalonian Act 14/2009, of 22 July, Airports, Heliports and other airport infrastructures.); national institutional developments (INTA, CDTI [...]); the international treaties on outer space ratified/acceded by Spain (besides mentioned treaties, ISS Agreements, NASA Agreements, TEU and TFEU 2007; and participation in international organizations involved in space cooperation. Spain recognizes that “the discussions were initiated in the light of article VI 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, following the launch, on 29 July 2009, of the first Spanish artificial satellite financed entirely with private capital, the Deimos-1 Earth observation satellite” (Information on national legislation relevant to the peaceful exploration and use of outer space, doc. cit., p. 4). See Moro-Aguilar, R., “National Regulation of Private Suborbital Flights: A Fresh View”, 10 FIU Law Review (2015), p. 706. As no official project has been presented to Las Cortes (the Spanish Congress and Senate) and given that the political results of the national elections held on 20 December 2015, the project's success cannot be ensured with the next government.

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Tourism, Economic Affairs & Competitiveness and Agriculture, Food & Environmental Affairs). The draft Preamble declares that the aim of this law is to regulate and to promote the private space activities,50 including the private manned suborbital flights.51 From another point of view, Spain has to take into account the international and the European frameworks. Therefore, it would be useful to follow the recommendations of the General Assembly52 on national legislation relevant to the peaceful exploration and use of outer space, based, otherwise, in the UN space treaties. It is also necessary to consider all the possibilities arising from the application of 2007 TEU and TFEU. As it is stated, “there is need (whether it happens at a supranational level or at intergovernmental level), for a referential legal framework that brings together space laws in Europe in a way that supports a three-fold aim: it must be able to support the contribution of commercial space activities to the “Growth and Jobs” strategy, it must be able to provide a strong position of European Space Operators in the global context by facilitating competitiveness of the European space sector and it must be able to provide a level playing field with regards to international operators”;53 nevertheless, the way to create such a legal framework is not easy given the gaps and differences among EU Member54 States and the limitations of the space competence in the light of article 189 TFEU.

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General Miguel Ángel Martín Pérez has explained that the draft bill is also interesting to other States, like the US, because the foreign governments and industries would like to invest in the infrastructure that already exists in Spain to project a future spaceport (Infoespacial.com, 25.03.2014). Moro-Aguilar, op. cit., p. 706. He explains that the draft includes a domestic regulation of private manned suborbital flights, which basically follows the model put in place by the U.S. CSLAA, and that Officials of the Spanish Ministry have been in contact with the U.S. FAA in order to gain advice and collaborate with their U.S. counterparts. UNGA Resolution 68/74, 11.12.2013, Recommendations on national legislation relevant to the peaceful exploration and use of outer space. The text focuses on the launch of objects and their return; the authorization and supervision over space activities carries out in State's territory or elsewhere by its citizens/legal persons under its jurisdiction/control; the national space authority for licensing/authorisation; the conditions for authorisation consistent with the international obligations; the goal of activities carried out in a safe manner for persons, environment or property; the continuing supervision and monitoring of authorized space activities, also in the event of the transfer of ownership (control or a space object in orbit; the national registry of space objects; the seeking of recourses if damages occur, including from operators and owners of space objects. Sánchez-Aranzamendi, M., Economic and Policy Aspects of Space Regulations in Europe. Part 1: The Case of National Space Legislation – Finding the Way Between Common and Coordinated Action, op. cit., p. 42. See, inter alia, Hobe, S. Schmidt-Tedd, B., Schrogl, K.-U. (eds.), Proceedings of the Workshop: Towards a Harmonized Approach for National Space Legislation in Europe, Project 2001 Plus – Global and European Challenges for Air and Space Law at

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

IV.

A National Space Agency?

In Spain, no national space agency exists as such. Public space activities and space applications are conducted through different governmental entities, which report to different Ministries, inter alia: DGAM55 and INTA56 (Ministry of Defence), CDTI57 (Ministry of Economic Affairs & Competitiveness), Secretary General for Industry & SME (Ministry of Industry, Energy & Tourism), AENA58 (Ministry of Public Works) and AEMET59 (Ministry of Agriculture, Food & Environmental Affairs). Nonetheless, as it is well known, the main entities are: INTA and CDTI.60 INTA is, nowadays, a Public Research Organization61 specialized in aerospace research and technology development attached to the Minister of Defence. Its main functions are: acquisition, maintenance and continuous improvement of all those technologies that can be applied to the aerospace field; performing all types of tests to check, approve and certify materials, components equipment items, subsystems and systems that have an aerospace application; provide technical assessment and services to official bodies and agencies, and also to industrial or technological companies; and act as a technological centre for the Ministry of Defence.62

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the Edge of the 21st Century, Institute of Air and Space Law & German and Aerospace Center, 2004; von der Dunk, F., Private Enterprise and Public Interest in the European “Spacescape”: Towards a Harmonized National Space Legislation for Private space Activities in Europe, Leiden, 1998 and National Space Legislation in Europe: Issues of Authorization in Private Space Activities in the Light of Developments in European Space Cooperation, Martinus Nijhoff, 2011. Dirección General de Armamento (Directorate General of Armament and Material). In December 2015, it presented its “Plan Director de Sistemas Espaciales” (Master Plan for Space Systems) to aid decision-making in the framework of planning, programming and obtaining material resources within different bodies involved in this area (www.defensa.gob.es/Galerias/dgamdocs/plan-director-sistemas-espaciales.pdf). Instituto Nacional de Técnica Aeronáutica (National Institute for Aerospace Technology). Centro para. el Desarrollo Tecnológico e Industrial (Centre for the Development of Industrial Technology). Aeropuertos Españoles y Navegación Aérea (Spanish Airports and Air Navigation). Agencia Estatal de Meteorología (State Meteorological Agency). See Faramiñán Gilbert, J.M., “Spanish Law and the International Space Station”, in von der Dunk, F (ed.), The International Space Station: Commercial Utilization from a European Legal Perspective, Brill, 2006, p. 206. Organismo Público de Investigación (OPI). The last modification of its Statutes is made by Royal Decree 925/2015, of 16 October (BOE n. 249, 17.10.2015), due to an administrative reform aimed at fostering efficiency and competitiveness for a sustained economic recovery (CORA Plan). www.inta.es/quienessomos.aspx.

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CDTI is a Public Business Entity,63 answering to the Ministry of Economy and Competitiveness. Its main functions are: financial and economictechnical assessment of R&D projects implemented by companies; managing and fostering Spanish participation in international technological cooperation programmes, i.e. in ESA and EUMETSAT; fostering international business technology transfer and support services for technological innovation; and supporting the setting up and consolidating technological companies.64 In 2015, Mrs. Cristeto-Blasco, the Secretary General for Industry & SME (Ministry of Industry, Energy & Tourism) has announced that the Government is working on a future Spanish Space Agency.65 Actually, the so-called “Inter-ministerial Commission of Space”, has been created on 15 January 2015, among Ministry of Defence (DGAM and INTA), Ministry of Treasury & Public Administration Services, Ministry of Public Works (Secretary General for Transportation), Ministry of Industry, Energy & Tourism (Secretary General for Industry & SME), Ministry of Economic Affairs & Competitiveness (Secretary General of Science, Technology & Innovation and CDTI) and Ministry of Agriculture, Food & Environmental Affairs (AEMET), to coordinate and to follow-up the industrial and technological aspects of the national space policy, is an unique opportunity to deal with the future of space activities in Spain.66 The Secretary has explained that, from a technological and industrial perspective, and in order to keep the 5th investment position in the European space sector, it is necessary to maintain an effective coordination among governmental bodies, companies and technological centers, avoiding duplications and optimizing the investments results. The work of this Inter-ministerial Commission is going on, but it has not published any conclusion, even provisional. Some information related arise from public declarations by members of the Government; for example, concerning the name and the legal nature, it could be an agency, a national commission or a directorate general; regarding its main missions, it has been said that it will prepare the national space plan and strategy to be achieved by 2020.67 No more details about structure, resources, budget are known.

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64 65 66 67

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Royal Decree 1406/1986, of 6 June (BOE nº 162, 08.07.1986, last modification: Royal Decree 345/ 2012, of 10 February (BOE n. 36, 11.02.2012) and Act 14/2011, of I June, Science, Technology & Innovation (BOE n. 131, 02.2011). https://www.cdti.es/index.asp?MP=14&MS=59&MN=1. Infoespacial.com, 15.06.2015 (www.infoespacial.com/es/2015/06/15/noticia-espanatendra-su-propia-agencia-espacial.html). “Plan Director de Sistemas Espaciales” (Master Plan for Space Systems), doc. cit., p. 27. Interview with Mrs. Cristeto-Blasco (TEDAE, 28.10.2015) www.tedae.org/es/noticias/entrevista-begona-cristeto-secretaria-general-de-industriay-de-la-pequena-y-mediana-empresa.

SPAIN: TOWARDS A NATIONAL SPACE LEGISLATION AND A SPANISH SPACE AGENCY?

It has opened an increasing public debate about the creation of a Spanish Space Agency. TEDAE68 has shown a positive reaction, based on the necessity of “one voice, one strategy”,69 and it would prefer a kind of governmental agency, based in the reorganization of the existing resources and, just in case of necessity, in exceptional new resources, due to the economical and financial crisis. It should suit for Spain’s needs (it should not be as big as NASA or CNES) and the UK Space Agency could be a desirable model. V.

Conclusion

Spain, despite this long and intense space history, has, up-to-date, two goals to achieve: on the one side, to enact a comprehensive national space legislation, which should rule, at least, the main aspects about space activities, according to our international and European obligations; on the other side, to create a space agency, which should play a role as the main coordinator for strategic decisions in our (civil) space programme and to provide a single voice for Spanish space objectives and interests. However, due to the political changes happened after the national elections held on 20 December 2015, one question arises: will the new government ensure the success of both projects? If these doubts disappear and if these objectives are achieved, Spain, hosting for the ESA Ministerial Council scheduled for 2019, will have a great and unique opportunity to show greater coherence and visibility as a space power and to raise international and national awareness as to the legal-institutional and technological-industrial capabilities in the Spanish space sector.70

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Asociación Española de Empresas Tecnológicas de Defensa, Aeronáutica y Espacio (Spanish Association of Technology Industries). www.tedae.org/es/noticias/quien-gobierna-el-espacio. Additionally, the 2019 ESA Ministerial Council will coincide with EU preparations for the next financial plans 2021-2027, which are expected to include a sizeable heading on space activities equal to or greater than the current heading in this regard.

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Small But on the Radar The Regulatory Evolution of Small Satellites in the Netherlands Neta Palkovitz and Tanja Masson-Zwaan*

Abstract In 2012 the authors presented a paper that explained the regulatory situation with respect to nano-satellites, in selected national laws of European states (IAC-12-E7.5.8, ‘Orbiting under the Radar: Nano-Satellites, International Obligations and National Space Laws’). The examples showed a practice which excluded nano-satellites activities from the scope of certain national laws, leaving these satellites to orbit ‘under the regulatory radar’. Since then, the nano-satellite market, and more generally the market for small satellites has grown rapidly with hundreds of small satellites already launched, and many planned missions in the near future. Further, more and more entities are aiming to launch small satellite networks or constellations, which indicates that these satellites will be around to stay. One state that excluded small satellite activities from being licensed under its national space law was The Netherlands. With time, and as small satellite activities became a Dutch reality, the Government had to consider a solution to enable it to authorize and supervise these space activities, in line with Article VI of the Outer Space Treaty. In this paper the authors, whose background allows them to provide both industry and academic viewpoints, will present the regulatory evolution that started with the mentioned exclusion, progressed towards an ad hoc authorization process in 2013, and finally, resulted in a recent Decree extending the scope of the Dutch Space Activities Act (2007) to ‘unguided satellites’ as of 1 July 2015. The paper will present and analyze the Decree and its Explanatory Note and will discuss its implications for the key stakeholders. It will conclude with some indications regarding the expected consequences of this new regulatory situation.

I.

Introduction

In 2012 the authors presented a paper elaborating on the lack of regulatory instruments related to small satellites activities in The Netherlands.1 Since

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Neta Palkovitz, PhD candidate, International Institute of Air and Space Law, Leiden University, The Netherlands, ISIS – Innovative Solutions In Space B.V., The Netherlands, [email protected]. Tanja Masson-Zwaan, International Institute of Air and Space Law, Leiden University, The Netherlands, [email protected].

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then, small satellites activities increased in The Netherlands, which gave reason for the legislator to seek further regulation of these activities. This paper describes and analyses the regulatory evolution, which recently took shape in a new regulatory measure. Both authors were involved in the regulatory process, one representing the industry, and the other advising the Dutch government. Therefore, this paper includes two different and informed perspectives relating to the mentioned recent developments. This paper aims to provide information and background about this process to the international community, because other states may face the challenge of a fast-growing private space industry operating in their jurisdiction that must be authorized and supervised in order to comply with the state’s obligations under Article VI of the 1967 Outer Space Treaty.2 Sharing experience and know-how is useful on the one hand to avoid ‘reinventing the wheel’ at considerable effort and cost, and on the other hand it may help promote harmony in regulation across states. This may help establish legal certainty for ‘new space’ entrepreneurs, although the authors of course recognise that different circumstances may require different solutions. Likewise, the efforts of UNCOPUOS, which led to the adoption of the 2013 UN resolution on recommendations on national space legislation3 were inspired by ‘the need for consistency and predictability with regard to the authorization and supervision of space activities’, while it was also recognized that different approaches may be taken by states in dealing with various aspects of national space activities. II.

Recent Market Developments

In the early years, small satellites were mostly used by educational institutions such as universities and research centres. The satellites were launched individually, meaning each operator launched mostly one satellite per mission, and the mission itself was not commercial per se.4

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Neta Palkovitz and Tanja Masson-Zwaan, ‘Orbiting under the Radar: NanoSatellites, International Obligations and National Space Laws’ in IISL Proceedings of the 55th Colloquium on the Law of Outer Space (Eleven International Publishing 2013) 566. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, done 27 January 1967, entered into force 10 October 1967, 610 UNTS 205, 6 ILM 386 (1967), (hereinafter: Outer Space Treaty). A/RES/68/74 of 11 Dec. 2013, ‘Recommendations on national legislation relevant to the peaceful exploration and use of outer space’. Some missions would have a commercial potential such as in the case of technology demonstrations of a certain system, using a small satellite as the platform.

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Nowadays, there are several commercial operators that operate a constellation of small satellites, in order to maximize the platform’s potential uses. For example, Planet Labs is a U.S. based private company, which provides image data using a constellation of over 100 small satellites.5 This is the largest satellites imagery constellation ever launched into orbit, and according to its vision, by 2016 the company will have enough small satellites in orbit to cover the entire Earth every day.6 In this case the use of small satellites technology allows for better imagery coverage of Earth, since the cost per satellite is lower than of traditional satellites. Another example of the new generation of small satellites commercial uses is OneWeb.7 This company plans to build and operate a constellation of approximately 700 satellites of less than 200 kg in LEO, to provide global internet broadband service to hundreds of millions of users in remote areas as from 2019. Arianespace and Virgin Galactic have been contracted to launch several satellites, while Airbus Defense and Space will build some of the satellites.8 These two examples show that the recent developments in the small satellites market is twofold, the satellites missions and applications are increasingly more commercial than in past years, and accordingly this implies in many cases that more than one satellite will be used in order to provide a certain service to customers. III.

Small Satellites in the Netherlands

III.1.

Small Satellites Activities in the Netherlands

The first Dutch small satellite that was launched to outer space was Delfi-C3, a 3U CubeSat. It was launched in 2008 as part of a student project at the Delft University of Technology (hereinafter: ‘TU Delft’).9 The students who worked on the project founded a private company as a spin-off, ISIS – Innovative Solutions In Space B.V. (hereinafter: ‘ISIS’). ISIS’ small satellite activities are presented below. In 2013 TU Delft launched another 3U CubeSat named Delfi-n3Xt, which was built by a new group of students.10

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9

10

See https://www.planet.com/data/. Ibid. http://oneweb.world. See for instance http://spacenews.com/airbus-wins-oneweb-contract/. Interestingly, Oneweb wishes to reassure the public about the company’s trustworthiness: ‘We intend to be a very good steward of space. Deorbiting the satellites was a big driver in our design considerations. We do not intend to create a lot of junk’, Brian Holz, OneWeb space systems director, ibid. www.tudelft.nl/en/current/dossiers/archive/delfi-c3/ See also for more details: www.delfispace.nl/delfi-c3 and: www.lr.tudelft.nl/en/organisation/departments/spaceengineering/space-systems-engineering/projects/delfi-c3-project-page/. www.delfispace.nl/delfi-n3xt.

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TU Delft plans to launch the DelFFi mission,11 as part of the QB50 mission.12 This means that The Netherlands will be represented in this international project, which aims to launch about 50 CubeSats, by participating with two 3U CubeSats. In addition to the Delfi small satellite program, TU Delft participates in the ambitious OLFAR mission, which aims to create a constellation of small satellites in orbit around the Moon for astronomy research.13 In summary, the TU Delft small satellites missions are educational and scientific. The second Dutch entity to launch a small satellite is ISIS, a private company specializing in small satellites systems, launches and applications. ISIS’ first satellite, a 3U CubeSat named Triton-1, was launched in 2013 together with the Delfi-n3Xt and FUNcube-1 (see below). Triton-1 is the first element of a planned small satellite constellation, which will monitor vessels’ traffic using AIS technology.14 This mission aims to demonstrate the mentioned technology, and has a commercial potential. The third Dutch entity that launched a small satellite is AMSAT-NL, a nonprofit organization linked to the international AMSAT network of radio amateurs.15 It launched FUNcube-1, a 1U CubeSat. The satellite’s mission is to ‘educate young people about radio, space, physics and electronics’.16 Other Dutch Universities and research organizations are taking their first steps in experimenting with small satellites technology, although no firm launches are planned so far. However, this indicates that the volume of small satellites activities in The Netherlands will increase in the years to come. III.2.

Regulatory Framework and Gap

The Netherlands Space Activities Act, in force since 1 January 2008, establishes a licensing system for private space operators, including necessary requirements such as insurance and regulation of liability issues.17 The Dutch Act applies to the ‘launch’ of objects from The Netherlands or from a Dutch ship or plane, and to ‘flight operation’ and ‘guidance of space objects in outer space’.18 This implies that space objects that are launched from abroad and

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www.delfispace.nl/delffi. https://www.qb50.eu/. www.delfispace.nl/advanced-concepts/olfar-mission. www.isispace.nl/cms/index.php/projects/triton-missions. www.amsat-nl.org/. http://funcube.org.uk/. Law Incorporating Rules Concerning Space Activities and the Establishment of a Registry of Space Objects, 24 January 2007, 80 Staatsblad (2007), Space Activities Act. An English translation is available at: www.oosa.unvienna.org/oosa/en/SpaceLaw/national/state-index.html. The latter two terms are defined as follows in the Explanatory Note: The term ‘flight operation’ is understood to mean the navigation, tracking and control of a space object during the flight phase, i.e. the phase between the launch of the space object and

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are neither operated nor guided from The Netherlands do not fall under the law, and hence do not require a license. So far, small satellites are generally not ‘manoeuvrable’. The narrow interpretation of the Dutch Space Activities Act, defining space activities restrictively as covering only a ‘launch’ from The Netherlands or a Dutch ship or plane, ‘flight operation’ and ‘guidance of space objects in outer space’, did not cover small satellites that are not manoeuvrable. This turned out to be a too restrictive interpretation of the UN space treaties, which do not restrain themselves according to whether objects are manoeuvrable or not, or whether they are large or small. As this narrow interpretation was upheld by the Dutch authorities in the first years, small non-manoeuvrable satellites of Dutch private entities were not registered, either in the national part of the Dutch registry or in its UN part. They were not registered in the UN part of the national registry because The Netherlands does not consider itself the launching state of satellites launched by a private entity – whether they are small or large, because it holds the view that space activities can only reasonably be regarded as national activities if it is actually possible to exercise jurisdiction and control over them.19 The satellites could not be entered into the national part of the registry, because they were not ‘launched’, ‘guided’ or ‘operated’ from The Netherlands.20 This situation subsequently changed for two reasons. On the one hand, the technological capabilities of small satellites are developing at a very fast pace, and in the future they will be manoeuvrable and thus will be ‘guided’ and/or ‘operated’ from The Netherlands. That means they will fall under the definition

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20

the time at which it takes up a position in outer space. Such activities can be performed from facilities, bases, earth stations or other control centres established on Dutch territory. This likewise applies with regard to the guidance of space objects in outer space (outer-space activities in the broad sense). This includes all command and control activities in relation to a space object (usually a satellite) – e.g. the execution of major and minor manoeuvres designed to keep a satellite in its position in outer space or to adjust its position/orbit, checking that there is no space debris in the vicinity that might cause problems, and monitoring the fuel level of geostationary satellites, etc., so as to ensure that satellites can be decommissioned when they are no longer in use (by placing them into a ‘decommissioning orbit’ around 200 km higher than the geostationary orbit). See ‘Note Verbale dated 29 July 2003 from the Permanent Mission of the Netherlands to the United Nations (Vienna) addressed to the Secretary-General’, A/AC.105/806 of 22 August 2003; available at: www.unoosa.org/pdf/reports/ac105/AC105_806E.pdf. See for more details on registration of small satellites, Tanja Masson-Zwaan, ‘Registration of small satellites and the case of the Netherlands’, to be published in 2016 as part of a book following up on the conference ‘Small Satellites: Chances and Challenges’, held at the University of Vienna in March 2014, See: http://kalender.univie.ac. at/einzelansicht/?tx_univieevents_pi1%5Bid%5D=9196.

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of space activities and The Netherlands will require them to be licensed to comply with its obligations under Article VI of the Outer Space Treaty. On the other hand, the government decided to prepare an administrative measure, clarifying that in the future, ‘unguided’ satellites will fall under the scope of the law and need to apply for a license. However, in the interim, some adjustments were made to comply with the requirements of launch providers. Ad hoc Adjustments

III.3.

As mentioned in the previous section, three Dutch small satellites were launched in November 2013. At the time, the Dutch Space Activities Act did not apply to these satellites, which means that the three operators were not required to apply for a license under the Act. This situation was somewhat problematic for the following reasons: first, while the domestic Act did not include small satellites activities under its scope, the UN treaties would nonetheless apply since small satellites activities are a ‘space activity’ in the meaning of Article VI of the Outer Space Treaty, and are ‘space objects’ in the meaning of Articles VII and VIII and consequently the Liability and Registration Conventions.21 This means that although The Netherlands did not accept its status as a ‘launching state’ as mentioned above, it was still internationally responsible for these activities. Secondly, there was a need to register the satellites at least in a national registry. Small satellites are launched as auxiliary payloads and usually when launched on board of a foreign launch vehicle, the launch service provider will require that the operator will register its satellite in its state of nationality, even if this practice does not necessarily correspond to the concepts in the Liability and Registration Conventions.22 This meant that in order to execute their launch, the satellites would have to be registered in the Dutch national registry of space objects, even if the Dutch Space Act did not apply. For these reasons it was crucial to find a legal arrangement to solve the described discrepancies. As there was not enough time to issue a Decree before the launch, an ad hoc solution was found. The three operators obtained a blanket third party liability insurance policy for their small satellites, covering

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Convention on International Liability for Damage Caused by Space Objects, done 29 March 1972, entered into force 1 September 1972, 961 UNTS 187, 10 ILM 965 (1971), (hereinafter: Liability Convention); Convention on Registration of Objects Launched into Outer Space, done 14 January 1975, entered into force 15 September 1976, 1023 UNTS 15, 14 ILM 43 (1975), (hereinafter: Registration Convention). This is a recommended practice expressed in: A/RES/62/101 of 17 Dec. 2007, ‘Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects’ See recommendation 3(d): ‘States should encourage launch service providers under their jurisdiction to advise the owner and/or operator of the space object to address the appropriate States on the registration of that space object’.

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them for € 20 million. The Kingdom of The Netherlands was named as an additional insured party. With the insurance in place, the Dutch Government approved the launch of the three satellites and agreed to enter them into the national part of the registry, once the new Decree (see below) would be in force and a license obtained. IV.

Regulatory Changes

IV.1.

The ‘Unguided Satellites’ Decree

The Decree extending the application of the Space Activities Act to managing unguided satellites (Decree unguided satellites) was signed by the King on 19 January 2015 and entered into force on 1 July 2015.23 It makes the Dutch Space Act explicitly applicable also to unguided satellite missions. By a broader definition of the concepts of ‘operation’ and ‘guidance’, nonmanoeuvrable or ‘unguided’ small satellites henceforth fall under the scope of application of the Dutch Space Act. The Decree consists of four articles. Article 1 provides that the Space Activities Act also applies to managing an unguided space object in outer space from The Netherlands by means of a communication connection. Article 2 provides that the Decree will not apply for activities that are already taking place and hitherto did not fall under the Act during three months after its entry to force. On top of that, it provides that the Decree will not apply for such activities during nine months after its entry into force if an application for a license is submitted within three months after entry into force of the Decree. Article 3 gives the short title of the instrument, and Article 4 determines that the Decree enters into force on July 1, 2015. IV.2.

The Explanatory Note

A four-page explanatory note is attached to the Decree, the highlights of which are summarized below. In the first section, the purpose and rationale are explained by referring to the growing importance of ‘unguided’ satellites (i.e. whose orbital position cannot be influenced after launch) in The Netherlands. The Decree aims to extend the scope of the Space Activities Act to these satellites. ISIS is recognised as a prominent market player, and educational activities of TU Delft in developing and building unguided satellites are also acknowledged. The government expects these activities to further increase, and cooperation between

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‘Besluit ongeleide satellieten’, 18 Staatsblad (2015), https://zoek.officielebekendmakingen.nl/stb-2015-18.html. The term used is ‘unguided’ satellites, to remain within the terminology of the law; the term ‘small’ is not used even though that seems to have become the term of art internationally. The Decree still has to be notified to the UN for inclusion in its National Space Law Collection, www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html.

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companies and research institutions to intensify. The space sector is seen as ‘enabler’ for other ‘top-sectors’ identified in the policy of the Ministry of Economic Affairs. The government’s space policy 2014-2020 stresses the importance of space to solve social problems, create space infrastructure, and to provide opportunities for Dutch companies and knowledge institutes to export products and services.24 The development of unguided space objects was not foreseen in 2007 when the Dutch Act was adopted, although it does provide the general possibility of extending the scope by means of a Decree.25 Since unguided satellites do not necessarily pose a lower risk than guided satellites, extension was considered necessary; unguided satellites must comply with the same technical requirements as guided ones, and insurance requirements must also apply. The Netherlands bears international responsibility under Article VI of the Outer Space Treaty and must authorise and supervise national activities by non-governmental entities. Since a communication link with these satellites is maintained from Dutch territory, unguided satellites must be authorised and supervised, just like guided satellites. The next section of the Explanatory Note deals more specifically with unguided satellites. It argues that legal clarity will contribute to a favourable and stable climate for private parties, and will help promote innovation; thus, extending the scope of the Act will provide assurance to stakeholders. No manoeuvres can be performed to keep unguided satellites in their orbital position or to manoeuver them. Their limited communication capabilities imply that the current generation of unguided satellites operates mainly independently. An increase in the number of unguided satellite applications from The Netherlands is expected; currently about ten market players are active in this field. In the short-term, three licence applications are expected, and two more in the medium term. There is also a section that addresses the regulatory and administrative burden imposed on private entities by the Decree. As explained earlier, unguided satellites must in principle comply with the same requirements as other space objects. The licensing process was standardized by the Dutch Telecom Agency, and the license application form has been updated to accommodate also unguided satellites. The authorization process for unguided satellites contains no additional information requirements, so the administrative burden is kept to a minimum. The following information must be provided when applying for a license: − Information about the space activities; − Financial and technical data;

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‘Nota Ruimtevaartbeleid 2014-2020’, in Dutch, See: https://www.rijksoverheid.nl /documenten/beleidsnotas/2014/09/11/samenvatting-nota-over-ruimtevaartbeleid2014-2020. See Article 2.2.b.

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− − −

Proof of third party liability insurance; A statement by the International Telecommunication Union (ITU) about the use of frequency rights; and A statement about expertise and experience with space activities.

The application form must be completed only once, because a license is given for the duration of the activity and does not require a new application for each new satellite. The Explanatory Note states that it is estimated that about four hours are needed to fill out the application form. At an hourly rate for a ‘highly skilled knowledge worker’ (€ 60), this means that the estimated administrative burden is € 240. The Decree also brings substantive obligations for the operation of unguided satellites, viz., the obligation to take out liability insurance. The annual premium for liability insurance of $ 20 million is estimated at around 0.1% of the coverage, so will cost around $ 20,000.26 This, the Explanatory Note states, can be considered as ‘operational cost’ because the applicants would also purchase such insurance if this was not a condition to obtain a license. Finally, the Note provides a brief article-by-article explanation. With regard to Article 1, the rationale for the Decree is again explained. Unguided satellites cannot perform manoeuvres to maintain or change their orbital position. As small satellites are mostly launched to LEO, operators of small-unguided satellites do not have to file for orbital slot allocation with the ITU, however, there is a need to coordinate the use of certain radio frequencies (filing rights). In order to obtain those rights, the ITU Radio Regulations require that the transmitter of an unguided satellite can be switched on and off via telecommand, to prevent interference or detect and solve other problems. For this purpose it is necessary to establish a communication link, and if that is managed from The Netherlands, the operation of unguided satellites will from now on fall under the scope of the Dutch Space Activities Act. For Article 2, the rationale for a transition period is explained, as the Act will also apply to unguided satellites that are already in space. Conditions could be imposed on those activities, pursuant to Article 3.3 of the Act. Without transitory provisions, they would become illegal after the entry into force of the Decree because they are not licensed. The first paragraph provides time to prepare and submit an application, while the second paragraph provides additional time for the Telecom Agency to assess the license applications for ongoing activities. Articles 3 and 4, which deal with the short name and entry into force of the Decree, are not addressed in the Explanatory Note. In addition to the Decree, the government also decided to modify the license application form. The form is the same for all applicants, so the modification

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Although the space insurance market is dynamic and thus policy prices may change.

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was not done specifically for ‘unguided’ satellites; rather, the update was considered necessary to clarify certain requirements, for instance in terms of documents to be submitted at the time of application.27 The aim of the government is to facilitate the application process, to assist applicants as much as possible in complying with the requirements, and to limit the requirements to what is realistic and manageable. V.

Assessment, Effects and Consequences

V.1.

Assessment

The passing of this Decree is a good example of flexible regulation. It shows that regulations can and should be adapted to changed circumstances. Although the operation of small or unguided satellites was not foreseen when the Dutch Act was drafted, subsequent practice has shown the large growth of this activity and expected further development of this market, with important market activity taking place in The Netherlands. In order to comply with its Treaty obligations, it became necessary to expand the scope of the national legal framework. The Act itself provides for the possibility to do this by means of an administrative Decree, which is less cumbersome than amending the Act itself. The Decree is brief and clear in content, and was developed in close consultation with the market players. However, certain critical notes can be made. Firstly, in practical terms, the statement measuring the time and effort needed to handle a license application in four hours/€ 240 seems highly unrealistic in practice. Even though the government does its utmost to assist applicants, considerable effort is required to assemble all documents and provide all the required information. The limitation seems to be motivated by a politically driven desire to show restraint in administrative burden, however lacks any realistic justification. Likewise, the Explanatory Note seems to assume that a third party liability insurance coverage of $ 20 million will generally be an acceptable level of insurance for the operation of unguided satellites. However, there is no guarantee that the Minister will indeed uphold this assumption, as the Act entitles him to require what he considers to be the maximum possible cover.28 If the usual coverage imposed on operators of Geostationary satellites (general € 60 million) would be required, operators such as TU Delft, AMSAT-NL and ISIS would not be able to realise their mission as the insurance cost would simply be too high. The further assumption in the Explanatory Note that third party liability insurance would be purchased even without a legal obligation to do

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The new form (in Dutch) can be found at: www.agentschaptelecom.nl/sites/default /files/207_aanvraag_ruimtevaartactiviteiten.pdf. Like the Decree, it has not yet been included in the UN National Space Law Collection. Article 3(4) of the Act.

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so is, to say the least, doubtful. There seems to be confusion between third party liability insurance on the one hand, and asset insurance on the other. Operators of small satellites will not be internationally liable in case of damage, as this liability falls upon to states. Therefore is seems unrealistic to argue that they would take insurance to cover such liability of their own will, hence justifying the expenses for such insurance as normal business expenses. The Decree makes the Dutch Space Act applicable to unguided or small satellites without considering their different characteristics as compared to traditional satellites. This is problematic especially when trying to incorporate space debris mitigation standards29 since many of them do not apply to small satellites as they are launched into LEO, while others are simply not technically feasible, such as making orbital manoeuvers in order to speed-up the satellites’ re-entry process, in line with the ‘25 year rule’. Finally, when aiming to accommodate a new space activity, i.e. small satellites, defining the activity by only one technical characteristic may not be future proof. The choice to define these activities by their lack of manoeuvring abilities is sensible for now, however, small satellites are different from other satellites for many other reasons, and once they will be able to perform orbital manoeuvers, they will be treated exactly the same under the Dutch Space Act. This may raise the need to adjust the Act once more. V.2.

Effects and Consequences

Since the Decree went into force on 1 July 2015, license applications for unguided satellites currently being operated were due by 1 October 2015. Three applications were submitted, viz. by ISIS, TU Delft and AMSAT-NL. In order to facilitate the process, the Telecom Agency had put together an information document to assist the applicants as much as possible. The approach of the Agency is to gather as much information as possible, and to clarify as many issues as possible before the actual submission of the application, so that the actual ‘audit’ can then be carried out smoothly and efficiently and with all required information available. Close and intense interaction with the applicants will be maintained during the coming months, and within six months, i.e. at the latest on 1 March 2016, a decision will be taken on these three applications. VI.

Conclusions

While Dutch small satellites activities began during 2008, they were properly regulated only in 2015, and the first licenses will be issued in 2016. The regulatory evolution of small satellites in The Netherlands is generally a positive one, however, it illustrates the legal ‘tragedy’ expressed in the need to

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See: Inter-Agency Space Debris Coordination Committee, ‘IADC Space Debris Mitigation Guidelines’ (IADC-02-01, Revision 1, 2007).

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stay on top of technological advancement and new practices in space activities carried out by, not only, but mostly, private companies. As this problem is a part of the reality of space law, legislators should be in contact with the industry and academia in order to bridge the regulatory gap effectively. In the case at hand, an open dialog was created between the legislator and the operators, which made the regulative process a better one, and gave those who would be subject to the Decree a deeper understanding of the upcoming change, and reminding all the parties involved that the most important motivation behind this new Decree is – promoting small satellites activities in The Netherlands.

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Legal Issues in China’s Future Participation in the Space Protocol to the Cape Town Convention Yun Zhao∗

I.

Introduction

In the era of space commercialization, more and more satellites are used for telecommunications, remote sensing and navigation; private entities are increasingly involved in such commercial activities. In view of the high risks entailed in and high capital requirement for space activities, space financing has been frequently used to facilitate private entities to enter the space field. While international legal regime has been instituted in 1988 to deal with general financing issues, space financing, such rules do not work well for space financing, which normally involves assets with high value located in a sovereign-free space. The necessity of setting up appropriate rules for space financing is widely acknowledged. The work of the International Institute for the Unification of Private Law (UNIDROIT) to conclude a convention on international interests in mobile equipment provided an excellent opportunity for the international society to examine possible rules for space financing.1 The preparatory work started in 1988 with the Canadian member proposed a working group on the matter,2 but at that time, the concept of “mobile equipment” was not yet defined and space assets were not included. Through years of study, aircraft equipment, railway rolling stock and space assets were identified as the “mobile equipment” to be regulated by the convention. An important decision was made in 1997 as to the style of this uniform regime: with a convention covering all the

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Professor, Faculty of Law, The University of Hong Kong. Stacey A. Davis, Unifying the Final Frontier: Space Industry Financing Reform, 106 Commercial Law Journal 459-462 (2001). Paul B. Larsen & Juergen A. Heilbock, UNIDROIT Project on Security Interests: How the Project Affects Space Objects, 64 Journal of Air Law and Commerce 722 (1999); Roy Goode, Transcending the Boundaries of Earth and Space: The Preliminary Draft UNIDROIT Convention on International Interests in Mobile Equipment, 3 Uniform Law Review 52 (1998); Ronald C.C. Cuming, “Hot Issues” in the Development of the (Draft) Convention on International Interests in Mobile Equipment and the (Draft) Aircraft Equipment Protocol, 34 International Lawyer 1093 (2000).

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three types of mobile equipment to be concluded first, this convention shall be supplemented by three protocols dealing with these three types of mobile equipment respectively.3 The UNIDROIT held a diplomatic conference at Cape Town in 2001 to pass the Convention on International Interest in Mobile Equipment (Cape Town Convention), intending to provide uniform rules to promote international financing for high-value mobile equipment.4 This convention took effect in 2004. However, the application of this convention shall be combined with the protocol for the specific type of mobile equipment.5 The Protocol on Matters specific to Aircraft Equipment (Aircraft Protocol) was concluded at the same time and took effect in 2006. The Luxembourg Protocol on Matters specific to Railway Rolling Stock (Railway Protocol) was enacted in 2007. China ratified the Convention and the Aircraft Protocol on 3 February 2009. It took a much longer period of time for the international society to conclude the Protocol on Matters specific to Space Assets (Space Protocol). The work started in 1997 with the setup of a Space Working Group and the Protocol was able to be adopted 15 years later when the diplomatic conference was held in Berlin in 2012 to adopt the Space Protocol. The enactment of this protocol is most meaningful to the future development of space financing. With China rapidly developing its space technology and increasingly advancing its ambition of space commercialization, the enactment of space financing shall no doubt exert heavy influence on future involvement of private entities in space activities in China. While this protocol was only newly enacted in March 2012, China will need to start seriously consider legal issues involved in possible participation in the space protocol. This paper rightly takes up this task. With China already a member to the aircraft protocol, this paper will carry out the study on possible legal issues related to China’s participation in the space protocol by making extensive reference to the practice of China’s participation in the aircraft protocol. It is believed the previous experience shall be most beneficial to the study of space protocol since subject matters of both protocols belong to high-value mobile equipment. Part II offers an overview of the Space Protocol and examines important provisions of the protocol. Part III looks into the impact of the protocol on relevant

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Mark J. Sundahl, The “Cape Town Approach”: A New Method of Making International Law, 44 Columbia Journal of Transnational Law 342 (2006). Martin J. Stanford & Alexandre de Fontmichel, Overview of the Current Situation Regarding the Preliminary draft Space Property Protocol and Its Examination by COPUOS, 6 Uniform Law Review, 60 (2001). Sean D. Murphy, Contemporary Practice of the United States Relating to International Law: Private International Law: Cape Town Convention on Financing of HighValue, Mobile Equipment, 98 American Journal of International Law 852-853 (2004).

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space industries in China: satellite industry, banking industry and insurance industry. Part IV puts forward suggestions and measures to be taken by the Chinese government for its future participation in the Space Protocol. This paper concludes that the Space Protocol will bring benefits to China’s space industry and that China shall take a proactive attitude towards the participation in the Space Protocol in the future. II.

An Overview of the Space Protocol

Acknowledging the benefits of establishing a uniform and predictable regimen governing international interests in space assets and in related rights, the Space Protocol aims to establish an international registration system for space assets. The Supervisory Authority shall be established to take over the task of setting up the International Registry, and appointing and dismissing the Registrar.6 The immediate definitional difficulty lies in the understanding of “space asset”. The actual applicable scope of the protocol is determined by this concept.7 The Committee of Governmental Experts spent many years to reach a consensus on this concept. The formal document defines “space asset” to be “any man-made uniquely identifiable asset in space or designed to be launched into space, and comprising (i) a spacecraft, such as a satellite, space station, space module, space capsule, space vehicle or reusable launch vehicle, whether or not including a space asset falling within (ii) or (iii) below; (ii) a payload (whether telecommunications, navigation, observation, scientific or otherwise) in respect of which a separate registration may be effected in accordance with regulations; or (iii) a part of a spacecraft or payload such as a transponder, in respect of which a separate registration may be effected in accordance with the regulations, together all installed, incorporated or attached accessories, parts and equipment and all data, manuals and records relating thereto.”8 The Cape Town Convention creates an important term “international interests”, which is closely connected with the high-value mobile equipment and can be registered under the regime. The Cape Town Convention puts down three types of international interests: to be granted by the chargor under a security agreement, or vested in a person who is the conditional seller under a title reservation agreement, or vested in a person who is the lessor under a leasing agreement.9 These international interests extend to proceeds of the

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The Cape Town Convention, Article 17(2)(a)-(b). Yun Zhao, Revisiting Selected Issues in the Draft Protocol to the Cape Town Convention on Matters Specific to Space Assets, 76 Journal of Air Law and Commerce, No. 4, 813-816 (2011). The Space Protocol, Article I.2.(k). The Cape Town Convention, Article 2(2).

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object10 and can be transferred. The priority right is endowed upon those registered interests, over the interests subsequently registered and those unregistered interests.11 The convention and the protocol also provide rules on default remedies. The right owner can “take possession or control of any object charged to it, or sell or grant a lease of any such object, or collect or receive any income or profits arising from the management or use of any such object” through selfhelp measures or application to the court for public relief.12 However, such remedies shall be restricted under certain circumstance, in particular in the situation of public service. The understanding of “public service” brought in heated discussions. The protocol avoids the definition for public service and leaves it to the member states. If a certain space asset is used to provide public service, the public service provider or the relevant member state may register a public service notice.13 In case of default, the debtor can have not more than six months to cure its default.14 During this period, the debtor, creditor and the public service provider can cooperate in good faith to find an appropriate solution.15 The creditor can take appropriate remedial actions only after the elapse of the six-month period. The disputing parties may reach a written agreement concerning the choice of forum for relief; failing such an agreement, the court where the object or the debtor is situated shall have jurisdiction.16 As far as space assets are concerned, the location of the object, when not on Earth, shall be deemed “located in the Contracting State which registers the space asset, or on the registry of which the space asset is carried.”17 Closely related to the issue of jurisdiction, the protocol provides the mechanism of waiver of sovereign immunity. While the international society still have divergent view over the practice of absolute and limited immunity, this protocol avoids setting the default position of either practice by leaving to the member states to decide whether to waive the sovereign immunity in writing.18

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The Cape Town Convention, Article 2(5). The Cape Town Convention, Article 29(1). The Cape Town Convention, Article 8(1)-(2). The Space Protocol, Article 27(1). The Space Protocol, Article 27(4). The Space Protocol, Article 27(7)(a). The Cape Town Convention, Article 43(1)-(2). The Space Protocol, Article 1(3). The Space Protocol, Article 33.

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III.

Impact of the Space Protocol on the Relevant Industries in China

Since the successful launch of its first liquid meteorological rocket, T-7, in September 1960,19 China has made spectacular achievements in space technologies and space activities. China launched the fist satellite, Dongfanghong1 (DFH-1) in 1970, and launch and retrieve the first manned spacecraft, the Shenzhou V, in 2003.20 Along with these technological advancements, China has also carried out space commercial activities. China entered the international commercial space launch market in 1990 when Long March No. 3 rocket launched AsiaSat 1 into orbit.21 Since then, China has been one major player in the space commercial market, providing not only launch services, but also space products (more specifically, satellites). China is at the moment among the very few countries which can provide both the production and launch services of satellites to a third country. The on-orbit transfer of satellites has been tested on several occasions. For example, China launched the China-built communication satellite PakSat 1R and transferred on-orbit to Pakistan on 12 August 2011.22 Satellites can be applied for various purposes and in various fields: forestry, surveying and mapping, environmental protection, disaster management, telecommunications and broadcasting, global navigation and meteorology. To a certain extent, satellites are the basis for space activities. The large amount of investments needed for the satellite production and launching services is usually resolved through space financing. China’s expertise in satellite manufacturing and launching will no doubt benefit from the predictable space financing regime of the Space Protocol. Normally the consumers in the satellite transactions will need to arrange space financing by using the satellite as security. The financial institutions may provide better condition for space financing for consumers from the member state of the Space Protocol since the protocol effectively protects the interests of the creditors. When the transactions take the form of processing contracts, China shall remain the owner of the satellite and undertake risks before the final ob-orbit transfer of the operating satellite. Under such situation, China will need to arrange space financing for the production and launch of satellites; China may similarly benefit from the protocol with the satellite as security. Under the above two models, the consumers and China can get better deals from the financial institutions and thus lower the necessary operational costs.

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Brian Harvey, The Chinese Space Program: From Conception to Future Capabilities, 10 (Praxis, 1998). The State Council Information Office, China’s Space Activities, December 2011. C.V. Anderson (Ed.), National Aeronautics and Space Administration (NASA): Background, Issues, Bibliography, 62 (New York: Nova, 2002). Stephen Clark, Chinese Rocket Launches New Satellite for Pakistan, 12 August 2011, www.space.com/12622-china-rocket-launch-pakistan-satellite.html.

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As such, it will be easier for consumers from developing countries to secure necessary budget for purchasing satellites; China will also be able to profit from larger number of on-orbit transfers of satellites. The same benefit can also come from China’s leasing of satellite services for consumers from other member states. Banking and insurance are two other industries which may be affected by the operation of the Space Protocol. Under space financing arrangement, the banking industry is normally positioned as “creditor or secured party”. The Cape Town Convention and the Space Protocol successfully set up the system for procuring the interests of the creditors. This pro-creditor regime is based on three objectives: 1) a transparent priority principle as mentioned above concerning the priority of the registered international interests over those unregistered or subsequently-registered interests; 2) a prompt enforcement principle for default remedies; 3) a bankruptcy enforcement principle that the enforcement of the first two principles shall not be affected by the bankruptcy of the debtor.23 As creditor, the bank shall have international interests over space assets as defined in the Space Protocol. The concept of space asset is broad enough to cover both the objects having been launched into outer space and those still in the process of manufacturing and transportation. The international interests to be registered in the International Registry include not only existing interests, but also prospective interests.24 In case of default, the creditor can take appropriate measures to protect its interests. The public service exception to default remedies is defined in a neutral and technical manner, avoiding confusion and gray area in the enforcement. By not delving in the understanding of the concept of “public service”, the protocol allows relevant parties to serve a notice on the matter and the six-month period shall apply. From the brief discussions above, we can see that registration is the central theme of this protocol. Two types of registration (international interests and public services) are equally important; the time of the registration shall be the technical point in deciding the right of priority and enforcement. As such, the whole system is designed in an easy-to-operate manner and can effectively function to protect the interests of the creditors. Space insurance is indispensable for highly-risky space activities; some states have provided compulsory insurance in their domestic laws.25 The involvement

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Iwan Davies, The New Lex Mercatoria: International Interests in Mobile Equipment, 52 The International and Comparative Law Quarterly, No. 1, 168-171 (2003). The Cape Town Convention, Article 19(4). See for example, Article 25(1) of the Law of the Russian Federation “About Space Activity” (Decree No. 5663-1 of the Russian House of Soviets) provides that “The organizations and citizens, which exploit space technology or to whose order the creation and use of space technology in scientific and national-economy purpose is

LEGAL ISSUES IN CHINA’S FUTURE PARTICIPATION IN THE SPACE PROTOCOL TO THE CAPE TOWN CONVENTION

of space insurance is important for the arrangement of space financing. With the failed launches in the mid-1990s, China faced great difficulty in securing insurers and re-insurers in the international market. United Entity, consisting of major insurance companies in China, was set up to undertake insurance businesses for space launchings conducted by China. The foreign insurers were hesitant to offer insurance services for the space businesses from China at that time, having concerns over the launching safety and success rate. This concern has immediate connection with the legal regime for the insurance industry. The Space Protocol introduced the concept of “salvage” to protect the interests of the insurers. The insurer shall enjoy “a legal or contractual right or interest in, relating to or derived from a space asset [...] upon the payment of a loss relating to the space asset.”26 To prevent possible loopholes to the prejudice of the insurers, the protocol adopts an overarching provision guaranteeing the realization of any rights arising from the applicable domestic law.27 This arrangement will no doubt enhance the insurers’ confidence in their involvement in space financing and ensure the health development of this industry. From the discussions above, it is clear the Space Protocol was designed to protect the interests of the creditors to facilitate space financing; however, we must note that the debtors could also benefit from such an arrangement. This has been made obvious in the Cape Town Convention that it applies “when, at the time of conclusion of the agreement creating or providing for the international interest, the debtor is situated in a Contracting State; the fact that the creditor is situated in a non-Contracting State does not affect the applicability of this Convention.”28 Once the state from which the debtor comes is a member to the protocol, the creditor, in view of the existing guaranteeing mechanism set up by the protocol, will have more confidence on the debtor and thus is more willing to provide space financing on a better conditions and terms. This debtor will be in a comparatively advantageous position to secure the budget needed for the space activity than the debtors from those states not yet a member to the protocol. Moreover, the debtors may benefit from the international interests registered by the creditors. As such, the priority right from the registration by the creditors against any unregistered interests or interests subsequently registered can also be enjoyed by the debtors during the period of their control and use of the space assets.

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carried out, shall take compulsory insurance coverage in the amount set by the legislation of Russian Federation.” The Space Protocol, Article 4(3). The Space Protocol, Article 4(3). The Cape Town Convention, Article 3.

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IV.

Suggestions on the Chinese Government’s Future Participation

IV.1.

The Coordination between the Space Protocol and the Chinese Legal Regime

The Cape Town Convention and the Space Protocol set up an international registration mechanism to create a transparent regime for international interests in space asset. This international registration mechanism is separate from any existing domestic registration system. This mechanism is believed to be a cost-efficient, fair and easy-operate system. The practice of the Aircraft Protocol testifies the feasibility of this registration mechanism. While the State Administration for Science, Technology and Industry for National Defense (SASTIND), formerly known as the Commission of Science, Technology and Industry for National Defense (COSTIND), is in charge of national registration of space objects and the Ministry of Foreign Affairs is in charge of international registration of space objects with the United Nations Secretary-General under the Registration Convention, the registration of international interests in space assets is a separate system. It is noted that in China, no domestic registration system for mobile equipment is in place. While the Property Law defines the registration system for real estates, no similar rules are provided for the registration of all the movables, which is understandable in view of the large number of movables and the infeasibility of registration for each and every movable. Several types of movable are identified for registration, including water-crafts, aero-crafts and motor vehicles.29 No clear provisions in this law have provided the registration of space assets. We may also refer to the Guaranty Law for assistance. This law identifies some more types of properties whose registration is required for guaranty: land-use right, real estates or factories and other buildings of township (town) or village enterprises, forest trees, aircraft, ships and vehicles, the equipment and other movables of enterprises.30 Again, the space assets are not clearly listed as those required for registration. At the same time, the provision of bona fide possession of the movables in the same law31 causes difficulty in the determination of the situation when to

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Article 24 of the Property Law provides that “The establishment, modification, transfer and lapse of the right to property in respect of water-crafts, aero-crafts and motor vehicles without first being registered, shall not affect any bona fide third party.” Article 42 of the Guaranty Law. Article 106(1) of the Property Law provides that “Where the real or movable property is transferred to a transferee by a person without the power to do so, the rightful owner shall have the right to recover such property. Unless otherwise provided by law, the transferee shall obtain the ownership in respect of such real or movable property in any of the following circumstances: (i) the transferee accepts the transfer in good faith; (ii) such property is transferred with a reasonable price; (iii) the transferred property has been registered in accordance with the laws requiring such registration, and those not required to be registered has been delivered to the transferee.”

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protect a bona fide third party for the space assets. One condition for bona fide possession is that the transferred property has been registered in accordance with the laws or delivered to the transferee for those not required for registration.32 On the one hand, space assets are not those listed under the Property Law requiring registration; on the other hand, the transfer of space assets normally takes the form of constructive possession, which does not fall within the normal scope of “delivery” in the Property Law. It would thus be advisable to set up a national registration mechanism similar to that of the Space Protocol, if not in all the fields, at least in the field of and for the purpose of space financing. It is good to see that the Credit Reference Center of the People’s Bank of China has already established a similar registration mechanism for general financing activities in July 2009.33 We will need to examine whether this general registration mechanism works for space financing and whether we need to have another national entity in charge of the national registration of interests in space assets; we will also need to see the coordination between the national registration mechanism and the international mechanism with regard to the registration of interests in space assets. Except a short paragraph on salvage, the Space Protocol does not contain detailed rules regarding insurance. The operation of space insurance largely relies on domestic laws. China does have Insurance Law, which does provide detailed rules on salvage. For example, where the subject matter suffers partial loss, the insured may rescind the contract within 30 days from the time when the insurer pays indemnity; the insurer may notify the insured of the rescission as long as the notification is served 15 days in advance; Upon rescission, the insurer shall refund the insurance premium for the part of the subject matter that has not suffered any loss to the insured, after deducting the premium for the period from the commencement of the insurance liability to the contract rescission.34 The insured shall acquire all rights in the subject matter after paying the full insured amount which equals the insurable value.35 It is reasonable to apply all those rules to the situation of salvage of space assets. However, we must note that the Insurance Law also provides laws and administrative regulations regarding compulsory insurance shall prevail the rules in this law.36 We have mentioned earlier the compulsory nature of space insurance in most states. The nature of space insurance is quite different from other types of insurance, especially with regard to the sensitiveness of space assets. Space assets normally involve high and sensitive space technologies, relevant states may have restrictive rules in giving up all rights in the space

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Id. Financing Registration, www.pbccrc.org.cn/chanpinfuwu_306.html. Article 58 of the Insurance Law. Article 59 of the Insurance Law. Article 186(2) of the Insurance Law.

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assets to the insurers or any other third party. Consequently when it comes to the domestic rules on salvage, we may need to keep a close look at the export control regime in China, in particular, the Administrative Regulations on Export Control of Missiles and Missile-related Items and Technologies, and the Administrative Regulations on Export Controls of Military Items. Declarations to be Made for the Purpose of Accession37

IV.2.

The discussions in this paper show that the Space Protocol brings benefits to both the creditors and debtors. As a major space-faring nation in the world, China has a great stake in space financing. As such, China shall generally benefit from acceding to this new regime. No reservation is allowed under the protocol, but China may make some declarations at the time of accession.38 It is also noted that declarations made under the Cape Town Convention shall apply to this protocol unless stated otherwise.39 Consequently, China needs to carefully study appropriate declarations well beforehand; this includes the areas under the Space Protocol which are allowed for declarations and the declarations having been made to the Cape Town Convention. When acceding to the Cape Town Convention, China made declarations to the following articles: Article 39(1)(a); Article 39(1)(b); Article 39(4); Article 40; Article 43; Article 50(1); Article 53; Article 54(1); Article 54(2). By examining these declarations, the author is of the view that most of them can similarly apply to the Space Protocol. Some declarations were made with the Aircraft Protocol in mind, thus what China needs to do is to further extend these several declarations to the Space Protocol. This can include the following articles. Article 39(1)(a): “All non-consensual rights or interests which have priority over secured creditors under the law of the PRC shall have priority without registration over registered international interests, including but not limited to: claim for bankruptcy expenses and community debts, employee’s wages, taxes arising prior to the mortgage, pledge or lien of the space asset, claim for

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The wordings regarding the declarations discussed in this section are cited fully from the official declarations lodged by the People’s Republic of China (PRC) under the Cape Town Convention and the Aircraft Protocol at the Time of the Deposit of its Instrument of Ratification in Respect Thereof, www.unidroit.org/english/conventions /mobile-equipment/depositaryfunction/declarations/bycountry/china.htm. The discussion in this section also benefit from the research report of Research Project No. 2 of the China Institute of Space Law in 2011: “Analysis on the Advantages and Disadvantages of China’s Accession to the Space Protocol”, conducted by the China Great Wall Industry Group Corporation, Ltd., 31 March 2012. Article 43(1) of the Space Protocol provides that “No reservations may be made to this Protocol but declarations authorized by Articles XXXIX, XLI, XLII and XLIV may be made in accordance with these provisions.” Article 42 of the Space Protocol provides that “Declarations made under the Convention…shall be deemed to have also been made under this Protocol unless stated otherwise.”

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remuneration for rescuing the space asset, claim for necessary expenses incurred for the custody and maintenance thereof the space asset, etc.” This declaration is in full compliance with relevant rules in the current Insolvency Law in China regarding the priority right in the insolvency proceedings.40 The Insolvency Law also provides the order of payment in case of insolvency: 1) insolvency costs and debts of common interest; 2) wages, medical fees, injured and disability compensations, compensations for a bereaved family owned by the debtor to the employees, basic pension and medical insurance premium defaulted by the debtor to the employee’s private account; 3) social insurance premium and tax payable by the debtor; 4) general bankrupt claims.41 Article 40: “Rights of a person obtaining a court order permitting attachment of a space asset in partial or full satisfaction of a legal judgment shall be registrable non-consensual rights or interest.” Article 53: the declaration here does not appear to be relevant to the space asset as far as the location of headquarter of relevant airline is concerned. Other declarations made previously regarding the Convention can continue to apply and China does not need to repeat at the time of acceding to the Space Protocol: Article 39(1)(b): “Nothing in this Convention shall affect the right of a State or State entity, intergovernmental organization or other provider of public services to arrest or detain an object under the laws of the PRC for payment of amounts owed to such entity, organization or provider directly relating to those services in respect of that object or another object.” Article 39(4): “A right or interest of a category covered by the declaration made under Article 39(1)(a) shall have priority over an international interest registered prior to the date of ratification of the Protocol.” Article 43: “Article 43 is applicable to the PRC, and paragraph 1 and 2(a) hereinto are applicable under the condition that the court of a contracting State chosen by the parties shall be a court located in a place that has actual connections with the dispute of the agreement.” Article 50(1): “The Convention shall not apply to a transaction which is an internal transaction in relation to the PRC.” Article 54(1): “While the charged object is situated within the territory of the PRC, the chargee shall not grant a lease of the object within the territory of the PRC.” Article 54(2): “Any remedy available to the creditor under any provision of the Convention which is not there expressed to require application to the court may be exercised only with leave of the court of the PRC.” The Convention

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Article 109 of the Insolvency Law provides that “Secured creditors are entitled to obtain payment in priority over debtor’s specific asset.” Article 113 of the Insolvency Law.

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provides the possibility of self-help measure; however, the self-help action in another state touches on the sovereignty issue; in the past, China has always taken a cautious attitude towards this position; furthermore, the sensitive nature of the subject matter of the Space Protocol42 justifies a more cautious attitude towards the actions to be taken for remedy. It is thus advisable to keep this declaration in this regime. But it should be made known that the court procedure is only a formality requirement and will not involve any substantive review of the dispute. As such, the public-help measure shall not cause extra barrier or difficulty for creditors obtain remedies in China. As such, the declaration shall not defeat one of the original purpose of the Cape Town Convention to reduce the cost of financing.43 As far as the Space Protocol is concerned, we will need to carefully examine the provisions which allow for declarations. Article 8 on choice of law and the application of party autonomy: China declares the application of a similar article in the Aircraft Protocol, which requires such a declaration. However, Article 8 of the Space Protocol is drafted such a way that “this Article applies unless a Contracting State has made a declaration.”44 As such, China does not need to specifically declare the application of this article. Article 20: The system of relief pending final determination is accepted in almost all the jurisdictions. The Chinese laws also provide interim measures for court proceedings. At this point, similar declaration to the Aircraft Protocol can be made that “China will apply the provisions of Article 20(1), (2), (3) and (4) of the Protocol. The court of the PRC, upon receipt of the application, shall, in respect of the remedies specified in Articles 13(1)(a), (b) and (c) of the Convention, make order within 10 calendar days which shall be enforced immediately and in respect of the remedies specified in Article 13(1)(d) and (e) of the Convention, make order within 30 calendar days which shall be enforced immediately.” Article 21: Insolvency Law is another area worthy of serious consideration. The Space Protocol contains two provisions on insolvency. Article 21 provides two options for the insolvency remedies. Neither these two options conflict with the Insolvency Law, thus it is up to China to decide on one option which is easier to operate and more beneficial to China. The same position can be taken as the Aircraft Protocol to ensure consistency between the two regimes that “China will apply the entirety of Alternative A to all types of insolvency proceeding defined by the Protocol, and that the waiting period shall be 60 calendar days.”

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Martin J. Stanford, The New Regimen: Its History and Future After South Africa, 12 European Review of Private Law 12-13 (2004). Lome Clark & Jeffrey Wool, Entry into Force of Transactional Private Law Treaties Affecting Aviation: Case Study – Proposed UNIDROIT/ICAO Convention as Applied to Aircraft Equipment, 66 Journal of Air Law and Commerce 1406 (2001). Article 8(1) of the Space Protocol.

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Article 22 on the court’s assistance in insolvency procedures: This article requires an explicit declaration on the application; to be consistent with the declaration under the Aircraft Protocol, China shall also declare the application of this article. Article 27(4): in view of the importance of public service to a state and the complexity in the curing of default, China may declare a maximum period of six months from the date of registration by the creditor of a notice in the International Registry for the exercise of remedies by the creditor against a defaulting debtor. Similar to the declaration made under the Aircraft Protocol, “unless otherwise notified by the Government of the PRC, the Convention and the Space Protocol shall not apply to the Hong Kong Special Administrative Region and Macao Special Administrative Region.” V.

Conclusion

The Space Protocol successful establishes an international registration regime for international interests in space assets. This regime adds transparency to the field of space financing, which benefits both the creditors and debtors. China has actively participated in the whole negotiating and drafting process and takes a positive attitude towards to conclusion of this protocol. The author holds an optimistic view that China will accede to the Space Protocol in the near future. Thus, it is urgent to study possible declarations to be made upon China’s accession. By making reference to China’s practice in acceding to the Cape Town Convention and the Aircraft Protocol, this paper analyses the potential impact of the Space Protocol on China’s space and financial industries, and offers suggestions on possible declarations upon accession. With various stakeholders involved in the long negotiation process,45 the final conclusion of the Space Protocol in March 2012 showed the consensus that the protocol shall well fit in the space financing industry and that all the states, both spacefaring and non-spacefaring nations would be able to benefit from this regime. As a major participating entity in the negotiation, China should take a proactive attitude and prompt actions to accede to the Space Protocol and bring benefits of this protocol to the space and financial industries in China.

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Dara A. Panahy & Raman Mittal, The Prospective UNIDROIT Convention on International Interests in Mobile Equipment as Applied to Space Property, 4 Uniform Law Review 303 (1999).

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European Earth Observation Data Policy Meeting Various Goals by Multiple and Diverse Actors: A Herculean Task? Irmgard Marboe*

Abstract The European Union has recently engaged in formulating political and legal principles, which should be guiding the European activities in the area of Earth observation data collected by satellites, in particular in the framework of the Copernicus programme. The focus of this program is the development of the necessary infrastructure and the generation and use of the acquired data. The European Union is especially interested in the use of Earth observation data for disaster and crisis management, land and sea monitoring, and the monitoring of the atmosphere. In addition, the generation and use of security related data is also envisaged. In this context, the European Union, due to its nature as a regional supranational organization, is confronted with particular challenges as it has to take into consideration the respective activities and competences of its member States as well as of its most important international partner in this endeavour, the European Space Agency (ESA). Over the past months, the European Union and ESA have been developing institutional mechanisms and procedures to provide the necessary framework for negotiation and decision-making in the area of Earth observation data policy. The most recent legal and political instruments as well as some further proposals will be presented and analysed in this paper. An important characteristic of the European data policy is that, on the one hand, it propagates the concept of an “open data-policy” (see already the Directive 2003/98/EC of the European Parliament and the Council of 17 November 2003 about the re-use of public sector information) but that, on the other, it is also committed to the protection of several other rights and principles, such as the right to private life, the protection of personal data and of intellectual property, the freedom of arts and science, entrepreneurial freedom as well as national security interests. It is therefore of interest to have a closer look at the respective documents and proposals in order to find out how the balance between a “full and open access” to data policy and the protection of other rights and principles is supposed to be achieved.

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Univ. Prof., University of Vienna, Austria, [email protected].

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I.

Introduction

A discussion of European Earth observation data policy needs to start with a definition of what “European” actually means.1 On the European continent, several actors are carrying out Earth observation activities and several layers of law and policy come into play. The most prominent actor is the European Union (EU) with its 28 member States and 500 million inhabitants. In the area of space activities, however, the EU is relatively new, and it is the European Space Agency (ESA), founded in 1975, that has been the gravitational centre of European space cooperation in the past decades. The two have joined their efforts for a major endeavour in the field of Earth observation, the Copernicus programme.2 However, individual European States also continue to carry out national Earth observation activities on the basis of national laws and policies. The European Commission has launched an attempt to harmonize these national data policies in order to create a “European” data policy also outside the Copernicus programme. Finally, there is still another European organization which determines the legal framework of European governmental and private activities, namely the Council of Europe. With its focus on human rights, democracy and the rule of law and its role as the guardian of the European Convention of Human Rights, it gives important guidelines for data policies and laws in its 47 member States. As will be seen, this interaction of diverse actors and diverse policies and laws does not render the identification of a “European” data policy easy.3 Yet, important developments have taken place recently which will shape the European regulatory framework for the access and use of Earth observation data in the near future. It is therefore important to analyse and discuss them in a timely manner to raise awareness of possible contradictions or lacunae.

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Similarly Frans von der Dunk, ‘European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programs’ in 42 Creighton Law Review (2008-2009) 397-445, 397; See also idem, ‘Earth Observation Data Policy in Europe – an Inventory of Legal Aspects and Legal Issues’, in: Ray Harris (ed), Earth Observation Data Policy and Europe (Balkema Publishers, Lisse 2002) 19-28, 19. Copernicus, previously Global Monitoring for Environment and Security (GMES) collects data from multiple sources to provide users with information related to environmental and security issues. See //www.copernicus.eu/. See also the insightful article by Frans von der Dunk, ‘Europe and the “Resolution Revolution”: “European” Legal Approaches to Privacy and Their Relevance for Space Remote Sensing Activities’, in 34 Annals of Air and Space Law (2009) 809-844.

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II.

The Copernicus Programme

The current legal framework of the Copernicus Programme is constituted mainly by a EU Regulation of 2014 (hereinafter Copernicus Regulation)4 and a EU Commission Delegated Regulation of 2013 (hereinafter Commission Delegated Act).5 Copernicus is a civil, user driven programme under civil control, building on the existing national and European capacities.6 It shall contribute to monitoring the Earth to support the protection of the environment and the efforts of civil protection and civil security,7 maximising socioeconomic benefits,8 and fostering the development of a competitive European space industry.9 The Copernicus Space Component Data Access (CSCDA) provides comprehendsive and coordinated access to Earth observation data products from multiple satellites for Copernicus data users across Europe.10 It manages the coordinated production of Data Sets: multi-mission coherent data collection pre-defined according to specific user needs in terms of data type and mode of operation.11 The key component is the Coordinated Data Access System (CDS) ensuring Data Set construction and dissemination.12 The Copernicus data and information policy is contained in Chapter IV of the Copernicus Regulation.13 The promotion of the use and sharing of Copernicus data and Copernicus information is one of its principal objectives.14 Dedicated mission data and Copernicus information shall be made available through Copernicus dissemination platforms “on a full, open and free-ofcharge basis.”15 However, in addition to pre-defined technical conditions,

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Regulation (EU) No 377/2014 of the European Parliament and the Council of 3 April 2014 establishing the Copernicus Programme and repealing Regulation (EU) No 911/2010, OJ L122/44 of 24 April 2010. Commission Delegated Regulation (EU) No 1159/2013 of 12 July 2013, OJ L309/1 of 19 November 2013. Article 2 Copernicus Regulation. Article 4 (a) Copernicus Regulation. Article 4 (b) Copernicus Regulation. Article 4 (c) Copernicus Regulation. See https://copernicusdata.esa.int/web/cscda/ data-offer. For previous developments See Ray Harris and Richard Browning, Global Monitoring. The Challenges of Access to Data (UCL Press, London 2005), 115-124. ESA, ‘Copernicus Space Component Data Access Architecture’, 27 May 2014, Vienna, Austria. See https://www.ffg.at/sites/default/files/esa_csc_data_access_architecture.pdf. See www.esa.int/Our_Activities/Observing _the_Earth/Copernicus/Coordinated_ data_access_system. Chapter IV, Articles 23 to 25 Copernicus Regulation. Article 23 (1) (a) Copernicus Regulation. Article 23 (2) Copernicus Regulation. This is in line with the main trend in Earth observation data policy for some years. See Ray Harris, ‘Main Trends in Earth Observation Data Policy’, in Ray Harris (ed), Earth Observation Data Policy and Europe (Balkema Publishers, Lisse 2002) 9-16.

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there are also other important limitations. These include (a) licensing conditions for third party data and information, (b) formats, characteristics and dissemination means, and (c) security interests and external relations of the EU or its member States.16 The latter two limitations pose, of course, a major problem and raise the question of how to balance the claim to “full and open” access to data with the protection of security interests and external relations of the Union or its member States. As is well known, the member States retain “the sole responsibility” for national security under the distribution of competences between the EU and its member States.17 With regard to their “external relations”, the member States also maintain their freedom of action and sovereignty. Some of them are members of NATO, others are not,18 and some are permanently neutral.19 It follows that the “security interests and external relations” of the member States are very diverse so that the implementation of this limitation in practice will be a major challenge. Furthermore, the EU’s “security interests and external relations” can only be defined under the Common Foreign and Security Policy (CFSP) which is subject to specific rules and procedures.20 In this area, as is also well known, the European Council and the Council must act unanimously.21 The adoption of legislative acts is excluded, and the Court of Justice of the European Union does not have jurisdiction. It follows that the definition of the EU’s “security interests and external relations” will also represent a major challenge. As unanimity in this regard is neither easy nor frequent, a preliminary assessment may be that this limitation on the “full and open” access to data will not be very relevant in practice. By contrast, the limitation for “security interests and external relations” of the individual member States will remain relevant. The Copernicus legal framework has introduced specific procedures to cope with the expected divergent views and sensitivities. III.

The Copernicus Committee

Under the Copernicus Regulation, it is the role of the European Commission to assess the necessary security measures to avoid any risks or threats for the

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Article 23 (2) (a) to (c) Copernicus Regulation. Article 4 (2) Treaty on European Union. Six EU member States are not members of NATO: Austria, Cyprus, Finland, Malta and Sweden. Austria, Finland and Sweden. See Title V, Chapter 2 of the Treaty on European Union on “Specific Provisions on the Common Foreign and Security Policy”, Articles 23 to 25. Article 24 (1) Treaty on European Union.

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interest or security of the EU or its member States.22 On this basis, it shall establish the necessary security-related technical specifications for Copernicus by means of implementing acts. Where EU classified information is generated or handled within Copernicus, all participants ensure a degree of protection equivalent to the rules set out for classified information.23 In the procedure of safeguarding security interests, the Commission shall be assisted by a committee, the “Copernicus Committee”.24 This Committee shall meet in specific configurations with regards to security aspects (“Security Board”).25 Its rules of procedure are contained in a Regulation of 2011 which provides mechanisms for control by member States of the Commission’s exercise of implementing powers.26 The Committee consists of representatives of all member States and is chaired by a representative of the Commission.27 The chair shall “endeavour to find solutions which command the widest possible support within the committee”.28 If there is persistent disagreement, the Committee can also decide by a vote. Two different voting procedures are available, namely (1) the Advisory procedure, and (2) the Examination procedure. In the Advisory procedure, the Committee may take a vote by simple majority.29 The Commission then decides “taking the utmost account of the conclusions drawn from the discussion”.30 In the Examination procedure,31 the Committee shall deliver its opinion by a weighted majority as established for Council decisions.32 This generally requires the so-called “double majority” of 55% of member States representing 65% of the EU population. In case of a positive decision, the Commission shall adopt the implementing act; in case of a negative decision it shall not adopt it.

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Article 25 (1) Copernicus Regulation. See the Annex to the Decision of the Commission 2001/844/EC on Commission Provisions on Security, OJ L 317/2, and the Council Decision on the security rules for protecting EU classified information 2013/488/EU, including Annexes OJ L 274/1. Article 30 (1) Copernicus Regulation. Article 30 (2) Copernicus Regulation. Regulation (EU) No 182/2011 of the European Parliament and of the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers, OJ L55/13 of 28 February 2011 (hereinafter Implementing Powers Regulation). Article 3 (2) Implementing Powers Regulation. Article 3 (4) Implementing Powers Regulation. Article 4 (1) Implementing Powers Regulation. Article 4 (2) Implementing Powers Regulation. Article 5 Implementing Powers Regulation. Article 16 (4) and (6) of the Treaty on European Union and, where applicable, Article 238 (3) TFEU.

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The control mechanism includes also an appeals mechanism. Where applicable, referral to an appeal committee is possible which decides by a weighted majority and shall deliver its opinion within two months of the date of referral.33 The installation of a Copernicus Committee can be regarded as a valuable tool for solving disagreements and balancing the “full and open access” to data policy with “security interests and external relations” of the EU member States. However, it remains to be seen whether the decision-making within the Copernicus Committee can be organized and structured in a way that allows responding quickly enough to claims for security sensitive data. Furthermore, the decision making by a majority vote is in contrast to the rule that in sensitive areas of national security and external relations the States remain solely responsible. The option of majority voting could represent a problem for States participating in the Copernicus programme that are not represented, i.e. the non-EU members Switzerland and Norway. This is one of the aspects in the complex relationship between EU and ESA in the Copernicus Programme. IV.

Sentinel Data Policy

Sentinel satellites are developed and launched by ESA under the Copernicus Space Component (CSC) programme. Sentinel-1A was launched on 3 April 2014, and Sentinel-2A on 23 June 2015.34 On 24 September 2013, the ESA Earth Observation Programme Board approved the “Copernicus Sentinel Data Policy” (hereinafter Sentinel Data Policy).35 It establishes the policy governing the provision of Sentinel data.36 It covers the Sentinel 1 to 5 missions, the Sentinel-5 Precursor mission and Jason-CS missions developed by ESA under the CSC programme. The Sentinel Data Policy describes itself as a part of the overall Copernicus Data and Information Policy under EU responsibility.37 As such, it also aims at “promoting the use and sharing of information and data” and “full and open access to information produced by Copernicus services and data collected through Copernicus infrastructure.”38 Limitations to “full and open access” should be possible subject to “relevant international agreements, security restrictions and licensing conditions,

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Article 3 (7) Implementing Powers Regulation. See a short description of the “new family of missions called Sentinels specifically for the operational needs of the Copernicus Programme” at www.esa.int/Our_Activities /Observing_the_Earth/Copernicus/Overview4. ESA Earth Observation Board, Copernicus Sentinel Data Policy, ESA/PBEO(2013)30, rev. 1, 2 October 2013. Ibid., 3. Ibid. Ibid.

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including registration and acceptance of user license”.39 The Sentinel Data Policy is only a short document and not very specific in how the different goals should be balanced. Yes, it enlists a number of instruments which are supposed to provide the respective legal and programmatic framework, amongst which are the relevant EU Copernicus legal instruments, the agreement with the EU on the Implementation of the Space Component of Copernicus40 and the UN Remote Sensing Principles.41 It does not address the fact that not all ESA members are EU-members and therefore not involved in the decision making process in the Copernicus data policy within the EU and its implementation. Yet, as the spatial resolution of the Sentinel satellites is rather low, i.e. so far not higher than 5x5 meters, security concerns might not have been a major concern of the ESA Earth Observation Programme Board. V.

EU Commission Delegated Act

The EU Commission, by contrast, has addressed the security concerns and sensitivity criteria which need to be balanced against the “full and open access” to some detail in its Delegated Act of 2013.42 While the latter still remains the general principle and guideline, reference is also made to “conflicting rights” which need also to be taken into account. The EU Commission makes clear that the Copernicus data and information policy should be consistent with other relevant EU policies, instruments and actions, most importantly INSPIRE,43 the policy on the re-use of public sector information44 and the “Digital Agenda for Europe”.45 Then, it elaborates on the more concrete conditions concerning use. Reiterating that users shall have free, full and open access to Copernicus dedicated data and service information,46 it explains that free access shall be given to

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Ibid. Agreement on the Implementation of the Space Component of GMES concluded on 28 February 2008 and amended on 28 January 2009 and on 15 June 2011, ESA/LEG/382. “Principles Relating to Remote Sensing of the Earth from Outer Space”, adopted by the UN General Assembly in its Resolution 41/65 of 3 December 1986. See above, fn 5. Yet, according to Article 13, the specific rules on “sensitivity criteria” are only applicable to space based observation systems meeting at least one of the characteristics listed in the Annex of the Delegated Act. The Annex explains that the system must be technically capable of generating data of a geometric resolution of 2.5 metres or less in a least one horizontal direction, or other high resolution data. Directive 2007/2/EC of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE). Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information, reinforced by Commission Decision 2011/833/EU of 12 December 2011. European Commission, ‘A Digital Agenda for Europe’, COM(2010) 245 final/2 of 26 August 2010. Article 3 Commission Delegated Act.

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Copernicus dedicated data and service information made available through dissemination platforms under pre-defined technical conditions.47 Access to Copernicus dedicated data and service information shall be given for the purpose of the following use in so far as it is lawful: (a) reproduction; (b) distribution; (c) communication to the public; (d) adaptation, modification and combination with other data and information; (e) any combination of points (a) to (d).48 Copernicus dedicated data and service information may be used worldwide without limitations in time.49 Four levels of registration of users should be provided as regards the access to data and information: (a) Discovery and view services50 should be provided without registration; (b) a light form of registration should be required as regards download services;51 (c) an intermediate level of registration should allow the reservation of access to certain groups of users; (d) a strict registration procedure should be used to address the need to restrict access for security reasons requiring the unequivocal identification of the user.52 With respect to “conflicting rights”, the Commission shall take the necessary measures where the open dissemination of data or information conflicts with “international agreements” or the “protection of intellectual property rights”, or would in a disproportionate manner affect the “rights and principles enshrined in the Charter of Fundamental Rights of the EU, such as the right for private life or the protection of personal data”.53 This shows that the Commission is well aware of the need to find a balance between the “full and open access” to data policy and other legitimate rights and interest. Some of those which could be especially relevant will be highlighted in the following. VI.

Relevant International Agreements

The “international agreements” mentioned in the Commission Delegated Act include in particular obligations under international treaties forming a common defence organisation.54 Many of the EU members are members of NATO which is a military alliance based on the right to collective self-defence under

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Article 4 Commission Delegated Act. Article 7 (1) Commission Delegated Act. Article 7 (2) Commission Delegated Act. Within the meaning of Article 11(1)(a) and (b) of Directive 2007/2/EC. Within the meaning of Article 11(1)(c) of Directive 2007/2/EC. Preambular paragraph 17 Commission Delegated Act. Article 11 Commission Delegated Act. See Preambular paragraph 13 Commission Delegated Act.

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Article 51 of the UN-Charter. The most important norm of the founding treaty, the Washington Treaty of 1949, is Article 5 according to which “[t]he Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”55 This obligation of mutual assistance in case of an armed attack triggers a lot of other obligations in terms of cooperation, coordination and preparation in security related matters. Certainly not all information that is gathered in the area of Earth observation, including by satellites, can be shared with other States or the general public. While, so far the Copernicus Space Component (CSC), mainly represented by the Sentinel satellites, is not considered to be security sensitive,56 information from other Copernicus contributing missions and, in particular, the combination of data from various sources may create security relevant information. Other international agreements relevant in the area of Earth observation are treaties establishing the rights and obligations of States in times of war and armed conflict. For example, the Hague Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land57 determines specific obligations of neutral powers not to support belligerents in case of war. Otherwise, they lose their status as neutral power and can be legitimately attacked by the opposing belligerent. The obligations include the prohibition to erect and use “wireless telegraphy stations” on the territory of a neutral power.58 Even if, in 1907, the use of satellites and ground stations was not envisaged, it is not too far-reaching to interpret this prohibition as being applicable also to new technology with similar functions – namely the wireless sending and receiving of information. A neutral power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.59 However, every measure of restriction or prohibition taken by a neutral power must be

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Article 5 Treaty of Washington, 4 April 1949, 34 UNTS 243. See already supra, fn 42. Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, The Hague, 18 October 1907, 205 Consolidated Treaty Series 299 (hereinafter Hague Convention V). Article 3 Hague Convention V. Article 8 Hague Convention V.

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impartially applied by it to all of the belligerent parties.60 A neutral power must see the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus.61 These obligations are not incumbent only on permanently neutral States, as Austria, Finland, Sweden and Switzerland, but on all States that do not want to become engaged in a specific international armed conflict. In the process of granting access to and allowing the use of Earth observation data, these obligations therefore need to be kept in mind. VII.

Human Rights

The EU Commission Delegated Act identifies as “conflicting rights” also the “rights and principles enshrined in the Charter of Fundamental Rights of the EU, such as the right for private life or the protection of personal data”.62 The “the right for private life or the protection of personal data” is specifically highlighted as it needs particular attention in the context of “full and open access” to data. Article 7 on the “Respect for private and family life” of the EU Charter of Fundamental Rights provides that “[e]veryone has the right to respect for his or her private and family life, home and communications.”63 Article 8 on the “Protection of personal data” declares that “[e]veryone has the right to the protection of personal data concerning him or her.”64 Personal data “must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.”65 In order to ensure that this right is implemented in the member States, “[c]ompliance with these rules shall be subject to control by an independent authority.”66 The judicial control of the implementtation of the EU Charter of Fundamental Rights is not entirely settled yet. The Court of Justice of the European Union, as EU organ, adjudicates on the EU’s acts. As regards the implementation at the member State level, all of the EU member States are also members of the Council of Europe and have ratified the European Convention on Human

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Article 9 Hague Convention V. Article 9 Hague Convention V. Article 11 Commission Delegated Act. Atricle 7 Charter of Fundamental Rights oft he European Union, as adapted and entered into force with the Treaty of Lisbon, OJ C 326/391 of 26 October 2012 (hereinafter EU Charter of Fundamental Rights). Article 8 (1) EU Charter of Fundamental Rights. Article 8 (2) EU Charter of Fundamental Rights. Article 8 (3) EU Charter of Fundamental Rights.

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Rights.67 Many of them have incorporated the Convention in their national constitutions. Judicial control of its implementation is provided by established jurisprudence of the European Court of Human Rights. In order to ensure a common understanding and level of human rights protection in Europe, the European Union shall accede to the European Convention on Human Rights according to the Treaty of Lisbon.68 However, so far this accession has not taken place. In the current situation, EU member States are primarily bound by their human rights obligations under the European Convention on Human Rights.69 The Convention also contains a “Right to respect for private and family life”.70 While the substance of this right is similar to that of Article 8 of the EU Charter of Fundamental Rights, namely that “[t]here shall be no interference by a public authority with the exercise of this right”, there are also differences. Notable is the explicit possibility to limit this right by law, if this “is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”71 The jurisprudence of the European Court of Human Rights informs States how their obligations under this right have to be interpreted. It makes clear that Article 8 covers the physical and psychological integrity of a person and embraces aspects of an individual’s physical and social identity, such as, for example, gender identification, name and sexual orientation and sexual life.72 It also protects the right to personal development. The notion of personal autonomy is an important principle underlying the interpretation of the guarantees of Article 8. Protection is particularly warranted against attacks on honour and reputation, manipulation and misuse of personal information.73 The obligations of States encompass the duty not to interfere with personal privacy (“to respect”) and to take positive measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (“to protect”). They also protect juridical persons from undue interference.74

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Convention for the Protection of Human Human Rights and Fundamental Freedoms, Rome, 4 November 1950 (ECHR). Article 6 (2) of the Treaty on European Union. Irmgard Marboe, ‘Human Rights Considerations for Space Activities’, in: Stephan Hobe and Steven Freeland (eds), In Heaven as on Earth? The Interaction of Public International Law on the Legal Regulation of Outer Space (2013) 135, 144 f. Article 8 (1) ECHR. Article 8 (2) ECHR. von Hannover v. Germany (2004); Anastasios Reklos v. Greece (2009). See also Lauren H. Rakower, ‘Zooming In. On Google Street View and the Global Right to Privacy’, in: 37 Brooklyn Journal of International Law (2011) 317-347. Colas Est v. France (2002).

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The Court highlighted that increased vigilance in protecting private life was necessary to contend with new communication technologies which make it possible to store and reproduce personal data.75 Exceptions are allowed under the conditions of Article 8 (2)76 and in times of war or other public emergency threatening the life of the nation under Article 15 (1) ECHR.77 It follows from the above that national measures on privacy and data protection can be different from country to country. These differences can be an obstacle to the free movement of goods and services in the internal market,78 as it is envisaged within the EU.79 Harmonisation of national measures would grant a better level playing field for companies operating in the EU. The EU has therefore issued a Data Protection Directive80 that identifies principles on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The ways and means of implementing the Directive are left to the member States, but the common goals contained therein must be fulfilled. Under the Data Protection Directive, personal data must be collected for specified, explicit and legitimate purposes, be adequate, relevant and not excessive in relation to the purposes. They must be accurate and, when necessary, kept up to date. Every reasonable step must be taken to ensure that inaccurate or incomplete data are erased or rectified. The data must be stored for no longer than necessary for the purposes, except for historical, statistical or scientific use, against appropriate safeguards.81 Furthermore, they may be processed only if the data subject has given his/her consent, if this is necessary for the performance of a contract or a legal obligation or to protect the vital interests of the data subject. Another reason may also be the performance of a task carried out in the public interest or in the exercise of official authority.82 Another Directive, the E-Privacy-Directive, provides for the harmonisation of national provisions concerning the processing of personal data and the

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von Hannover v. Germany (2004), para. 70. See above, text at fn 70. Article 15 (1) ECMR reads: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” Frans von der Dunk, above fn 3, 824. According to Article 3 (3) TEU, the objective of the EU is, amongst others, to “establish an internal market”. Directive 95/46/EC of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data of 24 October 1995, OJ of 23 November 1995, L281/31-50. Article 6 (1) Data Protection Directive. Article 7 Data Protection Directive.

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protection of privacy in the electronic communication sector.83 According to this Directive, member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services. They must guarantee that subscribers are informed of the data which are being collected and that location data may only be processed when they are made anonymous, or with the consent of the users or subscribers. Users or subscribers must be informed, prior to obtaining their consent, of the type of location data, of the purposes and duration of the processing and whether the data will be transmitted to a third party for the purpose of providing value added service. Furthermore, users or subscribers must have the possibility to withdraw their consent for the processing of location data at any time.84 The question, of course, arises of how these rules and principles can be brought in line with a “full and open access” to data policy. In particular in view of the fact that Earth observation data are collected in a general and automated way, generally without the consent of the sensed subjects. They are used for a large variety and not only for specific purposes. Large quantum is collected and processed which has become known under the term “Big Data”.85 As regards Copernicus data and information, the EU does not provide any express or implied warranty as regards quality and suitability for any purpose.86 Data and information are stored for long periods, for historic, statistical, scientific, and other purposes. There is, so far, no real guidance how these privacy concerns will be handled with be the respective EU organs. It is only clear that privacy issues become increasingly relevant with the improvement of spatial resolution of Earth observation data.87 VIII.

National Data Policies and Their Attempted Harmonization

In recent years, national data policies have been developed to address the increasing commercialization of space activities.88 Earth observation is not any longer a purely governmental activity but more frequently also carried out by the private sector. With improving technical performance and increasing capabilities, the resolution of the images is improving, raising concerns to national security.

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Directive 2002/58/EC of the European Parliament and the Council concerning the processing of personal data and the protection of privacy in the electronic sector, amended by Directive 2009/136/EC, OJ of 31 July 2002, L201/37-47. Article 12 E-Privacy-Directive. See, for example, Viktor Mayer-Schönberger and Kenneth Cukier, Big Data. A revolution that will transform how we live, work, and think (Houghton, Mifflin, Harcourt Publishing, New York 2013). Article 9 Commission Delegated Act. Frans von der Dunk, ‘The Resolution Revolution’. See Raymond Harris, Earth Observation Data Policy (Wiley & Sons, Chichester 1997) 39 ff.

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The most notable example of a very detailed national law on Earth observation data is the German Act to give Protection against the Security Risk to the Federal Republic of Germany by the Dissemination of High-Grade Earth Remote Sensing Data (Satellite Data Security Act – SatDSiG) of 2007. The Act applies to the operation of high-grade Earth remote sensing systems for which licenses must be obtained from the government. The licenses depend on a sensitivity check to assess the possibility of harm being caused to the vital security interests of Germany, to the peaceful coexistence of nations or to Germany’s foreign relations, including obligations assumed under international agreements. In view of this new development, the European Commission sees the need to provide guidelines to EU member States who also consider enacting such a law. In order to prevent further distortions of the internal market, it prepared a proposal for a Directive on the dissemination of Earth observation satellite data for commercial purposes.89 The purpose of the directive is to establish a comprehensive regulatory framework to improve legal coherence and foster the emergence of a European market for space products and services concerning the production and dissemination of high resolution satellite data for commercial purposes. The proposal is currently under discussion by the EU Parliament and the Council. There exists some scepticism, whether such harmonization is warranted and useful at this point. Furthermore, there is a concern about the costs caused by such a directive, including administrative costs.90 Future discussions will show whether the need for such a directive is perceived by the member States. IX.

Conclusion

The ambitious activities in the area of Earth observation in Europe are challenges not only in the technical but also in the legal and policy sphere. Several actors can be identified that influence the development of Earth observation data policy on the European continent. This leads to the conclusion that up to now, there is not one “European” policy on Earth observation data. What can be observed so far, are the legal and policy parameters in which the joint EU-ESA programme Copernicus is going to operate. But even in this limited context, many questions still remain open. How the different challenges will be met within the given framework described above will also form the shape of the European data policy in the future and help to answer some of the questions raised in this article in the years to come.

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European Commission, ‘Proposal for a directive on the dissemination of Earth observation satellite data for commercial purposes’, COM(2014) 344 final of 17 June 2014. Council of the EU, ‘Proposal for a directive on the dissemination of Earth observation satellite data for commercial purposes – Guidance for further work’, 2014/0176 (COD) of 20 March 2015.

International Legal Issues on Developing Space-Based Solar Power Shouping Li*

I.

Introduction

American scientist Peter Glaser proposed the idea of constructing space-based solar power station in 1968. Nearly half a century, the United States, Canada, Britain, France, the European Space Agency, Japan, Russia, India, China, and many equatorial countries not only have been more interested in space-based solar power station,1 but also put forward various construction programs of space-based solar power station.2 It is predicted that the success of spacebased solar power station will fundamentally change the way of humans to use energy acquisition and may lead to a new technological revolution.3 For this reason, in the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, the legal community unanimously called for various organizations around the world in the coming years to further study the technical and economic feasibility of the use of space solar power.4 But it is undeniable that the construction of space-based solar power station requires not only large scale space launch activities to carry all kinds of components from the earth to the space, but also large-scale space transportation systems to provide complex logistical support. These launch activities will produce a large number of space debris, and also take up a lot of orbit resources. In addition, space-based solar power station may also provide directly energy to military activities and military facilities, and even microwave transmission technology can be used to develop weather weapons for military purposes.

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3 4

Professor of international law, Law school of Beijing Institute of Technology, Director of Institute of Space Law of Beijing Institute of Technology. [email protected]. National Space Society (US), Rouge J D. Space-Based Solar Power As an Opportunity for Strategic Security[M]. National Security Space Office, 2007, p. 41. The existing constructive models include the SunTower Modular of the U.S., European SailTower and Japanese Modular. www.chinanews.com/gn/2011/0712/3174700.shtml. available on 2014-10-20. Hongbo Zhou, The Chance for the developing Space solar power, www.cubn.com.cn/News3/news_detail.asp?id=10393, available on 2014-10-20. UN documents: A/CONF.184/6：the report of the 3rd UNISPACE.

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Therefore, the development of space-based solar power station is bound to bring a series of challenges to the current international law. This paper will focus on the construction of space-based solar power station and the particularity of its operation to analyze the legal issues for the construction and operation of space-based solar power station and study the development of space-based solar power station bringing a series of challenges to the current international law to put forward some suggestions for improvement and development of the current international legal system that will promote and regulate the construction and operation of space-based solar power station. II.

International Legal Issues on the Construction and Operation of SpaceBased Solar Power Station

Space-based solar power station in earth’s orbit is a power system of converting solar energy into electric energy, and transmitting it to the earth through the way of wireless. In general, space-based solar power station is composed of three parts. The first part is a solar power system in earth’s orbit to convert solar energy into electric energy; the second part is a kind of energy conversion and launching device in earth’s orbit that can convert electric energy into microwave or laser and then emit energy beam to the ground by using of an antenna; and the third part is a receiving and conversion device to convert energy beam receiving from the space into electric energy.5 For the construction of space-based solar power station, it is needed to launch construction materials, film set light microscope, a solar panel, microwave transmission antennas and other equipment into the low-orbit space in which an antenna or solar cell array is assembled, and then transfer them from the low-orbit to the earth geosynchronous orbit. Taking the construction of a million kilowatt space-based solar power station for example, it is estimated that you need 10 square kilometers of space solar photovoltaic panels, antennas up to 2 kilometers in diameter, and its weight is up to 10,000 tons.6 In addition, what is needed is solar cell array, condenser and the microwave transmitting device assembled in orbit, which requires a series of manipulators to assemble and maintain the space solar power system. In the 1970s, NASA and the US Department of Energy designed a largescale universe solar power station called “standard model”, which weighs about 50,000 tons with an area of 10 km × 5 km. But in Japan, as for the universe solar power station to be built in the 1990s, only the solar panel is

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Hou xinbin, Wang Li, Zhu Yaoping, The situation on the developing space solar power, Journal Of Solar Power, 2009, 30(10): 1443-1448. Zhang Junping. The Idea on Space solar power and the development of technology, Spacecraft Recovery and RemoteSensing, 2011 (5): 10-17.

INTERNATIONAL LEGAL ISSUES ON DEVELOPING SPACE-BASED SOLAR POWER

up to 2.6 km in diameter and weighs 21,000 tons.7 Therefore, although human greatly improve its carrying capacity which is raised 10 times in the present, it also needs such heavy launch vehicle to be launched nearly 100 times in order to build a million kilowatt space-based solar power station. Assembled in-orbit space-based solar power station is like a 10 square kilometers space station in orbit which is around 1000 times bigger than the current International Space Station. Obviously, if a country starts to build a space-based solar power station, he tends to construct several or even dozens of space-based solar power stations to solve his energy problems. So, when more than one country build spacebased solar power station at the same time, the legal community will launch intensively thousand times so that several space objects with an area of 10 square kilometers will appear in the earth’s orbit. More importantly, with the operation of space-based solar power station, this type of massive power station is easy to directly generate not only collision risk to other space objects, but also signal interference and damage to other satellites because of its microwave or laser. To this end, the construction and operation of space-based solar power station may cause a series of issues of the international law. Firstly, to build a group of space-based solar power station, what is required is to launch materials hundreds of thousands of times by the heavy launch vehicle, so it must generate a large amount of space debris. It is calculated that it is equal to the total weight carried by the satellite launched by humans fifty years ago to construct a million kilowatt space-based solar power station, the sum of its launch time is also close to that of all humans during nearly ten years. Meanwhile, space debris generated by the current space launch has been a threat to human space activities. Therefore, it can be predicted that space debris will seriously influence human activities if a group of space-based solar power station are built and if such space-based solar power station is commercialized, space debris is increasing, it will lead to the probability of the earth’s orbit being full of a large amount of space debris so that our earth’s orbit cannot operate normally. Plenty of space debris is a serious threat not only to space objects in orbit and astronauts, but also to the space environment, which becomes important practical and legal issues in the construction of space-based solar power station. On the one hand, when space debris is increasing, the probability of in-orbit satellites being dashed by space debris will increase. So, it is an important issue that how to determinate the international liability for damage caused by space debris. On the other hand, there is no direct provision provided by the current international law to determinate the international liability for damage caused by space debris to the space environment.

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Zhou Qi. The Space Solar Power Sation is not a dream, Liberation Daily, 2002-4-26.

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Secondly, one of the basic principles of the current international space law is that “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.8 It is the principle to establish the legal status of outer space and celestial bodies, but for the legal nature of space resources like lunar natural resources and solar energy, only the Moon Agreement provides that the Moon and other natural resources are the common heritage of mankind.9 However, there are no provisions for other celestial bodies and orbit resources around the earth, and it is more important that it has been ratified by only 13 States Parties so far, so there is doubtful of its universality. Space solar power can be defined as space resources with the characteristic of renewability and non-exhaustibility. The main purpose that developed countries with advanced space technology develop space-based solar power station to make use of solar energy is to possess space resources for themselves. Under the framework of international law, it is a legal issue that whether a similar principle of “common heritage of mankind” is needed to be established to manage space solar power or not. In addition, space resources also include orbit resources around the earth like geostationary orbit and low earth orbit resources. The lifetime of the in-orbit space-based solar power station is up to 30 to 40 years,10 which is 5 to 8 times longer than that of current satellites. Although the current international law for the use of orbital frequency resources in the framework of ITU has its legal framework. Therefore, ways of constructing the legal regulation to such a giant solar cell array and to further improve the current international law should be proposed. Moreover, electric energy will be transmitted to the ground receiving station by laser or microwave beams after space-based solar power station in outer space converts solar energy into electric energy. Although the microwave transmitting electric energy does not cause damage to organisms in the earth’s surface and it will not cause a fatal disease,11 when microwave beam gets to the ground through the ionosphere and atmosphere, high-power microwave will interact with space plasma and atmospheric particle, causing some changes in the region and adjacent areas through the beam, such as electrons being heated and ionization being increased, at the same time the characteristic of microwave beam will also be changed. Therefore, electric energy transmitted through satellite microwave may not only interfere with

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Article 2 of the Outer Space Treaty. Article 11 of the Moon Agreement. Hou Xinbin. Space solar power station and its requirments to the technology on microwave wireless transmission, Space Electronic Technology, 2013(3): 4. Space solar power station and the technology on microwave wireless transmission, http://wenku.baidu.com/link, 2014-11-20.

INTERNATIONAL LEGAL ISSUES ON DEVELOPING SPACE-BASED SOLAR POWER

satellite and radio waves of other countries, but also cause damage to the aircraft and ground. It is expected that about 9000 sets of communication equipment will work in the earth’s orbit in 2015,12 so it will lead to severe consequences if the microwave beam causes interference. In addition, the microwave may also cause damage to the surface of the earth. Meanwhile, because that microwave can heat water molecules, once it deviates from the ground receiver, microwave beam with huge diameter (10km magnitude) can lead to natural disasters like drought, forest fire and sea typhoon because of its rapid evaporation and heating of the land area.13 As for international liability for damage caused by the wireless transmission, it is required to make further coordination and development for the current international communication law and international space law. Meanwhile, considering the damage to the space environment caused by the microwave beam or laser, ways of constructing the principle of responsibility and its implementation mechanism scientifically and to further improve the current space law should be proposed. Finally, space solar power can provide not only clean energy for the earth, but also energy needs for military activities and military facilities, such as to provide directly energy supply for in-orbit military satellite and military facilities in remote areas. The SBSP research group was set up by USA Naval Research Laboratory to research on space-based solar power station for the purpose of determining whether it can satisfy the demand of the America Navy, Marine Corps and the Department of defense. Compared to the ground solar energy, nuclear energy and wind energy, research group believes that it is the main program to develop space-based solar power station to ensure energy independence and dominant position to the army in USA. According to a report from the research group, they have made full analysis of technical and economic feasibility of space-based solar power station for military purposes such as the production of synthetic fuel in remote locations, and estimated its time and cost to put into use firstly. In addition, they also have compared energy consumption the army used in peace time with that in war time, and the result shows that it is an opportunity for us to construct space-based solar power station.14 In particular, microwave transmission technology can also be used to develop weather weapons for military purposes. The appraisal report shows that the

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Wang Jingquan. Why did space activities need new rules. Space International, 2012 (3): 34-42. Hongbo Zhou, The Chance for the developing Space solar power, www.cubn.com.cn/News3/news_detail.asp?id=10393, available on 2014-10-20. W Neil JohNson. Space-based solar power: Possible defense applications and opportunities for NRL contributions[R]. Naval Research Laboratory, 2009: 5.

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United States has possibly considered space-based solar power as a “space weapon” and paid more attention to it as an opportunity for strategic security.15 However, there is no legal norm in the current international law to regulate such a” space weapon” and also no provision for the use of space solar power to regulate its own military acts. Therefore, the issue needing further analysis includes: how to regulate its military acts legally in the use of such weather weapons and space solar power under the current principle of use of outer space for peaceful purposes. III.

The Current International Law on the Construction and Operation of Space-Based Solar Power Station

As is mentioned before, space-based solar power station is essentially a special spacecraft with super-size volume and weight, which means that it is an activity in outer space to construct space-based solar power station. Therefore, the construction and operation of space-based solar power station should follow the current international space law. Firstly, the basic principles of the current international space law provide the legal regulation for the construction and operation of space-based solar power station, such as the following principles of international space law: the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means; and the principle of use of outer space for peaceful purposes. So when constructing space-based solar power station, these principles above should be taken into consideration. Secondly, Article 4 of The Outer Space Treaty and The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 set out indirectly a number of general principles and provisions for the military use of space solar power. Article 4.1 of The Outer Space Treaty provides that States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. And Article 4.2 also provides that The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of

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National Space Society (US), Rouge J D.Space-Based Solar Power As an Opportunity for Strategic Security[M]. National Security Space Office, 2007: 13-14.

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any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited. So, it is a violation of these regulations directly if space solar power is used to make any objects carrying nuclear weapons or any other kinds of weapons of mass destruction. Furthermore, The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 prohibits the States Parties from engaging in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. Here, the term “environmental modification techniques” refers to any technique for changing-through the deliberate manipulation of natural processes – the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space. Therefore, Each State Party to this Convention is obliged not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. Thirdly, the current international custom and relevant international documents of The Space Debris Mitigation Guidelines are also important sources of law regulating the construction and operation of space-based solar power station. The Space Debris Mitigation Guidelines of the United Nations Committee for the Peaceful Uses of Outer Space endorsed in UNGA Resolution 62/217(2007) and IADC Space Debris Mitigation Guidelines call for Each State Party to the Guidelines to take appropriate measures to minimize the possibility of accidents in space and collisions between space objects,16 which actually provides directly legal principles for the construction and operation of space-based solar power station. Therefore, The Space Debris Mitigation measures should be adopted when States construct space-based solar power station. Fourthly, the current Compensation for Space Damage provides an important legal basis of liability system for damage caused by space-based solar power station. Article 7 of The Outer Space Treaty provides that Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies.17 Meanwhile, The

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Li Shouping. The Construction on the national mechanism on space debris mitigation. Journal of Beijing University of Aeronautics and Astronautics, 2008(4): 35. Article 7 of the Outer Space Treaty provides that each state party to the Treaty that launches or procures the launching of an object into outer space, including the moon

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Liability Convention also provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight, and in the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.18 So, these legal principles above can be direct and indirect law sources of international liability for damage and space debris caused by space-based solar power station. In addition, the Responsibility of States for internationally wrongful acts19 endorsed by the United Nations International Law Commission sets out a number of general principles and provisions, for example, the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. It also provides the source of law for international liability of damage caused by space activities. Although the current international legal regime sets out number of general principles and provisions for regulating the construction and operation of space-based solar power station, for a range of new issues of international law arising in the construction and operation of space-based solar power station, the current international legal system is faced with serious challenges. Firstly, there is no clear limitation to prevent space-based solar power station used for militarized purposes under the current international law. It is not the prohibited behavior under the current international law to provide national military installations or military activities directly with energy by using of space-based solar power station. As for space-based solar power station for commercial purposes, it can not be defined as military bases, installations and fortifications provided in the Article 4.2 of the Outer Space Treaty just because it provides national military installations or military activities directly with energy. The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977 prohibits the States Parties from engaging in military or any other hostile use of environmental modification techniques, but it adjusts the behavior occurred in earth and weather weapons made by using of microwave or laser transmission of space solar is actually completed in outer space. So, it is a question to be considered that

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and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the moon and other celestial bodies. Article 2 and 3 of the Liability Convention. By resolution 56/83 of The Responsibility of States for internationally wrongful acts endorsed by the United Nations International Law Commission on 12 December 2001.

INTERNATIONAL LEGAL ISSUES ON DEVELOPING SPACE-BASED SOLAR POWER

whether the behavior of making weather weapons in outer space should be constrained the Convention above. In addition, there is no further development about the issue of preventing an arms race in outer space discussed in the Conference on Disarmament.20 Secondly, there is no clear legal regulation to develop and utilize space resources under the current international law. Article 2 of the Outer Space Treaty provides that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. Professor Supancana I.B.R. explains that the term “not subject to national appropriation” includes four parts at least as follows: first, it should not subject to national appropriation by claim of sovereignty; second, it should not become “public property” that is, become the object of ownership; third, it should establish a kind of right regime in the international level before developing outer space resources; fourth, it should not be used indefinitely.21 Clearly, the use of space solar power is appropriated by space great powers essentially. Notably, this article provides that outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, not including space resources. Article 11 of the current Moon Agreement provides that the moon and its natural resources are the common heritage of mankind and States Parties to this Agreement hereby undertake to establish an international regime to govern the exploitation of the natural resources of the moon as such exploitation is about to become feasible, but space solar power resources are not natural resources of the moon and it has been ratified by only 13 States parties so far, so the principle of the common heritage of mankind provided by this agreement can not be rule of customary law.22 Therefore, countries can freely make use of space solar power without regard to the interests of developing countries under the current principle of use of outer space for peaceful purposes. Furthermore, there is also no clear provision to dispose of such the large space-based solar power station at the end of its life cycle. Obviously, for such a large space object to be scrapped, the state of registration shoulder move it from the earth’s orbit so as not to cause damage to other national space activities or space objects.

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Li Shouping. Military use of outer space and its regulations. Studies in Law and Business 2007 (3). Supancana I B R. Guaranteeing Accessof Developing Countriesto Outer Space[J]. Jurnal Analisis dan Informasi Kedirgantaraan, 2010(3): 1. Li Shouping, Zhao Yun. Introduction to Outer space law. Beijing: Guanming Press, 2009: 94-96.

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However, there are no regulations to deal with the problem of removing space debris under the current international space law, which may limit the development of removing space debris.23 Finally, there’s a lack of legal regulations of international liability for space damage caused by microwave or laser under the current international law. Although article 6 of the Outer Space Treaty provides that States Parties to the Treaty shall bear international responsibility for national activities in outer space,24 there are no provisions for any form of liability and criterion of liability. In addition, article 9 of the Outer Space Treaty provides that in the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation 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 all other States Parties to the Treaty.25 It means that if other celestial bodies are damaged by space-based solar power station in the wireless transmission because of microwave or laser or other satellite signals are interfered, it can be regarded as violation of article 9 of the Outer Space Treaty. The current Convention on International Liability for Damage Caused by Space Object provides that the damage caused by space objects is limited to personal injury and property damage, while it does not include environmental damage.26 Microwave and laser are not space objects, so the compensation

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25

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Nie Mingyan.Legal regime on actively removement of space debris. Yearbook of Space Law Research, 2013: 131. Article 6 of the Outer Space Treaty provides that States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, ……. Article 9 of the Outer Space Treaty provides that in the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation 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 all other States Parties to the Treaty. ……If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment. LiShouping. The liability regime on the damage caused by space objects under the framework of UN. Presentaday Law Science, 2009(2): 93.

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problem of the damage caused by microwave or laser can not be solved under the current Outer Space Treaty and the Liability Convention. A launching State shall be liable only if the damage caused by microwave or laser is due to its fault when applying provisions of the Responsibility of States for internationally wrongful acts, which is obviously unfair. As we all know, The Liability Convention provides that a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight, it is because that it is hard for victims on the surface of the earth to put to the proof of damages they suffered as they did not participate in launching space objects.27 In addition, Convention on International Liability for Damage Caused by Space Object can not be applied for the international liability of space and global environmental damages caused by microwave or laser transmitted by space-based solar power station. Although the general international law related to international wrongful acts can be applied, there are obvious limitations to define the fact of the environmental damage or its legal liability. IV.

Improvement of the International Legal Regime Regulating the Construction and Operation of Space-Based Solar Power Station

The analysis above shows that many new questions of the international law will be raised concerned with the constructing and operating of space-based solar power station. With the development of space technology, it is predicted that space-based solar power station can be used commercially; therefore, it is required to perfect international provisions to regulate the construction of space-based solar power station in order to guarantee the peaceful use of space solar power. (1)

The further development of legal regime to prevent the military use of space-based solar power station

The current space activities are having dual-use in nature, such as global navigation satellite system of the US or Russian, but we can not regard its global navigation satellite system as a violation of the principle of the peaceful use of outer space. So it is obvious to prevent the manufacturing of weather weapons by using of space solar power is one of important measures to prevent weaponization of outer space. It is important for the legal community to promote the international legislation to prevent an arms race in outer space and weaponization of outer space in order to prevent the manufacturing of weather weapons by using of space solar power fundamentally. In this regard, the issue on the treaty on the prevention of the placement of weapons in outer space has been proposed by the

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Hobe, Schmidt-Tedd, Schrogl (ed), Cologne Commentary on Space Law (Volume II), Carl Heymanns Verlag, p. 116-130.

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international community since 1981 in the UN General Assembly and also the draft resolution on the prevention of an arms race in outer space has been proposed. Since then, this issue becomes one of the most important issues discussed in the previous session of the General Assembly. Furthermore, the draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT) was first proposed by China and Russia in February 2008 as an international legally binding treaty that would outlaw the weaponization of space and the threat or use of force against outer space objects. In August 2009, China and Russia jointly submitted their working paper responding to the questions and comments raised by the Conference on Disarmament members on the draft treaty. Therefore, to prevent weaponization of spacebased solar power station, it must encourage the international community to widely accept the draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects as soon as possible. (2)

Promoting of the international legal system of removing space debris actively

End-of-life space-based solar power station will be a big threat to human space activities if an international legal regime of removing space debris actively has not been established. On the one hand, end-of-life space-based solar power station will become huge space debris; on the other hand, it will continue to occupy huge orbit space. International practice shows that although the Space Debris Mitigation measures should be complied with by international community, these mitigation measures are not obvious so that the amount of space debris still increase. Therefore, to establish international obligations of removing space debris actively is an important measure of relieving the threat of space debris fundamentally. There are no provisions to regulate the cost of removing space debris or the subject of the obligation under the current international space law. In this regard, some scholars have proposed a new international agreement to establish an international mechanism to remove space debris,28 and others have suggested that international customary in the form of active international practice can establish the obligation of the State to remove space debris,29 and also to amend the international space law to establish these international obligations

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Lieutenant Colonel Joseph S. Imburgia, Space Debris and its Threat to National Security: a Proposal for a Binding International Agreement to Clean up the Junk[J], Vanderbilt Journal of Transnational Law, 2011(5): 636-641. Meghan R. Plantz, Orbit Debris: out of Space[J], Georgia Journal of International and Comparative Law, 2012(40): 609-610.

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has been proposed by other scholars.30 From a practical point of view of international space law, the active removal of space debris involves the vital interests of the states or even the security of the national space assets, so it is very difficult to amend current treaties and develop new international treaties. Furthermore, it is also very difficult to identify and establish international customary because it not only requires long-term international practice from many countries, but also needs to achieve mutual recognition by the international community. Thus, there are slim hopes to establish the obligation of the State to remove space debris through international customary in the form of active international practice. Therefore, based on the status of international space law, it may be the easiest way to be accepted by the international community to establish a framework of cooperation on the active removal of space debris through international documents without legally binding to countries. It is also the current major trends in the international space law to establish international customary from long-term international practice of many countries. (3)

The positive development of legal regime of Compensation Liability for damages caused by space activities

Based on limitations of the current compensation Liability for damages in outer space, such as the damage is confined to be caused by space objects and the scope of compensation for damages is confined to the personal injury and property damage, so considering environmental damage could be caused during the construction and operation of space-based solar power station, the international community should actively establish the legal regime of international liability for damages caused by space activities. On the one hand, the current Liability Convention should be extended to international liability for damages caused by space activities so as to clear that a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight, and shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible. On the other hand, the scope of compensation of the current Liability Convention should be extended to damages of the environment in the earth and outer space. For damages of the environment in outer space, it should clear not only the compensation obligation of a launching State, but also the obligation of restituting the outer space environment and rights for any country to claim for environmental damages. With respect to the Outer Space Treaty and the Moon Agreement, liability system has related to not only the security for all countries, but also areas

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Lotta Viikari, The Environmental Element in Space Law: Assessing the Present and Charting the future[M], Martinus Nijhoff Publishers / Brill Academic, 2008: 100.

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that countries concern. Therefore, it is relatively easy to achieve mutual recognition to amend the current Liability Convention. (4)

The exploration of the fair sharing mechanism to make use of space solar power

Space solar power is a kind of renewable, non-exhaustible resource, and there is no the system of developing and utilizing space resources under the current international space law. Article 3 of Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries provides that all States, particularly those with relevant space capabilities and with programmes for the exploration and use of outer space, should contribute to promoting and fostering international cooperation on an equitable and mutually acceptable basis. In this context, particular attention should be given to the benefit for and the interests of developing countries and countries with incipient space programmes stemming from such international cooperation conducted with countries with more advanced space capabilities. Thus, as for establishing the fair sharing mechanism to make use of space solar power, it not only considers the interests of developing countries, but also responds to the principle of not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The legal nature of space solar power is different from the common heritage of mankind such as moon natural resources and international seabed resources that can be developed and utilized freely. So considering the interests of developing countries, especially for that of countries without space capabilities, it is of great significance to establish the fair sharing mechanism to make use of space solar power. To this end, on the one hand, it is required to take full account of the interests of developing countries, especially for that of countries without space capabilities to establish a reservation commission system with a fixed proportion of space solar power. In this system, according to the fair price auction mechanism, countries developing space solar power need to reserve a certain proportion of electricity to developing countries so that they can benefit space solar power every year. On the other hand, countries developing space solar power can cooperate with developing countries to construct space-based solar power station by making use of funds of developing countries and techniques of space countries to develop and utilize of space solar power commonly. V.

Conclusion

The commercial use of space-based solar power station will not only fundamentally change the ways of obtaining the energy so as to solve the problem of energy crisis brought about by industrialization, but also may lead to a

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technological revolution. But it cannot be avoided that various techniques are required from the construction of space-based solar power station to the commercial use of it completely, which means that it is required to perfect international provisions to regulate the construction of space-based solar power station. New challenges for the basic principle of the current international space law and the current legal system on International Liability for Damage Caused by Space Objects have developed when constructing and operating of spacebased solar power station. Furthermore, it will raise many new requirements of the legal regime concerned with preventing an arms race in outer space and weaponization of outer space. To promote and regulate the construction of space-based solar power station, the legal community should actively not only promote the international legislation to prevent an arms race in outer space and weaponization of outer space and space solar power, but also make further development of legal systems of removing space debris, equitable sharing space solar power and damage liability for all activities in space.

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Earth in Danger and Space Law José Monserrat Filho*

“This decade is the first in history that offers the choice between being the last decade of a fading, obsolete world or the first of a new and viable one.” Ervin Laszlo (1932-), Hungarian philosopher of science and systems theorist.1 “Unmask the illusion and foresee the disasters that come, such is our heritage. Refuting the globalist illusion does not mean resignation to the disorder of the world. On the contrary, this is also resist skepticism. E pur si muove!” Mireille Delmas-Marty, in Trois défis pour un droit mondial.2 “This is preeminently the time to speak the truth, the whole truth, frankly and boldly.” Franklin Delano Roosevelt, in his first address as president of USA, in 1932, during the Great Depression.3

We live in “a time of profound transformations to our global context,” stressed Klaus Schwab, Founder and Executive Chairman of the World Economic Forum, during the presentation of the Global Risks Report 2015,4 in Davos, Switzerland. For him, mankind faces the accelerated effects of climate change and the increasing uncertainty about the global geopolitical context. Going further, the Bulletin of the Atomic Scientists Science and Security Board, in a recent analysis, pointed out that “in 2015, unchecked climate change, global nuclear weapons modernization, and out-sized nuclear weapons arsenals pose extraordinary and undeniable threats to the continued existence of humanity.”5 That led its Doomsday Clock to be advanced by two minutes. Today it marks three minutes to midnight, the moment of the Earth’s collapse.

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1 2 3 4 5

Brazilian Space Agency (AEB), Brazilian Association of Air and Space Law (SBDA), Brazilian Society for the Advancement of Science (SBPC), Rio de Janeiro, RJ, Brazil, [email protected]. Laszlo, Ervin, Quantum Shift in the Global Brain: How the New Scientific Reality Can Change Us and Our World, USA, Rochester, Vermont, 2008, p. 1. Delmas-Marty, Mireille, Trois défis pour un droit mondial, France: Paris: Éditions du Seuil, 1998, pp. 199-200. See . See . See .

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There are many other reports and studies alerting to this catastrophe. Such an immeasurable disaster on Earth may affect all space activities, and their legal achievements. While focusing on outer space and space activities, international space law can be considered not only a probable victim of this disaster, but also an important instrument capable of preventing it. The fundamental 1967 Outer Space Treaty,6 as its Preamble points out, is inspired “by the great prospects opening up for humanity as a result of man’s entry into outer space” and recognizes “the common interest of all mankind in the progress of exploration and use of outer space for peaceful purposes.” This obviously means that the fate of humanity is in the core of its attention. This paper attempts to demonstrate the ability and the need for international space law to face the critical situation of the Earth in extreme danger, including the legal examination and the use of juridical provisions presented in the recommendations of the main scientific documents already drawn up on this transcendental subject. In conclusion, some viable initiatives in the space law field are proposed as contributions to efforts to provide Earth with new guarantees of survival. I.

The Preventive Function of Law

The paper’s proposals raise the opportunity and the need to expand the scope and the objectives of international space law, including in it specific space issues of the Earth and of its life expressions. Furthermore, it is timely to underline that “in today’s world, the preventive function of law is more vital than ever,” as observed Manfred Lachs (1914-1993) about 28 years ago. For him, it would be necessary for men around the world to feel this reality, “in order to incite them to abandon something of the parish spirit and give them the feeling of the existence of a common interest, and of responsibility in application of law in the everyday life of nations, as well as to make them understand that, as usually is said, it is worth more act wisely together than commit follies separately.” At the same time, as a notable jurist and thinker, Lachs foresaw the dangers that the Earth is currently experiencing: “Today, it is required to work at a time when science and technology have placed in man’s hands weapons capable of creating a danger to life and even cause total destruction; when modern techniques create other dangers threatening the earth, water and air; when economic and political relations between the states require that a new order abolishes abyss between rich and hungry [...]”.7 If the world already was in great danger in the 1980s, what could be the magnitude of danger today?

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II.

Poly-Catastrophe

“Dark times [...] are not only not new, they are not a rarity in history,” as Hannah Arendt (1906-1975) observed.8 But today we are certainly living in often darker times. According to the Global Solidarity, Global Responsibility: An Appeal for World Governance – launched in Geneva, Switzerland, on 6 March 2012, and endorsed by the Collegium International members –, “we are facing a conjunction of global crises that are unprecedented in history: depletion of natural resources, irreversible destruction of biodiversity, disruption of the global financial system, dehumanization of the international economic system, hunger and food shortages, viral pandemics and breakdown of political orders [...] none of these phenomena can be considered independently of the others. All are highly interconnected, constituting a single ‘poly-crisis’ that threatens the world with a ‘poly-catastrophe’ [...]”

The Appeal stresses that “the great crises of the 21st century are planetary,” and that “this is no butterfly effect, but the realization, grave and strong, that our common home is in danger of collapsing and that our salvation can only be collective.”9 III.

Our World Today

The new Global Sustainable Development Goals – Transforming our World: the 2030 Agenda for Sustainable Development10 – have been adopted by Heads of State and Government and High Representatives, during the meeting at the United Nations (UN) Headquarters in New York from 25-27 September 2015 – with the UN celebrating its 70th anniversary.

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title The Teacher of International Law – Teachings and Teaching, Netherlands, Martinus Nijhoff, 1997). Arendt, Hannah, Homens em tempos sombrios (Men in dark times), Brazilian edition: Companhia das Letras, 2008, p. 9. he Appeal is signed by Edgar Morin, Michel Rocard, Mireille Delmas-Marty, Richard von Weitzsäcker, Milan Kucan, Stéphane Hessel, Fernando Henrique Cardoso, René Passet, Peter Sloterdijk, Bernard Miyet, Patrick Viveret, Ahmedou Ould Abdalah, Ruth Dreifuss, William vanden Heuvel, Michael W. Doyle, Ricardo Lagos, and others. See . The ‘butterfly effect’ came from the “chaotic attractor” discovered by meteorologist Edward Lorenz, as he attempted to map progressive change in the global weather. Popularly speaking, “the tiny stream of air created by the flutter of the wings of a butterfly can amplify many times over and end by creating a storm on the other side of the planet. See Laszlo, Ervin, note 1, pp. 15-16. See: .

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Paragraph 14 of this historic document presents the vision of the UN General Assembly (UNGA) on the world global situation today, as follows: “We are meeting at a time of immense challenges to sustainable development. Billions of our citizens continue to live in poverty and are denied a life of dignity. There are rising inequalities within and among countries. There are enormous disparities of opportunity, wealth and power. Gender inequality remains a key challenge. Unemployment, particularly youth unemployment, is a major concern. Global health threats, more frequent and intense natural disasters, spiraling conflict, violent extremism, terrorism and related humanitarian crises and forced displacement of people threaten to reverse much of the development progress made in recent decades. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. Climate change is one of the greatest challenges of our time and its adverse impacts undermine the ability of all countries to achieve sustainable development. Increases in global temperature, sea level rise, ocean acidification and other climate change impacts are seriously affecting coastal areas and low-lying coastal countries, including many least developed countries and small island developing States. The survival of many societies, and of the biological support systems of the planet, are at risk.” “Climate change will amplify existing risks and create new risks for natural and human systems. Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development,” as Intergovernmental Panel on Climate Change (IPCC) says in Climate Change 2014 – Synthesis Report – Summary for Policymakers.11 IV.

Care for Our Common Home

Pope Francis in his 2015 Encyclical Letter Laudato Si – On Care for Our Common Home – issued in 25 May – makes an “urgent appeal for a new dialogue about how we are shaping the future of our planet.” According to Pope, “we require a new and universal solidarity,” as “our present situation [...] is in many ways unprecedented in the history of humanity.” “The Earth, our home,” – he stresses – “is beginning to look more and more like an immense pile of filth,” because “each year hundreds of millions of tons of waste are generated, much of it non-biodegradable, highly toxic and radioactive, from homes and businesses, from construction and demolition sites, from clinical, electronic and industrial sources.” Pope Francis also warns:

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“A very solid scientific consensus indicates that we are presently witnessing a disturbing warming of the climatic system [...] most of global warming in recent decades is due to the great concentration of greenhouse gases (carbon dioxide, methane, nitrogen oxides and others) released mainly as a result of human activity [...] The problem is aggravated by a model of development based on the intensive use of fossil fuels, which is at the heart of the worldwide energy system. Another determining factor has been an increase in changed uses of the soil, principally deforestation for agricultural purposes.” “Warming has effects on the carbon cycle. It creates a vicious circle which aggravates the situation even more, affecting the availability of essential resources like drinking water, energy and agricultural production in warmer regions, and leading to the extinction of part of the planet’s biodiversity. If present trends continue, this century may well witness extraordinary climate change and an unprecedented destruction of ecosystems, with serious consequences for all of us,” as “climate change is a global problem with grave implications: environmental, social, economic, political and for the distribution of goods.”

Moreover, Pope Francis remarks: “We all know that it is not possible to sustain the present level of consumption in developed countries and wealthier sectors of society, where the habit of wasting and discarding has reached unprecedented levels. The exploitation of the planet has already exceeded acceptable limits and we still have not solved the problem of poverty.” “Caring for ecosystems demands far-sightedness, since no one looking for quick and easy profit is truly interested in their preservation. But the cost of the damage caused by such selfish lack of concern is much greater than the economic benefits to be obtained,” points out Pope Francis. And he adds that “the alliance between the economy and technology ends up sidelining anything unrelated to its immediate interests.” “The failure of global summits on the environment makes it plain that our politics are subject to technology and finance. There are too many special interests, and economic interests easily end up trumping the common good and manipulating information so that their own plans will not be affected.” “It is foreseeable that, once certain resources have been depleted, the scene will be set for new wars, albeit under the guise of noble claims. War always does grave harm to the environment and to the cultural riches of peoples, risks which are magnified when one considers nuclear arms and biological weapons [...] Politics must pay greater attention to foreseeing new conflicts and addressing the causes which can lead to them. But powerful financial interests prove most resistant to this effort, and political planning tends to lack breadth of vision.”12

Wouldn’t these observations also applicable to outer space?

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See .

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V.

The Tragedy f Common Goods

To explain how we arrived to it at current bad situation of the common resources of Earth, Eduardo Felipe P. Matias recalls the article Tragedy of Common Goods, written in 1968 by American ecologist Garrett Hardin (1915-2003). Hardin recounts the case of a village of shepherds, whose sheep used a pasture in common. Each shepherd was engaged in putting more and more sheep in the pasture in order to increase his income. Over time, the pasture was saturated, and there was no pasture left to feed all the sheep. Most of them died. In sum, a tragedy. The shepherds abused the common good to increase their individual gains, ignoring the limits of nature. Although they gained more in short term, they lost out in long run. Already in 1999, it was recognized that “a globalized world requires a theory of global public goods to achieve crucial goals such as financial stability, human security or the reduction of environmental pollution.” And that “many of today’s international crises have their roots in a serious under supply of global public goods.”13 As to global human security as a public good, the 1994 Human Development Report has showed threats to world peace in transborder challenges: unchecked population growth, disparities in economic opportunities, environmental degradation, excessive international migration, narcotics production and trafficking and international terrorism.” It was equally said that the society would be “willing to pay for public goods that serve our common interest, be they shared systems of environmental controls, the destruction of nuclear weapons, the control of transmittable diseases such as malaria and HIV/AIDS, the preservation of ethnic conflicts or the reduction of refugee flows.”14 Addressing the present question of common goods in his 2015 Encyclical Letter, Pope Francis points out: “Whether believers or not, we are agreed today that the Earth is essentially a shared inheritance, whose fruits are meant to benefit everyone. Hence every ecological approach needs to incorporate a social perspective which takes into account the fundamental rights of the poor and the underprivileged. The principle of the subordination of private property to the universal destination of goods, and thus the right of everyone to their use, is a golden rule of social conduct [...]” He also notes that “the natural environment is a collective good, the patrimony of all humanity and the responsibility of everyone. If we make something our

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14

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Matias, Eduardo Felipe P., A humanidade contra as cordas: a luta da sociedade global pela sustentabilidade (Humanity against the ropes: the struggle of the global society for sustainability), Brazil, Sao Paulo: Paz e Terra, 2014, p. 17 (Portuguese edition). The author holds a PhD in International Law. Global Public Goods – International Cooperation in the 21st Century, Edited by Inge Kaul, Isabelle Grunberg and Marc A. Stern, Published for the UN Development Program (UNDP), Oxford University Press, 1999, pp. XII-XIII.

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own, it is only to administer it for the good of all. If we do not, we burden our consciences with the weight of having denied the existence of others.”

Antonio Cassese (1937-2011) commented that “the concept of ‘common good’ is not yet felt by the members of the international society. Only state interests and their occasional convergence regulate international relations.”15 The refugees tragedy in Europe today proves it. VI.

Uncertainty

According to Klaus Schwab, Executive Chairman of World Economic Forum, “in the coming decade [...] our lives will be even more intensely shaped by transformative forces that are under way already. The effects of climate change are accelerating and the uncertainty about the global geopolitical context and the effects it will have on international collaboration will remain. At the same time, societies are increasingly under pressure from economic, political and social developments including rising income inequality, but also increasing national sentiment [...] [N]ew technologies, such as the Internet or emerging innovations will not bear fruit if regulatory mechanisms at the international and national levels cannot be agreed upon.” The Global Risks Report 2015, in turn, stresses: “2015 differs markedly from the past, with rising technological risks, notably cyber-attacks, and new economic realities, which remind us that geopolitical tensions present themselves in a very different world from before. Information flows instantly around the globe and emerging technologies have boosted the influence of new players and new types of warfare [...] Past warnings of potential environmental catastrophes have begun to be borne out, yet insufficient progress has been made – as reflected in the high concerns about failure of climate-change adaptation and looming water crises in this year’s report.” The Report sees three risk constellations that bear out its findings: “1) The interconnections between geopolitics and economics are intensifying because States are making greater use of economic tools, from regional integration and trade treaties to protectionist policies and cross-border investments, to establish relative geopolitical power. This threatens to undermine the logic of global economic cooperation and potentially the entire international rulebased system; 2) The world is in the middle of a major transition from predominantly rural to urban living, with cities growing most rapidly in Asia and Africa. If managed well, this will help to incubate innovation and drive economic growth. However, our ability to address a range of global risks – including climate

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Cassese, Antonio, Gathering up the main threads, in Realizing Utopia – The Future of International Law, United Kingdom: Oxford University Press, 2012, p. 650.

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3)

change, pandemics, social unrest, cyber threats and infrastructure development – will largely be determined by how well cities are governed; and The pace of technological change is faster than ever. Disciplines such as synthetic biology and artificial intelligence are creating new fundamental capabilities, which offer tremendous potential for solving the world’s most pressing problems. At the same time, they present hard-to-foresee risks. Oversight mechanisms need to more effectively balance likely benefits and commercial demands with a deeper consideration of ethical questions and medium to long-term risks – ranging from economic to environmental and societal. Mitigating, preparing for and building resilience against global risks is long and complex, something often recognized in theory but difficult in practice.”

How to govern the emerging technologies and uncertainties? VII.

The Doomsday Clock

It is a symbolic clock face, marking countdown to doomsday. On 19 January 2015, it went on to score 23:57h, three minutes to midnight – the time of global catastrophe able to extinguish the human species inhabiting the Earth for many thousands of years. The decision to advance the clock by two minutes was taken after consultations with more than 20 scientists, including 17 Nobel laureates, among them famous physicists, such as the British Stephen Hawking, the Japanese Masatoshi Koshiba, pioneer in the study of neutrinos, and the American Leon Lederman. The clock has been maintained since 1947 – when the Cold War between the USA and the former USSR began – by the members of the Bulletin of the Atomic Scientists Science and Security Board. In 68 years, this sui generis indicator has been adjusted 22 times. Its worst moment came in 1953, triggered by American and Soviet tests with hydrogen weapons when the Clock scored 23:58h. The Clock was conceived by the celebrated Chicago Atomic Scientists, that had actively participated in the Manhattan Project in the creation of the atomic bombs launched over Hiroshima and Nagasaki, Japan, in August 1945. Haunted with these bombings – that killed more than 100,000 people just on the first day, and many more in the following months – they started to publish a mimeographed warning newsletter and then the Bulletin. The closer they set the Clock to midnight, the closer the scientists believe the world is to a global disaster. The Clock hangs on a wall in a Bulletin’s office in the University of Chicago. Originally, it represented an analogy to the threat of global nuclear war. But since 2007 it has also reflected climate change, and new developments in the life sciences and technology that could inflict irrevocable harm to humanity. The analysis of the Bulletin – addressed “to the leaders and citizens of the world” – says in sum: “In 2015, unchecked climate change, global nuclear weapons modernizations, and out-sized nuclear weapons arsenals pose extraordinary and undeniable threats to the continued existence of humanity.” The

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group said in a statement: “[W]orld leaders have failed to act with the speed or on the scale required to protect citizens from potential catastrophe. These failures of political leadership endanger every person on Earth.” In 2014, with the Doomsday Clock at five minutes to midnight, the members of the Science and Security Board concluded their assessment of the world security situation by writing: “We can manage our technology, or become victims of it. The choice is ours, and the Clock is ticking.” In 2015, with the Clock hand moved forward to three minutes to midnight, the Bulletin feels compelled to add, with a sense of great urgency: “The probability of global catastrophe is very high, and the actions needed to reduce the risks of disaster must be taken very soon.” In face of the dangers affecting today civilization on a global scale, the Bulletin urges the citizens of the world to demand that their leaders, among other measures, “dramatically reduce proposed spending on nuclear weapons modernization programs”, as “the USA and Russia have hatched plans to essentially rebuild their entire nuclear triads in coming decades, and other countries with nuclear weapons are following suit.” At the start of 2015, nine States – the USA, Russia, the United Kingdom, France, China, India, Pakistan, Israel and Democratic People’s Republic of Korea (North Korea) – possessed about 15,850 nuclear weapons, of which 4,300 were deployed with operational forces. Roughly 1800 of these weapons are kept in a state of high operational alert, according to the Stockholm International Peace Research Institute (SIPRI). Launched on 15 June 2015, the SIPRI Yearbook 2015, which assesses the current state of armament, disarmament and international security, notes as one of its key findings that “all the nuclear weapon-possessing states are working to develop new nuclear weapon systems and/or upgrade their existing ones.”16 “There are too many nuclear weapons,” said Sharon Squassoni, an expert in nuclear weapons nonproliferation at the Center for Strategic and International Studies in Washington, USA. And she added: “The existence of these weapons takes a lot of time, effort, and money to keep them safe, and the bureaucracies are poised to keep these systems going indefinitely.”17 For Hans M Kristensen, director of the Nuclear Information Project at the Federation of American Scientists, “the projected costs of the nuclear weapons modernization program are indefensible, and they undermine the global disarmament regime.”18

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See . Xin, Ling, Bulletin of the Atomic Scientists moves Doomsday Clock 2 minutes closer to midnight, Science, 23 January 2015. Kristensen, Hans, M., Nuclear Weapons Modernization: A Threat to the NPT?, .

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That is why another demand from Bulletin, addressed to world leaders, is to “re-energize the disarmament process.” In practice it means that “the USA and Russia, in particular, need to start negotiations on shrinking their strategic and tactical nuclear arsenals.” The creation of “institutions specifically assigned to explore and address potentially catastrophic misuses of new technologies,” is also a requirement proposed by the Bulletin. The Bulletin’s appeals are also, to some extent, applicable to outer space, and some of its requirements can be objects of proper regulation by international space law. VIII.

Transparency and Confidence

The Earth being in danger, the transparency and confidence-building measures (TCBMs) are as vital as those of collective security. These actions are means by which Governments can share information aiming at creating mutual understanding and trust, reducing misconceptions and miscalculations and thereby helping both to prevent military confrontation and to foster regional and global stability. They played an important role during the Cold War, contributing to reducing the risk of armed conflict through mitigating misunderstandings on military actions, particularly in situations where States lacked clear and timely information.19 The need for such measures in outer space activities has increased significantly over the past 20 years. The world’s growing dependence on space-based systems and technologies and the information they provide requires collaborative efforts to address threats to the sustainability and security of outer space activities. TCBMs “can reduce, or even eliminate, misunderstandings, mistrust and miscalculations with regard to the activities and intentions of States in outer space”. This is the conclusion of the Report of the Group of Governmental Experts on TCBMs in Outer Space Activities – a study adopted by consensus and issued on 29 July 2013.20 The Report adds that “these measures can augment the safety, sustainability and security of day-to-day space operations and can contribute both to the development of mutual understanding and to the strengthening of friendly relations between States and peoples.” It is acknowledged that “the existing treaties on outer space contain several TCBMs of a mandatory nature. Non-legally binding measures for outer space activities should complement the existing international legal framework on space activities and should not undermine existing legal obligations or ham-

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per the lawful use of outer space, particularly by emerging space actors.” The Group also discussed other measures, including those of a legally binding nature. The Group further agreed that “such measures for outer space activities could contribute to, but not act as a substitute for, measures to monitor the implementation of arms limitation and disarmament agreements,” help States to enhance clarity of their peaceful intentions and create conditions for establishing a predictable strategic situation in both the economic and security arenas. Similarly, included in the Report were “coordination and consultative mechanisms aimed at improving interaction between participants in outer space activities and clarifying information and ambiguous situations.” Likewise the Report recommended a coordination between the Office for Disarmament Affairs, the Office for Outer Space Affairs (OOSA) and other appropriate UN entities. Moreover, the Report drafted “a series of measures for outer space activities, including exchange of information relating to national space policy such as major military expenditure in outer space, notifications of outer space activities aimed at risk reduction, and visits to space launch sites and facilities.” The Group took note of the “Guidelines for appropriate types of confidencebuilding measures and for the implementation of such measures on a global or regional level”, as contained in the “Study on the application of confidence-building measures in outer space”21 TCBMs for outer space activities are integrated in a broader context. The UN General Assembly endorsed, in its resolution 43/78 H, the guidelines on confidence-building measures adopted by the Disarmament Commission at its 1988 session. This resolution noted that “confidence-building measures, while neither a substitute nor a precondition for arms limitation and disarmament measures, can be conducive to achieving progress in disarmament”. The Report indicates the following categories of TCBMs for space activities as relevant: “a) General transparency and confidence-building measures aimed at enhancing the availability of information on the space policy of States involved in outer space activities; b) Information exchange about development programs for new space systems, as well as information about operational space-based systems providing widely used services such as meteorological observations or global positioning, navigation and timing; c) The articulation of a State’s principles and goals relating to their exploration and use of outer space for peaceful purposes; d) Specific information-exchange measures aimed at expanding the availability of information on objects in outer space and their general function, particularly those objects in Earth orbits; e) Measures related to establishing norms of behavior for promoting spaceflight safety such as launch notifications and consultations that aim at avoiding potentially harmful interference, limiting orbital debris and mini-

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A/48/305 and Corr.1, annex, appendix II.

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mizing the risk of collisions with other space objects; f) International cooperation measures in outer space activities, including measures aimed at promoting capacity-building and disseminating data for sustainable economic and social development, that are consistent with existing international commitments and obligations. In fact, some TCBMs for outer space activities have already been enacted at the multilateral and/or the national level. They include pre-launch notifications, space situational awareness data-sharing, notifications of hazards to spaceflight safety and other significant events, and the publication of national space policies. But they need to be further developed. IX.

Common Law of Mankind and Earth

More than ever, it is time to think big. International space law is usually defined as dealing with outer space, celestial bodies – Moon and asteroids, Mars and other planets –, as well as with the space activities which so far are carried out only by the human species from the planet Earth. However, the very specific situation of Earth as celestial body responsible for the creation and development of the international space law is not taken into the due consideration. Earth is not recognized as one of the main objectives of this branch of law. Ironically, in this context, we could say that the international space law takes care of the solar system and the universe as a whole, minus of Earth, although it is the cradle of the exploration and use of outer space in general, and, therefore, of international space law. Let’s take just two examples. “At its broadest, space law comprises all the law that may govern or apply to outer space and activities in and relating to outer space,” write Francis Lyall and Paul B. Larsen.22 In the same sense, the Education Curriculum of Space Law, adopted by United Nations Office For Outer Space Affairs (UNOOSA), on March, 2014, states that “space law can be described as the body of law applicable to and governing space related activities.”23 Nevertheless, the Outer Space Treaty, of 1967, has, at least, two extremely important norms for the security of Earth and its inhabitants in Articles IV and IX, respectively: 1) “not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction,” and 2) to avoid “harmful contamination and adverse changes in the environment of the Earth resulting from introduction of extraterrestrial matter.” The sky always has played a crucial role in the evolution of mankind and all life manifestations on Earth. However, today the importance of outer space

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Lyall, Francis; Larsen Paul B., Space Law – A Treatise, England: Ashgate Publishing, 2009, p. 2. See .

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to our planet and its common life has increased as never before. The data coming from satellites are absolutely fundamental for any efforts to assure the sustainability of Earth and all its life expressions. In this global reality it is sheer recklessness to ignore the imperative of protecting our planet and its population, based on inclusive international space legislation. Hence the necessity of a Common Law of Mankind24 and Earth, specially related with international space law. More and more, outer space protection25 must be seen as an indispensable factor to Earth protection, and vice-verse. As the globalization of Earth – with the interdependence of physical, social and political events – is more than ever recognized as an undeniable fact, the universalization of outer space (its cosmic reach), with the interconnection of everything with everything, cannot be bypassed, as it has been in the past. As Ervin Laszlo remarks, “the reality we call universe is a seamless whole, evolving over eons of cosmic time and producing conditions where life, and then mind and consciousness can emerge.”26 Or, as Edgar Morin says, “we carry inside of us all the cosmos” and “we are all children of the sun.”27 X.

It Is up to International Space Law

If we are really determined to avoid a likely apocalypse visible on the horizon, one of the main tasks of the international space law that we must trigger is to help save the Earth from space, using the powerful scientific and technological resources we have installed there. Centuries ago Earth ceased to be the center of the universe, as our ancestors thought. But in face of unprecedented global dangers that threaten our planet today, its place cannot be other than the center of our universal concerns. Probably, a collapse of Earth would deprive the universe of a specie of intelligent life. In reality, as Jonathan Schell (1943-2014) pointed out, “the vision that counts is the view from Earth, from life,” as “from our strategic position on Earth different view opens, bigger even than the one taken from space. It is the vision of our children and grandchildren, of all future generations of mankind, stretching ahead of us into the future.”28

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Jenks, C. Wilfred (1909-1973), The Common Law of Mankind, USA, NY: Frederick A. Praeger, 1958. Williamson, Mark, Space: The Fragile Frontier, US, Reston, Virginia, AIAA, 2006. Laszlo, Ervin, note 1, p. 52. Morin, Edgar, Interview published in Brazilian Journal ECO-21, July 2015, pp. 8 and 9, Reprinted from La Croix, 22/06/2015. See:. Encyclical Letter Laudato Si' of the Holy father Francis on Care for Our Common Home, http://w2.vatican.va/content/francesco/en/encyclicals/documents/papafrancesco_20150524_enciclica-laudato-si.html

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The question, as posed by Antonio Cassese, is that “international society is still grounded in the mere juxtaposition of its subjects – not in their solidarity, let alone in their integration.”29 In any event, “from the microbes inhabiting the earth beneath our feet to environments of the universe unknown to us now, the next 100 years of ecological discoveries will influence our lives. We enter a time when society is armed with the scientific knowledge and ability to make responsible decisions,” as a recent editorial of Science affirms.30 And with “a new human consciousness”, as says Edgar Morin.31 So, “the choice is our: form a global partnership to care for Earth and one another or risk the destruction of ourselves and the diversity of life,” according to The Earth Charter.32 The current global situation seems to be so serious that the titanic work of saving mankind and our planet can be seen as a kind of utopia, maybe the major utopia of all times. A dream still far from having a general support. Coincidentally we’ll commemorate in 2016 the 500 years since the English humanist and statesman Thomas More (1478-1535) published his Utopia, considered “a playfully serious social critique to a social reality deadly and tragically grave.”33 In this context, it is urgent to build a positive agenda for the international space law. XI.

Some Ideas for a Positive Agenda

1. Convene by UN the Decade for Saving Mankind and the Earth, inaugurated with a Supreme United Nations Conference for Saving Mankind and Earth, in view to prepare and approve a wide and concrete program with this purpose. To this end mobilize all countries, international intergovernmental and non-governmental organizations, universities and research centers, technological and industry confederations and federations, multinational corporations, as well as the public opinion in general. Other similar events could be promoted during the decade;

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Cassese, Antonio, id. ibid., p. 648. David W., The next century of ecology, Editorial of Science, 7 August 2015. Morin, Edgar, Vers l’abime?, Editions de l’Herne, 2007; Rumo ao abismo?, Brasil, Rio de Janeiro: Bertrand Brasil, 2011, p. 190. See . Setari, Nicola, 500 years of Utopia: How a different story about Europe started in Flanders, Flanders Today, 14 August 2015. See . The author is Curator of Contour 7: A Moving Image Biennale, dedicated to Thomas More, in Belgian Flanders, from 29 August to 8 November 2015.

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2. Convene the UNISPACE IV to discuss a Space Program for Saving Mankind and the Earth; during the first years of the UN Decade devoted to this cause; 3. Discuss the updating of the UN Treaties and Resolutions on Outer Space, starting by 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; amending, for instance, the Article IV of Outer Space Treaty; 4. Discuss the issue of the passage in outer space of intercontinental missiles carrying weapons of mass destruction. Article IV of Outer Space Treaty of 1967 prohibits placing into Earth’s orbits any weapons of mass destruction, as well as installing such weapons in outer space in any other manner. When weapons of mass destruction cross outer space, it does not mean putting them into Earth’s orbits nor installing them in some way in outer space. Therefore, it seems to be allowed. But to prevent conflicts anywhere, this dangerous situation must be changed. Our planet, and outer space will certainly be safer and more peaceful if the nuclear arsenals cannot cross outer space to achieve their targets anywhere on Earth; 5. Discuss draft projects as International Code for Space Activities, proposed by European Union, and Treaty on the Prevention of the Deployment of Weapons in Outer Space, [and of] the Threat or Use of Force Against Outer Space Objects”, presented by Russia and China to the Conference on Disarmament (CD) in Geneva. The major goal is not deploy weapons and not use force in outer space, preventing its transformation into a theater of war; 6. Propose a drastic reduction in spending on nuclear weapons modernization programs, aiming at creating a new atmosphere of cooperation and peace among the great powers, preventing a new Cold War, a space arms race, and military conflicts directly in outer space; 7. Support the Manfred Lachs International Conference on Global Space Governance, whose second edition was held in Montreal, Canada, in May 2014, and issued the Montreal Declaration,34 as well as similar initiatives of high level of excellence. This Conference was proposed and is being organized by the McGill University Institute of Air and Space Law. It aims to produce an International Study on Global Space Governance that examines drivers of space regulations and standards for discussion during the International Conference, to be convened possibly in May 2016, at McGill University. According to Ram Jakhu, coordinator of the 2016 Conference, it will address a specific question: “In order to achieve, effectively and in practice, the goal of sustainable use of space for peace-

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See .

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8.

9.

10. 11.

ful purposes and for the benefit of all mankind, what should be the format and substance of global space governance in the next 20-30 years?” The answer to this question inevitably involves the basic challenge of achieving the survival and the sustainability of the only planet known so far that has given rise to intelligent life; Strengthen the role of the UN Committee on the Peaceful Uses of Outer Space, and study the opportunity to create an International Space Organization as an UN institution; Study a legal definition of the Precautionary Principle as an universal norm for international public law and international space law, on the basis of Principle 15 of the Rio Declaration – “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”;35 Study a legal definition of “Fair and Responsible Use of Space”;36 and Establish a legal framework for the industrial and commercial exploitation of resources of celestial bodies, based on the common benefits clause adopted in Article I of the Outer Space Treaty, to deter and reduce the increase of the already immense inequality between countries. Qatar, for instance, has a per capita income 428 times higher than Zimbabwe.37

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Rio Declaration was approved by the UN Conference on the Human Environment, held in Rio de Janeiro, Brazil, from 3 to 14 June 1992. The Precautionary Principle by World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), published in 2005 by the UN Educational, Scientific and Cultural Organization (UNESCO), 2005, p. 14. See . See also Dupuy, Jean Pierre, Pour un catastrophisme éclairé. Quand l’impossible est certain, Paris: Seuil, 2002. The Fair and Responsible Use of Space: An International Perspective, editors: Wolfgang Rathgeber, Kay-Uwe Schrogl and Ray A. Williamson, edited by the European Space Policy Institute, Germany: Springer-Verlag/Wien, 2010. See Bauman, Zygmunt, Does the Richness of the Few Benefit Us All?, United Kingdom, Cambridge: Policy Press, 2013, p. 9.

58th COLLOQUIUM ON THE LAW OF OUTER SPACE Joint IISL/IAF Session LEGAL FRAMEWORK FOR COOPERATIVE SPACE ACTIVITIES Co-Chairs: Cristian Bank Bernhard Schmidt-Tedd Rapporteur: Olga S. Stelmakh

International Cooperation Mechanisms Used by the United States in the Peaceful Exploration and Use of Outer Space Sumara M. Thompson-King and Robin J. Frank*

Abstract This paper will examine the range of cooperation mechanisms the United States utilizes with international partners in a diverse portfolio of civil and commercial space activities. These activities include space exploration, earth and space science, and in-space operations. The paper will discuss the 1998 Intergovernmental Agreement on Space Station Cooperation (IGA) among the United States, Russia, Japan, Canada, and eleven participating Member States of the European Space Agency (Belgium, Denmark, France, Germany, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, and the United Kingdom) which established the essential governmental level of commitment to the International Space Station (ISS) and created binding international obligations with respect to key government-level obligations. It will also consider the 1998 Memoranda of Understanding that NASA entered into with the Canadian Space Agency (CSA), the European Space Agency (ESA), the Russian Space Agency and the Government of Japan to establish a working basis for cooperation at the space agency level in designing, developing, operating, and utilizing the ISS, as well as subordinate implementing arrangements. The paper will also survey Framework Agreements that facilitate specific bilateral cooperative endeavors. These agreements contain key legal provisions, such as a crosswaiver of liability, and treatment of sensitive goods and data. Furthermore, the paper looks at the Global Learning and Observation to Benefit the Environment (GLOBE) program created through bilateral agreements between NASA and foreign entities.

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Sumara M. Thompson-King, General Counsel, National Aeronautics and Space Administration (NASA), United States. Robin J. Frank, Acting Associate General Counsel for International Law, National Aeronautics and Space Administration (NASA), United States. The authors of this work are employees of the government of the United States which precludes the work from being subject to copyright in the United States, so no copyright is asserted in this country. The United States. Government has a royalty-free license to exercise all rights under the copyright for governmental purposes. The views expressed in this paper are personal to the authors and do not necessarily represent either the views of NASA or the United States Government.

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Finally, the paper will also discuss multilateral mechanisms that are not created through legally binding agreements in which the US participates.

I.

Introduction

The National Aeronautics and Space Administration of the Government of the United States utilizes diverse mechanisms to cooperate with foreign governments and agencies to facilitate the peaceful exploration and use of outer space. II.

International Space Station Agreements

The International Space Station (ISS) is the most politically and operationally complex space exploration program undertaken to date.1 Its greatest accomplishment is as much a human achievement as it is a technological one. That is, how to best plan, coordinate, and monitor the varied activities of the ISS program.2 The ISS is the most ambitious and costly human exploration, scientific, and space research project ever undertaken.3 The agreements establishing the ISS program are all binding under international law. The Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station (the Intergovernmental Agreement or IGA) was signed in Washington, DC on January 29, 1998. A governmental-level commitment to this program, at both the political4 and legal5 levels, has been key to the ISS’s

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Aoki, Setsuko, IAC-14-E7.32 (IAC 2014, Toronto, Canada) (Aoki). Committee on the Peaceful Uses of Outer Space Legal Subcommittee. “Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space: Information Received from Member States.” Reply Received from the U.S. Apr. 8, 2013, A/AC.105/C.2/2013/CRP.17 (2013). (2013 LSC US Reply). Ferrazzani, Marco & Farand, Andre, IAC-14-E7.3.1 (IAC 2014, Toronto, Canada). In 1984, President Reagan initiated intergovernmental cooperation on Space Station Freedom, the predecessor initiative to the ISS. In 1992, at President Clinton’s initiative, Russia was invited to join the program, which became the ISS. Presentation Statement of Mr. William H. Gerstenmaier, Associate Administrator, Human Exploration and Operations Mission Directorate, National Aeronautics and Space Administration United States of America and Chairman, International Space Station Multilateral Coordination Board. Committee on the Peaceful Uses of Outer Space, Legal Subcommittee (LSC). April 12, 2013) www.unoosa.org/pdf/pres/lsc2013/tech-02E.pdf. (last visited September 24, 2015) (2013 Gerstenmaier LSC Presentation). See also, Aoki at p. 7 regarding political ramifications in international space cooperation. Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning

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success. The IGA establishes key government-level obligations such as crosswaiver of liability, protection of sensitive data and hardware, the concept that each Partner would seek to minimize the exchange of funds in implementation of cooperation and treatment of intellectual property rights6 for items invented on the ISS.7 The IGA is the foundational document governing the ISS although the initial formalization of the process required the implementation of several different agreements8 and Memoranda of Understanding. Following the signing of the IGA in 1998, NASA also entered into Memoranda of Understanding (MOUs) with the Canadian Space Agency (CSA), the European Space Agency (ESA), the Russian Space Agency, and the Government of Japan in January and February of 1998. The MOUs establish a working basis for cooperation at the agency level, including developing in detail the responsibilities of the agencies and creating a number of governing boards at the operational level. Since the ISS became fully operational in 2011, a high priority for all of the partner agencies is ISS utilization in support of human and robotic exploration. This utilization fall into four categories: exploration technology demonstrations, demonstrating maturity and readiness of critical exploration systems, human health management for long-duration space travel, and operations simulations and techniques for missions beyond low-earth orbit. Each partner agency selects its own priorities for utilization activities.9

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Cooperation on the Civil International Space Station. (IGA). The Member States of the European Space Agency are: Belgium, Denmark, France, Germany, Italy, The Netherlands, Norway, Spain, Sweden, Switzerland, and the United Kingdom. Article 21 of the IGA establishes a territorial approach with respect to assertion of patent rights for items invented on the ISS. 35 U.S.C. 105 addresses how the United States implements this provision. For a discussion of how the IGA provision will be implemented and potential future developments as commercial actors become more involved in outer space activities, See Ro, Theodore U., Kleiman, Matthew J. & Hammerle, Kurt G, “Patent Infringement in Outer Space in Light of 35 U.S.C 105: Following the White Rabbit Down the Rabbit Loophole.” 17 B.U J. Sci. & Tech. L. 202 (2011). For an earlier discussion of U.S. law, See Hammerle, Kurt G. & Ro, Theodore U., “The Extra-Territorial Reach of U.S. Patent Law on Space-Related Activities: Does the “International Shoe” Fit as We Reach for the Stars?” 34 Journal of Space Law 241 (2008). On the other hand, if an act of the infringement of Japan’s Patent is conducted on the JEM/KIBO, it is outside Japan and is not the subject of punishment under Japanese law. (Aoki at p. 7). IGA. For example, 1998 US-Russia Balance of Contributions agreement. “The Legal Framework for the International Space Station,” United Nations Committee on the Peaceful Uses of Outer Space, Legal Subcommittee, St-Arnaud, CSA, Farand, ESA, Uchitomi, JAXA, Frank, NASA & Porohkin for Roscosmos, (April 17, 2013. www.unoosa.org/pdf/pres/lsc2013/tech-05E.pdf. (2013 UNCOPUOS LSC presentation).

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The implementation of ISS cooperation over more than twenty years has shown that, including from the legal standpoint, the partnership has been able to adapt to different situations – even when difficult situations, such as the loss of the Columbia Shuttle mission in 2003, arose. The IGA and the four MOUs have proven flexible enough to provide a legal framework for the functioning of the partnership, without the need for amendment. Implementing Arrangements and program instruments have been developed as needed.10 The Partners agreed to extend ISS operations through 2020. In January 2014, Dr. John Holdren, President Obama’s Science Advisor and head of the Office of Science and Technology Policy, announced the Obama Administration’s commitment to extend the ISS program to at least the year 2024.11 Early this year, Canada announced its agreement to extend until 2024. Roscosmos’s Head announced its intention to extend until 2024 in August. Japan and ESA are going through their own governmental processes seeking a commitment to extend until 2024. III.

Bilateral Framework Agreements for Civil Space Cooperation

The U.S. Government has successfully used bilateral Framework Agreements to facilitate peaceful international cooperation in the use of space for almost 25 years. Other governments and space agencies are also using Framework Agreements to facilitate space agency cooperation. Examples of such Argentine agreements include the 2002 Framework Agreement on Cooperation in Space Activities between the Government of the Argentine Republic and the Government of Algeria, the 2006 Framework Agreement between the Government of the Argentine Republic and the Government of Ukraine on Cooperation in the Peaceful Uses of Outer Space, the 2007 Framework Agreement on Cooperation in Space Activities between the Argentine Republic and the Republic of Ukraine.12 Examples of such Canadian Space Agency (CSA) agreements

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2013 Gerstenmaier presentation to LSC. Frank, “Current International Cooperation Mechanisms: the International Space Station and the 2014 International Space Exploration Forum.” International Mechanisms for Cooperation in Space Exploration: A Discussion of Current and Future Mechanisms Seminar. Hosted by the Ministry of Foreign Affairs of Japan and the Delegations of Canada and the United States to the Legal Subcommittee of the United Nations Committee on Peaceful Uses of Outer Space (COPUOS). (Vienna, Austria, April 2024). The USG has not yet completed our governmental procedures to finalize the Obama’s commitment to this extension. The Administration is consulting with the U.S. Congress to obtain its policy commitment to and funding for this extension. Committee on the Peaceful Uses of Outer Space Legal Subcommittee. “Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space: Information Received from Member States.” Reply Received from the Argentine Republic (January 7, 2014) A/AC.105/C.2/105/Add.1.

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include: the 2010 CSA – Centre national d’etudes spatiales (CNES) Framework Agreement on the Use of Outer Space for Peaceful Purposes, and the 2013 CSA – German Space Agency (DLR) Framework Agreement on space science and technology cooperation.13 The United States has concluded Framework Agreements that are currently in force at the Government-to-Government level, with eight governments, including Canada, Ukraine and Sweden. NASA has entered into three space agency to space agency Framework Agreements – most recently with the Israeli Space Agency. Each Framework Agreement sets forth the scope of cooperation that may be undertaken pursuant to its provisions. Typically, the agreement covers, among other areas, cooperation in earth science, observations and monitoring, space sciences, human space flight, and human and robotic exploration. Implementation may include activities on space and earth, exchanges of scientific data, earth and space applications, and education and public outreach activities. These agreements establish legal frameworks for space cooperation (and occasionally aeronautics cooperation) with foreign space agencies and other governmental institutions by setting forth legal provisions that govern specific cooperation set forth in implementing arrangements. Addressing legal issues that typically arise when negotiating an international agreement for space cooperation in advance saves significant time and resources thereby allowing space agencies to focus on performing their underlying missions more efficiently and effectively.14 Specific cooperative activities are then undertaken through “Implementing Agreements” that establish the responsibilities of each of the Parties15 with respect to such cooperation. Key legal elements of Framework Agreements include, for example, crosswaiver of liability, transfer of sensitive goods and technical data, and intellectual property rights. These legal provisions are often similar to the parallel provisions in the IGA. When crafting Framework Agreements, the Parties consider the potential liability and risk of loss that could occur. Therefore, Framework Agreements

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Committee on the Peaceful Uses of Outer Space Legal Subcommittee. “Review of International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space: Information Received from Member States.” Reply Received from Canada (March 25, 2014) A/AC.105/C.2/2014/CRP.25. Wholley, Michael & Mirmina, Steven A, E8, Session 5, IAC, 2008 (Glasgow, Scotland). Under Framework Agreements concluded at the Government-to-Government level, Implementing Agreements are concluded by the agency or agencies established as “Implementing Agencies” under the applicable Framework Agreement. For the United States, NASA, the National Oceanic and Atmospheric Administration (NOAA), and, more recently, the United States Geological Survey are the Implementing Agencies under such agreements.

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include a cross-waiver of liability provision. The cross-waiver of liability serves as the standard of risk allocation for cooperative activity in space. The provision contains a mutual promise by both Parties not to sue each other for losses caused by any of the activities that take place under the agreement, subject to a few exceptions, such as claims by natural persons and claims caused by willful misconduct. The fundamental purpose of cross-waivers of liability is to encourage participation in the exploration, exploitation and use of outer space. Framework Agreements typically provide that that the crosswaivers be broadly construed to achieve this purpose. The Parties negotiating a Framework Agreement also consider the transfer of sensitive goods and proprietary or export-controlled technical data.16 The Parties work to craft a provision under which they are obligated to transfer only those goods and technical data (including software) necessary to fulfill their respective responsibilities under a particular Implementing Agreement and to follow all applicable laws and regulations, particularly those concerning export control. The provision also provides specific procedures to protect the goods and technical data, such as appropriated markings and return or destruction of the goods and technical data at the end of the cooperation. When crafting Framework Agreements, Parties are also concerned about intellectual property issues that may arise in the course of cooperation.17 Generally, any intellectual property created by one party or its related entities (for example, contractors, subcontractors, users, or customers) before or outside the scope of the Implementing Agreement belongs to that party. Allocation of intellectual property rights solely created by one Party or its related entities during the course of carrying out the Implementing Agreement is determined by that Party’s national laws. And for any intellectual property jointly created during activities carried out pursuant to the Implementing Agreement, the Parties agree to consult to determine the allocation of rights to, or interest in, such joint inventions.18 IV.

GLOBE

The Global Learning and Observation to Benefit the Environment (GLOBE) program is a multilateral program led by NASA.19 NASA works in close partnership with the National Science Foundation and the National Oceanic and Atmospheric Administration on the program. The program is fully supported

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Technical data may be proprietary data, export-controlled data or both. The approach taken is fundamentally different than the approach used in the IGA. See footnote 7 above. Mirmina, Steven, “International Framework Agreements Governing Civil Uses of Outer Space,” 22 The Air & Space Lawyer 9 (2009). www.globe.gov (last visited September 24, 2015). 2013 LSC US Reply.

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by the U.S. Department of State. The GLOBE program uses bilateral agreements to establish partnerships between NASA and foreign entities. GLOBE is a hands-on, primary and secondary school-based science and education program uniting students, teachers, scientists, and community members around the world in studying and conducting research about the Earth’s environment, connecting the local perspective to the view from space.20 GLOBE students take important environmental measurements focusing on atmosphere and climate, hydrology, soils, land cover biology, and phenology. By involving students in scientific data collection and research, including taking measurements, analyzing data, and participating in research collaborations with other students, GLOBE provides students with a full and practical understanding of the scientific process. International partners sponsor GLOBE activities in their countries, designing and funding their own implementation strategies to be compatible with their national and regional educational priorities. There are approximately 110 participating countries in the GLOBE program including many counties in the Americas, Africa, Asia, and Europe.21 Brazil is the most recent participant and NASA is looking forward to concluding agreements with Mauritius and Vietnam in the near future. Since its inception in 1995, more than 1.5 million students in more than 24,000 schools have participated in the program. GLOBE agreements, like most US bilateral agreements, contain provisions for financial arrangements, exchange of data and goods, the release of information about the GLOBE program, customs and immigration, and consultations and settlement of disputes.22 The following paragraphs will discuss several of these GLOBE agreement provisions and compare them to similar provisions found in other NASA bilateral agreements. Financial arrangement provisions in GLOBE and other bilateral agreements are similar. The provisions under both types of agreements require that each Party will bear the costs of fulfilling its assigned responsibilities.23 Further, under both types of agreements, all obligations of a Party are subject to its respective funding procedures and the availability of funds. One difference between GLOBE agreements and other NASA agreements is that GLOBE

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2013 LSC US Reply. 2013 LSC US Reply. Agreement between the National Oceanic and Atmospheric Administration of the United States of America and the Ministry of Education of Chile for Cooperation in the GLOBE Program. Done in Santiago Chile on April, 16, 1998. (Chile GLOBE Agreement) Note that Under a Memorandum of Understanding between NASA and NOAA, NASA now signs all GLOBE agreements. Chile GLOBE Agreement. NASA Advisory Implementing Instruction: Space Act Agreements Guide. NAII 1050-1C (August 11, 2014). (SAAG).

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financial arrangement provisions require parties to abide by U.S. law.24 Other NASA agreements create a separate provision to determine what law will govern the terms of the agreement.25 GLOBE agreements allow for the unrestricted use and distribution of GLOBE environmental measurement data, global environmental images, educational materials, and software.26 In negotiating other NASA bilateral science agreements, the specific provisions chosen by the Parties when drafting a distribution of scientific data provision varies greatly depending on the nature of the international cooperation and program.27 Like other NASA’s bilateral agreements regarding Earth science data that generally provide for public dissemination of such data, GLOBE agreements usually involve Earth science data and provide for public dissemination of such data. GLOBE agreements are also flexible regarding the release of information about the GLOBE program. GLOBE agreements allow Parties to freely release information on the GLOBE program as deemed appropriate without prior consultation with the other Party.28 Bilateral agreements other than GLOBE provide that each Party retains the right to release public information regarding its own activities but they require advance coordination with the other party regarding release of information concerning the other Party’s activities.29 Like GLOBE agreements, other bilateral agreements do promote the release of nonproprietary information and results to the scientific community.30 V.

International Space Exploration Coordination Group

In 2006, fourteen31 space agencies began a series of discussions on global interests in space exploration that culminated in an articulated vision of peaceful robotic and human space exploration called “The Global Exploration Strategy:

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See, e.g., Chile GLOBE Agreement. SAAG. See, e.g., Chile GLOBE Agreement. SAAG. In certain circumstances the Parties to agreements covering other types of scientific cooperation may agree that raw scientific data will be reserved to the Principal Investigators for a set time. Other circumstances require the raw data to be shared more broadly with all investigators to enhance the scientific return from the program. Parties to a bilateral agreement usually agree that following the exclusive use period, the data will be made available to the scientific community for further use. See, e.g., Chile GLOBE Agreement. SAAG. SAAG. In alphabetical order: ASI (Italy), BNSC (United Kingdom), CNES (France), CNSA (China), CSA (Canada), CSIRO (Australia), DLR (Germany), ESA (European Space Agency), ISRO (India), JAXA (Japan), KARI (Republic of Korea), NASA (United States of America), NSAU (Ukraine), Roscosmos (Russia). “Space Agencies” refers to government organizations responsible for space activities.

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The Framework for Coordination.” The release of this document in 2007 inspired the establishment of the International Space Exploration Coordination Group (ISECG) later that year, by fourteen space agencies, as a non-binding coordination forum for space agencies investing in space exploration.32 Participating agencies share information on space exploration plans and activities. They also pursue initiatives creating opportunities to strengthen individual agency efforts and future partnerships. ISECG is an open forum and invites the participation of agencies implementing space exploration programs. The European Space Agency (ESA) is the current ISECG chair; past chairs include the Canadian Space Agency (CSA) the Japanese Aerospace Exploration Agency (JAXA), and the National Aeronautics and Space Administration (NASA). Twelve space agencies participated in the second version of the Global Exploration Roadmap (GER) ISECG released in August 2013,33 to advance and update a long-range human exploration strategy. The roadmap begins with the International Space Station and expands human presence throughout the solar system, leading to human missions to explore the surface of Mars. The first GER was released in September 2011.34 The 2013 Global Exploration Roadmap makes clear that the U.S. and its international space partners share a common interest in pursuing these goals. The roadmap is the clearest signal yet that the global community is working together on a unified deep-space exploration strategic plan, with robotic and human missions, to destinations that include near-Earth asteroids, the moon and Mars. The roadmap also highlights the critical role of the International Space Station in preparing for deep-space exploration. The GER plan identifies a conceptual mission scenario that demonstrates how missions in the lunar vicinity, including the asteroid mission, prepare for international missions to Mars in the 2030 timeframe, while enabling important discoveries along the way. VI.

International Space Exploration Forum

The International Space Exploration Forum (ISEF) provides an opportunity for nations engaged in civil space activities around the world to share thoughts about how to further advance the exploration and use of space and to underscore the direct benefit to humankind of space exploration. ISEF is an intergovernmental forum for discussion of key national-level space policies and coordination of such policies, as appropriate. It was not estab-

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International Space Exploration Coordination Group Terms of Reference. www.globalspaceexploration.org (last visited September 22, 2015). www.globalspaceexploration.org. www.globalspaceexploration.org.

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lished through a legally binding mechanism rather it is a Ministry-level forum to which participants are invited through diplomatic channels. The ISEF met in Washington, D.C. in January 2014. Participants included representatives from Foreign Ministries, other Ministries with competence over space matters, Embassies, and space agencies. There were almost 200 representatives from over thirty nations from Africa, Asia, Europe, Latin America, the Middle East and North America. Participants in that ISEF meeting highlighted that many of the spaceflight achievements of the past half-century would not have been possible without international cooperation. They emphasized the continuing need for international cooperation – no one nation can “do it alone.” They discussed that innovation and knowledge derived from space exploration directly contributes to economic growth and societal well-being. There was recognition that human and robotic exploration is synergetic. Participants recognized that the ISS is a foundational bridge for future exploration.35 Participants also recognized the growth in commercial spaceflight activities and that any such private sector efforts expand economic growth, bring new vitality and ideas, and enhance space exploration. They emphasized the importance of such activities being done in accordance with existing national and international guidelines.36 The next ISEF will be hosted by Japan in 2016 or 2017. VII.

Conclusion

As the forgoing shows, the United States, including NASA, uses different mechanisms for different matters concerning international space cooperation. The United States, including NASA, intends to continue to partner through legally binding international agreements. The United States, including NASA, also intends to participate fully in the many multilateral policy and technical fora, not established through binding international agreements, created to address various space cooperation matters.

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Global Space Governance for Ensuring Responsible Use of Outer Space, Its Sustainability and Environmental Security Legal Perspective Olga S. Stelmakh*

Abstract The paper will be focused on the dominant legal actions taken worldwide, more specifically at the regional and international level, towards responsible and secure use of outer space and ensuring of its sustainability. For this purpose the sufficiency of applicable legally binding norms elaborated at the beginning of the space era and extent of complementarity of the pertinent soft law provisions will be analyzed. It will also envisage legal grounds for regulating emerging space threats and a shaped framework for measures taken at all stages of space activities towards achieving of aforementioned objectives. The emphasis will be made on legal initiatives to manage the risks posed by dangerous space debris, destructive collisions, the crowding of satellites, the growing saturation of the radio-frequency spectrum, etc. In this line, the paper will provide an overview of such topical concepts as “space situational awareness”, “space traffic management” and “active debris removal”. Finally, the role of international cooperation through transparency and confidence-building measures designed to enhance coordinated actions in the context of concepts’ proper implementation will be examined.

I.

Introduction and Prerequisites for a Secure and Sustainable Space Environment and Responsible Behaviour Therein

Even though the grounds of responsible and secure use of outer space, and of its sustainability have been laid down at the beginning of the space era, the recognition of the need to develop them further adjusting to modern space challenges started about a decade ago. As of today the legal regime governing responsible, secure and sustainable space environment is composed of two main blocks: legally binding norms

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Parliament of Ukraine / DRSH Group Int., Ukraine, [email protected].

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(mainly international space treaties and national space legislation) and complementary soft law provisions (draft codes of conduct, GGE reports, policies, guidelines, principles etc.). The very first fundamentals of secure space environment and responsible behavior therein have been enshrined in the Outer Space Treaty.1 In particular it provided for four categories of obligations towards ensuring the minimum level of transparency: • To cooperate; • To hold consultations; • To inform; • To afford the opportunity to observe the flight of space objects launched. Elaborating further on those categories, we have to refer to some pertinent provisions: • States shall be guided by the principle of cooperation and mutual assistance (art. IX); • States shall undertake appropriate international consultations before proceeding with any activity or experiment that would cause potentially harmful interference with activities of other States (art. IX) / with a counter right to request consultations concerning such an activity or experiment (art. IX); • States conducting activities in outer space agree to inform the UN Secretary-General as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the UN Secretary-General should be prepared to disseminate it immediately and effectively (art. XI);  States shall consider on a basis of equality any requests by other States to be afforded an opportunity to observe the flight of space objects launched by those States (art. X). The aforementioned provisions are the minimum requirements for a responsible public order in space, the optimum ones are found in soft law provisions thus not having any enforcement mechanisms – backing for implementation. In a perfect public order in space the optimum requirements should move towards the minimum ones and replace them leaving the niche to more up-todate requirements – responses to current space threats and challenges. However taking into account the fast pace of changes occurring in a space sector, the niche of optimum requirements should be taken by the new ones adjusted to the congested and contested space environment.

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Outer Space Treaty 1967 // www.unoosa.org/oosa/en/ourwork/spacelaw/treaties /outerspacetreaty.html.

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II.

Legal Actions Taken Worldwide

The first question that should be asked: why do we need to ensure security and sustainability of space environment, and responsible nature of space activities? ITU and IADC indirectly responded to this question focusing on the importance of satellite orbits and protected regions of outer space. Namely, ITU specifies that satellite orbits constitute limited natural resources that are increasingly in demand. The IADC, in its turn, emphasized on the value of protected regions, stating that any activity taking place in outer space should be performed while recognising the unique nature of protected LEO and GEO regions of outer space, to ensure their future safe and sustainable use. It has been also highlighted that these regions should be protected with regard to the generation of space debris. Highly vulnerable space assets provide us with enormous benefits that are threatened by risks from space debris, destructive collisions, the crowding of satellites, the growing saturation of the radio-frequency spectrum, etc. As correctly noted by the European External Action Service these challenges call for committed involvement by all space-faring and other countries to ensure greater safety, security, and long-term sustainability of outer space activities.2 The first relevant study dates back to 15 October 1993 entitled “Study on the application of confidence-building measures in outer space” (A/48/305 and Corr.1).3 It was initiated based on the UNGA resolution 45/55 B of 4 December 1990 that requested the UN SG with a group of governmental experts to carry out a study on the specific aspects related to the application of different technologies available, possibilities for defining appropriate mechanisms of international cooperation in specific areas of interest. Even though at that time the main emphasis was made on “prevention of an arms race” still it was acknowledged that to avoid conflicts based on misperceptions and mistrust, it is imperative to promote transparency and other confidencebuilding measures. The next topical study was requested almost 20 years later, namely on 8 December 2010, by the UNGA Resolution 65/68. Transparency and confidencebuilding measures in outer space activities.4 This resolution provided for a mandate to establish the Group of Governmental Experts (GGE) to conduct a study, commencing in 2012, on outer space TCBMs. In 2013 the GGE Report on Transparency and Confidence-Building Measures in Outer Space Activities has been released. The GGE considered the TCBMs as a means by

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European External Action Service // http://eeas.europa.eu/non-proliferation-anddisarmament/outer-space-activities/index_en.htm. Study on the application of confidence-building measures in outer space // www.un.org/ga/search/view_doc.asp?symbol=A/48/305. UNGA Resolution 65/68. Transparency and confidence-building measures in outer space activities // www.un.org/ga/search/view_doc.asp?symbol=A/RES/65/68.

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which Governments can share information with the aim of creating mutual understanding and trust, reducing misperceptions and miscalculations and thereby helping both to prevent military confrontation and to foster regional and global stability. TCBMs have been also seen as a facilitator in building confidence as to the peaceful intentions of States increasing understanding, enhancing clarity of intentions and creating conditions for establishing a predictable strategic situation in both the economic and security arenas. In that Report the GGE defined two categories of TCBMs: 1) dealing with capabilities; 2) dealing with behaviors. With focus on enhancing the transparency of outer space activities, the report provided for:  Information exchange on space policies;  Information exchange and notifications related to outer space activities;  Risk reduction notifications;  Contact and visits to space launch sites and facilities. Another important soft law document entitled “International Code of Conduct for Outer Space Activities”,5 even though still a draft, is considered as one of the most promising and comprehensive documents of this nature that focus on security and sustainability of outer space. Shaped as multilateral code of conduct, it is aimed at enhancing the safety, security, and sustainability of outer space activities and as recommended by the aforementioned GGE Report on TCBMs is perceived as a complement to international law. Already in its preamble was acknowledged the need to safeguard the continued peaceful and sustainable use of outer space for current and future generations that should be performed in a spirit of greater international cooperation, collaboration, openness and transparency. The Code recognizes the necessity of a comprehensive approach to safety, security, and sustainability in outer space. It also notes that space debris affects the sustainable use of outer space, constitutes a hazard to outer space activities and potentially limits the effective deployment and utilisation of associated space capabilities. Therefore it is in the shared interest of all States to reinforce international norms for responsible behaviour in outer space. Under this Code the States agree to establish and implement policies and procedures to minimise the risk of accidents in space, collisions between space objects, or any form of harmful interference with another State’s peaceful

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DRAFT International Code of Conduct for Outer Space Activities, version 31 March 2014 // www.eeas.europa.eu/non-proliferation-and-disarmament/pdf/space_code _conduct_draft_vers_31-march-2014_en.pdf.

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exploration, and use, of outer space. In conducting outer space activities they also resolve to refrain from any action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified by imperative safety considerations (in particular if human life or health is at risk or in order to reduce the creation of space debris) or by the UN Charter, including the inherent right of individual or collective self-defense. Where such exceptional action is necessary, it should be undertaken in a manner so as to minimize, to the greatest extent practicable, the creation of space debris and to take appropriate measures to minimize the risk of collision. The States, guided by the principle of cooperation and mutual assistance, consented to notify, in a timely manner, to the greatest extent practicable, all potentially affected States of any event related to the outer space activities they are conducting which are relevant for the purposes of this Code, including scheduled maneuvers that could pose a risk to the safety of flight of the space objects of other States; predicted conjunctions posing an apparent on-orbit collision risk, due to natural orbital motion, between space objects or between space objects and space debris; pre-notification of launch of space objects; collisions, break-ups in orbit, and any other destruction of a space object which has taken place generating measurable orbital debris; predicted high-risk re-entry events in which the re-entering space object or residual material from the re-entering space object potentially could cause significant damage or radioactive contamination; malfunctioning of space objects or loss of control that could result in a significantly increased probability of a high risk re-entry event or a collision between space objects. Moreover, the States shall provide the notifications on any event related to the outer space activities described above to all potentially affected States through the Central Point of Contact or through diplomatic channels; or by any other method as may be mutually determined by States. In notifying the Central Point of Contact, the States should identify, if applicable, the potentially affected States. A State that may be directly affected by certain outer space activities conducted by another State and has reason to believe that those activities are or may be contrary to this Code may request consultations with a view to achieving mutually acceptable solutions regarding measures to be adopted in order to prevent or minimize the potential significant risks of damage to persons or property, or of harmful interference to a State’s outer space activities. The consultation process will be held through diplomatic channels or by other methods as may be mutually determined. It is worth noting that the States also agree to work jointly and cooperatively in a timeframe sufficiently urgent to mitigate or eliminate the identified risk initially triggering the consultations. Any other State which has reason to believe that its outer space activities would be directly affected by the identified risk may take part in the consultations if it requests so, with the consent of the State which requested consultations and the State which received the request. The States are given a right to propose

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the creation of, on a voluntary and case-by-case basis, missions to analyse specific incidents affecting space objects, based on objective information, with a view to draw lessons for the future. These missions, to be established by consensus by the Meeting of the States and carried out by a geographically representative group of experts, endorsed by the involved States, should utilise information provided on a voluntary basis by the States, subject to applicable laws and regulations. One more legal initiative is held under the aegis of the UN Committee on the Peaceful Uses of Outer Space and is structured as the Working Group on the Long-Term Sustainability of Outer Space Activities. It is tasked to examine and propose measures to ensure the safe and sustainable use of outer space for peaceful purposes and for the benefit of all countries. Within the WG 4 expert groups were created to discuss specific topics and develop draft guidelines: A. Sustainable space utilization supporting sustainable development on Earth; B. Space debris, space operations and tools to support space situational awareness sharing; C. Space weather; D. Regulatory regimes and guidance for new actors in the space arena. The 33 draft guidelines have been consolidated in 18 draft guidelines. However the work is still ongoing. III.

SSA, STM and ADR

In the last decade three new concepts (SSA, STM and ADR) related to secure and sustainable space environment have been either developed, or enhanced. Understanding of their content is important for placing them within the global space governance system. Space Situational Awareness permits to autonomously detect, predict and assess the risk to life and property due to man-made space debris objects, reentries, in-orbit explosions and release events, in-orbit collisions, disruption of missions and satellite-based service capabilities, potential impacts of NearEarth Objects (NEOs), and the effects of space weather phenomena on spaceand ground-based infrastructure. In addition, it enables to have understanding what is going on in space by acquiring the independent capability to watch for objects and natural phenomena that could harm our infrastructure.6 Space Traffic Management is the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return

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SSA // www.esa.int/Our_Activities/Operations/Space_Situational_Awareness /About_SSA.

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from outer space to Earth free from physical or radio-frequency interference. It provides appropriate means for conducting space activities without harmful interference; supports the universal freedom to use outer space as laid down in the Outer Space Treaty of 1967. For the purpose of achieving a common good, actors have to follow specific rules, which are also in their self-interest.7 Active Debris Removal involves removing objects from orbit above and beyond the currently-adopted mitigation measures. It foresees a satellite performing a rendezvous with the object targeted for removal, initiating contact with the object, controlling its attitude, reducing orbital altitude and then removing it from orbit. However as the most significant limitations of its implementation could be seen the lack of transparency, coordination and willingness to cooperate. Moreover, being mainly developed at the beginning of the space era, the pertinent international legal instruments do not consider recent trends, are sometimes too broad and do not provide for a differentiated approach on most issues. IV.

Space Debris Mitigation and ADR

To present there is no explicit internationally binding obligation imposed on the launching states to remove the space object from orbit once it is no more functional or cooperative. However through the array of soft law documents, in particular space debris mitigation guidelines, planetary protection policies and codes of conduct, this implicit obligation can be distilled and introduced as an explicit commitment to remove space object from orbit upon completion of its efficient operation. The IADC Space Debris Mitigation Guidelines8 focus primarily on two main categories of non-functional man-made objects, namely spacecraft and launch vehicle orbital stages. They see spacecraft as an orbiting object designed to perform a specific function or mission and draw a clear distinction between those spacecrafts that are considered functional and non-functional. A spacecraft that can no longer fulfil its intended mission is considered nonfunctional if only it is not in reserve or standby modes awaiting possible reactivation. As regards launch vehicle orbital stages, the Guidelines view them as stages of a launch vehicle left in Earth orbit. Since they have already terminated their mission when deploying the spacecraft it is natural that such stages are treated as non-functional. It is important to be proactive in facing space debris problem since it is not limited by danger posed to space objects, but also constitute threat to the environment in which they operate, services they provide and to the humans in space.

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STM // https://iaaweb.org/iaa/Studies/spacetraffic.pdf. IADC Space Debris Mitigation Guidelines 2002 // www.iadconline.org/index.cgi?item=docs_pub.

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In addition, the space debris problem leaves an open item: who has to remove space debris and who actually will accomplish this? This question is followed by many more questions, namely how can we oblige someone to remove non-functional space object, is there any legally binding obligations to remove it and are there any enforcement mechanisms for doing so? The critical character of a space debris problem is also explained by its influence on what is happening on Earth (justified by our dependence on space applications). In a situation where there is no mandatory obligation to remove the space object from orbit and preserve space environment, no enforcement mechanisms for implementation of space debris mitigation guidelines and no differentiated guidelines that would consider new trends, there is an explicit need to develop a clear ADR rules to deal with space debris problem if preventive actions failed to be efficient. However this is complicated by fact that there is no international acceptance and recognition of ADR and so far there were no cases / precedents of its implementation. In IADC guidelines it is provided that operators should avoid the long term presence of launch vehicle orbital stages in the GEO region. As regards the spacecraft that have terminated their mission, they should be manoeuvred far enough away from GEO so as not to cause interference with spacecraft or orbital stage still in geostationary orbit. It is expected that such a manoeuvre should place the spacecraft in an orbit above the GEO protected region. Whenever possible spacecraft or orbital stages that are terminating their operational phases in orbits that pass through the LEO region, or have the potential to interfere with the LEO region, should be de-orbited or where appropriate manoeuvred into an orbit with a reduced lifetime. The Guidelines provide in particular for two relevant to the ADR mitigation measures: de-orbiting and re-orbiting. Both of them are interpreted through intentional changing of a spacecraft or orbital stage’s orbit; however the first one, i.e. de-orbiting, focus on re-entry of a spacecraft or orbital stage into the Earth’s atmosphere purported to eliminate the hazard it poses to other spacecraft and orbital stages, by applying a retarding force, usually via a propulsion system. It is worth noting that during an organisation’s planning for and operation of a spacecraft and/or orbital stage, the systematic actions should be taken to reduce adverse effects on the orbital environment by introducing space debris mitigation measures into the spacecraft or orbital stage’s lifecycle, from the mission requirement analysis and definition phases. More importantly, no program, project or experiment that will release objects in orbit should be planned unless an adequate assessment can verify that the effect on the orbital environment, and the hazard to other operating spacecraft and orbital stages, is acceptably low in the long-term.

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However the space debris mitigation measures should focus on minimization of the potential for on-orbit break-ups, avoiding intentional destructions, which will generate long-lived orbital debris. This is one of the key limitations for the ADR implementation which specifies that mitigation measures should be carefully designed not to create other risks. Thus when undertaking the ADR activities two main limitations should be kept in mind: 1) avoidance of intentional destruction and other harmful activities and 2) prevention of on-orbit collisions. It is specified that intentional destruction of a spacecraft or orbital stage and other harmful activities that may significantly increase collision risks to other space objects on-orbit should be avoided. In developing the design and mission profile of a spacecraft or orbital stage, a program or project should estimate and limit the probability of accidental collision with known objects during the spacecraft or orbital stage’s orbital lifetime. The most relevant to ADR guidelines, namely the ones that reflect situations having a high probability for implementation of this mechanism, are: 1) to limit the probability of accidental collision in orbit, 2) to avoid intentional destruction and other harmful activities, 3) to limit the long-term presence of spacecraft and launch vehicle orbital stages in the LEO region after the end of their mission and 4) to limit the long-term interference of spacecraft and launch vehicle orbital stages with the GEO region after the end of their mission. The probability of accidental collision with known objects during the system’s launch phase and orbital lifetime should be estimated and limited already at the time of developing the design and mission profile of spacecraft and launch vehicle stages. If available orbital data indicate a potential collision, adjustment of the launch time or an on-orbit avoidance manoeuvre should be considered. Some accidental collisions have already been identified. Numerous studies indicate that, as the number and mass of space debris increase, the primary source of new space debris is likely to be from collisions. Collision avoidance procedures have already been adopted by some member States and international organizations. Recognizing that an increased risk of collision could pose a threat to space operations, the intentional destruction of any on-orbit spacecraft and launch vehicle orbital stages or other harmful activities that generate long-lived debris should be avoided. When intentional break-ups are necessary, they should be conducted at sufficiently low altitudes to limit the orbital lifetime of resulting fragments. Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the LEO region should be removed from orbit in a controlled fashion. If this is not possible, they should be disposed of in orbits that avoid their long-term presence in the LEO region. When making determinations regarding potential solutions for removing objects from LEO, due consideration should be given to ensuring that debris that survives to reach the surface of the Earth does not pose an undue risk to people or property, including through environmental pollution caused by

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hazardous substances. Spacecraft and launch vehicle orbital stages that have terminated their operational phases in orbits that pass through the GEO region should be left in orbits that avoid their long-term interference with the GEO region. For space objects in or near the GEO region, the potential for future collisions can be reduced by leaving objects at the end of their mission in an orbit above the GEO region such that they will not interfere with, or return to, the GEO region. Similar provisions have been enshrined in the Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space.9 The high risk of damage posed by ADR activities also requires proper consideration of applicable liability regime. From the legal perspective, when applying ADR, one should think about possible differences in legal implications depending on contact vs. contactless removal. Deriving from the Liability Convention, launching state, when in outer space, is liable only if the damage is due to its fault or the fault of persons for whom it is responsible. Therefore, in case of contactless removal the fault will be less evident and therefore more challenging to prove. Despite all possible justifications to apply the ADR, it cannot be implemented without reaching agreement with states related to non-functional / noncooperative space object – target object to be removed. Two optional approaches could be suggested: to identify all objects in orbit that can be impacted by ADR activities and to hold preliminary consultations with all concerned parties (mainly launching states) or to inform the UN Secretary-General about the planned ADR setting a deadline for concerned States to get in touch with “interested in ADR States” expressing their will to hold consultations. Aside from this, the continuing legal relationship between the object and launching states together with extension of their jurisdiction over the object once launched in the outer space should be taken into account. In the context of hazardous nature of ADR activities, the issue of authorization, supervision and control should be considered to ensure that ADR falls under the legal scope and therefore cannot be interpreted as an “international wrongful act”. V.

Global Space Governance

The Montreal Declaration dated 31.05.2014 (McGill)10 recognized that current global space governance system that was created during the 1960s and 1970s has not been comprehensively examined by the international community since its establishment. The concept of global governance is comprehensive and includes a wide range of codes of conduct, TCBMs, safety concepts,

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Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space 2007 // www.unoosa.org/pdf/publications/st_space_49E.pdf. Montreal Declaration 2014 // https://www.mcgill.ca/iasl/files/iasl/montrealdeclaration-2nd-manfred-lachs-conference.pdf.

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international institutions, international treaties and other agreements, regulations, procedures and standards. The Declaration drew attention to the numerous developments that have occurred in the world in general, and in space sector in particular, with serious implications for current and future space activities and for sustainable use of space for peaceful purposes for the benefit of all humankind. Thus the Global Space Governance can be seen as a movement towards political integration of transnational actors aimed at negotiating responses to space-related problems that affect more than one state and tends to involve institutionalization. This raises questions as to the possibility for the UN to be considered as an institution of global space governance and the powers such institution (e.g. UN OOSA, ITU, UNIDIR, IAEA etc.) will have in relevant context. The consideration should go in parallel with understanding that the global space governance also provides for an acceleration of interdependence on a worldwide space arena and the term itself may also be used to name the process of designating space laws, rules, or regulations intended for a global scale. Therefore the Governance requires reflection on the issues: Who is governing? What is the focus area? What are its existing instruments and methods applied? What are the limitations? UN COPUOS11 is the only committee of the UNGA dealing exclusively with international cooperation in the peaceful uses of outer space. Its role as a forum to monitor and discuss developments related to the exploration and use of outer space has evolved alongside with the technical advancements in space exploration, geopolitical changes, and the evolving use of space science and technology for sustainable development. The overall mandate of the Committee and its two Subcommittees aims at strengthening the international legal regime governing outer space, resulting in improved conditions for expanding international cooperation in the peaceful uses of outer space. The mandate also specifies that the Committee should support efforts at the national, regional and global levels, including those of entities of the United Nations system and international space-related entities, to maximize the benefits of the use of space science and technology and their applications. It aims to increase coherence and synergy in international cooperation in space activities at all levels. ITU12 is the UN specialized agency for information and communication technologies – ICTs that allocates global radio spectrum and satellite orbits, develops the technical standards that ensure networks and technologies seamlessly interconnect and strives to improve access to ICTs to underserved communities worldwide.

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UN COPUOS // www.unoosa.org/oosa/en/ourwork/copuos/index.html. ITU // www.itu.int/en/about/Pages/default.aspx.

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In its turn the UNIDIR (UN Institute for Disarmament Research)13 is an autonomous institute within the UN that generates ideas and promotes action on disarmament and security, assists the international community in developing the practical, innovative thinking needed to find solutions to the challenges of today and tomorrow and in finding and implementing solutions to disarmament and security challenges, seeks to contribute to conflict prevention and promote the development of a peaceful and prosperous world and strives to anticipate new security challenges and threats and to elaborate possible methods to address them before they become critical. As regards the IAEA (International Atomic Energy Agency)14 it is positioned as an independent intergovernmental, science and technology-based UN organization, in the United Nations family, that serves as the global focal point for nuclear cooperation; assists its Member States, in the context of promoting the safe, secure and peaceful use of nuclear technologies social and economic goals, in planning for and using nuclear science and technology for various peaceful purposes, including the generation of electricity, and facilitates the transfer of such technology and knowledge in a sustainable manner to developing Member States; develops nuclear safety standards and, based on these standards, promotes the achievement and maintenance of high levels of safety in applications of nuclear energy, as well as the protection of human health and the environment against ionizing radiation; verifies through its inspection system that States comply with their commitments, under the Non-Proliferation Treaty and other non-proliferation agreements, to use nuclear material and facilities only for peaceful purposes. To the main focus areas of the global space governance refer space activities, space environment, space objects and human in space. The global space governance should also cover such emerging space threats as risks posed by dangerous space debris, nuclear power source applications in outer space, destructive collisions, crowding of satellites and growing saturation of the radiofrequency spectrum. Existing legal instruments for space governance are binding and nonbinding, wherein the TCBMs are playing the growing role. Even though the TCBMs refer to the soft law, they have a potential to become a hard law. Methods applied in space governance: • Bottom – up approach for law-making (collection of best practices and development of recommendations, principles, rules of conducts etc.); • Holding of fora; • Establishment of working groups; • Development of new cooperative actions and initiatives.

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UNIDIR // www.unidir.org/. IAEA // https://www.iaea.org/.

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VI.

Concluding Remarks

Nowadays we can observe many parallel legal initiatives and other non-legal actions focusing on enhancing the secure, sustainable and responsible space. However their efficiency will be reduced if implemented in uncoordinated way not falling under the scope of global space governance. Even though this must cause many discussions as regards pros and cons of centralization vs. decentralization and the potential risk of usurpation of space authorities in “one hands”, we are of the view that the global space governance should be implemented for the purposes of coordination, avoiding useless duplications and hazardous contradictory actions. To conclude, we are not talking about “governing” stricto sensu, creating a centralized space superpower, but rather about assisting space actors to cooperate and coordinate, having a holistic picture and understanding of what has already been done, what is happening and what is planned to be realized.

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Impact of International Code of Conduct for Outer Space Activities and EU Contribution to Collaborative Projects Devising a New Approach for Space Law in Europe Anita Rinner*

Abstract Art 189 (3) of Treaty on the Functioning of the European Union (TFEU) provides that the European Union (EU) has no competence to harmonise existing member state space legislation. Nevertheless, some alignment is needed; an alignment of European space law has developed consistently over the last decade, though rather through the backdoor. The Draft of the European Code of Conduct for Outer Space Activities – renamed in 2014 as the International Code of Conduct despite its status as soft law – is a possible instrument for developing harmonised European standards in space debris mitigation, space traffic management and the sustainable use of outer space. Much has already been done at the level of `soft law’ space standardisation by the European Space Agency in developing the European Cooperation for Space Standardization (ECSS). Nevertheless it seems that the EU is paving the way for a common European space law, at least for special sectors, such as the use and dissemination of space data. This can be seen in the Proposal for a Directive of the European Parliament and the Council on the dissemination of Earth observation satellite data for commercial purposes, [Brussels, 17.6.2014]. The proposal emphasises the demand for free circulation of satellite data within Europe, but in practice there is little evidence of such a need in the single market for spatial imagery. This paper takes as its starting point the fact that the EU has no competence-competence to regulate general space activities for its Member States. It discusses what the new approach towards a European space law might indicate for the “shared competence” laid down in Art 4 TFEU. In outlining the potential competence in moving towards a European Space Law, it outlines the byproduct of creating added value and solutions for a common European space law strategy.

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University of Graz, Austria, [email protected].

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I.

Introduction

The European Union (EU) is a supranational player in space.1 The term “supranational” indicates that the interests of the EU in space basically can go beyond national interests. These interests are laid down in a European space policy. “Supranational” in a legal sense means that the law enacted by the EU has primacy over national law and can bind not only member states but also individuals of a member state.2 EU directives are right applicable to member states and individuals. The EU was fitted with competences by the member states. One competence is to enact laws or to harmonise existing legislation.3 As far as space matters are concerned, Art 189 (3) Treaty on the Functioning of the European Union (TFEU) provides that the European Union (EU) has no competence to harmonise existing member state space legislation. According to Art 4 TEFEU space is a so called “shared competence” between the European Union and the member states. However, it is laid down that the EU is only allowed to develop a space policy and own space programmes of its own but they must not hinder national space policies and programmes. Thus the EU is a supranational player as far as policies are concerned but not a supranational player in space law making. The EU is aware of the fact that outer space is a limited national resource and thus needs to be protected. This view is also one of self-interest. The EU is carrying out the biggest collaborative projects in Europe together with the European Space Agency (ESA): Galileo and Copernicus.4 These projects cost billions of Euros and depend on the availability of the natural resource in outer space. Space debris, space traffic and frequency interference may harm the valuable satellites for navigation, remote sensing and weather forecast. Thus the EU has an increasing interest in a common code of conduct in outer space activities. Due to the lack of competences to harmonise existing (binding) space legislation, the EU seeks to enact soft law regulations to “harmonise” existing law through the back door. “Soft law” is not binding and is thus not law in a legal sense, which would be clearly forbidden under Art 189 (3) TFEU.5 Nevertheless,

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See Leopold Mantl, The European Union in Christian Brünner, Alexander Soucek, Outer Space in Society, Politics and Law, SpringerWienNewYork, 2011 p. 406 ff. For a definition of the term “supranational” See www.investopedia.com/terms/s/supranational.asp (last accessed 21.9.2015). For basic information on European law See Rudolf Streinz, Europarecht, Vol. 9, Müller CF, Germany, 2012. See http://europa.eu/pol/space/index_en.htm (last accessed 21.9.2015). For a description of “soft law” See Steven Freeland, The role of Soft Law in Public International Law and its Relevance to International Legal Regulations of Outer Space in: Irmgard Marboe, Soft Law in Outer Space, The Function of non-binding Norms in International Space Law, studien zu Politik und Verwaltung, Brünner Ch., Mantl W., Welan M. (Hrsg.) Wien-Böhlau-Graz, 2011, p. 9 ff.

IMPACT OF INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES AND EU CONTRIBUTION TO COLLABORATIVE PROJECTS

soft law can have a steering function if member states start to bind themselves though there is no legal obligation. To harmonise existing space law through this legal back door can be a new approach for space law in Europe. II.

A New Approach for Space Law in Europe – Chances and Challenges

II.1.

Chances

First of all, it has to be highlighted that a “European Space Act” in a classic sense, which is binding and enforceable to all member states, cannot be enacted under the existing European legal framework. One should never believe that the existing competences cannot be changed but at the moment there is no political will visible to change space competences at the European level. It would be a long lasting political and legal process to change competences. Perhaps because of the fact that it would last too long the EU seeks to use the back door which is called “soft law” to harmonise existing space law. This back door can be a new approach for space law in Europe. But what is the perspective of various players when it comes to a common space law for Europe? As mentioned above, valuable satellites and technology is threatened by the increasing number of space debris. A common strategy to mitigate space debris and ensure a sustainable use of outer space is clearly for the benefit and in the interest of the space industry. Different national space laws can also hinder capacity building. Furthermore, different national space policies and laws concerning a sustainable use of outer space can hinder technology transfer and would have negative economic effect on the export of technology. Thus, a common European approach for devising space law in Europe may be in the interest of various players. II.2.

Challenges

Even non-binding European standards can be fast become binding if member states transform non-binding guidelines into national binding space acts. A prime example is the Austrian Outer Space Act. Paragraph 4 (1) lit 4 in conjunction with paragraph 5 of the Austrian Outer Space Act state that space activities should be carried out “due to consideration” of the internationally recognised guidelines concerning space debris mitigation.6 Hence, the nonbinding space debris mitigation guidelines became binding for Austria. A space activity carried out by Austria is bound by the space debris mitigation guidelines which are intended to be fulfilled voluntarily.7

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Federal Law Gazette I No. 132/2011 of 27 December 2011 available under www.oosa.unvienna.org/pdf/spacelaw/national/austria/austrian-outer-space-actE.pdf (last accessed 22.09. 2015). Inter-Agency Space debris Coordination Committee (IADC), Space Debris Mitigation Guidelines, 2002 (revised 2007), IADC-02-01, www.iadconline.org/index.cgi?item=docs_pub (last accessed 23.09.2015).

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But what if national laws are going beyond the “code of conduct” and start to “overregulate” space debris, frequency allocation and space traffic management? “Overregulation” is the enemy of economic wealth. The issue of the current status on negotiation on the Draft of an International Code of Conduct for Space Activities8 (hereinafter called “the Code of Conduct”) is that the up-stream sector perspective might not be sufficiently heard in the negotiations process. On the one hand, a wide acceptance of the concept of a sustainable use of outer space can save highly valuable communication and remote sensing satellites from collisions and loss of signals due to space debris. On the other hand, it is not yet clear what kind of economic effects restrictions in the field of space debris and space traffic management would have. Thus both the up- and the downstream sector perspective is a very important issue in negotiating even non-binding rules. III.

The International Code of Conduct for Outer Space Activities

III.1.

The History of Negotiating an International Code of Conduct for Outer Space Activities

The idea of a Code of Conduct for Outer Space Activities was initially not a sustainable use aspect. The intentions were security aspects and confidence building measures in space.9 The idea behind the Code of Conduct was originally to positively contribute to disarmament in space. The discussions started in 2007 under the Portuguese presidency of the EU. In the same year the UNCOPUOS started its discussion on the Long Term Sustainability of Space Activities. Further ESA started its discussions on Space Situational Awareness in 2008. In 2009 China shot its own satellite in space, which caused millions of pieces of space debris in orbit.10 This and other events that harmed outer space environment in the last decade led the discussion from the original security and defence aspect to a more sustainable discussion of the Code of Conduct.11 Over the last decades the number of space actors has rapidly increased. Space activities need the spectrum of frequencies for communication, the orbits for transportation and placement of space objects. Space activities leave a tremendous amount of space debris after the end of a mission. Governmental and increasingly non-governmental and individual space actors are “conquering”

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Draft International Code of Conduct for Outer Space Activities (version 2014). For the history of the International Code of Conduct See Jean Francois Mayence, The European Unions initiative for a Code of Conduct on Space Activities: A Model of Soft Law for Outer Space? in: Irmgard Marboe, Soft Law in Outer Space, The Function of non-binding Norms in International Space Law, Studien zu Politik und Verwaltung, Brünner Ch., Mantl W., Welan M. (Hrsg.) Wien-Böhlau-Graz, 2011, p. 343 ff. Ibid. Ibid.

IMPACT OF INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES AND EU CONTRIBUTION TO COLLABORATIVE PROJECTS

outer space. This development can also be called a “democratisation of space”.12 The democratisation of space, in particular the civilian use of space, is valuable for the space industries. The need for navigation, remote sensing data and the billion dollar market for communication has a huge potential for space industries.13 However, the dark side of this development is the fact that the increasing number of space activities limits the natural resources of space. The frequency spectrum is not unlimited and thus there is an inherent danger of (harmful) interference. Furthermore, the orbits are getting crowded, which leads to the inherent danger of collisions between space objects. Moreover, (uncontrolled) space debris becomes one of the most important challenges.14 Even tiny fragments that hit a space object can damage important parts of satellites. Due to the fact that the EU, ESA and also the space industry invest billions of dollars in the development of space capacities the limitation of space debris as well as space traffic management is some of the biggest challenges. All over the world a few national space legislations exist.15 The existing laws are diverse and do not regulate space activities in the same way. Most laws are regulating the question of liability but do not focus on the sustainable use of outer space. The EU recognizes this lack of national harmonised regulation and thus wants to impose a non-binding code of conduct for outer space activities to promote a sustainable use of space. The current version of the Draft of the International Code of Conduct for Outer Space Activities has the intention to give further input to tackle the issue of security, safety and sustainability. The code of conduct intends to promote the sustainable use of outer space, such as space debris mitigation, space traffic and frequency management. The idea for a European and later International Code of Conduct was raised in 2006 when the UN General Assembly Resolution 61/75 on Transparency and Confidence Building Measures was endorsed. A preliminary draft of a EU Code of Conduct was then released in 2008. The draft was revised in 2014 and renamed in International Code of Conduct. The renaming happened against the background of an increasing international interest in the EU initiative. The Code of Conduct was positively mentioned in the Resolution 65/68 2013 concerning Outer Space transparency and confidence building measures

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See Anita Rinner, A new Approach towards Outer Space Democratisation? Legal, Political and Economic Issues concerning Small Satellite Missions, Diploma Thesis, University of Graz, 2013. Ibid. See Contant-Jorgenson, Corinne/ Lála, Petr/ Schrogl, Kai-Uwe (eds.): Cosmic Study on Space Traffic Management, published by the International Academy of Astronautics, printed by the German Aerospace Centre (DLR), France, 2006. Currently only 23 space laws respectively space acts does exist. For further information See www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html (last accessed 22.9.2015).

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in outer space. The three rounds of multilateral open-ended consultations in Kiew (2013), Bangkok (2013) and Luxembourg (2014) and ended up with a broad interest to promote the development of the draft status. The UN Institute for Disarmament Research has also promoted the views and goals of the Code of Conduct.16 In July 2015 the UN hosted the first multilateral negotiations on the Draft Code of Conduct. Currently over 95 (!) countries are involved in the discussion. This leads to the fact that if the International Code of Conduct will become released it will have broad international acceptance. III.2.

The International Code of Conduct in Brief

Although no harmonised rules on public national law exist so far, the EU released a Draft Code of Conduct for outer space activities (revised draft 2014 and furter formal negotiations in July 2015). contribute on a voluntary basis, which is to strengthen transparency and confidence-building measures (Preamble). Notably, all states, not only European Union member states, are invited to subscribe to the Code of Conduct when adopted (item 1.2 in conjunction with the preamble). Chapter 1 of the Code of Conduct lays down the purposes. These are “security, safety and sustainability of space activities”. Chapter 2 contains “General Measures” inter alia common measures on space debris control and mitigation. It further highlights the right of self-defence according to Art 51 of the UN Charter. The incorporation of the right of self-defence in the Code of Conduct is ambiguous and contested. The US welcomes the reference to the right of self-defence in particular if it comes to attacks in space. However, if the Code of Conduct should positively contribute to disarmament of space, the reference to the right of self-defence is not needed.17 Chapter 3 tries to strengthen international cooperation mechanisms, put the focuses on outer space activities, registration of space objects and consultation mechanisms. IV.

Conclusions

The International Code of Conduct for Outer Space Activities, is an initiative by the EU and has still draft status. If this document is in place it is not law (not binding and not enforceable) in the legal sense. It has a “soft law” character and can be voluntarily fulfilled by every state in the world. Hence, the Code of Conduct is not a European Law. National Space Legislations can incorporate the Code of Conduct in their national laws. Through incorporation of the Code of Conduct into national law the code would turn from non-binding to binding regulations.

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See Jean Francois Mayence supra fn 9. Ibid.

IMPACT OF INTERNATIONAL CODE OF CONDUCT FOR OUTER SPACE ACTIVITIES AND EU CONTRIBUTION TO COLLABORATIVE PROJECTS

Soft law can be a new tool to harmonise European space legislation through the back door. Thus the International Code of Conduct for Outer Space Activities is a prime example for devising a new approach for (harmonised) space law in Europe. References

Contant-Jorgenson, Corinne/ Lála, Petr/ Schrogl, Kai-Uwe (eds.): Cosmic Study on Space Traffic Management, published by the International Academy of Astronautics, printed by the German Aerospace Centre (DLR), France, 2006. Draft International Code of Conduct for Outer Space Activities (version 2014). Federal Law Gazette I No. 132/2011 of 27 December 2011 available under http://www.oosa.unvienna.org/pdf/spacelaw/national/austria/austrianouter-space-actE.pdf (last accessed 22.09. 2015) Freeland Steven, The role of Soft Law in Public International Law and its Relevance to International Legal Regulations of Outer Space in: Irmgard Marboe, Soft Law in Outer Space, The Function of non-binding Norms in International Space Law, Studien zu Politik und Verwaltung, Brünner Ch., Mantl W., Welan M. (Hrsg.) Wien-Böhlau-Graz, 2011. Inter-Agency Space debris Coordination Committee (IADC), Space Debris Mitigation Guidelines, 2002 (revised 2007), IADC-02-01, http://www.iadc-online.org/index.cgi?item=docs_pub (last accessed 23.09.2015). Mantl Leopold, The European Union in Christian Brünner, Alexander Soucek, Outer Space in Society, Politics and Law, Springer, Wien, New York, 2011. Mayence Jean Frocois, The European Unions initiative for a Code of Conduct on Space Activities: A Model of Soft Law for Outer Space? in: Irmgard Marboe, Soft Law in Outer Space, The Function of non-binding Norms in International Space Law, Studien zu Politik und Verwaltung, Brünner Ch., Mantl W., Welan M. (Hrsg.) Wien-Böhlau-Graz, 2011. Streinz Rudolf, Europarecht, Vol. 9, Müller CF, Germany, 2012. Websites

http://www.unoosa.org/oosa/en/ourwork/spacelaw/nationalspacelaw/index.html (last accessed 22.9.2015). http://www.investopedia.com/terms/s/supranational.asp (last accessed 21.9.2015). http://europa.eu/pol/space/index_en.htm (last accessed 21.9.2015).

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE INTERACTIVE PRESENTATIONS

Space Stations and International Cooperation Possible Models of Jurisdiction for the Impending China Space Station (CSS) Jie Long*

Abstract The China National Space Administration (CNSA) announced that China is targeting the year of 2022 for the orbiting of its space station, which will establish China as the third country that has independently constructed and operated a space station. In this article, the feasibility of different models of jurisdiction for this space station is examined, namely the Soviet Salyut, Sino-ISS, European Space Agency (ESA), and China-led models, which take into account the various factors that are not only limited to legal issues. This article concludes that due to legal, political, financial and technological reasons, a model of jurisdiction that is led by China is the ideal model for the impending space cooperation of China.

I.

Introduction

In September 1992, the Chinese government authorized the Chinese National Manned Space Program with three phases of development.1 After successfully implementing the first phase, a manned space station project was initiated in 2010.2 The first target-spacecraft and space laboratory, Tiangong-1, was

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The University of Hong Kong, Hong Kong, [email protected]. The first step is to launch a manned spaceship, set up primarily integrated experimental manned spacecraft engineering, and carry out space application experiments; The second step is to make technology breakthroughs in Extravehicular Activities (EVA) as well as space rendezvous and docking of manned spaceships and spacecraft, launch a space lab, and provide a solution for space application of a certain scale with man-tending on a short-term basis; The third step is to establish a space station, and provide a solution for space application of larger scale with man-tending on a long-term basis. See China Manned Space Engineering website. http://en.cmse.gov.cn/list.php?catid=42, (last visited on 1 September 2015). The basic introduction of China's manned space program. See China Manned Space Engineering website. www.cmse.gov.cn/project/show.php?itemid=480, (last visited on 1 September 2015).

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launched on September 29, 2011, and fulfilled the critical task of space rendezvous and docking with the unmanned Shenzhou-8 spacecraft.3 The launch of the second spacelab, Tianong-2, is scheduled in 2016.4 According to official announcements, a relatively large scale state-level space laboratory which will be human-tended on a long-term basis will be established around 2022.5 According to the latest White Paper published by the State Council of China, the concept of “open development” is an important factor for the Chinese space industry, which means that China is fully open to international cooperation in its space activities.6 During the past decade, China has been involved in various international space cooperation and collaboration activities by signing multilateral and bilateral agreements and memorandum of understandings (MOUs) with different countries, space agencies and organizations,7 participating in space-related activities organized by international organizations, particularly the United Nations (UN),8 and promoting the participation of Chinese enterprises in international space commercial activities.9 Obviously, the space practices of China to date have demonstrated that Chi-

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Id. The interview of China's astronaut Yang Liwei in the 11th China International Aviation & Aerospace Exhibition. See China Manned Space Engineering website. www.cmse.gov.cn/news/show.php?itemid=4372, (last visited on 1 September 2015). The future mission of China's manned space station project. See China Manned Space Engineering website. http://en.cmse.gov.cn/list.php?catid=46, (last visited on 1 September 2015). “Open development: China persists in combining independence and self-reliance with opening to the outside world and international cooperation. It makes active endeavors in international space exchanges and cooperation on the basis of equality and mutual benefit, peaceful utilization and common development, striving to promote progress in mankind’s space industry.” See The White Paper: China's Space Activities in 2011, published by the Information Office of the State Council of China in December 2011. Full text available at the State Council Information Office website. www.scio.gov.cn/ztk/dtzt/69/3/Document/1073810/1073810.htm, (last visited on 1 September 2015). Such as cooperation with Russia, “Sino-Ukrainian Space Cooperation Program”, “Status Quo of China-Europe Space Cooperation and the Cooperation Plan Protocol”, China-Brazil Earth resources satellites bilateral cooperation, etc. China has taken part in activities organized by the UNCOPU and signed relevant agreements with the UN on disaster management and emergency response based on the space-based information platform; China has cooperated with the space institutes of various countries through the mechanism of the “International Charter on Space and Major Disasters”; promoting the establishment of APSCO in 2008, etc. China has exported whole satellites and made in-orbit delivery of communications satellites to Nigeria, Venezuela and Pakistan; provided commercial launch services for the Palapa-D satellite of Indonesia and the W3C satellite of Eutelsat, and signed commercial satellite and ground system export contracts with Bolivia, Laos, Belarus and other countries.

SPACE STATIONS AND INTERNATIONAL COOPERATION

na not only prioritizes space cooperation but also emphasizes the necessity of doing so. To address international cooperation, the first significant legal issue that China needs to consider for its space station is to select the type of territorial jurisdiction, i.e., deciding which country has the right to make and enforce legal rules on a particular person, thing or event in a space station.10 Based on the practical experiences of human space stations, four possible models of jurisdiction are examined and one ideal recommendation for CSS is proposed in this article. II.

Possible Models of Jurisdiction for CSS

Jurisdiction is exercised in a place where sovereignty could be claimed, and in this regard, the high seas and outer space are similar in that both are not subjected to national appropriation by claims of sovereignty under international law, and jurisdiction cannot be exercised in areas that are considered as res communis. Similar to the solution used to address the jurisdiction over a ship on the high seas as stipulated by maritime law, Article 8 of the OST (1967) provides that “A state Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”. This rule is further elaborated in the Convention on Registration of Launched Objects into Outer Space (Registration Convention),11 which can be generally defined as the treatment of registered objects in outer space as if they are part of the territory of the country in which they are registered. After recalling the historical development of space stations, it can be found that jurisdiction is not merely a simple legal concept, as it often has technical, political, financial, military and diplomatic considerations. For a multinational space station, the question of which country or countries have jurisdiction over parts of or the entire station will depend on the ownership of the space objects and the terms of negotiation of the relevant space station agreement.12 There are four possible models of jurisdiction which could be considered as options for the CSS.

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Andrew D. Watson and William G. Schmidt, Legal Issues Surrounding the International Space Station, 7 Journal of Legal Studies 159-175, 162 (1996). Convention on Registration of Objects Launched into Outer Space, adopted by the UN General Assembly in its resolution 3235 (XXIX) of 12 November 1974. Such as the jurisdiction arrangement of International Space Station (ISS), Article 5 of the 1998 Intergovernmental Agreement (IGA). www.state.gov/documents/organization/107683.pdf, (last visited on 24 September 2015).

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II.1.

Soviet Salyut

The space stations of the Salyut series were exclusively designed and operated by the Soviet Union during the period of 1971 to 1982. The Salyut 1-5 stations were the first generation of space stations with only one docking port for the Soyuz spacecraft. The Salyut 6-7 stations were the second generation of space stations with one more docking port for the cargo spaceship.13 The similarity among all of these Salyut space stations is that they are all national space stations under the sole jurisdiction of the Soviet, and therefore, the Soviet could retain complete control over them. Moreover, besides the Salyut, the Soyuz spacecraft and cargo spaceships are all solely owned by the Soviet. Therefore, the property right pattern of a single nation for space objects as demonstrated by the Soviet example means that the complexity and potential controversy of joint or cooperative multinational ownerships and operations can be averted. In the Soviet Salyut model, a space station can only be registered by a country under the provisions of the Registration Convention. Compared with the legal status of ships and aircrafts provided in the UNCLOS and air law, the legal status of space stations would be similar to that of a ship or airplane that is flying the flag of the registry state. The nationality of ships and aircrafts is that of the registry state and the same applies to space stations. As long as there is compliance with the framework of international law, the registry state of the space station has the exclusive power to legislate and implement the rules of law with regard to the daily operation and management of such a space station. Even though there was no previous international space cooperation for the case of Salyut, it can be presumed that if any country wanted to participate in the operation of a space station which is solely owned by one nation, such cooperation could be coordinated by bilateral or multilateral agreements between the participants, and such cooperation arrangements may not be related to the issue of jurisdiction distribution. The Soviet Salyut model means that a space station is under the sole jurisdiction and control of one country. It was developed and utilized in a sensitive era when two space powers were striving for hegemony and trying to carry out military strategies in outer space. As this model of jurisdiction is not only based on advanced technology and significant capital investment but also on the unique social circumstances, it is not profitable and practical for China, as a developing country, to construct and operate a long-term on-orbit space station without cooperating with other countries. China needs a model that utilizes the least amount of capital investment to reap the maximum value of a space station.

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See Manned: Salyut Era. www.russianspaceweb.com/spacecraft_manned_salyut.html, (last visited on 24 September 2015).

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II.2.

Sino-ISS

The current ISS is a multinational space station that has different modules provided by its member states, of which each member has independent jurisdiction and control right of its own module(s).14 It has been generally acknowledged that the cooperation of the spacefaring nations in forming the ISS has been a success.15 To acknowledge the different contributions provided by its member states,16 the 1998 Inter-governmental Agreement (IGA) clearly established rules on the registration, jurisdiction and control right of the space station: “[...] a launching State shall register a space object in accordance with the Registration Convention [...] retain jurisdiction and control over the elements it registers [...] and over personnel in or on the Space Station who are its nationals”.17 The jointly built elements of the space station, such as the power supply, might be separately owned and provided for common use through other types of specific agreements (e.g. the MOUs and implementing arrangements under 1998 IGA). There are two options for China if China elects to use a model of jurisdiction like the ISS (thus a Sino-ISS). One is that China could become involved in the current ISS as a member and equally involved in the cooperation framework, which also means that its impending space station becomes a component of the ISS. China would then have sole jurisdiction and control over the space station and all of its parts. The other option is to develop an entirely new multilateral space station. China would invite new members to dock their own modules to the new space station, and the jurisdiction and control right still fall under the nationality of each module. In terms of the former, China has indicated interest in participating in the ISS since 2001.18 However, to date, China has yet to do so, as various factors have resulted in resistance to the entry of China to the ISS, such as technical and safety problems, the issue of technology transfer, its opaque political system,

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The ISS is considered as the largest cooperative space projects by far and it has 16 member states in total, including the U.S., Russia, Canada, Japan, Brazil and 11 countries of ESA. Rachel Nuwer, International Space Station’s Boon to Scientific Achievement Just Beginning, NASA Open to Support Citizens’ Research Aboard, February 25, 2013. http://txchnologist.com/post/43990065156/international-space-stations-boon-toscientific, (last visited on 17 September 2015). Annex: Space Elements to be provided by the Partners, Agreement among the Government of Canada, Governments of Member States of the European Space Agency, The Government of Japan, The Government of the Russian Federation, and the Government of the United States of America concerning cooperation on the civil international space station (1998 IGA), (Jan. 29, 1998). Supra note 12. Staff Writer, China Eyes Entry to ISS project, SPACE DAILY, May 1, 2001. www.spacedaily.com/news/china-01zd.html, (last visited on 17 September 2015).

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and the perception of the lack of human rights in China.19 Although it seems that China and the US have friendly relations, NASA has still not received authorization from the US Congress to cooperate with China, as some of the lawmakers consider this cooperation to threaten the national security of the US.20 Moreover, even though the operations of the ISS has been extended to at least 2024,21 the lifespan of the ISS has almost reached its end. As the US is still assuming the leading and dominant role with the power to make some of the final ISS related decisions,22 it would be difficult for China to fully realize its manned space program development strategy by participating in the coming last decade of the lifespan of the ISS.23 In terms of the latter, the development of another multilateral space station appears to be unrealistic for China, as the current major space-faring nations are all involved with the ISS program. Despite that the ESA and Russia have indicated interest in cooperation,24 the actual possibility of their space cooperation with China seems uncertain. Without key technologies and a large amount of capital investment from the established space-faring countries, it would be disadvantageous for China to attempt to initiate a multilateral space station in hopes that the other countries would provide the main components. Thus, the establishment of a new space station in which its member countries share the same legal status and equally participate in its management, operation, and utilization appears to be an unrealistic scenario for China. After examining the two possible Sino-ISS options as a model for China, it can be concluded that participating within the ISS framework or establishing

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Zhao Yun, Legal Issues of China’s Possible Participation in the International Space Station: Comparing to the Russian Experience, 6(1) Journal of East Asia and International Law, 155-174 (2013). Staff Writers, China, US move toward cooperation in space, Jan 12, 2014. www.space-travel.com/reports/China_US_move_toward_cooperation_in_space_ 999.html, (last visited on 17 September 2015). Charles Bolden and John P. Holdren, Obama Administration Extends ISS until at Least 2024, Jan 10, 2014. www.space-travel.com/reports/Obama_Administration _Extends_ISS_Until_at_Least_2024_999.html, (last visited on 17 September 2015). See also Staff Writers, NASA Hopes to Continue Cooperation on ISS Until 2024, Feb 27, 2015. http://sputniknews.com/science/20150226/1018770023.html, (last visited on 17 September 2015). Supra note 19, at 168. In September 1992, Chinese government made a decision to implement the manned space program and prescribed the “Three-step Strategy” of development. The third step is to establish a space station, and provide a solution for space application of larger scale with man-tending on a long-term basis. See the website of China Manned Space Engineering. http://en.cmse.gov.cn/list.php?catid=42, (last visited on 17 September 2015). China Daily, China May Become Space Station Partner, Jun 02, 2010. http://news.xinhuanet.com/english2010/china/2010-06/01/c_13326632.htm, (last visited on 17 September 2015).

SPACE STATIONS AND INTERNATIONAL COOPERATION

a new multinational space station is not compatible with the manned space project proposal of China. It is thus inevitable that one or more new types of cooperation need to be explored for the sustainable development of the next generation of a space station. II.3.

ESA Model

The establishment of a space station at a regional organizational level, with members from the same geographic region defines the parameters of the ESA,25 which delegates its own member countries and has absolute international legal personality. The ESA has sole jurisdiction and control right of the entire space station which is jointly owned, managed and operated by its member states. Article VII of the Registration Convention provides the legal basis or the registration of the ESA: “[...] the organization declares its acceptance of the rights and obligations provided for in this Convention [...] a majority of the States members of the organization are States Parties to this Convention and to the OST”.26 Therefore, as authorized by the member states, this regional type of space intergovernmental organization would have quasi-legislative powers, which would allow the organization to exercise both legal and operational measures in the space station without negotiating separate agreements among the members.27 As the ESA is geographically based, if China takes this model of jurisdiction into consideration for its space station, the regional space organization should also be fully taken into consideration. The Asia-Pacific Space Cooperation Organization (APSCO) is the only intergovernmental space organization in Asia-Pacific that China is a member.28 Therefore, the feasibility of developing a space station based on the APSCO should be carefully examined. The ESA is the first regional intergovernmental space organization and by far, the most integrative regional space union. Pressurized laboratories (MELFI, MSG, Cryosystem) and an external payload pointing mechanism (Hexapod) that were provided by the ESA to the ISS have been in operation for more than a decade,29 and the ESA has been proven effective and productive. Thus, some

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Supra note 16, Article 5, “[…] the European Partner having delegated this responsibility to ESA, acting in its name and on its behalf.” Supra note 11, Article 7. U.S. Congress, Office of Technology Assessment, Space Stations and the Law: Selected Legal Issues-Background Paper, OTA-BP-ISC-41 (Washington, DC: U.S. Government Printing Office, August 1986), at 32. APSCO is an inter-governmental organization operated as a non-profit independent body with full international legal status. It is headquartered in Beijing, People’s Republic of China. In 2005, the APSCO convention was signed in Beijing. See further at www.apsco.int/, (last visited on October 18, 2015). A. Petrivelli, The ESA Laboratory Support Equipment for the ISS, ESA bulletin, February 2002, available at ESA website.

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academics have recommended that the APSCO should take the experiences of the ESA into account in terms of institutional setting, decision-making mechanism, cooperation arrangements and legal framework.30 However, some differences between the two space organizations have been neglected, including economic and political differences, space capacity, and technology and capital reserve which would render this recommendation difficult to carry out. II.3.1

Economic and Political Differences

Even though the APSCO is also an intergovernmental space organization with a completely international legal personality, the economic and political aspects of its member states are quite different from those of the ESA member states. In terms of economic development, all of the APSCO partners are developing countries while the ESA members are obviously more developed. As the ESA members are mostly EU countries, this means that their economic and political integration has already formed the basis of mutual trust for the ESA,31 whereas the situation in Asia is much more complicated due to the diversity in geography, history, population, culture and society. Therefore, it would be rather difficult for the APSCO countries to cooperate in an environment which encompasses territorial disputes, ethnic issues, and resource sharing problems. The lack of reciprocal political trust would make space cooperation in Asia also less feasible.32 Moreover, Japan, India and South Korea have not been interested in becoming a member of the APSCO, which inevitably affects its space capability. Interestingly, based on Asia-Pacific region, Japan and India have respectively hosted the Asia-Pacific Regional Space Agency Forum (APRSAF) and the Centre for Space Science and Technology Education in Asia and the Pacific (CSSTEAP).33

______ 30

31

32 33

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www.esa.int/esapub/bulletin/bullet109/chapter5_bul109.pdf, (last visited on 17 September 2015). Zhao Haifeng, Current Legal Status and Recent Developments of APSCO and Its Relevance to Pacific Rim Space Law and Activities, 35 Journal of Space Law 559 (2009). See also Zhao Yun, Way Forward for Promoting Awareness of Space Law in Asia: A Proposal for Institutional Capacity Building, 4 Journal of East Asia and International Law 335 (2011). ESA and the EU, See the ESA website. www.esa.int/About_Us/Welcome_to_ESA/ESA_and_the_EU2, (last visited on 17 September 2015). Zhao Haifeng, The Status Quo and the Future of Chinese Space Legislation, 58 (1) Journal of Air and Space Law 99 (2009). The Asia-Pacific Regional Space Agency Forum (APRSAF) was established in 1993 to enhance space activities in the Asia-Pacific region. www.aprsaf.org/, (last visited on 17 September 2015). Centre for Space Science and Technology Education in Asia and the Pacific (CSSTEAP) was established in India on November 1, 1995 under an agreement signed initially by 10 member countries of the region. The Centre is hosted by the Government of India with Department of Space (DOS), as the nodal agency. www.cssteap.org/, (last visited on 17 September 2015).

SPACE STATIONS AND INTERNATIONAL COOPERATION

Historically and realistically speaking, the “three pillars” scenario for regional space cooperation created by China, Japan and India will continue for a long period of time, as the differences among Asian countries and geographical political situations result in difficulties to effectively resolve their relationships.34 II.3.2

Space Capacity

The ESA has 20 member states, and most have outstanding space capabilities, such as Germany, France, and the UK. They have been pooling resources for space activities for over 40 years, thus placing Europe as a leader of space science, technology and related applications.35 In comparison, among the eight APSCO member states, only China has a strong space capacity.36 According to the space capacity classification carried out by Setsuko Aoki, the rest of the APSCO members are classified as a second category of nations that can manufacture, possess, or utilize remote sensing technology or launch vehicles, or as a third category of nations that passively obtain the benefits of space applications from other space-faring nations.37 The overall space capacity of the two space organizations are also different. The ESA is the third largest space agency only second to NASA and the Russian Federal Space Agency (Roscosmos), and its space commercial activities account for a large portion of the global market.38 Besides the ISS project, the ESA has also initiated a series of space related activities, such as commercial satellite launching, human space flight, micro-gravity experiments and new generation of rocket development.39 In contrast, China is the only member among the APSCO that has space launch capability, which means that the other members heavily rely on the space capacity of China in this regional space cooperation. Moreover, although there are nine projects that have been approved by the APSCO council, only the Data Sharing Platform Project has

______ 34 35

36

37

38 39

Supra note 30, Zhao Haifeng, at 591. Space for Europe, See ESA website. www.esa.int/About_Us/Welcome_to_ESA/Space_for_Europe, (last visited on 18 September 2015). The 8 APSCO members are: Bangladesh, China, Iran, Mongolia, Pakistan, Peru, Thailand and Turkey, See APSCO website. www.apsco.int/default.asp, (last visited on 18 September 2015). Setsuko Aoki, Regional Cooperation in Asia relating to Space Activities (Commentary), in Proceedings of the Space Law Conference, Asian Cooperation in Space Activities a Common Approach to Legal Matters (Ministry of Information and Communication Technology (Thailand) and the McGill Institute of Air and Space Law, Bangkok, Thailand, Aug. 2-3, 2006). OECD (2014), The space sector in 2014 and beyond, in The Space Economy at a Glance 2014, OECD Publishing, Paris. ESA-Our Missions, See ESA websites. www.esa.int/ESA/Our_Missions, (last visited on 18 September 2015).

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reached the execution phase.40 It can therefore be concluded that the strong space capacity of the ESA supports its cutting-edge space missions, whereas the APSCO lacks the resources and does not have the capability or means to compete with the ESA. II.3.3

Technology and Capital Reserve Differences

It is well known that technology and capital reserve are the two most critical factors for space activities, and without them, space projects would not have sustainable development. The close ties between the EU and ESA have enabled the ESA to access a large amount of capital reserve from the EU, and some 20 percent of the funds managed by the ESA now originate from the EU budget. This financial support is based on a Framework Agreement which came into force in May 2004.41 The Framework Agreement has established a legal mechanism that enables member state representatives from both the ESA and EU to cooperate in specific space fields.42 Moreover, as the commercial launch services of the ESA account for a large share of the global market, the profits made exceed the capital investment from the EU,43 which provides the ESA with an abundance of fiscal resources to develop its space industry. The APSCO has also made financial arrangements with the Convention of the APSCO, in which the funds for the organization shall be provided by compulsory contributions of the member states and the voluntary grants from other organizations.44 However, as the overall economic development of the APSCO countries lags behind that of the ESA members, and also due to the lack of income from commercial activities, the APSCO capital reserve cannot support large space projects, such as space stations, which require continuous technical innovation and financial investment. There is substantial difference between the ESA and APSCO in many aspects. Therefore, the application of the ESA model does not seem to be feasible for China for developing its space station through the APSCO platform. In learning

______ 40

41

42

43

44

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Data Sharing Service Platform and Its Applications Pilot, See APSCO website. www.apsco.int/program.asp?LinkNameW1=DSSP&LinkCodeN=82, (last visited on 18 September 2015). EC/ESA Framework Agreement (entered into force in May 2004). See more at EC and ESA sign historic co-operation agreement, November 26, 2003. www.spaceref.com /news/viewpr.html?pid=13111, (last visited on 18 September 2015). Supra note 31. Eight specific fields of co-operation have been identified: Science; Technology; Earth observation; Navigation; Communication by satellite; Human space flight and micro-gravity; Launchers; Spectrum policy related to space. The 2015 ESA budget has reached 44.33 billion Euro, only 10.3 billion euro comes from EU. See the ESA website. www.esa.int/For_Media/Highlights/ESA_budget _2015, (last visited on 18 September 2015). Article 18, Financial Arrangements Convention of The Asia-Pacific Space Cooperation Organization (APSCO). www.apsco.int/apscon/apSCOAD/imapic/201261315125947542.pdf, (last visited on 18 September 2015).

SPACE STATIONS AND INTERNATIONAL COOPERATION

from the successful regional cooperation experiences of the ESA, some factors of consideration can be taken into account to address the issue of finding ways to balance space station international cooperations and selection of the model of jurisdiction, namely political, financial and technological factors. In summary, an ideal model for the CSS should strive for sustainable space cooperation relationships, which also means that sustainability is a judging criterion to determine the ideal model. II.4.

China-Led Model

II.4.1.

Necessary Characteristics for an Ideal Model

Based on the above discussion on a possible model of jurisdiction for China, some similarities can be found from successful experiences in space cooperations. Some of the necessary characteristics of an ideal model are as follows. First, a successful model would promote cooperation in various forms and at different levels, such as governmental and non-governmental cooperation, cooperation in commercial and non-commercial matters, cooperation between developing and developed countries, etc.45 Second, mutual political trust is essential between participating countries, just like the case of the ESA, because harmonious political relationships can facilitate efficient decision-making and realize the principle of the peaceful use of outer space as stipulated by the OST.46 Third, by implementing such a model, space commercialization could be fully realized and carried out, and there could be ongoing technology and capital for the Chinese space station but also compliance with the common interests of humankind (for e.g., the developing countries could also get equitable benefits from outer space).47 II.4.2

China-Led Model

China will establish a large spacelab system in 2016,48 and with the prevalence of space commercialization, it is time for China to seriously consider the issue of international space commercial cooperation and model of jurisdiction. If this problem is still not fully resolved by the authorities when the space station is fully established, China may have to deal with the embarrassing situation of addressing the sustainable development of its own space station. Bearing in mind the above factors, a China-led model of jurisdiction is proposed as the ideal approach for space commercial cooperation. This model means that

______ 45

46

47 48

UNGA Res. 51/122 (December 13, 1996), “Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries”. Article 9, UNGA Res. 2222 (XXI) (December 19, 1966), “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”. Id. Article 1. Supra note 4.

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China is the sole owner of the space station of which the major components are constructed and operated by China alone. In considering the commercialization trend of outer space, there should be two objectives of this nationally owned station. One is for peaceful space exploration and exploitation, such as space science and technology experiments; the other one is to establish a commercial cooperation platform, where foreign countries or private entities could participate by various means and forms. It would be feasible for this model to achieve these goals for the following reasons. First, as China has absolute jurisdiction and control right of the space station, possible jurisdiction conflicts with other participating countries are prevented, and Chinese law could be easily applied and enforced within the confinements of this space area. Moreover, this would mean a legally stable environment that not only would increase the ease of coordination and management work, but also can incite the confidence of commercial investors. Second, the proposed model is internationally accessible, as in the space age, every country, especially the developing countries, aspire to benefit through the exploration and utilization of outer space. This model will definitely enable a wider range of countries or private entities to participate in the space station project. Consequently, the “principle of promoting international cooperation in the outer space” established in the 1967 OST and the essence of international space cooperation elaborated in the 1996 Space Cooperation Declaration can also be met.49 II.4.3

Legal Basis for China-Led Model

As mentioned above, a model of jurisdiction that only involves one country does not necessarily mean a reduction in international space cooperation; on the contrary, it has the possibility of securing more space participants. As the forthcoming space station will have at least two docking ports, besides multinational space cooperation for the main modules, cooperation could also be realized by offering the berth for the short-term for the space capsules or modules of other countries. In terms of the jurisdiction attributes of these foreign components that are attached to the CSS, a legal framework of outer space treaties could be used as the solution, such as that stipulated in the OST, in which the state of registry shall retain jurisdiction and control over the registered object and any personnel thereof.50 According to the Registration Convention, there are four types of launching states, “the state which launched or procures the launching of a space object, and the state from whose territory or facility a space object is launched.”51 If there are more than one launching state, only one of these states could be the state of registry.52 By utilizing these

______ 49 50 51 52

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Supra note 46, Article 3&10. Supra note 45, Article 3&4. Supra note 46, Article 8. Supra note 11, Article 1(a). Id.

SPACE STATIONS AND INTERNATIONAL COOPERATION

legal arrangements, China would be one of the launching states through the establishment of cooperation with other countries, and China could also be the state of registry for the space capsules or modules owned by foreign countries. Thus, China could extend its jurisdiction and control right to foreign components. Even though these foreign modules are registered by their owner countries, the jurisdiction and control over the space object and over any personnel thereof could also be amended by signing internal agreements among the launchings states.53 In summary, by complying to the current OST space law regime, the jurisdiction issue in commercial types of cooperation in space could be resolved by launching a comprehensive framework agreement or an on-orbit commercial project-oriented bilateral or multilateral agreement beforehand. II.4.4

Model of Multiple Jurisdictions

To achieve sustainable development of the China-led model space station, all kinds of commercial cooperations in the space station should be encouraged. It could be reasonably envisaged that on-orbit foreign space modules could one day directly dock with the station, and assert to maintain the original jurisdiction of their owner state and reject China’s jurisdiction. In such a scenario, each module would be under the jurisdiction and control of the country that owns, operates, and has registered the module.54 As there may exist the flow of people, data and goods between China and the modules of other countries, possible civil and criminal disputes or conflicts may arise, and therefore, the determining of the jurisdiction with regard to different cases is a complicated issue which should be taken into careful consideration. It appears that the ISS solutions to the issues of jurisdiction, liability and goods flow have reference value;55 however, new legal mechanism innovations which are exclusive to the China-led model would emerge beyond the ISS framework. As this article focus on a single model of jurisdiction for a nationally owned space station in an international commercial cooperation era, a model of multiple jurisdictions warrants further studies when this situation becomes reality. III.

Conclusion

After analyzing the possible models of jurisdictions for the CSS, a proposed China-led model is recommended as the most ideal. The key characteristic for

______ 53

54 55

Supra note 11, Article 2(2). “Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, [...] [...] and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.” Supra note 27, at 32. Supra note 45, Article 5, 6, 16, 17, 18, 19, 20, 22.

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this model is its sustainability. Under this model, it is expected that cooperation in various forms and at different levels should be promoted, mutual political trust between participating countries and entities could be created, and the space commercialization trend would be fully utilized and applied. Moreover, in the commercial utilization process of the space station, private and public interests should be both realized through detailed legal arrangements that are progressive in nature.

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Assistance by the Launching Authority Requirement or Entitlement? Hannes Mayer*

Abstract When owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party to the ARRA, the respective Contracting Party (i.e. which has jurisdiction over said territory) is obliged to immediately take all possible steps to rescue them and render them all necessary assistance (Art 2 ARRA). According to Art 2 ARRA, the launching authority is obliged to assist a Contracting Party in its efforts to rescue the astronauts if such assistance would help to effect a prompt rescue or would contribute substantially to the effectiveness of search and rescue operations. The launching authority may be interested in assisting the state where the crew of the spacecraft has landed. On the one hand, it is in the interest of the launching authority to quickly find and rescue the crew (and possibly recover the spacecraft). On the other hand, the launching authority may be interested to participate in the recovery effort to safeguard potentially highly skilled personnel, sensitive technology and scientific data and keep their exposure to a foreign government at a minimum. The state in which the astronauts have landed may request the assistance by the launching authority for several reasons. For example, it might lack the expertise and or technology to carry out a recovery operation properly. Any assistance by the launching authority might hence be welcome. On the other hand, a state might not wish the participation of the launching authority in the recovery effort. Reasons for this might range from sovereignty issues to security matters – not to forget questions of national prestige. According to Art 2 ARRA, the launching authority has to assist with the efforts to recover and retrieve such a space object. Still can the launching authority derive any entitlement to participate in a recovery operation from this article? Or can the launching authority only actively engage in the recovery effort when requested to do so by the respective Contracting Party? The launching authority might argue that its active involvement in the rescue effort would constitute a substantial contribution to the search and rescue operation. The Contracting Party on the other hand could argue that involvement by the launching authority might hinder the rescue efforts.

______ *

Karl Franzens University Graz, Austria, [email protected].

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I.

Introduction

The Astronaut Rescue Agreement stipulates that when owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party to the ARRA; the respective Contracting Party (i.e. which has jurisdiction over said territory) is obliged to immediately take all possible steps to rescue them and render them all necessary assistance (Art 2 ARRA). If a manned spacecraft has to make an emergency landing in territory that is under the jurisdiction of a Contracting Party (sic) to the ARRA, said Contracting Party has to undertake all necessary measures to rescue the crew of the spacecraft and render them assistance.1 The launching authority is obliged to cooperate with the efforts of the Contracting Party when and if such a measure would enhance the effectiveness of the search and rescue operation.2 Similar provisions concerning unmanned spacecraft are found in Art. 5 ARRA. Although no such astronaut rescue operation under the ARRA has been carried out3 to date, due to the nature of the usual spacecraft landing measures, a situation where the ARRA would be applicable could arise. Especially spacecraft landing by parachute can easily be veered off course by strong winds. Russian Soyuz spacecraft sometimes landed hundreds of kilometers away from their designated landing sites (though still on Russian or – formerly – Soviet territory). The question now is whether this obligation to assist also entitles the launching authority to take an active part in the rescue and recovery efforts. The wording of the Art. 2 ARRA does not explicitly state an entitlement to participate in any rescue and recovery missions. It merely states that the launching authority has to assist with the rescue efforts. The question remains whether this also entails any entitlement of the launching authority to play an active role in the rescue and recovery operations, unless being invited to do so by the Contracting Party. The launching authority could be in a position where active participation in the rescue operations could actually be helpful. After all, the launching authority will have undertaken certain amounts of planning and preparation for an eventual rescue and recovery operation, whether it is within their own territory or abroad. Therefore, it might appear reasonable to involve the launching authority in the operation.

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II.

Relevant Regulations

Art. V OST states that astronauts shall be rendered all necessary assistance. Art. 2 ARRA takes up this wording and further specifies it: “When owing to accident, distress, emergency or unintended landing, the personnel of a spacecraft land in territory under the jurisdiction of a Contracting Party to the ARRA; the respective Contracting Party (i.e. which has jurisdiction over said territory) is obliged to immediately take all possible steps to rescue them and render them all necessary assistance [...] If assistance by the launching authority would help to effect a prompt rescue or would contribute substantially to the effectiveness of search and rescue operations, the launching authority shall co-operate with the Contracting Party with a view to the effective conduct of search and rescue operations [...]”

Art. 5.2 ARRA contains similar provisions for uncrewed spacecraft: “Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts.”

III.

Assistance by the Launching Authority

The launching authority may be interested in carrying out a rescue and recovery operation on the territory of a Contracting Party. There are several reasons for this. Apart from the prestige involved with a rescue and recovery operation and the corresponding loss of prestige if said rescue and recovery is done by another party; the launching authority is most probably best equipped for such an operation. The launching authority will have the specific equipment (eg. recovery ships, helicopters) and personnel (technicians and medics) for such an operation.4 As mentioned above, the launching authority will also have intensively prepared and rehearsed for a recovery operation, including specific contingency plans. This argument could be supported by Art. 2 sentence 3 ARRA.5 The assistance by the launching authority could indeed contribute substantially to the effectiveness of the search and rescue operations.6 “After the Cosmos 954 crash on Canadian territory, the Soviet Union claimed this right under Art. 2 ARRA. The Canadian government turned down this request in order to minimize the damage. The Soviet Union in turn used Art. 2 ARRA as an argument to pay less than half the bill sent to them by Canada.”7

______ 4 5 6 7

Rinner et al., Space Law Essentials, Vol. 2, p. 61. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 53. Rinner et al., Space Law Essentials, Vol. 2, p. 61. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 53.

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Such an operation would be under the direction and control of the Contracting Party in whose territory the operation is carried out.8 IV.

Requirement or Entitlement?

Art. 2 ARRA, however, does not afford the launching authority an explicit right to conduct a rescue and recovery operation nor does it explicitly rule out any entitlement by the launching authority to do so.9 It could be argued that the launching authority could only enter the sovereign territory of another Contracting Party upon request by said contracting party (under the terms of the ARRA). The argument could further include that any actions by the launching authority, meaning additional organization and coordination requirements, could actually hinder a prompt rescue.10 The launching authority could counter this with the argument that it has the necessary equipment and key personnel that could contribute substantially to the effectiveness of the search and rescue operations. During the drafting of the ARRA, the United States had proposed to add the wording “such steps shall include the joint research by those Contracting Parties which may be in a position to conduct search and rescue operations” to Art.11 Such a phrase would have supported the idea of an entitlement by the launching authority to participate in the search and rescue operations. The phrase did, however, not end up in the final agreement. Art. 5 ARRA deals with the recovery of uncrewed spacecraft. It can be assumed that the term space object refers equally to crewed and uncrewed spacecraft.12 Art. 5.2 ARRA states that a Contracting Party has to act upon request of the launching authority and with the assistance of the launching authority if requested. This implies that the launching authority may only take an active part in the recovery operation, if the Contracting Party on whose territory the spacecraft has landed, requests its assistance. Whether we are dealing with crewed or uncrewed spacecraft – with rescue and/or recovery operations – there seems little headroom for an entitlement of the launching authority to assist, as advisable as such a participation might be. While Dembling and Arons state that the launching authority has to be invited to participate in rescue operations,13 Marboe, Neumann and Schrogl (in the Cologne Commentary on Space Law) remain more ambiguous.14

______ 8 9 10 11 12 13 14

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Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 70. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 53. Rinner et al., Space Law Essentials, Vol. 2, p. 61. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 49. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 66. Dembling/Arons in: Lyall/Larsen, Space Law. A Treatise. UK 2009, p. 227. Marboe, Neumann and Schrogl in: CoCoSl2, 2013, p. 53.

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References

Soucek, Space Law Essentials, Vol. 1, Vienna 2015. Rinner et al., Space Law Essentials, Vol. 2, Vienna 2015. Hobe Stephan /Bernhard Schmidt-Tedd/Kai-Uwe-Schrogl (eds), Cologne Commentary on Space Law, Vol.1, Cologne 2009, Vol. 2, Cologne 2013. Lyall Francis /Paul B. Larsen, Space Law. A Treatise, UK 2009.

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Policy Considerations for New Human Space Exploration Strategies The Space Generation Perspective Chantelle Dubois, Laszlo Bacsardi, S. Ali Nasseri, Michael Deiml, Alana Bartolini, Kate Howells, Abhijeet Kumar and Jessica Todd*

Abstract Human and robotic spaceflight has become a global enterprise with increasing entities from the government and non-governmental sectors, introducing new space exploration strategies. With these novel strategies, the need for modifications to existing regulations or policies, or the development of additional guidelines, must be considered. During the Space Generation Congress 2014 held in Toronto, Canada, students and young professionals representing 15 countries participated in the Ethics and Policy of New Human Space Exploration Strategies working group. The group conducted a review of the current field of human space exploration strategies, focusing on ethics, present policies, and future policies. As a result of these findings, the space generation proposed several recommendations. As we move into an age of manned-mission focus, ethical considerations surrounding exploration strategies are numerous and complex. As such, there is growing need for a guiding body to oversee the balance between ethical factors and mission objectives. In order to fill this gap, the group proposed the establishment of a

______ *

Ms. Chantelle Dubois, Space Generation Advisory Council, Canada, chantelle.dubois@ spacegeneration.org. Co-authors: Dr. Laszlo Bacsardi, Hungary, [email protected]; Mr. S. Ali Nasseri, Canada, [email protected]; Mr. Michael Deiml, Germany, [email protected]; Ms. Alana Bartolini, Canada, alana.bartolini@community. isunet.edu; Ms. Kate Howells, Canada, [email protected]; Mr. Abhijeet Kumar, Australia, [email protected]; Ms. Jessica Todd, Australia, jettodd@ bigpond.net.au; Space Generation Advisory Council (SGAC). This paper is based on work conducted as part of the Exploration Working Group of the Space Generation Congress 2014. The authors wish to acknowledge the input received from all participants of the working group: Alexander Burg, Ali Yesil, Andrea Turconi, Annelie Schoenmaker, Batenburg Petrus, Bilin Zhou, Briand Oaks, Elizabeth Jens, Erik Seedhouse, Hamed Gamal, James Burke, Jack Yeh, Jacqueline Cortese, Kate Arkless Gray, Kenneth Lui, Lucie Poulet, Matthew Ferraro, Michael Kretzenbacher, Nikita Marwaha, Reinhard Tlustos, Stefane Guevremont, Sydney Do, Thomas Pearson, Walter Schostak, and Yunus Emre Arsiantas.

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UN-ethics board to formulate ethical guidelines and monitor mission proposals of entities pursuing human spaceflight initiatives. Furthermore, we suggest the extension of existing policies to foster cooperation and diversify risk with regards to multinational, multi-party, commercial, and long-duration human missions.

I.

Introduction

Spaceflight (and space exploration), with or without humans, has become a global enterprise with more and more entities, both governmental and nongovernmental. With one to two launches per week, Earth orbit is becoming very populated and collisions with space debris have already been reported. Such events have resulted in the development of regulations for Geostationary Earth Orbit (GEO) and active discussions on orbital debris (removal) and regulations for Low Earth Orbit (LEO). With human spaceflight and deep space exploration now becoming the goal of multiple countries and companies, it becomes a valid question if space flight regulations or policies are needed for this as well. The relevance is emphasized by the recent failure of Orbital Science’s mission to the International Space Station and fatal loss of Virgin Galactic’s SpaceShipTwo. Furthermore, the fundamental objectives of government entities and commercial stakeholders in industry are not necessarily aligned. Commercial entities have a financial responsibility to their investors, whereas government entities have a social responsibility to conduct activities for the betterment of society. So while the sustainability of the industry and its activities is in the best interest of all stakeholders, discrepancies in ethical standards, which arise from individual stakeholder strategies and policies, shall need to be addressed. The Space Generation Congress (SGC), the annual conference of the Space Generation Advisory Council (SGAC), was hosted in Toronto, Canada from September 24 to 26, 2014. During the congress, students and young professionals representing 15 countries participated in the Ethics and Policy of New Human Space Exploration Strategies working group. The group conducted a review of the current field of human space exploration strategies, focusing on ethics, present policies, and future policies. The results of this working group discussion are discussed in the following. II.

Current Policy: Environments and Considerations

As related to human exploration, UN Space Policy is primarily dictated by three declarations:

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•

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 (referred to as the “Outer Space Treaty”),1 The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the “Rescue Agreement”),2 The 1972 Convention on International Liability for Damage Caused by Space Objects (the “Liability Convention”).3

• •

The Outer Space Treaty is the foundational document which currently dictate current UN Space Policy. This treaty was created during the Cold War to alleviate tensions between space faring nations, limiting military activity in space, and preventing sovereign claim over celestial objects. The treaty restricts the use of outer space to activities that are peaceful, and beneficial to humankind. Additionally, the treaty sets guidelines for the ownership and responsibility of objects in space. A state which launches an object into space has judicial control over it, and is liable for damage or interference caused by said object. The Rescue Agreement and the Liability Convention are modifications to the Outer Space Treaty. This agreement outlines the responsibility of all states to assist and support astronauts or “space personnel” that land on, or near, their territory. The Liability Convention makes specific the intent of the Outer Space Treaty that the responsibility for any damages caused by a space launch rest with the state where the launch originated. The current policy environment for cooperation in space exploration is largely dictated by the activities of the United States, particularly with relation to the International Space Station. The International Space Station (ISS) Agreement,4 signed in 1998, puts forth a comprehensive plan for managing one of the greatest technological achievements of our time: an orbiting laboratory. While this is impressive in its own right, the construction and use of the ISS was/is complex, necessitating the use of equipment from many countries with language, technical, and social barriers. The ISS Agreement sets forth a detailed plan for the construction, operation, and use for the space station as

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Dec. 3, 1968. Convention on International Liability for Damage Caused by Space Objects, Sep. 1, 1972. Agreement among the Government of Canada, Governments of Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America concerning Cooperation on the Civil International Space Station, Jan. 29, 1998.

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well as the division of cost, risk liability, and ownership of any breakthroughs obtained through the research conducted. With the increasing presence of private and government entities in the space sector, these existing policies must be extended so as to address new mission types and strategies in future human spaceflight. Future missions will likely involve multiple parties and/or states, and as humanity pushes further into the Solar System, long-duration missions (in excess of six months) will become far more common. With the current growth of the commercial space industry, commercial human spaceflight must also be addressed as a possible future strategy. Two keys areas of existing policy were identified as the focus of the new extension: future multiparty cooperation, and diversification of risk. II.1.

Multiparty Co-Operation

Current and future human space exploration strategies do, and will, encompass more than a single entity actor. Current United Nations policy does not reflect this growing multiparty space environment. As stated above, the Outer Space Treaty, currently signed and ratified by 102 countries including the United States, Russia and China, was created at the height of the Cold War with a focus on responsible and peaceful use of space. This international treaty forms the cornerstone of current space policy, and yet addresses solely single state-operated space missions. At the time it was written, there was no precedent for commercial or multilateral manned space missions. With the rapid growth of the current space environment, this is a major omission in part of the Treaty. It is crucial that cooperation between states and commercial enterprises be encouraged, to ensure future growth in the manned space industry, and thus a recommendation regarding multiparty missions should be made by the United Nations. II.2.

Diversification of Risk

It is crucial that any extensions made to existing policy not be prohibitive. Cooperation between parties and states is essential for furthering the manned space industry. New strategies in human space exploration, particularly with regards to long-duration missions, will likely involve higher levels of risk. Under the existing policies, it is the launching state which remains liable for any damage caused by a spacecraft during its mission. This policy has the potential to stifle future collaboration between commercial entities and states. Placing risk and liability solely on the launching state discourages the state from allowing high-risk ventures by commercial parties. Liability needs to be shared between the launching state and any commercial parties involved, and thus the articles within the Outer Space Treaty and the Liability Convention addressing liability of states should be amended or revised.

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II.3.

Recommendations

1) Current and future space exploration encompasses more than a sole State actor. Current UN policy does not reflect this growing multi-party space environment. Therefore, it is our suggestion that the UN recommend to countries to examine the Multilateral ISS Agreement and use it as a model for cooperation and accessibility agreements in future multi-party missions. 2) Future exploration will likely involve higher risk missions. Current policy places the majority of the responsibility on the launching nation. Therefore, it is our suggestion that the UN should recommend countries adopt risk-sharing policies, similar to the US Launch Indemnification. III.

Long-Term Strategy for Space Exploration

Possible policies for future exploration missions are hard to assess due to contradicting scenarios and expectations, particularly when human lives are involved. There are many factors that need to be taken into account when deciding on new, long term policies for space exploration. These factors will be outlined in this section. III.1.

The Roles of Government and Commercial Initiatives

Although recent events such as the Orbital Science’s launch failure and SpaceShip 2 crash have cast some doubt on the viability of commercial space exploration efforts, we believe commercial initiatives are positive efforts that facilitate new developments. The successes of companies such as Spacex is evidence for this belief. As such, these activities should be supported in the long term, and not be held back by strict regulations or prohibitions. Future long term space policies should consider both, commercial and statesupported endeavours and, more importantly, respect the different drivers and requirements of such programmes. III.2.

The Extent of Regulations

Regulations can block development as they might impose such tight restrictions that commercial endeavours become unattractive. Lack of regulations, on the other hand, can lead to loss of human life, damage to the space environment or damage to infrastructure on earth. Damage to space assets due to space debris (which gave rise to development of space debris mitigation guidelines5 and the reentry of the Kosmos 954 satellite over Canada are examples highlight the importance of proper regulations. A balance should be sought, taking into account the risk of mission failure or loss of life.

______ 5

IADC space debris mitigation guidelines. Inter-Agency Space Debris Coordination Committee, 2002.

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III.3.

Liability and Accountability

There are pros and cons in implementing liability and accountability for missions. While harsh accountability requirements will dissuade companies from venturing into space, lack of accountability could possibly lead to recklessness. What is clear, with increasing international collaboration and involvement of commercial stakeholders in space activities, the current scheme of liability based on taking the launching states liable needs to be revised. III.4.

Ownership of Resources or Scientific Achievements

The UN Outer Space Treaty states that no sovereignty can be claimed by nations on celestial object, and that outer space shall be free for exploration [3]. While it is desirable to keep this principle, it might lead to fierce competition for space resources. This can be detrimental to the space environment, leading to rapid harvest of resources and destruction of sites of scientific or sentimental value. As such, a policy framework to safeguard important sites in space seems necessary. III.5.

International Regulations

As discussed in the current policies section, current regulations are mainly nationally focused. Due to the likely international nature of future space exploration endeavours, involving both government and commercial entities, new regulations with an international focus seem necessarily for long term sustainability of space activities. There are good examples of developing international guidelines or inter-entity communication frameworks in space, such as the guidelines developed for space debris mitigation by the InterAgency Space Debris Coordination Committee (IADC),6 or the development of the Global Space Exploration Roadmap by the International Space Exploration Coordination Group (ISECG).7 Such activities should, in the long run, be expanded to other areas of space exploration to help create relevant international regulations. III.6.

Dependence of Policies on Mission Type

The need for regulations, guidelines or policies is highly dependant on mission type. End of life operations, which are currently focused on LEO, will be highly relevant for future exploration missions to protect the space environment from debris created during missions. However, the type of debris created in long duration missions, and equipment required for end of life operations might be entirely different. Rescue agreements might become complicated for Lunar missions and impossible (or undesired) for Mars missions, and, as such, need to be assessed. All these factors need to be taken into account,

______ 6 7

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IADC space debris mitigation guidelines. Inter-Agency Space Debris Coordination Committee, 2002. The global space exploration roadmap. International Space exploration coordination group, 2013.

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highlighting the importance of proper categorization of missions and development of specific policies for different mission classes. III.7.

Recommended Actions

Upon reviewing the factors outlined in III.1 to III.6, the group concluded that specific regulations on technical and medical aspects are not desired as this will likely block developments. Instead, it is recommended that the UN establishes an internationally agreed set of guidelines and recommendations encompassing the following aspects of human space exploration missions: • Astronaut selection criteria (physical, psychological, genetic screening, family relations, education) • Medical care (pre-emptive, immediate, end of life, post mortem) • Personal care (personal items, privacy, family contact, mission management contact) • Spaceship design (consumable reserves, system redundancy/spares) • Rescue missions (LEO rescue, reentry rescue, resupply missions) • These aspects shall be defined for different classes of missions (unmanned or involving humans): • Suborbital • LEO (days or weeks up to long term (more than 6 months)) • Earth vicinity (Lunar missions or Lagrange points) • Deep space (asteroid, Mars, etc.) (both one-way/settlement mission and return missions) These international guidelines can be used as recommendations for state or commercial entities planning and implementing such missions. These entities shall, however, be obligated to provide transparency on whether these guidelines are met or not, and to communicate this information to the relevant UN bodies and eventually to spaceflight participants. Eventually, the UN can publish quality labels for different missions. To address the question of liability and accountability, we recommend to include outer space affairs under the International Court of Justice jurisdiction. In cases where one mission impacts another or inhabitants of Earth, this court should be able to assess if accountability applies due to negligence. In addition, the UN is recommended to extend the UNESCO World Heritage sites to outer space to protect sites of scientific value (potential sites for life), restrict resource harvest at specific sites (lunar polar ice) and preserve historic landmarks (lunar landing sites) from contamination. Access to these sites shall either be forbidden or closely regulated. To set up the guidelines matrix, support the International Court of Justice and extend the UNESCO World Heritage sites to outer space, the workgroup recommends the UN to task this to the UNCOPUOS Technical and Law Commit-

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tees and, in addition, set up an Ethics Committee and a Space Science Committee with representatives from all involved parties to avoid biased policies. IV.

Ethics of Space Exploration

IV.1.

The Importance of Ethics in Space Exploration

The fundamental objectives of government entities and commercial stakeholders in an industry are not necessarily aligned. Commercial entities have a financial responsibility to their investors, whereas government entities have responsibility to conduct activities for the betterment of society. So while the sustainability of the industry and its activities is in the best interest of all stakeholders, discrepancies in ethical standards which arise from individual stakeholder strategies and policies shall need to be addressed. In the space industry, recent non-governmental human space activities and proposals have often been perceived as less risk-averse, and brings forth ethical questions regarding what is ethical for an individual, and its wider implications for the industry. This recent proliferation of commercial players in the space industry, in what is termed as “new space,” has adopted many of the principles and ethos of Silicon Valley. For business and operational strategies, new approaches such as lean methodology and vertical integration are already proving early success with companies such as SpaceX, which was once considered high-risk. But when applied to human space flight, the business strategies of proposals such as a one-way human mission to Mars may not adequately reduce the risk to human life. Although many of these highrisk proposals have volunteer spaceflight participants, there are wider ethical implications for the progress of the industry which need to be considered. Many of the new proposals are exploratory in nature, and are therefore risky by definition. No attempt, however, is made in this report to distinguish between exploration and the non-exploration/routine, or to justify a threshold of risk which is deemed ethically acceptable. But as with basic human rights, there should be a minimum internationally agreed-upon ethical standard for human spaceflight activities. IV.2.

Role of the International Community

The international community is responsible to address ethical issues that will arise in new human exploration strategies. To deal with such ethical issues, it is proposed that entities pursuing human spaceflight initiatives must follow a set of ethical guidelines regarding their proposals. These will be reviewed by an UN-established ethics board, who will make public recommendations. The ethical board could address typical questions, which can be grouped into four categories (Suborbital, Low Earth Orbit, Beyond LEO, One-way missions). The questions may not relevant for all types of missions, but can be used as guidelines.

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• • •

•

V.

Suborbital: Pilot experience and training; Evaluation of health risk; Scientific and flight data transparency. Earth orbit: Level of spaceflight participant training; Staff welfare; Preflight health evaluation; Risk assessment; Contingency plan (in orbit and during launch and landing operations); Passenger security. Beyond LEO: Death of passenger or crew; Major illness or injury; Medical facilities on-board; Privacy questions including the right to get information from ground; Physical care; Planetary protection; Property rights; Policy on scientific discoveries; Utilisation and exploitation of space resources; Outer space rescue obligations; Mission objectives vs. risk. One-way missions: Change of participation wish of crew-member; Responsibility for new-borns; Reasonable life expectancy; Burial plans; Responsibility for re-supply. Recommendations

This section will provide a brief overview of all recommendations by the working group, on the topics of ethics of long duration spaceflight, current policies and future long-term policies. The following are the recommendations made by the SGC 2014 exploration work group. V.1.

• • • V.2.

• • • • • •

Ethics

Establishment of an ethical review board by the UNCOPUOS to review human spaceflight proposals. Consideration of mission specific ethical issues by all entities pursuing human spaceflight initiatives. Sharing of ethical review board recommendations with the public. Policy

Use of the Multilateral ISS Agreement as a model for cooperation and accessibility agreements in future multi-party missions. Countries to adopt risk-sharing policies, similar to the US Launch Indemnification Policy, to share liability and reward in multi-party missions. Development of guidelines by the UN to be followed for different classes of space missions as outlined in section III.7. Extension of the UNESCO World Heritage sites to outer space and development of stricter planetary protection policies with future classes of missions in mind. Extension of the jurisdiction of The International Court of Justice to international space legal issues. Creation of a Space Science committee and Space Ethics Committee at the UNCOPUOS to support the International Court of Justice in the review of space legal cases and to review mission proposals.

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•

Involvement of the UNCOPUOS Technical, Legal, Ethics and Science Committees in space related cases presented at the International Court of Justice, determination of UNESCO World Heritage sites in outer space and development of guidelines mentioned above.

VI.

Conclusions

The Space Generation Congress Human Exploration and Ethics work group discussed key issues regarding current policy for the future of manned space exploration. The focus was on current space policies, long-term strategies for space exploration policy, and the ethics of space exploration. These discussions addressed current policies and how it applies to the developing space sector, which now has both commercial and state entities. Recommendations on the long-term strategy for space exploration policy were made covering the role of government and commercial initiatives, the extent of regulations, liability and accountability of commercial and state entities, ownership of scientific resources or achievements, international regulations, and the dependence of policies on mission types. The ethics of space exploration were also discussed, addressing the importance of ethics of space exploration, and the role of the international community in addressing ethical issues. References

A. Bonnefoy, H. Eyres, P. Hulsroj, S. Plattard, One-way Ticket to Mars? No! (ESPI Perspectives No. 69, March 2014). A. Lahcen, C. Al-Ekabi, N. Armellin, Can ‘One-Way Tickets’ Serve as a Basis for Planetary Exploration in our Solar System? Why Not? (ESPI Perspectives No. 68, Feb 2014).

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Mining Outer Space Overcoming Legal Barriers to a Well-Promising Future Maria Manoli*

Abstract Iced water, Helium-3 or Oxygen are only some of the valuable minerals that are harvestable in outer space. They are ideal to effectively resolve issues arising from the depletion of terrestrial natural resources combined to the augmentation of Earth’s population and its subsequent needs. Numerous initiatives are undertaken by both public and private entities for such exploitation in outer space. Equally important are the barriers imposed by space law: outer space “in the Interest of Mankind”, “Freedom of its Use and Exploration”, the “Non-appropriation principle” and the demand for an “Equitable Sharing”, are the cardinal provisions of space law and the key blockage to the realization of space mining activities. The purpose of this paper is twofold: first, it proposes potential ways to interpret the above principles, as elucidated by current policies and commercial initiatives, in order to conceptualize a legal framework for space mining. Second, it suggests a possible regulatory regime so that space mining activities can take place in accordance with the already existing space law principles. One question that will be proposed to be taken into account is whether the legal regimes governing the resources of the Deep Seabed and the Antarctic regions are applicable. Are such analogies acceptable? To what extent are they useful in the quest for a set of effective legal provisions to govern outer space exploitation? These are only few of the burning queries that are currently being discussed and still awaiting to be answered. Could outer space “colonization” be the answer? Approach ambitious, but likely effective. Hence, what should prevail: the barriers imposed by a solid but outdated legal framework, or the terrestrial dire need for sustainability and exploitation of alternative resources such as those that outer space promises to provide?

I.

Introduction

The paper focuses on the need to create a new legal regime regulating property rights on parts of outer space, such as the natural resources of the celestial bodies. The concept of the paper is constructed on the fact that the current provisions of space law are proven to be inadequate to effectively regulate the

______ *

McGill University, Institute of Air and Space Law, Montreal, Canada, [email protected].

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issue, while space mining is not far from becoming reality. The topic is of specific significance especially after the integration to the national U.S. law of an Act1 that allows the appropriation of natural resources of the celestial bodies by the extracting entities. Such regulation raised concerns as to whether or not it contradicts the provisions of international space law. However, such analysis does not fall within the ambit of the present paper that seeks to locate the loopholes of international space law concerning the issue of space mining and to emphasize the need to create a new and specialized legal framework to govern such matters. I.1.

The Issues That Need to Be Addressed

Just a few months ago, JAXA launched an asteroid-hunting spacecraft named Hayabusa2 which has as its mission to reach an asteroid, mine it and bring sample material back to the Earth.2 Similarly, almost a year ago, an event of historical significance for the entire humanity took place in outer space. After almost eleven years of traveling in outer space, a spacecraft named “Rosetta” rendezvoused with a comet. Its probe, named “Philae”, landed on the comet.3 This event is highly promising for the future of human presence in outer space. Such a presence inevitably raises a myriad of questions regarding commercial exploitation of outer space. Such commercial activities, including space mining, are indeed of critical importance for humanity as reflects a level of technological capabilities that will enable exploitation of space resources. These technological achievements, combined with the Earth’s need for additional mineral resources, make the need for a legal framework for space mining activities a burning issue. Commercial human activity in outer space tends to be developing intensively.4 At the same time, the depletion of the existing terrestrial mineral natural resources makes the need to mine for new ones imperative. Present efforts of mining in areas not covered by national jurisdictions, such as the deep seabed and the Polar Regions, aim to respond to this pressing need.5 Space mining can be classified in this category too; however, its very special characteristics make it subject to the need for a particular legal treatment that is currently non-existent. The lack of specific international and space law rules that

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2 3 4 5

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An Act to facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes, 114th Congress, 1st Sess, Senate (10 November 2015). Jaxa’s website. “Touchdown! Rosetta’s Philae probe lands on comet” at www.esa.int. Ricky J. Lee. Law and Regulation of commercial Mining of Minerals in Outer space (2012, Springer Dordrecht, Heidelberg, London, New York) at 7. David E. Marko, A Kinder, “Gentler Moon Treaty: A Critical Review of the Current Moon Treaty and a Proposed Alternative” (1992) 8 J. NAT. RES. & ENVT’L. L. 293 at 310-313.

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would govern the aforementioned activities constitutes the rationale behind this paper. Space mining activities are being developed by major private entities and investment plans are scheduled to take place in the very near future. However, their realization presupposes a clear relevant regulatory framework, which does not currently exist. It is for this reason that all these investment plans remain theoretical. Legal issues such as the “non-appropriation” and “free exploration” provisions of space law arise and inhibit the undertaking of respective private investments, letting the uncertainty of law grow.6 Accordingly, there is an increasing need for the creation of a set of specific space law rules that will regulate the issue, taking into account the technological possibilities, the commercial risks, and current needs of our society. Space law treaties that govern outer space activities were created in an era when space mining was not foreseen.7 As a result, space law is an inadequate legal framework to address space mining activities. It is thus impossible for private entities to realize their commercial aspirations in space without the creation of new rules intended to serve the specific needs of these initiatives. Under the current space law, the exploration and exploitation of outer space is supposed to be conducted “in the interest of all States”.8 Similarly, no ownership rights can be acquired on celestial bodies.9 I.2.

Factual and Legal Background

The resources that can be collected through space mining activities are mainly water, oxygen, titanium and iron, all being of great importance for human activities both on Earth and in outer space.10 An important number of space mining plans have already been developed. Mined materials from outer space, in particular from asteroids and near-Earth objects, will be sent to Earth and used as resources for human activities. In

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7 8

9

10

Fred Kosmo, “The Commercialization of Space: A Regulatory Scheme that Promotes Commercial Ventures and International Responsibility” (1987-1988) 61 S. Cal L. Rev. 1055 at 1057. Eilene Galloway, “Maintaining International Space Cooperation for Peaceful Uses” (2004) 30 J. Space L. 311 at 314. John Adolph, “The Recent Boom in Private Space Development and the Necessity of an International Framework Embracing Private Propoerty Rights to Encourage Investment” (2006) 40 International Law 961 at 963; Bin Cheng, “The Commercial Development of Space: The Need for New Treaties” (1991) 19 J. SP. L. at 17. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer space, including the Moon and Other Celestial Bodies, 1967 (hereinafter “OST”), article I. Ezra J. Reinstein, “Owing Outer space” (1999-2000) 20 Mw. J. Int’l L. & Bus. 59 at 60 and, Jonathan R. Tate, “Near Earth Objects – A Threat and an Opportunity” (2003) 38 Physics Edu. at 218.

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addition, the placement of asteroids in orbits near the Moon and the Earth has been deemed feasible and potentially beneficial, since in such a way the materials found therein will be automatically used by the Earth and the Moon.11 The first category of activities of space mining (i.e., sending resources on Earth to be used as resources for human activities) includes two methods of exploitation: either minerals will be extracted and processed in outer space and then brought to Earth for terrestrial use; or, minerals will be extracted from the celestial bodies and brought to Earth in order to be processed and further used there.12 To date, several mining plans have been developed by major companies such as Planetary Resources Inc., Deep Space industries Inc., and Kepler Energy and Space Engineering LLC (KESE). − Planetary Resources, Inc.: The main concept followed by the company is the use of water extracted from asteroids to make water depots.13 The latter will be used to refuel rockets after the conversion of water to liquid oxygen and hydrogen. It is estimated that in such a way the current cost of fueling satellites and spacecraft will be significantly reduced. The activities will be funded by the National Aeronautics and Space Administration (hereinafter NASA), with which the company has already signed a non-reimbursable Space Act Agreement, and by other investors.14 − Deep Space industries Inc.: Planning to launch the 70-lb DragonFiles spacecraft to asteroids for the collection of samples in 2016, the main investment plan of this company is to transform raw asteroid material into complex metal parts using a technology called MicroGravity Foundry. The material will be further used for satellite fueling. Another activity in which Deep Space Industry intends to be involved in is harvesting Asteroids for building materials useful for the construction and restoration of satellites and solar power stations that will produce carbon-free energy for Earth consumption.15 − Kepler Energy and Space Engineering LLC:16 This company is designing CORNUCOPIA, an automated asteroid mining system aiming to extract Near-Earth-Asteroids’ regolith. The purpose is to return the minerals to

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14 15 16

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This refers to a natural process, during which the asteroid gradually breaks apart and material falls on either Moon of Earth where they are being collected. Peter G. Chamberlain, Lawrence A. Taylor, Egons R. Podnieks, Russel J. Miller, “A Review of Possible Mining Applications in Space” 51 at 53 (Arizona Uapress). Lauren E. Shaw, “Asteroids, The New Western Frontier: Applying Principles of the General Mining Law of 1872 to Incentize Asteroid Mining” (2013) 78 J. Air L. & Commerce 121 at 128-129. Information gathered from Planetary Resources Inc.’s website. Santa Monica, “Commercial Asteroid Hunters announce plans for new Robotic Exploration Fleet” published at PRWeb website. Information derived from: Kepler Energy and Space Engineering’s website.

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the Earth and to Low Earth Orbit (LEO) in order to “build space structural components needed for space habitats and space exploration vehicles to be built in LEO”.17 The further purpose is to de-orbit and send the habitats to deep space or to make them remain stationary at Lagrange points. KESE finds it feasible to establish permanent presence in LEO using habitats in order to provide zero-gravity and near-Earth gravity environments. The exhaustion of terrestrial resources, the rapid growth of developing countries’ populations and the development of technological achievements reveal the significance and the possible realization of space mining activities. However, what is missing is an unambiguous regulatory framework for space mining activities. I.2.1.

Relevant Deficiencies in Space Law

The Outer Space Treaty (OST) and the Liability Convention18 recognize in their respective preambles the nature of the “exploration and use” of outer space as being “in the common interest of all mankind”, while the Moon Agreement (MOON)19 recognizes outer space as “the common heritage of all mankind”. The OST sets specific principles such as the “exploration and use” of outer space “for the benefit and in the interests of all countries” (art. I OST), the “freedom of exploration” (art. I OST), the “non-appropriation” (art. II OST) and the “cooperation and mutual assistance” (art. IX OST). At the same time, the MOON reaffirms the above principles, further elaborating and expressly prohibiting the appropriation of the Moon and the other celestial bodies “by claim of sovereignty, by means of use or occupation, or by any other means”, calling the exploration and use of outer space the “province of all mankind”. The question that inevitably arises is whether the aforementioned provisions are relevant and compatible with space mining. Through the interpretation of the principles cited above, it becomes clear that outer space is the common property of whole mankind,20 the exploration and exploitation of which can take place in a cooperative way. As a consequence, it appears that the mining activities currently under planning may not be based on solid legal grounds, in so far as space law is concerned.

______ 17 18 19 20

Kepler Energy and Space Engineering website. Convention on International Liability for Damage Caused by Space Objects, 1972 (hereinafter LIABC). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979 (hereinafter MOON). Harold W. Bashor, Jr, The Moon Treaty Paradox (2004, Xlibris Corporation) at 265; Paul Stephen Dempsey, “The Intersection of Air Law and Space Law” (2013) at 5.

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Worth mentioning is also the fact that the MOON already provides for a regulatory regime that could serve the needs of space mining. However, the MOON has been so far ratified by only sixteen States. Article 11 of the MOON provides for rules for both the outer space natural resources and property rights on them. Specifically, it describes the celestial bodies’ resources as “common heritage of mankind”; it revises the “nonappropriation” principle already stated in OST and prohibits ownership rights on the extracted materials as well as on parts of the surface whereon installations for the purposes of mining are constructed. It also expressly mentions that governmental or private entities cannot acquire property rights on the selected material. Even if we suppose that this Agreement poses a potential basis for space mining, the question that still arises is twofold: how will private entities be able to sell the extracted minerals without prior property rights on them; and, further, how possible is it for companies to actually invest money for such purposes without the necessary certainty of law. The MOON was created in an era when space mining was not foreseen to happen in the near future as it is now. Consequently the need for regulation is still urgent. Besides, the same agreement poses the need for further regulation mentioning in art. 11 para 4 that should exploitation of mineral resources begin, we need to further regulate the issue.21 The problem seems not to be that serious concerning minerals that will remain in outer space for further use there though, since they will not be removed from outer space. However, the market tendency leads us to assume that the main purpose of space mining activities is the use of the resources for terrestrial purposes. I.2.2.

The Need to Regulate

A new balanced legal regime is required in order to delimit the scope of the previously mentioned provisions and to harmonize them with the interests of private entities seeking ways to exploit celestial bodies, such as asteroids. At the same time, the above-described legal vacuum cannot be covered by analogies deriving from general public international law. Neither the Law of the Sea, nor the law covering any other terrestrial areas regarded as “common heritage of mankind” and being under no State jurisdiction can effectively be used in this regard.22 The Law of the Sea, and especially the provisions covering the Deep Seabed, would be the most appropriate source for space law

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22

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“States Parties to this Agreement hereby undertake to establish an international regime, including appropriate procedures, to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible”. Bin Cheng, Studies in International Space Law (1997) Clarendon Press, Oxford at 81. Gabriella Catalano Sgrosso, International Space Law (2011, LoGisma) Italy at 48, 49; P.P.C. Haanappel, The Law and Policy of Air Space and Outer space, a comparative approach (2003, Kluwer Law International) The Netherlands at 61; Ruwantissa I. R. Abeyratne, Frontiers of Aerospace Law (2002, Ashgate) U.K. at 14.

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analogies;23 nevertheless, this prospect seems undesirable for the majority of space law scholars.24 Thus, the need for a new specific legal regime is obvious. This regime will either borrow basic elements from general international law and adapt them to space law or further elaborate on the existing provisions of space law, the lex specialis, in an effort to achieve a set of legal rules able to govern mining activities in outer space and foster their development. II.

The Main Dimensions of the Issue

II.1.

The Current Uncertainty of Law

In the first place, the analysis needed has to be regarded as twofold; firstly, the principle of non-appropriation has to be examined in conjunction with the inevitable need for property rights to be imposed on the mined parts of the celestial bodies together with the effort to conceptualize exploration of outer space as free and the cooperation inevitably linked to such a concept. The balance between these considerations has to be undertaken under the umbrella of mining exploitation.25 1.

The “non-appropriation” and “freedom of exploration” problem

As discussed above, outer space (and consequently the celestial bodies, including asteroids and their natural resources) is not subject to appropriation under the provisions of space law.26 Nevertheless, taking into account the nature of mining activities, it is impossible to extract minerals from celestial bodies without acquiring property rights on them. The extraction of minerals leads to the removal of a part of the celestial body, meaning that the same part cannot be used or accessed by other entities, although the OST provides for the free “exploration and use” of outer space by all States.27 This issue has to be addressed on the grounds of the obvious controversy it contains and a theoretical legal approach on the basis of which it has to be attempted to balance space law provisions with the current commercial and economic

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25 26 27

S Freeland & R Jakhu ‘Article II’ in S Hobe, B Schmidt-Tedd & KW Schrogl (eds) Cologne commentary on space law (2009) at 60. Francis Lyall, Paul B. Larsen Space Law, A Treatise (2009, Ashgate) USA at 64; S. Freeland, R. Jakhu at 50. Ram Jakhu and Maria Buzdugan, “Development of the natural resources of the moon and other celestial bodies: economic and legal aspects” (2008) 6 Astropolitics 201 at 230. The nature of mining exploitation consists of the extraction of a part of the celestial body, which inevitably leads to the separation of that part from it. Fabio Tronchetti, Fundentals of Space Law (2013, Srpinger) International Space University (e-book) at 8. Dr. Sandeepa Bhat B., Space Law in the Era of Commercialization (2010, Eastern Book Company Lucknow) at 61; Dr. Sandeepa Bhat B., Space Law in the Era of Commercialization (2010, Eastern Book CompanyLucknow) India at 60.

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policy framework. Consequently, the new a new framework has to investigate whether the extracted minerals continue to belong to the whole mankind or become property of the extractor. In addition, the “non-appropriation” principle has been supported to qualify as ius cogens.28 Thus, the prohibition of property rights on a given extracted material seems to be strict. Consequently, the way in which the “non-appropriation” principle can be balanced with the need to extract and make a profit therefrom has to be kept in mind. 2.

The cooperation and mutual assistance issue

Following the same rationale, no cooperation is possible when it comes to mining investment issues. Private entities, which are going to be the main actors in the field of space mining, will definitely act on the strict ground of closed investment initiatives, rendering the cooperation principle imposed by space law ineffective. This anomaly cannot be resolved under the current legal regime. The cooperation problem is a very important one, taking into account that art. IX of the OST provides for the cooperation of the states concerning space activities. The same article also poses the due regard principle concerning such activities, which means that space activities have to be enacted in such a way that imposes no interference with the rights of others. But in the case of space mining, the extracted mining material will be used only by the entity that extracted it. This will prevent other States and private entities from using the same material; as a result, the due regard principle either cannot be applied in our case, or has to be harmonized in a new regulatory framework taking into account the nature of space mining. Consequently, this issue has to be considered in light of the creation of a specific legal system coordinating private entities’ interests with the major provisions of the lex specialis (i.e. space law). In this regard, environmental issues can also form part of this analysis, since the principles of due regard and due diligence – directly associated with operations such as mining – can only be fully examined in the context of cooperation and international consultations.29 II.2.

Certainty of Law: Towards a New Regulatory Framework

A second approach of the issue can be based on the assumptions derived from the first one in order to craft a potential regulatory regime that could govern space mining activities. On the one hand, the instruments of general international law as well as international jurisprudence can be used to show that an analogous framework applicable in space mining activities cannot be satisfactory. On the other hand, a totally new legal framework can be proposed based

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solely on the needs of the mining market and on the ultimate goal of private initiatives. 1.

The international law instruments

One more part of the analysis of the issue has to be elaborated on the provisions set by the United Nations Convention of the Law of the Sea (UNCLOS)30 for mining the Deep Seabed. The Deed Seabed, also known as the “Area”, can be compared to outer space and characterized as “common heritage of the mankind”.31 The UNCLOS provides for the establishment of a body, the “Authority” that regulates and controls investment plans concerning the mining in the Deep Seabed.32 Should a similar body should be created for space mining activities, and what would be its functions, given the political tone of space activities? How realistic and feasible is the creation of an analogous legal regime regarding space mining operations? In order to answer this question, coherent legal regimes, like the one governing the Polar Regions, can serve as an example. Another problem that has to be addressed on the basis of the Law of the Sea has to do with the “non-appropriation” principle, as analyzed above. In case we admit that the extraction of minerals cannot lead to appropriation rights on the extracted minerals, the case turns to be similar to fishing activities on the High Seas. And thus, the question that arises is how possible would it be to apply rules analogous to the ones governing the High Seas activities, given that the asteroid resources are nonrecoverable. 2.

The proposal of a totally new legal regime

One could argue that the proposal of completely new legal provisions inspired by the actual plans and aims of entities involved in the planning of space mining activities is the only solution. Provisions emerging from rules that govern the commercial use of Earth orbits can be taken into account. In addition, recent national attempts to regulate in this field, such as the proposed US Asteroids’ Act33 and the recently passed H.R. 2262 U.S. Commercial Space launch Competitiveness Act34 have to be examined as inspiring examples to be imitated or

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United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter “UNCLOS”). Article 136. Jeremy L. Zell, “Putting a Mine on the Moon: Creating an International Authority to Regulate Mining Rights in Outer space” (2006) 15 Minnesota Journal of International Law 489 at 504 and, Sarah Coffey, “Establishing a Legal Framework for Property Rights to Natural Resources in Outer space” (2009) 41 Case W. Res. J. Int’l L. 119 at 129. American Space Technology for Exploring Resource Opportunities in Deep Space (ASTEROIDS) Act of 2014. An Act to facilitate a pro-growth environment for the developing commercial space industry by encouraging private sector investment and creating more stable and predictable regulatory conditions, and for other purposes, 114th Congress, 1st Sess, Senate (10 November 2015).

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to avoided given their direct practical implications on the space industry. Despite the fact that a new legal regime can be oriented by the need to counterbalance actual interests of the States and private entities with the interests of mankind as a whole, this balancing attempt cannot take place at the expense of the protections provided under existing space law. Such limitations can emanate from the liability system already existing in space law, thus preventing arbitrariness. Therefore, mining activities will obtain a legally substantial incarnation among the commercial space activities, without evading from the existing limits of the lex spatialis. Current investment plans of private entities with respective activities can also be taken into account, in order for the better harmonization between the current market needs and international ius cogens to take place. The idea behind the new regulatory framework would possibly be the division of some of the outer space resources (i.e. a number of asteroid resources) and via regulation distributing their use according to the needs of each country for a certain period of time so that relevant investment plans can take place, taking into account the need of the developing countries to have access to the sources and their economic and technological capabilities to this respect. In such a way all the above presented space law principles (mainly the free exploration on a basis of equality and the cooperation principle) can be combined and applied under a new regulatory regime that will both serve the needs of our society and the demands of space law. The conclusions of such regime are expected to reinforce the initial proposition regarding the unsuitability of legal analogies concerning space mining. Space mining investments can only reach their full potential through the legal certainty created by a new, specialized legal regime. III.

Interdisciplinarity of the Issue

The issue in question has to be approached from a multidisciplinary angle. First, it entails deep philosophical roots. This is due to human nature, which is inextricably connected to the inherent will to always break the limits and embark in endless pursuits for human needs. This endless pursuit, on the one hand, is motivated by the fear of depleting terrestrial natural resources and not being able to survive. On the other hand, however, it leads to the fear of legal uncertainty which is a preventive factor to the above-described human wills. These two opposing factors can come to a harmonious relationship only through the instruments of law through which legal certainty can be induced. The human fear of uncertainty is also shared by commercial entities which require a stable environment for their investments to thrive. Considering the already existing mining plans of commercial entities, legal uncertainty poses a factor that enhances risk. Indeed, risks are an essential component of the way the market works. However, the legal uncertainty is something more than the usual risk of potentially losing some money. A defective legal regime threatens the future of such initiatives. This is especially true if we take into account the

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trillions of dollars that space mining activities are expected to generate.35 Consequently, the necessity of a precise and solid legal regime governing space mining activities, which will grant the respective entities the possibility to foresee the impact of their investments, is pressing. Furthermore, we should never forget the nature of the space activities per se, which are surrounded by political motives, forces and powers. As the world of space law is literally being created by policy, the saying “the big fish eats the little ones” seems to perfectly fit our case. Assuming that no precise regulatory regime exists to pose such limits, then chaos will preponderate and space mining activities will always be guided by the power of the most capable nations and private entities. Thus, rules and limits are required. For all the above reasons, the sole solution to the uncertainty is the creation of normative certainty which would leave no room to arbitrariness. Keeping in mind all of the above, the most appropriate legal research method to be used in order to address the issues that have been exposed is the interdisciplinary legal research method.36 The multidisciplinary nature of the issue could not have left space for any other approach of the issue, since per se investment policies of private entities can be taken into account. Many technical and scientific references can also assist to the examination of the issue in order to specify the exact legal impact of the mineral extractions. A transystemic analysis of the issue has to also take place, since national mining regulations have to be compared and contrasted in order to set a potential basis and examples for solving the problem. The starting point, however, has to always remain be the basic primary sources of international and space law which will inevitably lead to use, at least partially, the doctrinal method. This method has to be used concerning treaty interpretation so that the legal gaps deriving directly from the currently existing legal regime can be located and examined. From a theoretical point of view, the need for a regulatory framework also involves human rights issues. Indeed, another rationale for the need to undertake in a legally convenient and efficient way space mining, one should take into consideration human rights. The questions that should be answered are closely linked to the eventual exhaustion of terrestrial resources States – and the international community in general – have, according to international law, the obligation of States to act. This means the responsibility to take all possible measures to guarantee the existence and maintenance of – among others – any kind of resources needed for a decent living. Space mining regulation serves such obligation, preventing from the depletion of terrestrial resources and promising a sustainable long-term existence of human beings on the Earth. Hence, such a regulation will enable States to stay in accordance

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It has been speculated by John Lewis in 1997 that a small metallic asteroid contains minerals of almost $20 trillion USD worth. (John Lewis, Mining the Sky: Untold Riches from the Asteroids, Comets, and Planets, Pegasus Group Books, 1997). Dawn Watkins, Mandy Burton. Research Methods in Law (Routlege, 2013) at 72.

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even with such responsibilities are mainly found in human rights law, proving once more the intedisciplinarity and transystemic nature of the space mining regulation that is needed. IV.

Conclusions

Having discussed the most important issue encountered in the space law regime, such as the “non-appropriation” principle both from a theoretical point of view as well as their practical impacts, several conclusions can be inferred. To begin with, the appropriation of outer space cannot be based on a sole legal basis. The interpretation of this “non-appropriation” principle has to be made under the umbrella of the whole space law system and also has to take into account the current context. The need to commercialize outer space appears to be dire and demands an up to date interpretation of these provisions. Although activities such as space mining are both feasible and beneficial for humankind, they cannot be realized under the current legal framework. Hence, the uncertainty created by the existing provisions, as analyzed above, has to be overcome by the development of a new legal regime specifically addressing the connections between space law and current commercial initiatives. This new legal framework should propose ways so that appropriation of parts of outer space (i.e., minerals) becomes legally feasible. This can take place only through the reconsideration of the nature of such parts of outer space and by excluding them from the scope of the “non-appropriation” principle. While one of the purposes of this paper was to interpret this principle, the legal regime framing such activities should be the topic of a separate research based on the findings of this analysis. As exposed during this analysis the barrier to acquisition of property rights in outer space is such that every attempt in this respect is discouraged due to the existing absolute prohibition. However, the trend that can be witnessed in the behavior of both public and private entities reveals their strong will to engage in activities which requires this blockage to be resolved. An example that illustrates the above can be found in the Federal Aviation Administration’s recent intention to leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.37 This reveals the strong will to find possible legal ways so that commercial activities that presuppose property rights in parts of outer space can take place in the near future.

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It is ambiguous whether either kind of interpretation of the current space law provisions could allow the acquisition of property rights on parts of outer space per se, or whether an arbitrary colonization of outer space could resolve the problem de facto. Regardless of the answer, the only thing that is sure is the urgent need for a new and specific legal regime governing commercial space activities such as space mining.

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Space Law Principles in Action Case Study of Human Exploration in Outer Space in Mass Effect, the Trilogy of Role-Playing Video Games Kamil Dobrowolski*

Abstract Taking into account the significant interest in space demonstrated by various styles of constantly growing group of subjects – ranging from the countries and ending at private entitles – a question arises: whether existing regulations and institutions are appropriate and sufficient to ensure that an intensive exploration of space will run peacefully and within the framework of international cooperation and that it will provide benefits for all humanity? The answer to these questions is undoubtedly a difficult task. One of the tips can be found in a very unusual subject – a trilogy of video games called Mass Effect. In the games developed by BioWare there has been presented a vision of humanity which in the second half of the XXII begins their journey to other planetary systems in our galaxy. It explores the outer space, sets up new colonies and meets other intelligent civilizations. This vision has been developed not only of a grand scale, and caring for details but, as for this paper it is very important, also on the basis of the current situation on Earth. This article deals with the analysis of the way that humanity went on their journey to the stars in the trilogy. And more precisely, what role in the above-mentioned video game plays an international organisation named Systems Alliance which is responsible for humans’ activities in space. Whether and how the space activities respect space law principles such as: the non-appropriation principle, the “peaceful purposes” principle and “province of all mankind” concept. At the end, an attempt is made to establish whether in the Mass Effect universe exists an element which could be the basis or impulse to implement new regulations or institutions relating to space activities.

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Jagiellonian University, Poland, [email protected].

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I.

Mass Effect: The Historical Background1

I.1.

Before the Great Discovery

When talking about Mass Effect Universe, one should remember that we describe the humankind’s future in 100 years from now. Nonetheless, after the tragic events of XXI century, at the turn of the new XXII century the humankind could once again raise their eyes to the stars. The solar system afresh became a subject of study led by advanced instruments launched into outer space by states, international organisations and private entities. I.2.

Mars

In spite of the difference of over a hundred years, the method of space exploration in Mass Effect was initially very similar to the one used at the present time. Outer space was full of many various actors and cooperation level among them was different.2 Mars became one of the main research goals. After an intensive research, the European Space Agency decided to set up the first permanent human settlement on the Red Planet – Lowell City, which was located in the region named Eos Chasma in 2103. Since that time, new research missions were established at short intervals by other space actors, namely USA and China. In 2048, one of those missions, coordinated by the European Space Agency, had made perhaps the most important discovery in the human history. In the southern part of the planet Mars were discovered the ruins of the ancient research stations and a few spacecraft in it. The level of technical advancement of those finds excelled all what the humankind achieved in those days. The humankind was faced with not only new technological advantages but also with an irrefutable evidence that the humankind is not the only intelligent species in the Milky Way Galaxy. In 2049, it was also discovered that Pluto’s moon Charon was a frozen space transport station, so called Mass Relay, which made it possible to travel across the galaxy in a fast and easy way. The discoveries on Mars and Charon became an impulse to rethink the way of previous space exploration and relations between space actors. I.3.

Systems Alliance

For this reason, just one year later after Mars discovery in 2049, eighteen most influent space faring states decided to sign and ratified the Systems Alli-

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This part of the paper Mass Effect: historical background was based on information obtained while playing all three parts of video games that make up the trilogy, i.e. Mass Effect, Mass Effect 2, Mass Effect 3, and numerous DLC for each part developed by game studio BioWare. In addition, there were used information contained in books created on the basis of games and the website: http://masseffect.wikia.com/. The Case for Managed International Cooperation in Space Exploration, http://web .mit.edu/adamross/www/BRONIATOWSKI_ISU07.pdf [access: 17.09.2015].

SPACE LAW PRINCIPLES IN ACTION

ance Charter establishing in this way a new international organisation named Systems Alliance which henceforth is the only actor representing humankind in outer space. The main body of the Alliance System is a three-cyclical Council elected for terms of office by the representatives of the member states. The increased Importance of System Alliance resulted in the need to ensure the representation of citizens of all member states and, for this reason, the Parliament of Systems Alliance was soon established. System Alliance as the international organisation has been equipped with farreaching competencies. It is able to undertake and control military missions in outer space, to set up and exercise jurisdiction over human colonies on celestial bodies, to organise mining missions in outer space and to represent humankind in diplomatic relations with other intelligent species. It should be noted, however, that national states on the Earth remained fully independent and sovereign. II.

Space Law Principles

Previous considerations have shown how it came about that space faring nations decided to establish an international organisation whose the main task was to act in outer space as representative of all humankind. In the following parts of this paper, an attempt is made to show the impact that ratification of the Systems Alliance Charter had on the basic space law principles which are fundamental for outer space activities at present. II.1.

The Non-Approriation Principle

The first subject of examination is the non-appropriation principle which has been included in provision of Outer Space Treaty, namely in Article II of thereof.3 For the purpose of this paper, four aspects of this principle can be named: a. Prohibition of the national appropriation by claims of sovereignty, by means of use and occupation or by other means b. The need of system of rules specifying priority right to areas of celestial bodies c. Human colonies as representatives of all mankind d. System of rules resolving conflicts between member states The first and most important aspect of this principle is the prohibition of the national appropriation by claims of sovereignty, by means of use and occupation

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, entered into force Oct. 10, 1967, art. 6, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

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or by other means.4 Practical relevance of this principle is evidenced by the fact that any state cannot extend its exclusive jurisdiction over any area on any celestial body in outer space. To the time of establishment of Systems Alliance, many actors had been present in outer space. Only on Mars by 2048, there were set up many research stations controlled by 3 entities: USA, China and European Space Agency. Even if any of those actors (in this case USA and China) had decided not to claim of sovereignty, it was only the matter of time when it would have come to disputes relating to exploration of Mars (for example to priority right to different areas of this planet). Although one could indicate provisions in treaties relating to outer space which could be the basis for resolving conflicts between states in this subject (as an example can be named Article 8 of Moon Agreement),5 it is doubtful whether the proceedings in this regard could be conducted, which would lead, on the basis of present legal order, to resolving of the conflict accepted by each of the parties. Establishment of Systems Alliance has in this respect significant importance for two reasons. Firstly, it is a kind of inhibition which prevents states from claiming sovereignty (so the non-appropriation principle is still respected). Secondly, if System Alliance is the only human actor in outer space, there is no need to establish a system of rules solving priority right to areas of celestial bodies among other space actors. Therefore, there is little risk of carrying out activities in outer space which could be considered as wrongful. But, of course, every differences in states’ interests can be solved by Systems Alliance Council and Parliament at the every stage of any project. The second issue which will be considered in this part of the paper is the problem concerning human colonists on other planets. In this matter, the question arises if they should be seen as representatives of state which sent them to outer space or rather as emissaries of all humanity? To solve this problem, remarks on the status of astronauts may be helpful. Starting from the provisions of the Rescue Agreement,6 it should be noted that although the term “astronaut” has been included in the title, this treaty does not clearly define what precisely should be understood under this term. Therefore, in

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Joanne Irene Gabrynowicz, Jacqueline Etil Serrano, An introduction to space law for decision makers, 30 Journal of Space Law, 230 (2004). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, entered into force July 11, 1984, 1363 U.N.T.S. 3 [hereinafter Moon Agreement]. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched Into Outer Space, entered into force Dec. 3, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119 [hereinafter Return and Rescue Agreement].

SPACE LAW PRINCIPLES IN ACTION

accordance with the provisions of the Vienna Convention7 one should find the ordinary meaning of the term. The outer space is an extremely inhospitable place.8 The temperature is about 2.7 Kelvin, all around circulate small particles reaching astronomical speed, the lack of gravity has negative effect on muscular system and beyond Van Allen radiation belt await the dangerous cosmic rays. These are only a couple of reasons why being an astronaut is an especially difficult task. For this reason Article 2 of the Rescue Agreement requires from the parties of this treaty to rescue the astronauts and render them all necessary assistance. Astronauts are nowadays mainly qualified scientists. And what about human colonists? Of course, all remarks of the risks in outer space should relate to them as well. In Mass Effect universe (and there are also reasons to believe that in our future), the colonists are (will be) ordinary people who want to colonize new areas, encouraged by new opportunities or maybe tax credits. In their case, the highest possible level of safety should be guaranteed not only during the journey but also during permanent residence at the destination. It seems that any state will be able to accomplish this task alone. Thus, putting them under the care of an international organisation, such as Systems Alliance, and recognising the colonists as representatives of all mankind seems to be reasonable. II.2.

The Peaceful Purposes Principle and the Province of All Mankind Concept

For the purpose of this paper, these principles, which can be founded in Article I (the province of all mankind concept) and in Article IV Outer Space Treaty (the peaceful purposes principle), should be read in conjunction. Thanks to this, the following aspects of these principles can be considered: a. All nations have right to use and explore space b. All nations have free access to all areas of space and to celestial bodies c. “Non-aggressive” use of outer space by states d. Prohibition of nuclear weapons and weapons of mass destruction in outer space e. Prohibition of military bases, installations, fortifications, weapons testing f. All states take part in distribution of goods from outer space This two principles secure that use, scientific investigation and exploration should be carried out in a peaceful way and all for the benefits of all nations. The System Alliance was established only one year after the important and significant discovery on Mars. It has been an impulse motivating states to reach a rapid agreement which could protect the whole community against

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Vienna Convention on the Law of Treaties, entered into force January 27, 1980, 1155 U.N.T.S. 331. [hereinafter Vienna Concention]. The Outer Space Environment. http://quest.nasa.gov/space/teachers/suited/3outer.html.

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negative implications of the discovery. As an example can be mentioned the fact that at this time social movements which putted a question mark over social order became very popular. So decisions have been made very quickly when taking into account the importance and complexity of the issue. Ratifying of the Systems Alliance Charter has undermined heritage built on the basis of the four basic United Nations’ treaties relating to outer space. Previously, there was no doubt that all nations had right to use and explore space and free access to all areas of space and to celestial bodies at the same time. Parties to the Systems Alliance Charter limited the free access to outer space on two levels. Firstly, by the exclusion of other countries from the group of subject which had influence on outer space activities. Secondly, by establishing an organisation with far-reaching powers, they, so to say, transferred its competencies to third entity. If the first situation, one can notice not only an evident violation of space law principles such as the province of all mankind and principle of cooperation and mutual assistance, but also the acquis of international law, so the second one is not so clear at all. One has to answer the question if the freedom in outer space activities goes so far that states can limit itself n this matter almost completely in favor of other entities, for example an international organisation? The fact that the outer space is protected by current legal order form ordinary military presence is perhaps one of the greatest achievements in space law. Nowadays, we, as the humankind, are able to undertake military missions in outer space in a limited way. Therefore, their effects can be more than disastrous for our civilization. Irrespective of the above, it should be considered whether in the near future more active military presence in outer space could be necessary, for example for defense purposes (planetary defense program against Near Earth Objects).9 The provisions of Outer Space Treaty are very clear in this regard stating as follows in Article IV thereof that: “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden […].”

In this light, establishment of System Alliance can be seen as an attempt to secure space against aggressive use by states in times when military actions in outer space can be necessary.

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Military Perspectives on the Near-Earth Object (NEO) Threat, www.spaceref.com /news/viewpr.html?pid=8834 [access: 18.09.2015].

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All above made reflections indicate that in Mass Effect universe states decided to replace The Outer Space Treaty and perhaps other treaties relating to outer space with Systems Alliance Charter. This makes even more clear the fact that only Systems Alliance is the only entity which can act in outer space on behalf of all humanity. III.

Conclusions

In this paper an attempt has been made to characterize the international organisation Systems Alliance which, in RPG trilogy games Mass Effect, is responsible for all human outer space activities: starting from a care of human colonies, diplomatic contact with the other species and ending on the mining missions on celestial bodies. In literature relating to space law can be found analyses which indicate the need to establish an international organization which could take over some competencies in this matter. The question is what these competencies should be? This time, what has been analyzed is the most extreme scenario assuming taking over of all competencies from states to an established organisation. To the pros belong: a. Low probability of military conflict between states in outer space due to the fact that any military action can be taken only by Systems Alliance which is governed jointly by member states. b. Human colonists are representatives of all humanity and they are still supported and protected by an entity possessing significant military and material resources. c. And finally the Systems Alliance itself is an appropriate forum to avoid conflicts between states in advance. But there are also cons which are as follows: a. Construction of military bases and nuclear weapon in outer space even only for defense purposes means leaving achievements to date in this matter. b. Only 18 member states cannot ensure that space is used as province of all mankind. c. And finally no free access to outer space because all actions are carried out by one organisation – Systems Alliance in this case. In fact, it should be considered if on the basis of the current legal order relating to outer space states can waive their right to act in outer space? In Mass Effect universe, the answer to this question was positive. However, the problem arises if the price which was paid for the peace and order in human space activities (the freedom of space activities) in case of Mass Effect and Systems Alliance was not slightly too high?

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International Code of Conduct for Outer Space Activities Analysis from an Institutional Perspective Anastasia Voronina*

Abstract The International Code of Conduct for Outer Space Activities developed by the European Union (“Code”) is one of the most recent developments in international space law.1 It is intended to summarize ‘rules of the road’ for outer space activities in the form of a ‘soft law’ instrument. While a lot has been said about the nature of the proposed document, about the effectiveness of the suggested guidelines and principles,2 less attention has been paid to the mechanism of cooperation advanced by the Code. Although the Code provides a comparatively perfunctory outline of the proposed mechanism of cooperation, the fact that a ‘soft law’ instrument provides one is a notable development in international space cooperation. The present paper is aimed at reviewing the mechanism of cooperation endorsed by the Code of Conduct, examining proposed ways and means of international cooperation, and analyzing how that affects its operation. Conclusions are offered about the nature of the envisioned mechanism of cooperation, its distinctive features are identified, and determination is made about the overall effectiveness of the established mechanism of cooperation. It is suggested that the Code of Conduct established a ‘hybrid’ mechanism of cooperation combining features of an international conference and an international organization. Finally, it is argued that the ‘hybrid’ nature of mechanisms of cooperation is specific to international space cooperation due to the growing exploitation of outer space and the need to use its resources in an efficient and sustainable way.

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2

University of Nebraska-Lincoln, U.S.A., [email protected]. Here the analysis is based on the latest version of the Code of Conduct. European Union, International Code of Conduct for Outer Space Activities, version from March 31, 2014, http://eeas.europa.eu/non-proliferation-and-disarmament/outer-spaceactivities/index_en.htm. While conclusions arrived at by the scholars in regard to the previous versions and still relevant for the latest version will also be considered. For such analysis See, A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012).

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I.

Methodology

The analysis of the Code of Conduct mechanism of cooperation will be premised on the following theoretical considerations. Generally, three broad categories of mechanisms of cooperation exist: that of international conferences, international treaties and international organizations. An international conference is defined as a temporary meeting consisting of official representatives of States and often intergovernmental and nongovernmental organizations’ observers, following in its work an agreed-upon structure and rules of procedure, and guided in its work by international law. An international treaty is an international agreement concluded between two or more States or international organizations in written from and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.3 An international organization is defined as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.”4 Five overarching criteria allow attributing a mechanism in question to one or the other category. The first criterion is the membership/participation criterion referring to the subjects that enjoy the primary status within a particular mechanism of cooperation, as opposed to an ad hoc visitor’s status. International organizations and treaties primarily have States as their participants, but also allow accession of international organizations, while international conferences might also have nongovernmental entities as their attendants. The second criterion is secretariat referring to the ‘entities’ performing administrative or other required functions within a particular mechanism of cooperation. International organization’s secretariat possesses the following characteristics: (1) it is a separate organ within the structure of the organization; (2) working on a permanent basis and financed from the organization’s budget; (3) and acting independently from the will of member States and pursuing in its work goals of the international organization, thus possessing an international character of work. An international conference’s secretariat and a secretariat of a meeting commenced with connection to an international treaty are normally either an ad hoc entity not meeting the characteristics of the organization’s secretariat; or are a secretariat of a hosting international organization working as a meeting’s secretariat on a temporary basis.

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Cf., Vienna Convention on the Law of Treaties art. 2, May 23, 1969, 1155 U.N.T.S. 331; and the Vienna Convention on the Law of Treaties between States and International Organizations and between International Organizations, 21 March 1986, A/CONF.129/15. UNGA Res. 66/100, Responsibility of International Organizations, Official Records of the General Assembly, Sixty-sixth session Supp. No. 10 (A/66/100).

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The third criterion is existence of international legal personality referring to the status of the subject of international law provided for a particular mechanism of cooperation. Only international organizations possess international legal personality. The fourth criterion is the term of existence. Whereas both international organizations and treaties are normally created for an indefinite period of time, though exceptions exist, international conferences are always created for a limited term. The final criterion is the legal nature of the relevant produced documents. An international organization might be capable of producing both legally binding and non-binding documents. Constituent documents of a particular international organization determine the power to enunciate binding or non-binding documents. An international treaty by definition is always a legally binding document. An international conference produces legally non-binding documents and political or moral value of the produced documents does not affect their legal nature. II.

Overview

The Code of Conduct comes as an exemplary document underlying correctness of a conclusion expressed by many authors that as a consequence of the codification process in space lawmaking there now appears a tendency to produce relevant international instruments containing non-binding principles, norms, standards or other statements of expected behavior in the form of recommendations, charters, terms of reference, guidelines, or codes of conduct.5 Following two 2006 United Nations General Assembly Resolutions6 the European Union submitted a joint reply to the General Assembly in 2007, “in which it mooted the plan of a “code of conduct on space objects and space activities,” to complement the existing space legal framework.”7 By 2008 the European Union Council adopted the first draft of the Code; ensued bilateral consultations led to the second draft in 2010. When in 2012 the United States announced that it would not sign up to the prospective instrument and proposed to launch a multilateral negotiation process to develop an acceptable text of the Code of Conduct,8 international negotiations including States other than the European Union members have commenced. In 2013 the European Union tabled the revised draft of the International Code of Conduct and launched an open-ended multilateral consultations

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See, F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 25. UNGA Res. A/RES/61/58 “Prevention of an arms race in outer space”, 6 December 2006; and UNGA Res. A/RES/61/75 “Transparency and confidence-building measures in outer space activities”, 6 December 2006. J. Wouters and R. Hansen, “The Other Triangle in European Space Governance: The European Union, the European Space Agency and the United Nations”, in Proceedings of the International Institute of Space Law 2013 (2014), at 666. Id.

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process in order to get support from the international community. The consultations process consisted of three open-ended multilateral meetings in 2013 and 2014, which were attended by more than 80 States. Until now, however, “it does not appear to be clear for anyone, including member states of the European Union themselves, what the next step for the code is.”9 The Code of Conduct is a “non-legally binding and voluntary act of guidelines intended to highlight what the international community generally agrees to be responsible behavior in space.”10 Paragraph 1.4 of the Code declares: “Subscription to this Code in open to all States, on a voluntary basis. This Code is not legally binding, and is without prejudice to applicable international and national law.” Despite being a legally non-binding document, paragraph 1.1 of the Code establishes an ambitious goal “to enhance the safety, security, and sustainability of all outer space activities pertaining to space objects, as well as the space environment.”11 Leaving aside the analysis of the proposed legal regime of “safety, security and sustainability,” an institutional mechanism of cooperation established by the Code in order to achieve the proclaimed purposes will be reviewed. Section III of the Code entitled “Cooperation Mechanisms” is meant to address in detail means of cooperation between the Subscribing States that include: notification of outer space activities, exchange of information, and consultations. Notification of outer space activities and exchange of information are the least formalized means of cooperation that should be conducted through the channels and by methods determined by the Subscribing States, and only to the “greatest extent possible,”12 leaving States under no obligation to notify of each and every event related to outer space activities. Similarly, States should share information on an annual basis, but only “where available and appropriate.”13 Consultations, in accordance with Part 7 of the Code, are supposed to be commenced in cases where a Subscribing State or States have reason to believe that activities of another State are or may be contrary to the provisions of the Code. Consultations should be held in any way or manner satisfactory for the interested States, and are supposed to conclude by “mutually acceptable solution in accordance with international law.”14

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10 11 12 13 14

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G. Irsten, Code of Conduct for Outer Space Activities ends, Reaching Critical Will (May, 2014) http://reachingcriticalwill.org/news/latest-news/8907-the-consultationprocess-for-the-international-code-of-conduct-for-outer-space-activities-ends. V. Samson, “ICoC: Need of the Hour”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012), at 136. Para. 1.1 of the International Code of Conduct for Outer Space Activities. Id. at 5.1. Id. at 6.1. Id. at 7.1.

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Generally, the term ‘mechanism of cooperation’ should be understood to define an established process asserting legal measures and methods for coordinated activities in achievement of a specific objective. In this sense, mere utilization of diplomatic and other ordinary means of inter-State communication does not amount to creation of a separate mechanism of cooperation. With this definition in mind, the “cooperation mechanisms” set up in Section III of the Code do not present themselves as mechanisms at all. Consultations and exchange of information should be conducted through diplomatic channels or other methods mutually determined by States, and only notifications may be transferred through the Central Point of Contact unless States determine that other method is more convenient. In the end, the Section requires that States engage in certain contacts to promote the Code’s objectives, but it does not create a specialized process for doing so; hence, it does not establish a single mechanism of cooperation – contrary to the name of the Section. Weakly worded language used throughout the Section that “States may also consider,” “on a voluntary basis,” “to the extent feasible and practicable,” “when consistent with national law,” and the like only underlines the correctness of the inference made. While that might be a weakly and too broadly worded Section, it does not stand there for no reason. The Section enumerates events that are deemed worthy of taking steps to inform about, for example, launch of space objects, presence of malfunctioning space objects, or collisions. It also encourages States to share information about their space strategies and major space programs. The legally non-binding nature of the Code, however, aggravated by weak and somewhat hollow phrases quoted above, does not make it possible to demand this kind of behavior from States. But it can undoubtedly attract attention to the desirability of proper communication and only practice will show whether the effort has paid off. At this point we are of the opinion that most likely States would provide information about a fraction of planned strategies and projects, that the consultations mechanism would be stillborn and States would instead use their customary means of communication, and that notifications would be a precious rarity, as it turned out to be in the case of the Hague Code of Conduct Against Ballistic Missile Proliferation.15 Hopefully, practice will prove us wrong. Section IV entitled “Organizational Aspects,” unlike Section III, is the one to set up the mechanism of cooperation endorsed by the Code of Conduct. It calls for convening of annual meetings of the Subscribing States, establishment of the Central Point of Contact, and development of an electronic data-

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Although the Code was signed by 134 States, in 2009 only 13% of launches subject to the Code regulations were reported, and neither Russia nor the United States has notified of their launches. See, L. Marta, “The Hague Code of Conduct Against Ballistic Missile Proliferation: ‘Lessons Learned’ for the European Union Code of Conduct for Outer Space Activities”, 34 ESPI Perspectives (2010).

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base and communication system. The Code also allows calling for additional meetings of the Subscribing States “if decided by consensus of the Subscribing States at previous meeting or as communicated through the Central Point of Contact.”16 Annual meetings are envisioned as a mechanism “to define, review and further develop this Code and facilitate its implementation.” The Code lists four topics that “could be included” in the annual meetings’ agenda: review of the implementation of the Code, modification of the Code, discussion of additional measures that can be necessary, and establishing procedures regarding the exchange of notifications and other information. Usage of the verb ‘could’ in the relevant provision might be interpreted as suggesting that the list of topics is not exhaustive; the text, however, is silent on this matter. The very fact that the open-ended clause is missing, recalling years-long drafting history, forces to wonder whether this omission was intentional and, hence, whether this mechanism of cooperation was actually intended to be formal. The structure, organization and phrasing of the Code of Conduct are all significantly more formal than that characteristic for informal legally nonbinding documents.17 The Code covers general principles endorsed by the Code, it reaffirms commitment to the “Charter of the United Nations and existing treaties, principles and guidelines relating to outer space activities;”18 it emphasizes twice that the endorsed measures and norms are without prejudice to the existing legal framework and should be considered as complementary.19 Taking into consideration that the Code of Conduct has been redrafted and amended multiple times in the course it its 7-year history, mindful of the strong opposition of the United States to the 2012 version of the Code and ensuing multilateral consultations, it is logical to infer that the Code was indeed aiming at legal precision and unambiguity. Thereby, the conclusion is offered that the mechanism of cooperation endorsed by the Code of Conduct is relatively less flexible, and it aims at establishing a structure, not the process, of cooperation. As a general rule, decisions at the meetings, both substantive and procedural, are to be adopted by consensus. Decisions with regard to amendment of the Code, however, require unanimity. The Code pronounces that any modifications “are only to apply after written consent is received by the Central Point of Contact via diplomatic note from all Subscribing States.” This is a good example supporting our earlier inference that the Code itself and by extension its mechanism of cooperation are not intended to be especially flexible.

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18 19

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Para. 8.1 of the International Code of Conduct for Outer Space Activities. E.g, the underlying documents of the Committee on Earth Observation Satellites. For more information See, the Committee on Earth Observation Satellites Governing Documents at the CEOS official website, http://ceos.org. Para. 3.1 of the International Code of Conduct for Outer Space Activities. Id. at para. 15 of the Preamble, 1.3.

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Unanimity is rarely required in international practice.20 It is even more unusual for legally non-binding documents. One possible explanation for such an extravagant choice of voting procedure is that States, which participated in the lengthy drafting and negotiation process, just do not want this Code to be amended, and establishment of the unanimity requirement would effectively prevent any modifications. The other reason might be that it is a concession: a State or a group of States made their support conditional to the inclusion of this provision that in effect gives this particularly interested State or a group of States confidence that no additional obligations would ever be introduced without their express consent.21 It has to be kept in mind, though, since the Code is intended to codify ‘rules of the road’ and evolve along with evolution of best practices, the willingness to preserve the Code’s changelessness, if that is the reason behind the unanimity requirement, is contrary to the overarching goal of the Code. As per paragraph 8.3, “at the end of each regular meeting the Subscribing States are to elect by consensus their Chair for the period until the end of the next regular meeting.” Thereby, this procedure guarantees that, first, the Chair is a rotatable short-term position, and second, that election of the Chair necessitates a wide support for the proposed candidacy and, in principle, strong opposition of just one Subscribing State might be enough to effectively veto election of an unwelcome candidate. The cautious approach to the Chair election procedure is somewhat surprising in the absence of any indication of the scope of the Chair’s responsibilities. The Subscribing States are left free to endow the Chair with broad rights and responsibilities common for presiding officers in international organizations,22 or to limit his mandate to symbolical actions of opening and closing the meetings, giving the word to the next speaker, and the like. Moreover, it is not clear whether the Chair is

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21

22

Hirschman explained that unanimity was rarely used in both firms and international organizations because an effective oversight with a possibility to introduce necessary changes to an organization requires unanimous support of all States, making the mechanism of control relatively weak from the standpoint of an individual State. See, A.O. Hirschman, Exit, Voice and Loyalty: Responses to Decline in Firms, Organizations, and States (1970). From the collective standpoint, the organization whose modification is subjected to unanimous agreement of all parties is in effect the most stable, since even active majority would be incapable to push for changes. Although the Code of Conduct, whether with or without any changes to it, is legally non-binding, ‘soft law’ documents still bear certain obligations, though of mostly political and reputational character. While binding documents are the main perceived threat to States’ freedom of action (e.g. See, A. Guzman, Doctor Frankenstein’s International Organizations, 24 Eur. J. Int’l L. 999 (2013), at 1023), the more active use of non-binding documents makes States wary of taking upon additional commitments even as established by ‘soft law’ documents. For more information, See J. Kaufmann, Conference Diplomacy: An Introductory Analysis (1988).

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envisioned merely as the meetings’ presiding officer, or more broadly as the head of the secretariat-like organ and, thus, having a status akin to a Secretary-General-like officer of an international organization. The Central Point of Contact (“CPC”) plays a cohesive role throughout the mechanism of cooperation. On the one hand, it serves as a secretariat at the annual meetings, and on the other, it is responsible for creation and management of the electronic database and communication system. The relevant part of the Code outlining functions of the CPC, however, is rather indeterminate: it is unclear how it will be comprised, where it will be located, how it will be funded. Authors point to the two possible options for its establishment: either one of the Subscribing States could voluntarily take on the role of the CPC following the example of Austria in the Hague Code against Ballistic Missile Proliferation, or, since the Code is the initiative of the European Union, it could reside with a European Union institution.23 Paragraph 9.4 calling for the best use of existing facilities does not resolve this dilemma, since both potential Subscribing States and the European Union might have resources available to locate, staff and manage the CPC. The CPC, in addition to secretarial functions and database-related responsibilities, is tasked with: receiving and communicating notifications that a State subscribes to the Code; serving as a mechanism to facilitate communication of exchanged information; exercising organizational functions in connection to preparation and implementation of familiarization activities in the course of information exchange as provided by Section III; and carrying out other tasks as decided by the Subscribing States. It was noted that “the smooth running of the administration of the Code depends greatly on the mandate of the CPC. In this context, the [Immediate Central Contact] of the [Hague Code of Conduct against Ballistic Missile Proliferation] can serve as an example. While it can remind states of their obligations, it cannot pressure them on their declarations on [Transcontinental Ballistic Missiles].”24 While the comparison is to the point, the Code of Conduct does not entitle the CPC to remind States of their obligations; a close reading of paragraph 9.1 enumerating its responsibilities does not envisage direct contact of the CPC with the Subscribing States on its own behalf, but only as an intermediary to ‘facilitate communication’ between the States. The Subscribing States are free to task the CPC with other functions, including communicating reminders of States’ responsibilities, but somehow formal inclusion of such a function seems unlikely. Despite the importance of adequate administrative support in achievement of the Code’s goals, a majority of authors agree that a smooth running of the implementation of the Code depends mostly on the number of States supporting

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See, C. Brünner, A. Soucek, Outer Space in Society, Politics and Law (2012), at 543. Id.

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the Code, and here the Code might face significant difficulties.25 A panel of experts’ symposium entitled “International Code of Conduct for Outer Space Activities – The International Perspective” specifically mentioned that “for the Code to succeed, as many countries should participate as possible via a flexible forum, one that includes civil and military aspects of using outer space, and there should be clear implementation mechanisms.”26 Currently, neither broad support, nor clear implementation mechanisms have been secured. III.

Analysis

Overall, the Code provides a rather rough, broad outline of the envisioned methods of coordination and cooperation. Despite ambiguity of the language used, it provides enough information to work with and to base our analysis on. Subscription, or participation, according to the express provisions of the Code of Conduct, is open to any State, regional integration organization which has competences over the matters covered by the Code – which is presumably a longer definition of the European Union, and international intergovernmental organizations which conduct outer space activities if a majority of its members are Subscribing States to the Code. Non-governmental entities are excluded from participation, presumably, due to the specifics of the substantive part of the Code, which reaffirm rights and obligations established by the Outer Space Treaty and require States to take certain steps to minimize risk of accidents in space and limit activities that might result in space debris. Overall, international space law strictu sensu is State-centered,27 and international organizations possess a ‘secondary’ status,28 while non-governmental entities are excluded from direct international regulation altogether. The Code of Conduct continues the tradition of space law ‘State-centricity’. The CPC is envisioned as performing secretarial functions for the annual meetings. That clearly indicates that neither is it an ad hoc entity, nor is it a secretariat of a hosting organization, which are the typical entities performing secretarial functions for an international conference or a treaty meeting. The CPC, however, also does not amount to an international organization’s secretariat. First, the CPC is clearly a separate organ created within the analyzed mechanism. Second, it might be concluded that the CPC works on a permanent basis:

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26 27 28

See, M. Krepon, “Origins of and Rationale for a Space Code of Conduct”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012), at 34. Secure World Foundation, Experts Confer on “Rules of the Road” for Outer Space Activities (2012), http://newswise.com/articles/view/586738/. Cf., F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 45-46. See, W.F. Foster, “The Convention on International Liability for Damage Caused by Space Objects”, in C.B. Bourne (ed.), The Canadian Yearbook of International Law, Vol. 10 (1972), at 180.

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its functions as communications intermediary and database manager require permanent functioning. Funding, as it was discussed above, is not a settled issue, but it is plausible to suggest that it would be funded by the State or the entity taking on the role of the CPC; but the option of funding allocation from the ‘Code of Conduct budget’ – should anything like that ever be created – remains a possibility until determined otherwise. Third, an international character of work or its absence is not established by the Code, but based on the functions bestowed on the CPC it is unlikely that it will be acting independently. Quite to the contrary, the CPC seems to have been provided solely for the convenience of the Subscribing States, to ensure that all and any information shared by a State is properly transmitted to the recipient, that an electronic database and communications system are maintained for States’ benefit and expediency, and that meetings are properly served and organized by a professional secretariat. The CPC is not responsible for external contacts and, generally, it is not supposed to be active on the international plane. The consensual voting procedure for most questions and the unanimity requirement to amend the text of the Code of Conduct are also indicative of the Subscribing States’ desire to preserve control over matters related to the implementation of the Code; in such a situation a secretariat possessing even a limited autonomy distorts the States’ complete control. By way of conclusion, while the organ performing secretarial functions is a separate organ working on a permanent basis and possibly funded from the sources allocated for the mechanism financing, it does not possess an international character of work. If we imagined a linear graph where on the one side is an organization’s secretariat and on the opposite is a conference’s secretariat, the CPC would be somewhere in the middle, but closer to the international organization side than to the conference side. Determination of the existence of legal personality is a complicated issue with respect to the Code of Conduct. The text of the Code does not cover this question; it has not yet come into force and, thereby, no practice is available to rely on. In such a situation any argument, whether in favor or opposing existence of a legal personality, is bound to be refutable. Nevertheless, this criterion is an important one and should be addressed, even if in an inconclusive way. Scholars tend to describe the Code as non-institutional mechanism of selfregulation.29 But we have already established that CPC – a clearly institutionalized entity – works, or better say, is envisaged to work on a permanent basis. Moreover, the Code provides for annual, read regular, meetings of Subscribing States, which also evidence institutionalization. Therefore, the mechanism of

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L.E. Martinez, “The ITU’s Evolving Regulatory Role for Space Debris ‘Rules of the Road’: Implications for Space Communications Regulation”, in Proceedings of the International Institute of Space Law 2013 (2014), at 277.

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cooperation established by the Code of Conduct cannot justly be characterized as a ‘non-institutional’ one. But it might be agreed that the Code is indeed a mechanism of self-regulation: a legally non-binding document outlining principles and guidelines of behavior can only be complied with conditional to States’ willingness to act accordingly, where each State is responsible for its own decisions and cannot be compelled to act in a certain way. Having agreed that an institutional system is present in this mechanism of cooperation, there is a need to determine whether this mechanism possesses legal personality. Usually, for existence of an international organization’s legal personality four criteria should be fulfilled: (1) it is an association of States or international organizations or both with lawful objectives; (2) it has one or more organs, which are not subject to the authority of any other organized communities; (3) legal powers and purposes are distinct between the organization and its member States; and (4) it possesses legal powers exercisable on the international plane and not solely within the national systems of one or more States.30 After the preceding analysis a little doubt is left that this mechanism does not possess a legal personality characteristic for an international organization. While it is an association of States and international organizations with lawful objectives and it possesses at least one independent organ, no distinction can be made between the legal powers of participating States and the entity. It has been pointed out that the CPC is not created to work independently, and that overall the mechanism aims at self-regulation, not the regulation with a possibility of control and enforcement – to the extent that this is at all a possibility in international public law regulating relations of sovereign subjects. Furthermore, the overall thrust and tenor of the Code, including the consensual voting procedure and unanimity requirement for the Code amendment, suggest that Subscribing States are not willing to give up a shred of their freedom in outer space activities. The history of the Code of Conduct negotiation and drafting, whereas even after the multilateral consultations completion no steps have been taken to initiate the process of subscription to the Code, speak in favor of such a conclusion. Cautious scholarly assumptions about the value and possible impact of the Code on outer space activities just add ground to

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See, I. Brownlie, Principles of Public International Law (1998), at 679-81. See also, C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005), at 81-83 (the author points that in the Reparations Case the ICJ identified two criteria indispensable for an international organization possessing legal personality. First, it is an association of States or international organizations or both with lawful objects and with one or more organs, which are not subject to the authority of any other organized communities. Second, a distinction exists between the organization and its members in respect of legal rights, duties, power and liabilities on the international plane as contrasted with the national and transnational plane, thus making clear that the organization was intended to have such rights, duties, power and liabilities.).

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the conclusion that States are indeed reluctant to join even this legally nonbinding document, which is carefully crafted to preserve the ‘self-regulation ambience’. The conclusion should be drawn that the mechanism of cooperation does not possess international legal personality. The Code’s mechanism of cooperation has been established to exist and, therefore, work for an indefinite period of time. The necessarily permanent work of the CPC and annual repetition of the Subscribing States’ meetings are not limited by a certain time limit or achievement of a goal. To the contrary, the Code is viewed as a codification of the modern ‘rules of the road’ that, therefore, has to be continuously developed in response to advances in space technologies. Additionally, there is a possibility, which was duly noted by the scholars, of the Code’s provisions transformation into customary norms subject to their widespread support and compliance.31 Without getting into the discussion about the necessary prerequisites for such a transformation, suffice it to say that it would not be possible without continuous and consistent practice, thus underlying a presumably indefinite need for the Code’s, and consequently its mechanism’s, existence. Finally, according to paragraphs 1.3 and 1.4, the Code is not only legally non-binding, but is also “complementary to the international legal framework regulating outer space activities.” If the Code itself is non-binding, there is no reason to suggest that documents adopted during the annual meetings could be of any other legal nature, precisely because the annual meetings should be convened to review and develop the Code itself. Overall, the Code of Conduct established a permanently working mechanism of cooperation open to States and international organizations empowered to adopt legally non-binding documents, which has an organ performing secretarial functions not amounting to an international organization’s secretariat, and not possessing international legal personality.32 Some criteria point toward the Code’s mechanism designation as a conference, others signal its attribution to the international organizations category, and the CPC performing

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Cf., J. L. Banos, “EU Code of Conduct on Activities in Outer Space: Issues that Matter”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012), at 100. View has been expressed that, based on the study of regional organizations, “that international legal personality, defined in the classic sense, does not constitute an essential element in the notion of international organization.” P. Pennetta, “International Regional Organizations: Problems and Issues,” in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (2015), at 111-12. Acknowledging theoretical basis for this and similar views, we premise our analysis on the more traditional understanding of international organizations that has been codified in the UN International Law Commission Draft Articles on Responsibility of International Organizations, UNGA Res. 66/100, Responsibility of International Organizations, Official Records of the General Assembly, Sixty-sixth session Supp. No. 10 (A/66/100).

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functions of a secretariat does not fit into any category at all. This puts our analysis in a difficult situation since there are only two options to explain the identified variations. First option is to admit that the preceding analysis was wrong, but obviously that is not something we are prepared to do. The second option is to ascertain existence of mechanisms of cooperation that do not fit into any of the three major categories of international cooperation: international organization, treaty or international conference. Although classification of mechanisms of cooperation into these three categories is fairly settled in the theory of international law, in reality any one-and-for-all classification cannot fully grasp each and every possible variation, especially in such a modern and dynamic area as exploration and use of outer space. Authors noted that “in recent decades several countries have often chosen to use ‘informal’ (or soft) international organizations rather than creating international organizations in the traditional sense. Soft international organizations, despite their informal structure, implement goals and values that are sometimes very important for their Member States and, in some cases, also for other States or groups of States of the international community.”33 Based on these considerations, the perplexing combination of incompatible criteria of the Code’s mechanism identified above suggests a conclusion that non-traditional organizations, which can be characterized as hybrids of ‘soft’ and ‘hard’ organizations, do exist, and that one of them is in front of us. These organizations, sometimes labeled ‘soft international organizations’,34 are hybrid entities playing an increasingly important role in international relations. Having been first used in the area of environmental cooperation,35 hybrid entities based on and performing their regulatory functions using ‘soft law’ instruments, have been adopted in space area as well. Scholars generally favor ‘soft law’ instruments and mechanisms of outer space cooperation due to their ability to accommodate Washington consensus-inspired reluctance to adopt legally binding documents36 and, at the same

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A. Di Stasi, “About Soft International Organizations: An Open Question,” in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (2015), at 44. We suggest that a term ‘soft international organization’ is confusing given the longstanding tradition to equate ‘international organizations’ and ‘intergovernmental organizations’, the latter being described in fairly rigid terms, and propose using the broader term ‘hybrid mechanism of cooperation’. Cf., M.-C. Runavot, “The Intergovernmental Organization and the Institutionalization of International Relations,” in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (2015), at 36. See, F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 13 (“Its principal aim was “to liberalize and deregulate national and international markets and as a consequence reduce the influence of states and governments in economic and social matters.”).

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time, to provide a solid basis for necessary cooperation.37 With respect to the Code of Conduct, however, there is no concurrence as to its effectiveness.38 Though not numerous, the existing hybrid ‘soft law-based’ mechanisms of cooperation have proved to be an effective instrument in coordination of activities in space applications, and the Committee on Earth Observation Satellites is one such example. In the realm of practical space applications, cooperative efforts have tangible results that can be experienced in a short-term perspective. For example, coordination makes valuable data publicly available, promotes technical compatibility, helps avoiding redundant experiments, thereby, minimizing costs. Legal regulation in its pure form, by contrast, cannot bring immediate practical results. On the one hand, it ensures that all parties are behaving within the framework of relevant regulation promoting stability and security of the regulated activities. On the other, it restraints parties’ freedom of action through subordination of their activities to a mandatory set of rules. But that is only true for a legally binding regulation. In case of a ‘soft law’ regulation, neither the stability of regulated activities can be guaranteed, nor the parties are restrained by a mandatory set of rules. While the choice of a legally non-binding document ipso facto does not predetermine (in)effectiveness of a particular mechanism of cooperation, the change of the objective of cooperation might well affect effectiveness of the mechanism of cooperation that has proved itself successful in different circumstances. We will now proceed with evaluation of the mechanism’s appropriateness for achievement of the ambitious goals of the Code. In the absence of practice to support or refute inferences made, they should be accepted as hypotheses based on the limited data currently available.39 In furtherance of the Code’s ‘regulatory’ goal,40 the Subscribing States are required to engage in extensive communication as provided by Section III and meet on an annual basis to review and develop the Code. We have earlier opined that effective compliance with Section III requirements is unlikely; but it is plausible that annual meetings might see extensive attendance. They are capable of facilitating greater understanding between the Subscribing States,

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Cf., M. Ferrazzani, “Soft Law in Space Activities”, in G. Lafferranderie and D. Crowther (eds.), Outlook on Space Law over the Next 30 Years (1997), at 439-41. Compare A. Lele, “Space Code of Conduct: Inadequate Mechanism”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012); and M. Krepon, “Space Code of Conduct: Inadequate Mechanism – A Response”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012). Acknowledging that non-compliance with substantive provisions would inevitably lead to uselessness of any mechanism, no matter how effective it is on its own, for the purposes of the present analysis it will be presumed that the substantive provisions of the Code are being implemented to some degree, and overall States are being supportive. Para. 1.1 of the International Code of Conduct for Outer Space Activities.

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and to serve as a forum for information exchange and Code’s substantive provisions enhancement. Collective discussion at most times is a crucial prerequisite for gathering comprehensive information, while consultations and similar methods are capable of supplying sporadic, patchwork-like pieces of data.41 And with this perspective a hybrid mechanism created by the Code is justified. The CPC performs all tasks necessary for annual meetings’ effectiveness: it ensures meetings’ proper administrative organization and support, guarantees proper flow of exchanged information, and facilitates communications beyond annual meetings. Since external communication is taken away from the CPC, a figure of a Secretary-General representing the mechanism on the international plane becomes unnecessary, thereby making the Chair a ceremonial office – something an annually rotated Chair elected among States’ representatives can effectively do. A permanently working organ with secretarial functions, thus, is a necessity in achievement of the Code’s goals. The CPC, however, has not been created as an entity capable of catalyzing achievement of these goals since it is only entrusted with administrative tasks. There is a good reason for it, though. The non-binding form has been chosen intentionally to accommodate States’ reluctance to sign up for any new obligations in the space area;42 and the whole scheme of cooperation is concentrated on guaranteeing that every State feels confident that nothing contrary to its will is ‘slipped into’ the Code. In such an almost paranoid atmosphere of distrust and rejection of anything that has not been scrutinized by a State itself, an independent secretariat entrusted with

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42

See e.g. International Law Commission, Preliminary Report on the protection of the environment in relation to armed conflicts, Sixty-sixth session, 5 May-6 June and 7 July-8 August 2014, A/CN.4/674, at 6-8. (The International Law Commission filed a request for information from States about their practice, international and domestic law interpretations pertaining to the theme of the Report, and only 5 States have responded to the request within a year, while 3 out of these responses were very concise and did not provide all requested information. The Special Rapporteur expressed hope that other States will provide further information to the questions posed by the Commission.); M. Benkö and K.-U. Schrogl (eds.), International Space Law in the Making: Current Issues in the UN Committee on the Peaceful Uses of Outer Space (1993), at 199. (In 1988 and 1989 two notes verbales from the UN Secretary General asked the States to provide information about their national legal frameworks relating to the development of the application of the principle contained in Art. 1 of the Outer Space Treaty. Only 30 countries, out of more than 170 Member States of the UN and 53 Member States of COPUOS responded to these two notes verbales.). For an argument about unlikelihood of the majority of spacefaring nations agreeing to a fundamental outer space treaty, See F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 43. For an argument that the legally binding PPWT will not work, while the Code of Conduct for Outer Space Activities may, See F.G. von der Dunk, Cutting the Bread (2013). Space and Telecommunications Law Program Faculty Publications. Paper 73. http://digitalcommons.unl.edu/spacelaw/73.

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substantive, as opposed to administrative functions, would have been unthinkable. By extension, it is equally logical that no new subject of international law has been created. Formality of the Code mentioned above coupled with the need to ensure that any and all changes to the Code are properly agreed upon by the States, has resulted in the need to establish a permanently working organ with secretarial functions, at the same time rejecting the possibility of such an organ independency and any measure of legal personality of the entity. In hybrid mechanisms of cooperation focusing on practical applications, an amalgamation of an organization-like secretariat and a conference-like absent legal personality is necessitated by the demand to provide a flexible and informal mechanism of coordination beneficial for all participants, while the Code of Conduct’s hybridity is of a different nature. Getting back to the Code’s goal, it can now be understood that the hybrid mechanism of cooperation was not triggered by it. There are multiple options to achieve the proclaimed goals: an agreement providing for regular review meetings and a practice-oriented mechanism akin to the Committee on Earth Observation Satellites aimed at coordination of space debris mitigation practices are just two alternatives. The current option seems to have been chosen because the Code is not only about ‘safety, security and sustainability’ measures, but it also covers the principles pertaining to peaceful uses of outer space. This issue has always been contentious in outer space regulation;43 it is being discussed within the United Nations Conference on Disarmament without any substantial progress; and it has been a part of the Code since its inception. Although multiple redrafts have watered-down relevant provisions, which can now be found only in the General Principles Section, the approach has been preserved: if we touch upon the issue of peaceful uses of outer space, no intermediaries are allowed.44

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F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 331-32 (“The controversy over military uses of outer space has been largely related to four factors: (1) the use of outer space for military reasons is a highly sensitive issue and states are often reluctant to accept legal restrictions or prohibitions to such a use; (2) a unitary legal framework governing military operations in space is missing – instead, the applicable rules are distributed among various sources of law, including general public international law, international humanitarian law and international space law; (3) these rules fail, at times. To provide a clear understanding of key terms and concepts; and (4) space technologies (especially as for launch vehicles) and space objects (notably satellites) are usually of a dual-use character, as they have the potential to be used fir civil and military applications.”). It was suggested that “Arms are not only a symptom of mistrust, they may also be a cause of it.” S.D. Bailey and S. Daws, The United Nations: A Concise Political Guide (1995), at 79.

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IV.

Conclusion

The scholars have opined that “because of the recent and impressive growth of space activities with international cooperation elements in them, various forms of establishing such relations have flourished.”45 A more recent trend has emerged in addressing general issues, which might have political implications, to use an informal institution able to represent views of its participants, while preserving their distinct identity, and to act in practical areas of outer space exploration and use.46 The conclusion is offered that these trends were engendered by the growing exploitation of outer space and the need to use its resources in an efficient and sustainable way.47 A growing utilization of outer space, where space programs and projects become more intensive and regular, generated a need for a rational use of space capabilities. Indeed, it was estimated that a total of approximately five-thousand and five-hundred launches were made since 1957, providing a convincing evidence of how busy outer space has become.48 “Space has started to host all sorts of human activities, or better, play a fundamental role in them: military, scientific, administrative, crime fighting and anti-terrorism, commercial, and humanitarian – and thus in regulating the behavior of all sorts of humans to go with them.”49 A logical extension to the intrinsic connection between outer space and the world as we know it today is that an “everyday life would be seriously degraded, if not impossible, without the utilization of space-based science and technology. This holds true for the present generations, but also for the ones to come. Accordingly, space has to be preserved for the future. Sustainability can be achieved through a fair and responsible use of space.”50 Against this background, cooperation becomes more relevant and rewarding for spacefaring States. It has been noted that in today’s world there is no longer room for ‘solitary adventures’ on the part of individual States, and creation of integrated entities seems to be the ‘postmodern passport to globalization’.51 While States are open to cooperation, there is much less longing for creation of formal, rigid mechanisms of

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M. Ferrazzani, “Soft Law in Space Activities”, in G. Lafferranderie and D. Crowther (eds.), Outlook on Space Law over the Next 30 Years (1997), at 439. Id. at 439-41. Cf., M. Hofmann, “Sustainability of Space Environment: Draft UNGA Resolution”, in Proceedings of the International Institute of Space Law (2012), at 639-40. It was estimated that since 1957 till December 31, 2014 a total number of 5438 launches were performed, including the unsuccessful ones. See, www.spacelaunchreport.com/logyear.html. F. G. von der Dunk (ed.), Handbook of Space Law (2014), at 125. R.Wolfgang, K.-U. Schrogl (eds.), The Fair and Responsible Use of Space: An International Perspective (2010), at 12. See, P. Pennetta, “International Regional Organizations: Problems and Issues,” in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (2015), at 80-81.

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cooperation. The last three decades showed that States have become more wary of legally binding mechanisms than they were in the beginning of space era; and there is no evidence that States are ready to break this equilibrium between the need to cooperate and reluctance to become bound by additional legal obligations. With that perspective, emergence of hybrid mechanisms of cooperation seems consequent and logical. The hybrid mechanism exemplified by the Code of Conduct, however, is not a generation of the need to combine flexibility with a continuous character of work. It is a creation of the need to regulate complex controversial matters, which in turn require a high level of formality and legal precision, and unwillingness to accept any legally binding obligations.52 The mechanism itself, however, has not been properly tailored to address inherent differences between cooperation in the area of practical applications and that in the ‘regulatory sphere’, making it less effective in achievement of the proclaimed goals; simply put, the goals are too grand for a hybrid mechanism. Nevertheless, it is likely that further regulation of outer space activities will continue through hybrid mechanisms of cooperation. “As has been said, soft IOs are ‘children of their time’; and as such they reflect the paradoxes of an international society dealing with the possible forms of enlargement of the subjects and also of sources of law production. They represent a response to the renewed need for interstate cooperation as a consequence of the more general process of re-interpretation of State sovereignty; they also try to resolve the tension between formal independence among States and substantial interdependence between them, which leads to cooperation.”53 States are not willing to take on any more obligations than they already have, but the contemporary issues of outer space exploration and use, including the one emphasized by the Code of Conduct – space debris – demand coordination on some level. It is our view that usage of hybrid mechanisms of cooperation was necessitated by the growing exploitation of outer space and the need to use its resources in an efficient and sustainable way.54 Space debris is obviously a

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Mere mentioning of issue of peaceful use of outer space made States worried beyond reason that they might create a monster, just as Dr. Frankenstein did. And the result, unfortunately, is significantly less impressive than it could be if States were not afraid to take bold steps. For an argument in favor of creating international organizations with broader scope of functions and powers, even if it means creating Dr. Frankenstein’s monster See, A. Guzman, Doctor Frankenstein’s International Organizations, 24 Eur. J. Int’l L. 999 (2013). A. Di Stasi, “About Soft International Organizations: An Open Question,” in R. Virzo and I. Ingravallo (eds.), Evolutions in the Law of International Organizations (2015), at 68. Cf., M. Hofmann, “Sustainability of Space Environment: Draft UNGA Resolution”, in Proceedings of the International Institute of Space Law (2012), at 639-40.

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pressing issue.55 The Space Debris Mitigation Guidelines were drafted in 2007. But even complete abidance by their provisions for every future launch will not solve the problem because the debris that is already there will not disappear. With constant development of space technology, there is a chance that ten years from now these Guidelines become outdated and ineffective.56 These two considerations point toward a dynamic mechanism of cooperation, receptive to the latest developments and able to promote best practices. The hybrid mechanism ensuring flexibility and adaptability, but capable of constant monitoring of the recent trends with their timely communication to all interested States and international organizations might prove helpful.57 The more subjects engage in outer space exploitation, the more pressing the issue would become. The Code of Conduct was largely stimulated by the troubling display of nontransparency and insensitivity to the space environment shown by China in its 2007 anti-satellite test.58 By way of introducing the Code of Conduct – a ‘soft law’ document – the European Union supported the notion that voluntary rules of the road, founded in ‘best practices’ among space actors, offer the most promising approach to achieving space behavioral norms. “The EU emphasized that the Code of Conduct represents a pragmatic and incremental process which can assist in achieving enhanced safety and security in space.”59 Despite the pragmatic choice of a legally non-binding type of document and a hybrid form of cooperation, the Code struggles to achieve a necessary level of control and collaboration between Subscribing States. We propose that inclusion of the issues of peaceful uses of outer space has been a strategic mistake – after all, relevant provisions have been all but wiped out from the text of the Code – which might well prove to be fatal for the Code’s success.

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For a general overview See, N. Jasentuliyana, International Law and the United Nations (1999), 321-49. Cf., H.R. Hertzfeld, “A Roadmap for a Sustainable Space Law Regime”, in Proceedings of the International Institute of Space Law (2012), at 299. The Space Debris Mitigation Guidelines gained substantive support following their endorsement by the UNCOPUOS and later by UNGA. The recent reports of the UNCOPUOS Subcommittees showed States’ interest in further development of these guidelines with possible transformation into legally binding treaty. The limited effectiveness of UNCOPUOS in drafting of new documents, however, might preclude it from living up to States’ expectations, and a hybrid entity might well serve an effective substitute in this and other similar areas. See, J. Robinson, “Europe’s Space Diplomacy Initiative: The International Code of Conduct”, in A. Lele (ed.), Decoding the International Code of Conduct for Outer Space Activities (2012), at 27. Id. at 28.

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Internet from the Sky Legal Challenges Dimitrios Stratigentas and Mclee Kerolle*

Abstract The traditional government role in establishing safety regulations and certifying compliance is no longer suitable for highly advanced and fast evolving technologies that are being used to provide internet to remote areas of the world. This is due to the difficulty for these governments to find the appropriate regulatory regime to govern these technologies. Technology is developing in such a way, that the capability to provide Internet to remote areas of the world may be governed by either the air law regime or space law regime. An indicative example of this is Google’s Project Loon. Google plans to provide Internet access to every part of the world through the use of helium balloons that will fly through the stratosphere. Facebook is also considering the use of flying drones on a high altitude for the same reason. This raises the question of which law regime is applicable, and whether there is a need for a new one to cover these non-conventional aircrafts. What may put a break to these ambitious plans, however, is the issue of sovereignty. Both balloons and drones will be flying on an altitude that is arguably still within the sovereign rights of the States and subject to air law. Both of these companies must first get permission from all the States that they will fly over. There is also the question of third party liability in case of damage caused by those crafts to a third party. Compliance with the ITU’s Radio regulations and ensuring the absence of any harmful interference will also be a huge challenge. On that respect, coordination with all the potentially affecting parties will be a hurdle towards the realization of the projects.

I.

Introduction

The technological advancements and achievements do not stop to surprise us. The conception of the aircraft was thought by many to be the greatest achievement mankind can reach. Then the first satellite launched into space and after a bit more than a decade man landed on the moon. Now, internationally well-established private companies have set a new goal: exploiting new technologies to provide Internet to the world from the sky. Google plans to put into airspace unmanned balloons that will fly above the territory of different States providing wireless internet to remote areas of the

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Dimitrios Stratigentas, International Institute of Air & Space Law, Leiden University, Greece, [email protected]. Mclee Kerolle, International Institute of Air & Space Law, Leiden University, United States, [email protected].

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world where they do not currently have access. Facebook is developing drones that will also fly high on the sky providing Internet to remote areas as well. Elon Musk’s SpaceX is preparing a constellation of 4000 small satellites that will orbit the planet and send Internet to all over the world. OneWeb also has similar plans with 700 small satellites. All of the aforementioned companies are well-known for their services. Their new ventures put them on completely new regulatory grounds. The law of outer space is not as straightforward or as developed as other areas of international law and is definitely not commercially-oriented. The lack of certainty and the inability to calculate the risks involved may put a constraint to their plans. Also, when it comes to airspace, the sovereignty principle will prove a huge legal hurdle to surpass; getting permission from foreign States to fly over their territories will be very difficult. There are also questions of safety and airworthiness of these aircrafts and who should regulate them. The paper looks at the industry perspective, trying to present not all, but rather the biggest legal challenges that the private entities will face or are already facing. It starts by briefly presenting the plans of each company and explaining the technology and method that will be used to achieve them. Next, the sovereignty principle is examined and how these companies will need authorization from different States. In addition, the paper introduces the ITU filing and frequency coordination procedure and the international obligations the companies have in this respect. There is also a discussion about the airworthiness of the aircrafts and the sustainability of outer space activities. Finally, before concluding, the paper looks at issues relating to third-party liability and insurance. II.

Overview of the Projects

This section lays out the framework of the paper by presenting the various methods that companies are now developing to provide the world with Internet from the sky. Google, Facebook, SpaceX, and OneWeb are the companies that this paper will address, and below there is a description of each project. II.1.

Google’s Project Loon

Google’s Project Loon aims to use high-altitude balloons placed in the stratosphere at an altitude of about 32 km (20 miles) to create an aerial wireless network with up to 3G-like speeds.1 Project Loon works by providing connectivity to a grounded area about 40km in diameter using a wireless technology known as LTE.2 Loon shares the cellular spectrum with telecommunication companies in order to provide people with access to the Internet everywhere

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Project Loon, Google, accessed 23 September 2015. id.

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directly from their phones and other LTE-enabled devices.3 As a result, the balloons relay wireless traffic from cell phones and other devices back to the global Internet using high-speed links. The balloons are created to last around 100 days in the stratosphere and when they are ready to be taken out of service a gas is released from the balloons to bring them down through a controlled descent.4 They will be using the currents of the wind in order to navigate on air. II.2.

Facebook’s Aquila Program

Facebook’s attempt at providing access to remote parts of the globe comes in the form of an 880lb. unmanned aerial vehicle (UAV) known as Aquila.5 The drone will operate between 18km and 27km and run on solar power.6 In addition, it is capable of flying for 90 days straight and circling a two-mile radius in order to stay afloat.7 Aquila provides Internet by sending signals to small cellular towers, and converts those signals into a Wi-Fi or LTE network that people can use to connect to their laptops and smartphones.8 After successful testing, Facebook plans on deploying many more drones around the world, which will also be able to send signals to and from each other, which would result in less Internet structure to be needed on the ground.9 II.3.

SpaceX and OneWeb

Both of these companies plan to provide Internet to the whole world by deploying satellites in Low Earth Orbit (LEO). SpaceX plans on launching a constellation of 4,000 small satellites within the next 5 years that would send high-speed Internet signals to all parts of the globe.10 Similarly, OneWeb aims to have its entire constellation launched and operational by 5 years.11 However, instead of launching 4,000 satellites, OneWeb plans to deploy just 700

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id. id. Alex Hern, ‘Facebook launches Aquila solar-powered drone for internet access’, (The Guardian, 31 July 2015) accessed 23 September 2015. id. id. Jonathan Vanian, ‘Behind the scenes with Facebook's new solar-powered Internet drone and laser technology’ (FORTUNE, 30 July 2015) accessed 23 September 2015. id. David Goldman, ‘Elon Musk's plan to put the Internet in space moves to launch pad’ (CNN Money, 10 June 2015) accessed 23 September 2015. Stephen Clark, ‘OneWeb launch deal called largest commercial rocket buy in history’ (SPACEFLIGHT NOW, 1 July 2015) accessed 23 September 2015.

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satellites to LEO.12 Both companies want to take advantage of the new revolution of small satellites. These satellites will not be able to stay in orbit more than a few months to a year; however, they both see it as an opportunity to update their technology. They cheap cost of these satellites possible allows such a venture. III.

Sovereignty & Authorization

In contrast to the outer space where States have surrendered any sovereign right or claim following the Outer Space Treaty of 1967,13 airspace is an area where States exercise complete and exclusive sovereignty. The airspace above the territory of a State (including its territorial waters) falls under the jurisdiction of that State. Already in 1919, the Paris Convention14 has recognised the complete and exclusive sovereignty of States over the airspace above their territory.15 The Paris Convention was replaced in 1944 by the Chicago Convention,16 which also starts with the unequivocal proclamation of the principle of sovereignty.17 The rules of the Chicago Convention apply exclusively to civil aircraft.18 Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface is defined as an ‘aircraft’.19 Facebook’s drones clearly fall under the above definition as they use wings to fly. But, so do Google’s balloons as they use the currents of the wind to navigate on air. State aircraft are explicitly excluded from the scope of the Chicago Convention. Although the Convention does not provide a definition of ‘state aircraft’, it is generally accepted that a state aircraft has to be registered in the non-civil aircraft registry of a State; or belongs to, or is owned by the State; or is operated by the State.20 Examples of aircraft that are considered to fall

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id. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, entered into force 10 October 1967, 610 U.N.T.S. 205 [hereafter also referred to as the Outer Space Treaty]. Paris Convention relating to the Regulations of Aerial Navigation of 1919, 11 League of Nations Treaty Series 173. id., Article 1. Chicago Convention on International Civil Aviation of 1944, 15 United Nations Treaty Series 296-361 (1948) [hereafter also referred to as the Chicago Convention or the Convention]. The Chicago Convention has been ratified by 191 States as of 23 September 2015. id., Article 1. id., Article 3. Revised and amended text of Annex 7 to the Chicago Convention. See ICAO Secretariat Study on Civil/State Aircraft – Comments from States and International Organisations; ICAO Doc. LC/29-WP/2-2 (1992/3); ICAO Resolution 22/1: Consolidated statement of continuing ICAO policies and associated practices

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under the definition of state aircraft are those operating services such as search and rescue, coast guard, emergency assistance, humanitarian flights, carriage of heads of States and official personalities, etc.21 Put simply, the classification of an aircraft as ‘state’ or ‘civil’ will depend upon its use.22 Both Facebook’s drones and Google’s balloons are ‘civil aircraft’ and not ‘state’ since they are owned by private companies, registered or will be registered by those companies and their use is purely commercial. Thus, they both fall under the scope of the Chicago Convention and have to abide by the rules established by it. International air law also makes a distinction between ‘scheduled’ and ‘nonscheduled’ flights or services. Google and Facebook aircrafts’ services do not fall under the definition of ‘scheduled’ services since they will not perform transportation of passengers, mail or cargo for remuneration open to use by members of the public.23 Article 6 of the Chicago Convention provides that “no scheduled air service may be operated over or into the territory of a contracting State, except with special permission or other authorization of that State, and in accordance with the terms of such permission or authorization.” Therefore, each State is free to impose such limitations as it deems fit on the aircraft of a foreign State. Google and Facebook will face considerable difficulties getting authorization from foreign States to fly their balloons and drones over their territory. This is justifiable considering that foreign States will fear that those machines will be used for spying on them. IV.

ITU Frequency Coordination

As discussed under heading II, SpaceX and OneWeb plan to put a constellation of small satellites in LEO for providing Internet to the whole world. For their proper functioning, all satellites, big or small and irrespective of their application, need to use radio frequency in order to communicate between them and with the earth stations. In order to avoid possible harmful interference, radio frequencies are heavily regulated both at international and national level. Radio frequencies are a limited international natural resource to be used by all countries on an equitable

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related specifically to air navigation, Appendix P: Coordination of civil and military air traffic, laid down in ICAO Doc. 9845 A35-TE (2004), and Resolution A32-14 adopted in 1998 by the ICAO Assembly. See Isabella Henrietta Philepina Diederiks – Verschoor, An Introduction to Air Law (Pablo Mendes de Leon rev., 9th rev. edn, Kluwer International Law 2012) 20-22. See Stephan Hobe and Michael Lysander Fremuth, ‘No Fly Zones’: Connectivity between International Law and Air Law in Case of Libya (in German; English summary); and Stefan Kaiser, No Fly Zones Established by the United Nations Security Council, both published in 60(2) Zeitschrift für Luft- und Weltraumrecht 2011. See ICAO Doc. 7278-C/841, at 3.

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basis, and they do not respect national borders.24 Therefore, the international community has devised an extensive international regulatory system through the International Telecommunication Union (ITU). ITU is a specialized agency of the United Nations, located in Geneva, Switzerland. Its role is to maintain and extend international cooperation between its 191 Member States for the improvement and rational use of telecommunications of all kinds.25 The Union formulates regional and global standards to be applied through the members’ national administrations. Member States are to require their private entities to operate in accordance with the ITU regulations and to use radio frequencies in accordance with the Radio Regulations.26 SpaceX and OneWeb must make sure that the frequencies that they will designate to their satellites will be in accordance with the standards provided by the Radio Regulations. In addition, they must make sure that their services will not cause any harmful interference to services operating under the same frequencies, which are internationally protected after successful coordination with the ITU. To successfully coordinate with ITU and make sure that there will be no interference with other services is a lengthy process even when it comes to a single satellite; it may take up to two years. It may also be that sometimes the desired frequency might cause interference to another State’s service and coordination with that State will also be necessary, which might delay the process even further. It is not difficult to imagine the huge challenges SpaceX and OneWeb will face in this respect. Putting in use 4,000 and 700 satellites respectively will likely require coordination with many States around the globe. Finding a way to secure interference-free services will prove to be a big hurdle. OneWeb has already advised with ITU for potential solutions and managed to secure a license for a non-GEO Ku-band network. Following OneWeb’s website,27 this allocation of a priority spectrum to them came with a significant constraint: their use of the spectrum must not cause interference to the GEO satellites, which will be a major engineering challenge. The company claims that they developed a new technology called ‘Progressive Pitch’ which will enable them to avoid interference with the Ku-band satellites in GEO. According to them, this technology will allow them to modify the orientation and power level of their satellites as the satellites pass over the equator so that they never interfere with those services. Despite the assurances from OneWeb, satellite fleet operators fear that OneWeb’s satellites will disrupt their established services by interfering with millions

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Constitution of the International Telecommunication Union, signed in Geneva on 22 December 1992, 1825 U.N.T.S. 31251 (as amended in 1994, 1998, 2002 and 2006) [hereafter also referred to as the Constitution], Article 44 (2). id., Article 1(1). id., at Article 45 (1) and 45 (2). OneWeb, accessed 23 September 2015.

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of user antennas installed around the equator.28 Some of the operators are hoping that OneWeb will stay true to its commitment to abide by the international regulatory guidelines and to ensure the absence of interference with their services.29 Other operators express their fear that ITU, lacking in any real enforcement power, will not be up to the task if interference develops after the deployment of OneWeb’s hundreds of satellites.30 Being the only one to have secured an ITU license for a non-GEO global Kuband network, OneWeb has a clear advantage over competitors like SpaceX. With OneWeb possessing the Ku-band license, and Ka-band spectrum now reserved by multiple satellite operators across the GEO, any prospective competitors will have a more difficult time securing a license that does not interfere with satellites already in the ITU reservation system, which have higher priority. However, OneWeb’s licenses with ITU expire in 2018 and 2020 by which time satellites must be in place and start operations. Otherwise OneWeb’s licenses will be cancelled following the ITU ‘Bringing into Use’ provisions.31 SpaceX’s challenge could be even bigger planning to use not just hundreds, but a few thousands of satellites. The company has recently filed to the Federal Communications Commission (FCC)32 seeking permission to begin a test deployment of a few satellites, which can be used for performance and technology assessment. If everything goes according to the plan, the test could be underway by 2016, and the thousands of satellites that will provide Internet could be in operation within five years. V.

Safety Concerns

V.1.

Safety and Airworthiness in Airspace

Thousands of small satellites orbiting the Earth; unmanned drones flying over the airspace and huge balloons moving with the currents of the wind [...] surely it sounds impressive and they are indeed impressive technologies. Nevertheless, these endeavors pose threats to the safety of persons and to property. There have already been several incidents where such activities have triggered

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Peter B. de Selding, ‘OneWeb Fails (At Least for Now) To Soothe Satellite Interference Fears’ (SPACENEWS, 18 September 2015) accessed 23 September 2015. See id. See id. ITU Radio Regulations, signed in Geneva on 6 December 1979, as revised by the World Radiocommunica¬tion Conference of 2012 at Geneva [hereinafter Radio Regulations], No. 11.44. The FCC is an independent agency of the US government that regulates interstate radiocommunication.

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safety concerns. For instance, on September 4, 2015, it was reported that a drone crashed into the stands of the U.S. open.33 Fortunately, the drone crashed into an empty section of seats. Prior to that, there was an incident in 2014 where a balloon from Google’s Project Loon crashed into a power line in a relatively remote area of Washington State rendering several homes powerless for 5 hours.34 Although the above incidents did not inflict serious damage, they nevertheless raise important safety concerns. While the Chicago Convention addresses ‘pilotless aircraft’, currently there is no uniform international legislation for the regulation of UAVs. Thus, laws governing these aircraft vary from State to State. Assuming that States do provide authorization to Google and Facebook to operate over their territories, then one of the biggest issues will be safety and airworthiness. Although the number of drones Facebook plans to deploy in their Aquila program is currently unknown, one can imagine that there will be issues of, inter alia, air traffic congestion, software malfunction and loss of situational awareness of the pilot. For instance, on August 2, 2010, due to a software anomaly a US Navy MQ-8B Fire Scout UAV loss control and violated the Air Defence Identification Zone surrounding Washington, DC.35 Moreover, on October 3, 2006, an IAI Hunter UAV of the Belgian forces crashed during a EUFOR mission killing two civilians in the streets of Congo due to the loss of situational awareness of the pilot.36 Although both of these examples concerned military aircraft, this type of scenarios can easily occur in a commercial context. Due to safety concerns, airworthiness and certification play an important role for integrating UAVs into non-segregated airspace.37 The purpose of certification is to guarantee flight safety in order to protect other aircrafts and the public on the ground.38 As a result, airworthiness standards and acceptable means of compliance need to be established to have any meaningful impact on unmanned aviation systems (UAS). These standards should focus on remote

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Barb Darrow, ‘Drone crash lands at U.S. open’ (FORTUNE, 4 September 2015), accessed 23 September 2015. Frederic Lardinois, ‘One Of Google’s Project Loon Balloons Crashed Into Power Lines In Washington State’ (TechCrunch, 3 June 2014) accessed 23 September 2015. Christopher P. Cavas, ‘Lost Navy UAV Enters Washington Airspace’ (NavyTimes, 25 August 2010) accessed 23 September 2015. George C. Larson, ‘UAVs, or Nothing Can Go Wrong, Go Wrong [ . . . ] ’ (2008) Vol. 102, iss.1, Business and Commercial Aviation, 26. Stefan A. Kaiser, ‘UAVs and Their Integration into Non-segregated Airspace’, Air and Space Law 36, no. 2 (2011), 161. id.

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control, the quality and reliability of data links and sensors and their protection against misuse (such as hacking), the reliable technical means for a ‘detect, see, and avoid’ collision avoidance regime, and all aspects of autonomous flight.39 One way of implementing such standards on an international scale is by establishing what is known as a ‘classification society’ specifically for UAVs. Originating in London in the 18th century, classification societies are nonprofit, non-governmental organizations with the purpose of providing classification and statutory services and assistance to the maritime industry and regulatory bodies with regards to maritime safety based on the accumulation of maritime knowledge and technology.40 Classification Societies develop and apply their own standards and verify compliance with international and/or national statutory regulations on behalf of flag Administrations.41 They could serve a useful tool towards ensuring safety on air in regards to these new technologies. Another, more pragmatic perhaps, solution would be to include UAVs under the scope of the International Civil Aviation Organization (ICAO). ICAO develops international Standards and Recommended Practices (SARPs), which States reference when developing their legally-enforceable national civil aviation regulations.42 There is no doubt that UAVs and manned aircraft will be flying in the same airspace soon enough. ICAO could ensure that all regulatory steps will be undertaken to maintain the safety levels the aviation industry has achieved during a century. V.2.

Sustainability of Outer Space Activities

The number of space debris43 in-orbit is rising quickly. Currently, about 23.000 pieces of human generated debris in Earth orbit larger than 10 cm in size is tracked by the U.S. Space Command Space Surveillance Network. These pieces are large enough to destroy a satellite.44 Additionally, research shows that there are an estimate 5.000.000 pieces between 1 to 10 cm size

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id. International Association of Classification Societies, ‘Classification Societies – What, Why and How?’ available at accessed 23 September 2015. id. ICAO, accessed 23 September 2015. According to the Inter-Agency Space Debris Coordination Committee (IADC), ‘space debris’ are “[…] all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional”. UN Doc. A/AC.105/C.1/L.260, 29 November 2002, 3.1. Space Debris. Fabio Tronchetti, ‘The Problem of Space Debris: What can Lawyers do About it?’, in: German Journal Of Air And Space Law, Special Issue: 90th Anniversary Of The Institute Of Air And Space Law, Cologne (2015) 334, 334.

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that are largely untracked.45 Despite their minimal dimension these pieces are capable of severely damaging a satellite in a collision.46 Both SpaceX and OneWeb are planning to put into orbit a considerable amount of new space objects. These will add to the already big number of existing space objects and the huge amount of space debris. Limiting the creation of new space debris is crucial for the future sustainability of space operations. Both companies need to make sure that their operations will respect and follow the international guidelines on space debris mitigation. Space debris mitigation consists of all efforts to reduce the generation of space debris through measures associated with the design, manufacture, operation, and disposal phases of a space mission.47 The United Nations did not draft any rules on the mitigation of space debris. Understanding the importance of the issue, several space agencies of different States met in 1993 and established the IADC.48 The IADC Space Debris Mitigation Guidelines49 were formally adopted by consensus in October 2002. They “describe existing practices that have been identified and evaluated for limiting the generation of space debris in the environment.” The Guidelines cover the overall environmental impact of the missions with a focus on the following: 1. Limitation of debris released during normal operations; 2. Minimization of the potential for on-orbit break-ups; 3. Post-mission disposal; 4. Prevention of on-orbit collisions.50 These Guidelines were served as a baseline for the development of the UN Space Debris Mitigation Guidelines.51 In its Resolution 62/217 of 22 December

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Heiner Klinkrad, Space debris: models and risks analysis (Springer, New York 2014); Mariano Andrenucci, Pierpaolo Pergola, Andrea Ruggiero, Joris Olympio, Leopold Summerer, ‘Active Removal of Space Debris, Expanding foam application for active debris removal’, European Space Agency, Advanced Concepts Team, Ariadna Final Report (10-4611) 2011; Nasa Standard (NASA-STD) 8719.14, Handbook for limiting orbital debris, Nasa-Handbook 8719.14, 2008; Christopher Lehnert, ‘Space debris removal for a sustainable space environment’, ESPI PERSPECTIVES 52 (2011); Joseph S. Imburgia, ‘Space Debris and its Threat to National Security’, in: 44 VANDERBILT JOURNAL OF TRANSNATIONAL LAW (2011) 593-607. Tronchetti, supra note 44, at 334. IADC Terms of Reference, July 11, 2011. Available at accessed 23 September 2015. Current members include ASI, CNES, CNSA, CSA, DLR, ESA, ISRO, JAXA, NASA, NSAU, ROSCOSMOS and the UK Space Agency. Available at accessed 23 September 2015. Section 1 of the guidelines.

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2007, the General Assembly endorsed the Space Debris Mitigation Guidelines and agreed that the voluntary guidelines for the mitigation of space debris reflected the existing practices as developed by a number of national and international organizations, and invited Member States to implement those guidelines through relevant national mechanisms. Although these guidelines have no binding nature at the moment, they provide good guidance to the sustainability of outer space environment and the safe operation of space activities. They also serve as the foundation for the implementation of policies by States and the adoption of code of conducts by international organisations for the mitigation of space debris.52 The United States is one of the countries that have implemented an extensive legislation on space debris mitigation. SpaceX, for instance, will need to show coherence with the FCC regulations in order to secure a license for satellite communications. These regulations require applicants to provide information concerning use of orbits and plans for mitigation of orbital debris.53 The information is analyzed to determine whether a grant serves the public interest. The FCC must find that the “public interest, convenience, and necessity” will be served in order to grant a license.54 OneWeb seems to have taken seriously the above guidelines and according to their website, they have incorporated on-board propulsion on the satellites so that they can maneuver them to avoid collision with another satellite or space debris, and took into consideration the end-of-life disposal guidelines in the designing of the space objects. VI.

Third-Party Liability & Insurance

SpaceX’s and OneWeb’s satellites will be deployed in an orbit where other space objects are also orbiting the Earth. Although outer space seems vast, the probabilities of impact between two or more objects are not slim. History has shown that space objects do hit each other and that the results can be devastated.55 In case of a collision between, for example, a SpaceX’s satellite and another satellite registered in another State than the US, the US as the ‘launching

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53 54 55

Ulrike Bohlmann, ‘Connecting the Principles of International Environmental Law to Space Activities’ (2011) International Astronautical Congress, IAC11,E7,4,2,x11884. See e.g. European Code of Conduct for Space Debris Mitigation, available at accessed 23 September 2015. 47 C.F.R. 5.64, 25.114, 97.207. 47 U.S.C.308. See e.g. the 2009 Iridium-Cosmos collision.

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State’56 of SpaceX’s satellite could be found liable based on fault according to Article III of the Liability Convention. However, a legal definition does not currently exist for fault within the context of the Liability Convention. Proving fault in this respect will be almost impossible due to the ultra-hazardous activities on space. On top of that, The Liability Convention has also never been formally invoked – all incidents to date that could have resulted in potential claims under the Convention have been settled by the respective countries outside of the Convention.57 Article II of the Liability Convention holds a launching State absolutely liable to pay compensation for damage cause by its space object on the surface of the Earth or to aircraft in flight. Nevertheless, since both SpaceX and OneWeb will use small satellites, the chances of inflicting damage on Earth are very slim since the satellite will most likely burn up during re-entry into the planet’s atmosphere. Thus, it seems almost impossible to be found liable and the two companies could have one less thing to worry about. Nevertheless, both companies will be using launchers in order to get their satellites in orbit. During the launch and until the successful detachment of the satellites in orbit damages can be inflicted to third parties. This is the reason why third-party liability and government property insurances protecting launch service providers and their customers in the event of public injury or property damage caused by the launch or potential mission failure is crucial.58 SpaceX has its own launching capabilities and will be launching its satellites from within US territory. OneWeb has partnered, inter alia, with Richard Branson’s Virgin Galactic, which will offer them launching capabilities. Virgin Galactic’s launching facilities are also located in US territory. In the United States, Federal Aviation Administration (FAA)59 regulations require that commercial launch licensees carry insurance to cover third-party and government property damage claims that might result from launch activity.60 However, public safety regulations for space launch are unique to each launching State. Thus, provisions of the Commercial Space Launch Act (CLSA), the governing US law for commercializing space, for third-party

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The term “launching State” means: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched. Convention on International Liability for Damage Caused by Space Objects, entered into force October 9, 1973, 961 U.N.T.S. 187 [hereafter also referred to as the Liability Convention], Article I (c). Ram Jakhu, ‘Iridium-Cosmos Collision and its implications for space operations’, ESPI Yearbook on Space Policy. 2008/2009: Setting New Trends. Wien: Springer Wien, NewYork (2010) 254. FAA, Commercial Space and Launch Insurance: Current Market and Future Outlook, 2002, accessed 23 September 2015. The FAA is the national aviation authority of the United States. FAA, supra note 58.

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liability indemnification do not limit U.S. government responsibility in the case of claims arising from damage to persons or property outside the US.61 For example, if the launch of one of the SpaceX’s satellites resulted in damage internationally and successful claims exceeded the maximum probable loss insurance requirement established in the CSLA, the US government would be obliged to settle the claim using mechanisms specified in the Liability Convention, which do not impose limits on such claims. The US government could then attempt to recover the amount of its settlement from SpaceX in the launch campaign responsible for the damage.62 VII.

Conclusion

Google and the rest companies have big plans but they also face big challenges. It is doubtful whether Google and Facebook will get authorization from foreign States to fly over their territory with their balloons and drones. States fear of spying and most of them will not prove to be a cooperative party. SpaceX and OneWeb also face huge hurdle in respect to the ITU filings and ensuring interference-free services. Steps have already made from these companies to find a solution, but they still have a long road in front of them. Google’s and Facebook’s UAVs do not fall under an international regulatory body which would certify their airworthiness. A solution must be found in this respect by the international community as soon as possible to ensure that the appropriate levels of safety will be observed. When it comes to space and the thousands of small satellites that will suddenly be deployed in orbit by SpaceX and OneWeb, there is the issue of the creation of more debris. The topic of the sustainability of future space activities is nowadays always being included in the discussion of the international community. Both companies must make sure that they abide by the existing space debris mitigation guidelines. Although not yet of binding nature, they are gradually transforming into customary law. Finally, like any other business, it is certain that there will be accidents and damage caused to third parties. The companies must make sure that they will be insured for such damages so that they protect their economic interests. Technology always finds ways to challenge the suitability of established regulations. This is also the case with the progressive plans those companies made to provide Internet to the four corners of the world. The question is whether the law will prove flexible enough to encourage those initiatives or instead it will put a stop to them. It needs to be seen.

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James A. Vedda, ‘Study of the Liability Risk-Sharing Regime of the United States for Commercial Space Transportation’ (2006), 1. accessed 23 September 2015. id.

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE COLLOQUIUM REPORT

Report of the 58th Colloquium on the Law of Outer Space Jerusalem, Israel, 2015 Contributed by Dimitrios Stratigentas, Neta Palkovitz, Simona Spassova, Michael Chatzipanagiotis, Deepika Jeyakodi, Andreas Loukakis and Olga S. Stelmakh Compiled and edited by P.J. Blount and Rafael Moro-Aguilar

Session 1: 7th Nandasiri Jasentuliyana Keynote Lecture on Space Law and Young Scholars Session

Co-Chairs: Tanja Masson-Zwaan and Orna Ben Naftali Rapporteurs: Dimitrios Stratigentas and Neta Palkovitz A total of 10 papers were presented in this session of the 58th IISL Colloquium on the Law of Outer Space. The session opened with the keynote lecture delivered by Prof. Joanne Irene Gabrynowicz, examining the case of remote sensing from outer space and the evolution of the term ‘use’ within the meaning of the corpus iuris spatialis. Prof. Gabrynowicz made reference to the issue of sovereignty and how ‘sensed’ and ‘sensing’ States had different opinions on which legal regime is applicable, with the first supporting that earthly law and sovereignty should apply, whilst the latter suggesting that space law is applicable and permissions are not necessary. She then referred to the compromise that it was found and the non-discriminatory access policy, arguing that the relevant provision of the United Nations has become customary international law. Prof. Stephan Hobe asked whether the UN principles are being neglected and what is their relationship with national laws. Prof. Gabrynowicz answered that different provisions of the UN principles have different legal strength. For example, the principle stating that remote sensing is to be used for the protection of the environment and to prevent human harm is very strong. Prof. Hofmann then noted that today there is a proliferation of remote sensing and raised the question of whether people should start thinking about protecting themselves from remote sensing and the relevant companies. Prof. Gabrynowicz agreed that the issue becomes more and more relevant and questions of privacy and intellectual property rights are being addressed now on jurisdiction by jurisdiction basis. In the USA, for example, all

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digital data are now being treated in exactly the same way as data in paper. In the EU this is also a long-lasting issue. Rishiraj Baruah presented the first paper after the keynote lecture, dealing with space mining and its legality. Baruah focused on the appropriation principle and its meaning, making an analogy to the Law of the Sea. He went on to propose an appropriate regime, providing also soft law alternatives admitting that a Treaty is not very likely any time soon. Dr. Cassandra Steer questioned about the origin of ‘soft law’ requirements, with Baruah noting that they could come from recommended practices of international organizations, giving as an example that of ICAO in the air law domain. Yangzi Tao presented the following paper, also focusing on the exploitation of natural resources in outer space, affirming that there is no provision in general international or international space law prohibiting such exploitation. Acknowledging the importance of regulating these activities, Tao suggested three different approaches in regulating them, one of them being the recognition of international customary norms. Prof. Tanja Masson-Zwaan questioned whether the industry could wait for such norms to evolve into customary law at which point Tao agreed that there is an urgent need for clarity. Sagi Kfir, General Counsel at Deep Space Industries, described the situation from the industry perspective. He specifically said that they are ‘pounding at the doors of legislators’ requesting clarity. He noted that although customary law may be important, the industry need urgent answers in regards to the issue of authorization and other provisions of the Outer Space Treaty. He assured that what the industry wants is not more rules, but rather clarification and specific guidance on the established provisions. The next paper was presented by Charles Stotler, discussing the effects of fragmentation of international law on aerospace regulation. Stotler illustrated through an analysis of the US and UK national law on commerce that the goal is not harmonization, as it should be, but rather serving commercial interests. Simona Spassova presented the next paper, referring to the issue of harmful interference and more specifically to the legal implications of erroneous GNSS signal. Spassova looked at the ITU regulations, the relevant provisions of the corpus iuris spatialis and general international law before illustrating the issue with a case study. Prof. Orna Ben Naftali asked for her recommendations on possible solutions. Answering, Spassova suggested that interpreting the term ‘space object’ as including a signal, or alternatively, developing ITU enforcement mechanisms could prove to be a solution. Caroline Thro introduced her paper, presenting the legal issues that may arise from the development phase of the EU’s navigation satellite system, Galileo, in regards to intellectual property rights, the potential conflict with the relevant ESA procurement rules and its consequences to third parties. She described the opposite rationale of the EU’s and ESA’s procurement rules for

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intellectual property rights, and stressed the importance of the issue due to the complexity of the project and the involvement of many actors. The next paper was presented by Brendan Cohen, together with his co-author Elena Carpanelli, discussing the legal issues related to the enforcement of patent rights with respect to rocket launches. The speakers focused on the difficulty of enforcing domestic patent laws outside a State’s territory, examining the extraterritoriality principle and considering the role of Article VIII of the Outer Space Treaty in determining where and how to apply the law of the State of registration of a space object. Brian Stanford introduced the following paper, presenting NASA’s innovative procurement design in regards to space systems. Stanford illustrated this by comparing NASA’s approach to JAXA’s and ESA’s approaches, advocating the effectiveness of the first, and suggesting that it should act as a model for future endeavors within and outside the agency. The next paper was presented by Dimitri Linden, introducing the diversification of national space legislation in regards to private space activities and how, instead, harmonization of these laws is desirable. Although harmonization is explicitly prohibited by Article 189 of the Treaty on the Functioning of the European Union (TFEU), there are legal bases to achieve it, such as, for example, the flexibility clause ex article 352 of the TFEU. Going more into depth, Linden suggested that harmonization of the registration of space objects should be encouraged as to ensure that all necessary information about space activities is transparently available. Nevertheless, he admitted that States would not be very willing to give up their discretionary powers with regard to licensing, export control and other legal matters that would help the harmonization of private space activities. The final paper of this session was presented by Anja Nakarada Pecujlic, examining the presence of elements of lex mercatoria in the space domain and identifying the factors that led to its formulation. Pecujlic recognized the inability of the space law treaties to provide certainty to an ever evolving private space industry, while at the same time national space law is mostly limited to the authorization and supervision obligations of States. She then pinpointed to the traces of lex mercatoria in the space industry, such as the cross-waiver clause in private contracts and the third-party liability clause, concluding that this method could prove to be a solution for the space debris problem. Very interesting questions were asked by the audience, offering the speakers the opportunity to provide further clarification as far as their papers were concerned. Concluding remarks were made by the session’s chairs, Prof. Tanja Masson-Zwaan and Prof. Orna Ben Naftali, congratulating all participants for the fruitful discussion and a successful session.

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Session 2: The Relationship of International Humanitarian Law and Territorial Sovereignty with the Legal Regulation of Outer Space

Co-Chair: Steven Freeland and Ulrike M. Bohlmann Rapporteur: Simona Spassova The first presentation was made by Ram Jakhu of his joint paper with Steven Freeland ttled, “The Applicability of the United Nations Space Treaties during Armed Conflict.” The presentation highlighted the growing importance of the question as to whether and to what extend the UN Space Treaties apply during a situation of armed conflict. Prof Jakhu proceeded by first examining the principles of General International Law during Warfare and then focused the discussion on the five Outer Space Treaties. Notwithstanding the context during which they were negotiated, these documents emphasize the peaceful use and exploration of outer space and codify a number of fundamental principles that may have the effect of limiting any possibility of armed conflict involving space. Whilst, from a normative perspective it is preferable that they should apply in such circumstances, this is not expressly provided for in the treaties themselves. After the detailed overview, the main conclusions drawn by Prof. Jakhu and Prof. Freeland are that the UN Space Treaties are covered by the rules of general international law related to the determination of effect of armed conflicts on treaties. The application of the principles of general International law to the UN Space Treaties should be determined taking into account the unique nature of space operations. All in all, the operation of UN Space Treaties is not ipso facto terminated or suspended during the armed conflicts, perhaps with the possible exception of specific provisions of the Rescue & Return Agreement & the Registration Convention. Lastly, and maybe most importantly, the international community should seriously negotiate additional binding instrument(s) that will help to avoid scenarios that do not bear contemplation. The second presentation, “Cybersecurity in the Space Age,” was given by Michael Potter. The presentation focused on the legal aspects of cybersecurity as relevant to issues such as outer space assets, space activities, as well as electromagnetic interference. Mr. Potter outlined the challenges within the current international legal regime, which is missing basic definitions of a ‘cyberattack’ as well as of ‘Weapons of Mass Destruction. (WMDs)’. Notwithstanding, he argues that cyberattacks can constitute or can be regarded as WMDs. In addition, he pointed out that there is virtually no consensus on how to deal with cyberattacks in the international system, nor on the role and legality of digital and physical counter-attacks to combat these both generally, as well as those of a potential WMD magnitude. Conceivably cyberattack WMDs would have some space and satellite nexus, which would lead to the applicability of space law mechanisms. The international legal community needs to be prepared for this eventuality, although currently this preparedness is missing. Likely, the

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greatest drivers for change would be newsworthy attacks and damage resulting in commercial loses, eventually prompting behavioural changes as well. Next, Cassandra Steer presented “Avoiding Legal Black Holes: International Humanitarian Law Applied to Conflicts in Outer Space.” Dr. Steer’s presentation argued for a continued application of the rules of International Humanitarian Law as well as Space law during cases of conflict in Outer Space – with a view to avoiding legal uncertainties or ‘black holes’ in such instances. She points out the danger of unilateral interpretations of international law when applied to space and asserts that the Rule of Law limits such one-sided positions. Not only, without the limitations of the Rule of Law, there is no system of reciprocity, which is something States in fact prefer. Dr. Steer argues that States have recognized that without the fundamental rule agreed to in Article III of the Outer Space treaty that all activities shall be carried out in accordance with international law, neither one could continue to use outer space with any sense of stability or safety. Thus, it remains a global interest to ensure that IHL is adhered to during conflicts in Outer Space and claims of suspension or exception are kept to an absolute minimum. Peter Stubbe gave a paper titled “Environmental Protection as a Limitation to the Use of Force in Outer Space.” Mr. Stubbe’s presentation advocated the position that environmental protection norms do limit the use of force in outer space. Despite the absolute ban of the use of force in international law, military confrontations in international relations cannot be completely ruled out. This also applies to outer space. Satellites are heavily used for military purposes and could, therefore, be regarded by belligerent parties as legitimate military targets. Warfare in outer space would have a very negative impact on the outer space environment as it is associated with the creation of a massive amount of space debris. Mr. Stubbe argued that the environmental protection provisions of international humanitarian law, which applies to military warfare in outer space, have a limiting effect on the conduct of military operations in outer space. Outer space forms part of the human environment and space debris pollution constitutes a global environmental concern. This applies to both, the pollutive effect the deployment of space weapons have on the outer space environment as well as the use of debris as a weapon itself. Both forms prohibited under the essential environmental protection norms of the ius in bello. “Humanitarian Law Implemented: Space Communication in the Service of International Humanitarian Law” was the next paper and was delivered by Mahulena Hofmann. Prof. Hofmann’s presentation focused on a particular example of a novel satellite communication service, which has been used during times of armed conflicts and civil unrests. The project in question is emergency.lu and it was originally developed for application during times of natural catastrophes and disasters. The presentation dealt with the legal basis for the operations of emergency.lu in international as well as national law. At

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the international level, the legal basis is found in a number of areas: the UN Charter and the principle of international cooperation; the 1977 Protocol I to the Geneva Conventions, the ITU regulatory system and lastly – a specific Agreement between the Grand Duchy of Luxembourg and the ITU. After the overview of the relevant national provisions and details, the conclusions concern the implications of this service for space law, telecommunication law and humanitarian Law. In the context of space law, the responsibility and liability would be attached to the states launching the satellites used for the signals. In the realm of telecommunications law, the legal questions would concern the coordination and use of the relevant frequency bands. Lastly, the implications for humanitarian law would involve the question whether the restoration of basic telecommunications belongs to the obligations to guarantee supplies essential for the civilian population in and after a military conflict (ius in bello). Finally, Olga Volynskaya presented “The applicability of the right to selfdefence to the area of exploration and exploitation of outer space.” Dr. Volynskaya pointed out that in the recent years the issue of the necessity to prevent utilization of weapons in space and preserve the freedom of outer space from military operations has been raised more and more often at the international fora. The problem of applicability of the fundamental right to self-defence recognised by Article 51 of the UN Charter to the area of exploration and exploitation of outer space is the cornerstone of such discussions at any levels. The presentation thus, analyzed a range of aspects of applicability of Article 51 of the UN Charter to outer space, potential ways of its adaptation to the domain of exploration and use of outer space in the context of the long-term sustainability of space activities, the concept developed within the framework of the United Nations, as well as other international initiatives related to the promotion of safety, security and stability of space activities. In conclusion, Dr. Volynskaya underlined the need for an unambiguous interpretation of the existing space law provisions by national policies and doctrines so as not to endanger the fundamentals of the regulatory regime of space activities. A wide international discussion is needed to reveal, analyze and regulate the whole range of aspects on application of the right of selfdefence in outer space with the final aim is to ensure safety in space and the long-term sustainability of space activities. Session 3: The Portrayal of Space (Law) in Media and Movies

Chairs: Melissa K. Force and Steven Mirmina Rapporteur: Michael Chatzipanagiotis The subject of this session was very original and every participant therein was looking forward to the presentations. The chairpersons had even prepared a

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cinema-like poster of the session before the event, and they had posted it on the IISL profile in facebook and on the front door of the room. The session started with a presentation under the title “The Hard or Soft Law of Gravity?” which was made by co-chair Melissa K. Force on behalf of Prof. Larry F. Martinez (California State University), who could not attend the Colloquium. Mr. Martinez’s presentation analyzed the portrayal of outer space in two different movies: “Marooned” (1969) and “Gravity” (2013). They have some similarities: both are mainstream Academy-award winning films, and both depict groups of astronauts that find themselves in trouble while in Earth’s orbit. However, the two films also represent two very distinct eras in space exploration: “Marooned” belongs to a “hard law”, Statecentric view of space exploration that was prevalent during the 1960s, while “Gravity” belongs to a more diverse era and reflects “soft-law”, individualistic norms instead. The political environment is also totally different in both films: whereas “Marooned” portrayed an outer space for 30-ish white males only, and where the only entities in orbit were the USA and the USSR, “Gravity” depicts a middle-aged female astronaut in a globalized environment (an American astronaut returns to Earth in a Russian spacesuit piloting a Chinese capsule). Next was the presentation by Mr. Rafael Moro-Aguilar (Orbspace) of his paper on “Science Fiction Movies on the Moon”. Mr. Moro-Aguilar’s paper analyzed four classic sci-fi movies in which the theme of lunar exploration and colonization is present as either the main topic or a side topic. Fritz Lang’s “Woman in the Moon” (1929), and Duncan Jones’ “Moon” (2009), both touch upon legal issues of licensing and supervision of nongovernmental space activities, as well as the problem of exploitation of lunar resources, which is currently unsatisfactorily regulated by international space law. Another classic sci-fi movie, Nathan Juran’s “H.G. Wells’ First Men on the Moon” (1964), raises the issue of the harmful biological contamination of celestial bodies, a hazard that should be prevented according to Art. IX OST. Finally, Stanley Kubrick’s and Arthur C. Clarke’s epic masterpiece “2001: A Space Odyssey” (1968) touches upon two important legal issues of lunar exploration: (1) the duty of States to inform the international community about their activities conducted on the Moon (Art. XI OST); and (2) the right to visit Moon stations and other lunar installations by representatives of other States (Art. XII OST). Afterwards, Dr. George Kyriakopoulos (University of Athens) highlighted the strong human-centric aspects of space law in “Where Law Meets Cinema: James Cameron’s Avatar as Food for Thought about the Anthropocentric Nature of Space Law”. Based on the plot of “Avatar”, Dr. Kyriakopoulos observed that the film, combined with provisions of current space law on space exploration and exploitation, especially that outer space is “province of mankind” (Art. I OST), risks creating a vision of “intense anthropocentrism”

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in the planetary exploration process. Such vision would be similar to the Colonization era on Earth, during which indigenous populations suffered from technologically more advanced conquerors. Current international law, including international space law, does not consider the protection of alien intelligent life, a fact indicating potential legal gaps. To fill these gaps, Art. IX OST coupled with the COSPAR recommendations on planetary protection from contamination can provide some guidance. On a less heavy note, Dr. Kai-Uwe Schrögl (ESA) presented the paper of Dr. Annette Froehlich (TU Graz/DLR), which was titled “Bugs Bunny and Daffy Duck vs. Marvin The Martian: A perspective from (earthly) international space law”. The paper analyzed several clips from short cartoon films, featuring well-known Warner Bross characters Bugs Bunny, Daffy Duck, and Marvin the Martian. Such humorous clips included, for instance, Marvin’s obsession with the idea to destroy the Earth “because it obstructs my view of Venus”. More seriously, these cartoon films bring to mind a number of problems from a space law perspective, such as the exploration and use of outer space for the benefit of all mankind (Art. I OST), protection of outer space from harmful contamination (Art. IX OST), the principle of nonappropriation (Art. II OST), issues of non militarization of space (Art. IV OST), registration of space objects (Art. VIII OST), responsibility and liability for damage caused by space objects (Arts. VI-VII OST), and even the need for a space traffic management. Mr. George Anthony Long (Legal Parallax, LLC), in his presentation “The Meaning of Life and Close Encounters of the Commercial Kind” analyzed legal problems arising from contact with extra-terrestrial life, mainly of microbial form, on the basis of the film “Aliens”. The ever increasing involvement of commercial private entities in space endeavors increases the chances that such first contact will not happen in the presence of governmental actors. Mr. Long’s presentation focused on the legal duties of the entities conducting such contact, especially protection from forward- and backcontamination, as well as on the protection of intellectual property rights in international and domestic space law. He also presented a discussion of “the meaning of life”, or what constitutes “alien life” for such purposes: according to COSPAR’s Planetary Protection Policy, the fundamental criterion would be the ability to replicate. Mr. Long concluded that binding protocols on the discovery, study and potential use of alien microbial life are necessary. Last but not least, Mr. José Monserrat Filho (Brazilian Space Agency) presented the paper he had written with Mr. Álvaro Fabricio dos Santos (Brazilian Association for Aeronautics and Space Law) on “Avatar Film: Perspectives from Space Law”. The thesis of the authors was that the “Avatar” film is a rich case of study of Space Law, as it provides several situations where the international legal framework could be applicable. Parallels were drawn between the plot of the film and international provisions on, among others,

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non appropriation of outer space and celestial bodies (Art. II OST), international responsibility for national activities on celestial bodies (Art. VI OST), prior consultation to avoid interference with space activities of other States (Art. XI OST), use of outer space for peaceful purposes (Art. IV OST), and exploitation of mineral resources of celestial bodies. The authors concluded that the UN Treaties on Outer Space must be updated and therefore, the role of the United Nations – through its Committee on the Peaceful Uses of Outer Space (COPUOS) – must be enhanced. All presentations were followed by vivid discussions. The closure of the session was accompanied with the hope and wish that similar sessions occur more often, and possibly with the participation of scientists from other scientific fields. Session 4: Legal Issues of Space Traffic Management

Co-Chairs: Jana Robinson and Olga Volynskaya Rapporteur: Deepika Jeyakodi At this session on space traffic management (STM) 11 papers were presented highlighting the existing legal problems and further made proposals for the framing of a legal regime. The Co-chair Ms. Jana Robinson commenced the session by presenting an update on the Second IAA Study on Space Traffic Management. Tracing the background of the study since 2000 and citing developments in the subject through academic research over the years, she stated that the goal of the study was to offer guidance to existing and future space activity. The proposed 2016 Study, which is an international effort, aims to advance proposals on STM implementation. Three important diplomatic initiatives that contained STM elements were highlighted and the question of how their output could have an impact on future STM policies was also discussed. The presentation was concluded by mentioning a proposed timeline for the international study on STM. Prof. Frans von der Dunk presented his paper on ‘Space Traffic Management: A Challenge of Cosmic proportions’, next, where he adopted a compare and contrast approach to identifying the unique features of space activities in developing an effective STM regime. He gave an overview of maritime and aviation traffic management, explaining the complications that will arise if principles therein were merely extended to spaceflight. He stressed on the need for an intergovernmental authority to approach the STM issue in a manner similar to that adopted for air traffic management on the high seas. Towards a solution, he suggested the development of space situational awareness system and competence structures. Mr. James D. Rendleman, then presented a paper on ‘STM Regime Needs and Organisational Options’. Asserting that any STM regime must embody the principles in Article IX of the Outer Space Treaty, he proposed three ap-

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proaches to STM architecture; Firstly, to evolve the status quo, employing the current DoD SSA Sharing Program as a foundation for STM; Secondly, establishing an STM intergovernmental organization and thirdly provision of STM by commercial operators. He examined and evaluated the options based on a rating system before concluding that a privately managed STM framework might provide a more flexible, responsive, and evolutionary process, which could reduce space operator compliance costs. This was followed by Mr. PJ Blount’s presentation on ‘STM and the US Data Sharing Environment. He mentioned that effective data sharing was a pre requisite to the establishment of an STM Regime. Citing the exploratory role of the May 2014 U.S. Hearing on STM, and identifying inadequacies in the existing scenario, he suggested that the U.S. should adopt an open data policy. Drawing parallels to ‘Remote Sensing Principles’, he stated that an international regime can find seeds in domestic law. To a question about the competence of other space actors, he replied that any nation that can assist in moving towards an international regime, can assume the role of a leader. He urged for a cooperative stance in the U.S., who is in a position to lead, in order to not only secure its own national interests but also shape best practices for STM at a global level. Mr. Marco Ferrazzani presented the next paper which revealed the ‘Current Practices of ESA in Registering its Space Objects Launched into Earth Orbit or Beyond’. The on-going commitment of the Agency to respond to obligations under space law was elaborated upon. He briefly mentioned the former registration practice in ESA until 2013, before examining current practices. He explained in detail about the internal binding policy to substantiate and develop obligations as provided under the Registration Convention, the internal interpretation of terms such as ‘ESA space object’, ‘status change’, ‘as soon as practicable’, etc, and the new, multi-functional national registry for ESA. Mr. Ferrazzani cleared the queries of many members of the audience regarding the registration procedures adopted at ESA. Further, he elucidated and stressed on the equal importance of the technical and legal purposes behind registration. Dr. Michael Chatzipanagiotis presented the next paper titled ‘Looking into the Future: The Case for an Integrated Aerospace Traffic Management’. The growing use of airspace, the development of spaceflight operations and reusable rockets were the premise based on which a compelling proposition to integrate STM with Air Traffic Management ATM was made. He explained how recent developments in ATM such as the Trajectory based operations, System Wide Information Management, etc., can be made applicable for space traffic too. The presentation was a call for action to develop appropriate legal and technical rules through international cooperation. This was followed by Prof. Hatsuru Morita’s presentation on ‘An Economic Analysis of the Legal Liabilities of GNSS’. By stating that the present goal of

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GNSS operators was to achieve a socially efficient level of accuracy, he went to on to examine the ideal liability system that can be efficient. Identifying the roles of various actors involved in GNSS, their responsibilities and necessary incentives, he advocated for the application of Negligence Liability as opposed to Strict Liability. Relating his conclusion to the deterrence principle under tort law, Prof. Morita suggested that an existing legal structure thus greatly reduces the need for an international treaty regime to harmonize laws. Prof. Makiko Shimizu’s paper on ‘The Liability of a Civil GNSS Operator under the Domestic Law: Case Studies’ was also introduced by Prof. Morita. By providing a Japanese perspective, on the liabilities of the various players involved in GNSS, the author of the paper intended to justify the decisions of ICAO and UNIDROIT to not take concrete initiatives in addressing this issue until the requirements for the use of GNSS are elaborated further at a universal level. This was followed by an introduction of Prof. Lesley Jane Smith’s paper on the impact on growth markets in the down stream sector, by Ms. Anita Rene. Examining the parameters for connectivity and services in Space Law, the paper advocated the extension of Space Law Treaties to the down stream markets. Ms. Elina Morozova presented the next paper, on the ‘Legal Regulation of The Commercial Use of Radio-Frequency Spectrum’. The secondary market for orbital positions on the GSO through ‘Lease’ and its legality were discussed in detail. Explaining current practices of Intersputnik, Ms. Morzova listed the practical advantages of co-operation in the GSO which included simpler financing, efficient use of a limited resource and accommodating the needs of developing countries. She concluded by quoting Section 0.3 of the ITU Radio Regulations to emphasize that such use of the orbital positions were in line with the spirit of the law. When an example of such cooperation was sought, the author elaborated on the situation in Malaysia, discussing about payload sharing, notification in case of a lease and registration of networks. Prof. Frans von der Dunk introduced the final paper of the session authored by Mr. Nathan Johnson, in which, the right of way for on-orbit space traffic management was discussed. Over 30 persons attended this successful session on a very topical subject for space law. The audience actively engaged in deliberations with the authors during and post-session creating a great atmosphere for further debates and discussions on the topics presented.

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Session 5: Recent Developments in Space Law

Co-Chairs: Martha Mejía-Kaiser and K.R. Sridhara Murthi Rapporteur: Andreas Loukakis The fifth session entitled “Recent Developments in Space Law” addressed a number of topical space law and policy related issues. During this session a number of papers were presented addressing in particular legal issues of the most recent developments in the field of space law and policy. Briefly, authors in their presentations attempted to review and evaluate current law, both public and private, in addition to European, international and national legal provisions in that regard. Others also attempted to present trends with regard to national space legislation being currently developed. Last but not least, some of the speakers also addressed in their presentations the legal problems and complexities relating to the advent of new space activities such as the exploration and exploitation of near earth objects (i.e. asteroids) but also legal issues surrounding the exploration and exploitation of planetary resources (i.e. natural resources of the Moon and other celestial bodies). A total number of 12 papers were presented, covering a vast range of topics and analyzing the subjects of the session under different perspectives. Dr. Martha Mejía-Kaiser (Germany) and Mr. KR Sridhara Murthi (India) opened the session by giving a brief introduction on the topics. The first paper entitled “The Controversial Rules of International Law Governing Natural Resources of the Moon and Other Celestial Bodies” was written by Prof. Maureen Williams (Argentina). A summary of this paper was presented by one of the Co-Chairs of this session, Dr. Martha Mejía-Kaiser. Dr. Kaiser in her summary presentation underlined the basic legal issues highlighted within the paper of Prof. Maureen Williams, particularly once it comes to the use and exploitation of natural resources of the Moon and other celestial bodies. Dr. Kaiser presented briefly the most pertinent legal provisions that may come into play from the field of international space law with regard to issues relating to use and exploitation of natural resources of the Moon and other celestial bodies. Specific attention was paid to article II of the Outer Space Treaty and Article 11 of the Moon Agreement. The core of the analysis of the presentation was focused on whether ownership rights on natural resources can be considered as legal or illegal under various international (space) law provisions. Dr. Kaiser then concluded her presentation by underlying the fact that most of the international (space) law provisions create a number of controversies with respect to issues related to the use of natural resources in space. An interesting point raised by Dr. Kaiser in her summary presentation was that Prof. Maureen Williams in her paper recognized the importance of the new PCA Optional Rules of Arbitration on Outer Space Disputes adopted in 2011. According to the viewpoint of Prof. Maureen Williams, this new legal instrument under the authority of the Per-

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manent Court of Arbitration may be a responsive alternative for issues relating to dispute resolution arising from the use of natural resources of the Moon and other celestial bodies for the foreseeable future. The next paper entitled “Spain: Towards a National Space Legislation and a Spanish Space Agency?” was presented by Prof. Maria-del-Carmen MunozRodriguez (University of Jaen, Spain). In her presentation, Prof. MunozRodriguez attempted to provide a brief account of the efforts for promoting national space legislation in Spain. Most importantly, she also made references to the future need of creating a new Spanish space agency. More specifically, Prof. Munoz-Rodriguez highlighted the fact that presently Spain has not enacted specific national space law acts. Nonetheless, she also pointed out that some national legal provisions can be noticed containing and addressing some international space law obligations. One example discussed in this regard was the Spanish Royal Decree providing for a national Spanish register of space objects. The third paper of the session in question entitled “How Simple Terms Mislead Us: The Pitfalls of Thinking about Outer Space as a Commons” was presented by Prof. Henry Hertzfeld (Space Policy Institute, George Washington University, USA). It is of note that the paper in question was co-authored by Brian Weeden and Christopher Johnson (both coming from Secure World Foundation, USA). Prof. Hertzfeld during his presentation delved in particular into the research question of whether outer space can be really understood as a global commons. In answering this question, Prof. Hertzfeld underlined the fact that the space treaties include several different phrases defining the exploration and use of outer space. These terms include inter alia the following examples: “[...] for the benefit of all peoples (countries)”, “[...] shall be the “province of all mankind.” Following these observations, Prof. Hertzfeld then drew his attention to the Moon Agreement by pointing out that this particular Treaty extends the aforementioned ideas in the phrase, “the Moon and its resources are the common heritage of all mankind.” On this note, Prof. Hertzfeld then stressed that various legal and economic terms are nowadays used as parallels in outer space to the abovementioned phrases but however these terms do not appear in the space treaties themselves as such. To this end, the following phrases were mentioned in his presentation namely “space is a global commons,” “common pool resources,” “anticommons,” “res nullius” and “res communis.” In reality, and according to the viewpoint presented by Prof. Hertzfeld, none of these terms clearly fits the full legal or economic conditions of outer space, and none of them provide an adequate framework for the future handling of space resources, space exploration, or even for resolving the unavoidable future issues when there will be competing interests or major accidents occurring in outer space. After having reviewed the different definitions and terms that are often misused for space activities, Prof. Hertzfeld then attempted to draw several conclusions; his basic suggestion was that more pragmatic ways of insuring that the outer space environment will be effective-

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ly managed to avoid misuse, overuse, or abuse should ultimately be promoted. The advancement of more pragmatic methods could ultimately result in the recognition of limited property rights and developing new binding dispute resolution techniques. The next paper of the session was written by Dr. Guoyu Wang (from China). His paper entitled “Who Owns the Natural Resources on the Asteroids” explored questions of property rights relating to the use of space resources, especially resources in asteroids. Dr. Wang during his speech focused in particular on three core research questions. The first question was that if and to which extent a national legislation granting ownership to space actors, or relevant national practices could contribute to or stimulate the development of space law in a general context. The second question dealt with the political risks that might be triggered by the attempt to grant property rights in space resources through national legislation. The last question pertained to what kind of international regime will be expected to be more practical as to the exploitation and mining of natural resources on asteroids. Dr. Wang highlighted the legal ambiguity of the most relevant space law instruments once it comes to space mining activities, namely Articles I and II of the Outer Space Treaty but also Article 11 of the Moon Agreement. He then attempted to furnish some conclusions in addition to proposing some more concrete solutions for the foreseeable future. He specifically advocated the argument that the issue of space mining activities may be better regulated through bilateral or multilateral agreements; in his viewpoint although the Moon Agreement is far from being generally accepted, the possibility of creating an international regime as provided for under Article 11 of the said Agreement may be the way forward as regards to the advent of space mining resources from asteroids. The fifth paper was presented by Mr. Dennis Burnett (National Security and Export Compliance Consulting, USA). The use, exploration and exploitation of space resources was forming one of the fundamental elements of this presentation but from a different perspective. In particular, his paper entitled “Hypothetical Exploration and Use of Outer Space Act 2015” presented the text of a hypothetical act dealing with space resources that was drafted, not as a model for legislation by the United States or any other nation, but as a vehicle for stimulating a discussion by members of the International Institute of Space Law about the issues inherent in the consideration of any such legislation. More particularly, Mr. Dennis Burnett after having highlighted the fact that a hypothetical legal basis for such a national US act would be Article VI of the Outer Space Treaty, he proceeded by providing a brief account of some of the elements of this hypothetical act, in other words, a vast range of issues ranging from definitions, a specific system of authorization and supervision of commercial activities dealing with the exploration and use of outer space, the role to be played by different US entities-authorities such as the Federal Communications Commission and lastly there was also discussion of

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criminal sanctions and penalties in case of violations under the hypothetical act in question. Following Mr. Burnett’s presentation, Mr. Kumar Abhijeet (Institute of Air and Space Law, University of Cologne, Germany) presented the sixth paper of the session entitled “National Space Legislation for Developing CountriesLessons from Europe”. Mr. Abhijeet during his presentation addressed four focal points. He started by providing a brief overview of international space law provisions that could be used as a legal basis of enacting national space legislation; to this end particular attention was paid to Articles VI, VII and VIII of the Outer Space Treaty. He thereafter provided a list of EU countries that have already promoted national space legislation in Europe. Some examples discussed in this respect was Norway, Belgium, the Netherlands but also Austria. He subsequently stressed that all the aforementioned national space law acts concentrate mostly on points and issues relating to supervision and authorization, licensing conditions in addition to dispute resolution issues. Following that, Mr. Abhijeet reached his major conclusion, namely that the EU paradigm in the advent of national space legislation could potentially constitute a good example for developing countries being willing to enact national space legislation for the foreseeable future. At this point, it is worth noting that legal issues related to the use and exploitation of space resources had a prevailing role during the fifth session on Recent Developments of Space Law. Needless to say, this session also attracted a number of stimulating presentations addressing other pertinent legal issues including the legal challenges surrounding earth observation activities, regulatory issues as regards to the use and exploitation of small satellites (i.e. cubesats), earth observation and data protection issues and lastly interesting space law developments in other regions such as Asia. More specifically, the seventh paper of the session in question was written by Prof. Yasuaki Hashimoto (the National Institute for Defense Studies, Japan) and pertained its analysis to latest space law and policy developments in Japan. This paper entitled “The Latest Space Basic Plan in Japan – Its Features and Implications” was summarized by Prof. Setsuko Aoki (Keio University, Japan). During her summary presentation Prof. Aoki stressed that the latest basic plan on space policy in Japan was established by Strategic Headquarters for Space Policy in January 2015. According to Prof. Aoki, this latest development in Japan pays much attention to the security related outer space activities than the previous two Japanese basic plans of 2009 and 2013 respectively. In addition, she underlined that the new plan is thought to reflect some of the contents in National Security Strategy of December 2013. Having underlined these issues, then Prof. Aoki gave a brief overview of the three pillars as included within the latest basic plan in Japan namely issues related to safety of outer space, issues relevant for security by outer space and lastly issues dealing with space international cooperation.

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The eighth paper of the present session shifted its analysis to pertinent legal and regulatory issues surrounding the use of small satellites. This paper entitled “Small but on the Radar: The Regulatory Evolution of Small Satellites in the Netherlands” was co-authored by Mrs Neta Palkovitz (ISIS-Innovative Solutions in Space BV, the Netherlands) and by Prof. Tanja Masson-Zwaan (International Institute of Air and Space Law, Leiden University, the Netherlands). As underlined by Prof. Masson-Zwaan during her presentation, this paper was the corollary of an earlier paper presented in 2012. More substantially, in 2012 the authors presented a paper that explained the regulatory situation with respect to nanosatellites, in selected national laws of European states. According to the findings of the said paper the examples demonstrated a practice which excluded nanosatellites activities from the scope of certain national laws, leaving these satellites to orbit ‘under the regulatory radar’. Nonetheless and since then, as highlighted by Prof. Masson-Zwaan the following tendencies in the field of nanosatellite market have been noticed: the market for small satellites has grown rapidly with hundreds of small satellites already launched. What is more, many entities are aiming to launch small satellite networks or constellations, which indicates that these satellites will be around to stay. One particular state that excluded small satellite activities from being licensed under its national space law was The Netherlands. With time, and as small satellite activities became a Dutch reality, the Dutch Government had to consider a solution to enable it to authorize and supervise these space activities, in line with Article VI of the Outer Space Treaty. Following these observations and developments, Prof. Masson-Zwaan during her presentation provided with a brief account of the abovementioned described regulatory evolution that started with the abovementioned exclusion by the Netherlands; she presented the progress underlined towards an ad hoc authorization process in 2013 in the Netherlands; and finally she reached her conclusion by describing a recent Decree extending the scope of the Dutch Space Activities Act (2007) to ‘unguided satellites’ as of 1 July 2015 on the one hand and by providing certain implications for the foreseeable future on the other hand. Following this presentation, the next two paper presentations of the session in question described interesting space law developments in particular regions, namely Asia (i.e. China) as well as Europe. More concretely, Prof. Yun Zhao (the University of Hong Kong) in his presentation attempted to demonstrate the various legal issues that China may have to face from its future participation in the space protocol to the Cape Town Convention, whereas Prof. Irmgard Marboe (University of Vienna Austria) focused during her presentation on Earth observation and data policy issues within the European landscape (especially she paid particular attention to the so-called Copernicus program). Specifically, Prof. Marboe in her presentation discussed briefly the EU Directive 2003/98 providing for an open data policy within the EU and

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how this Directive can be interpreted in light of the existence of a high level of protection of various human and economic rights as applicable within the EU legal order (i.e. right to private life, the protection of personal data and of intellectual property). The next paper of the session entitled Earth in Danger and Space Law was presented by Prof. Jose Monserrat-Filho (Brazilian Space Agency). Briefly, Prof. Monserrat-Filho attempted to demonstrate how space law can ultimately contribute to the management of catastrophes; he interestingly highlighted the fact that space law can ultimately be seen as an instrument of preventing catastrophes. Finally, the last paper of the present session entitled “International Legal Issues on Construction and Operation of Space Solar Power Station” was presented by Prof. Shouping Li (Beijing Institute of Technology, China). Briefly, Prof. Li presented the hypothetical case study of constructing and operating a space solar power station. He pointed out in his presentation that whereas such a project will ultimately be beneficial for the humanity, a need to improve the existing international space law provisions may be necessary in undertaking such a project in the near future. At this point, it is worth mentioning that the fifth session of the fifty eighth Colloquium of the IISL on the Law of Outer Space was well attended with an approximate number of 50 participants. Furthermore, most of the participants were active during the session of discussion by raising fruitful and stimulating questions in relation to the subject matters of the presentations. A last point worth noting is that the issue of use and exploitation of space resources was quite topical during the session in question by attracting particular attention amongst the audience with a number of invigorating questions related to this topic at the end of the session. Session 7: Joint IAF/IISL Session on the Legal Framework for Cooperative Space Activities

Chairs: Cristian Bank and Bernhard Schmidt-Tedd Rapporteur: Olga S. Stelmakh A total of 5 papers were presented at the Joint IISL / IAF Session on the Legal Framework for Cooperative Space Activities. The presentations addressed a wide range of topics and analyzed the subject matter under several different perspectives. The distinguished chairs opened the Session, introducing themselves and giving a brief introduction to the topic. Prof. Setsuko Aoki from Keio University, Japan made the first presentation entitled “Identifying Common Legal Issues in International Cooperative Mechanisms.” The presentation provided an overview of the work conducted within the UN COPUOS Legal Subcommittee purported at adopting the set of recommendations and conclusions distilling the common grounds in a range of space cooperative mechanisms to facilitate the creation of a solid

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and appropriate legal basis for space collaborative initiatives. In her presentation Prof. Aoki particularly focused on common principles and procedures in international space cooperation agreements according to the type of collaboration. She performed categorization of the international space cooperation agreements and extracted their distinctive features and key provisions. Prof. Aoki also examined the five-year UN COPUOS Legal Subcommittee work plan for 2013-2017 named “Review of the International Mechanisms for Cooperation in the Peaceful Exploration and Use of Outer Space”. Particular attention has been paid to the development of the concept of “International Cooperation” reflected in the UN COPUOS legal instruments. The next speaker Ms. Sumara Thompson-King from the National Aeronautics and Space Administration (NASA), delivered the presentation entitled “International Cooperation Mechanisms Used by the United States in the Peaceful Exploration and Use of Outer Space.” Within her presentation she considered a range of cooperation mechanisms the United States utilizes with international partners in a broad and diverse portfolio of civil and commercial space activities. In particular, Ms. Thompson-King focused on four categories of cooperation mechanisms, notably the formal written agreements which establish commitments and create binding international obligations at the government level and at the space agency level with respect to the ISS, the framework agreements that facilitate specific cooperative endeavors, the Global Learning and Observations to Benefit the Environment (GLOBE) and multilateral cooperative fora not created through legally binding agreements in which the US participates. Ms. Thompson-King highlighted the main approaches that the United States, including NASA, use when engaging in international cooperation. In this context she specified that for different matters concerning international space cooperation different mechanisms are applied. Ms. Thompson-King further elaborated that when addressing international cooperation mechanisms, the United States intend to continue to partner through legally binding international agreements and to participate fully in many multilateral space policy and technical fora not established through binding international agreements. Ms. Olga S. Stelmakh from the Parliament of Ukraine, made the following presentation entitled “Global space governance for ensuring responsible use of outer space, its sustainability and environmental security: legal perspective”. In her presentation she focused on the dominant legal actions taken worldwide, more specifically at the regional and international level, towards responsible and secure use of outer space and ensuring of its sustainability. For this purpose she analyzed the sufficiency of applicable legally binding norms elaborated at the beginning of space era and extent of complementarity of the pertinent soft law provisions. Ms. Stelmakh also envisaged legal grounds for regulating emerging space threats and a shaped framework for measures taken at all stages of space activities towards achieving of aforementioned objectives. The emphasis has been made on legal initiatives to manage the risks posed by

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dangerous space debris, nuclear power source applications in outer space, destructive collisions, the crowding of satellites, the growing saturation of the radio-frequency spectrum, etc. Further Ms. Stelmakh provided a comprehensive overview of the legal scope for such topical concepts as “space situational awareness”, “space traffic management” and “active debris removal”. Finally, she examined the role of international cooperation through transparency and confidence-building measures designed to enhance coordinated actions in the context of concepts’ proper implementation. The next presentation entitled “Impact of International Code of Conduct for Outer Space Activities and EU contribution to collaborative projects – Devising a new approach for space law in Europe” was delivered by Ms. Anita Rinner from Karl Franzens Universität Graz, Austria. In her presentation she considered the role of International Code of Conduct (ICoC) as “soft” law for collaborative projects and its impact on them. She recalled that the ICoC was initially contemplated as the European Code of Conduct for Outer Space Activities being seen as an instrument for developing harmonised European standards in space debris mitigation, space traffic management and the sustainable use of outer space. For this purpose, she deemed expedient to analyze the EU space competences and the role of “soft” law, and came to the conclusion that non-binding rules could serve as a new approach to achieve harmonised behaviour in space within the European scope. Ms. Rinner also provided a brief overview of the ICoC drafting and negotiation process, focused on key provisions and the most critical amendments suggested to them. To conclude, she described the impact of ICoC on harmonisation of European space legislation, contribution to capacity-building of space traffic management, space debris mitigation, transparency and confidence builing measures, as well as on the collaboration in export and technology control. The last presentation of this session entitled “Practical Application of Jus in Bello and Jus ad Bellum to the Legal Regulation of Outer Space Environment” was made by Mr. Olusoji Nester John from the African Regional Center for Space Science and Technology Education in English (ARCSSTE-E) in Nigeria. The paper presented was initially submitted to session 2 “The relationship of International Humanitarian Law and territorial sovereignty legal regulation of outer space” but due to late arrival of a speaker has been moved to the current session. In his presentation Mr. John focused on the International Humanitarian Law rules which govern the legality of the use of force by nations (jus ad bellum) and regulate the actual conduct of war once the use of force begins and has attained a reasonable level of intensity (jus in bello). In addition he considered practical application of such rules to the unique environment of outer space. Mr. John drew attention to the fact that the world has experienced incredible advances in technology and means of warfare. Due to the changing paradigm of the nature of military forces of States and the execution of armed conflicts, outer space is more frequently

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used for the purposes of protection of, and threats to, territorial integrity and sovereign independence. He provided a brief discussion on jus ad bellum and jus in bello, and talked about the legal regulation of outer space as it relates to armed conflict and its intersection with the two principles. Within his presentation Mr. John also analyzed the duties of space-faring belligerent nations towards non-combatant civilians and civilian objects in outer space and on Earth. He concluded that the legal regime of outer space as it relates to armed conflict in and through outer space is inadequate and in all armed conflicts, whether on land or in outer space, jus in bello should apply. Moreover Mr. John was of the view that those working in the field of International Space Law and International Humanitarian Law should come up with an allembracing legal regime, which will embody the principle of jus in bello in the regulation of armed conflicts in and through outer space. Detailed questions were presented from the audience, opening a lively debate in relation to the topics covered in this session. In sum, all presentations underlined the increasing importance of the legal framework in space cooperation. The closing remarks were delivered by Mr. Bank and Dr. Schmidt-Tedd.

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58th COLLOQUIUM ON THE LAW OF OUTER SPACE 30th IAA-IISL SCIENTIFIC-LEGAL ROUNDTABLE UNIVERSITIES AS ACTORS IN SPACE Co-Chairs: Kai-Uwe Schrogl Herman Steyn Rapporteurs: Christiane Lechtenbörger Nicola Rohner-Willsch

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Report of the Roundtable Co-Chairs: Kai-Uwe Schrogl and Herman Steyn Rapporteurs: Christiane Lechtenbörger and Nicola Rohner-Willsch In the past years universities all over the world have become new players in space activities. They got involved in various ways, especially by cubesatellite missions, but also by experiments in the ISS or other missions on a cost-effective and less complex level to gain access to space. These constellations allow new cooperation between academia and industry, fostering spinoff effects and triggering innovation. University space projects often enjoy higher participation of women, thus allowing an early engagement with the space industry, which may trigger future career changes. Generally there is potential to enlarge and enhance the involvement of universities in space activities. The 30th IAA/IISL Scientific-Legal Roundtable addressed questions with technical issues such as standardization, legal boundary conditions, operation of cube-satellites and associated lessons learned or secondary payloads from an interdisciplinary perspective. More than 20 participants joined the session, welcomed by the chairpersons Kai-Uwe Schrogl and Herman Steyn. The session was opened by the President of the IISL, Tanja Masson-Zwaan and the Secretary General of the IAA, JeanMichel Contant. Both highlighted the 30 anniversary of the series of IAA/IISL Scientific-Legal Roundtables and stressed the timeliness of the present topic. After a short introduction in the procedures by the chairs they also stressed the priority of the theme due to accelerated developments in that area. The keynote speech of Sir Martin Sweeting of Surrey Satellite Technology LTD opened the presentational part of the Roundtable. Alongside the example of the University of Surrey Space Centre he developed his thesis of universities as a stimulus for change in the economics of space. In parallel to the growing role of universities as a source of well-trained young academics the impact of small satellites has changed in time: starting as interesting scientific projects they developed to relevant and operational instruments. In conjunction with the shifting from the so-called “traditional ´vicious´ circle” to the so-called “SmallSat ´virtuous´ circle” the populations of small satellites exploded in the past and especially since 2005. Klaus Schilling, Julius-Maximilians-University Würzburg complemented Sweeting’s prelude by introducing a variety of projects under the umbrella of interacting “Space Exploration – Industry – Education”: • Series of UWE – University Würzburg Experimental Satellites. • Erasmus Mundus with European Partner Universities. • Space Master – joint European Master in Space Science and Technology

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with international Partners. Technology Spin-offs like advanced developments for modular satellite system designs or advanced manufacturing at example of small satellite system integration and many others.

Matteo Emanuelli, UPJV – INSSET, then proceeded with “Lesson learned from a satellite project – obstacles and accelerators”. He introduced QB50, a framework for In-Orbit Demonstration, Facilitating Access to Space, Scientific Research and Education. Elaborating on the 5 project steps Planning, Funding, Satellite Design, Test Campaign and Operations he carved out obstacles and problems in the satellite project. The insight views in the lessons learned are very valuable for future projects. Selected keywords are: realistic budgeting, open collaborations with other institutions, relation between project activities and academic cycle. Abe Bonnema, Innovative Solutions in Space BV (ISIS), introduced his company’s core area: vertically integrated small satellites. He offered routines and services also for university projects since ISIS can support them during all phases. The final speaker, Yvon Henri from ITU, focused on “Frequency Management and Universities”. After a brief historical overview, relevant policies and guidelines, he explained the steps of the notification procedure. The presentation explained typical frequency allocations for small satellites and provided hints to online help. The concluding discussion focused on the following issues: • Challenges for frequency management through the expected upcoming mega constellations. • Amateur band requests vs. professional band requests: ITU does not distinguish between amateurs, commercial or military requests, clear procedures are established. • Problems that exist with interferences from ground based stations, mainly military bases. ITU is aware of these problems and strongly recommends holding to existing procedures. • Increasing costs for insurance and formal procedures can become a future constraint for small satellites and university projects. • For so-called small space nations like Netherlands, Belgium, and Austria small satellite constellations are of special interest and national space laws are already in some countries amended to this new development. • “License shopping” and the phenomenon of so-called “flag states” are established instruments for those states which have not yet ratified the outer space treaty. The abundance of regulations opens the door for a self-regulative market upon offer and request. It is strongly recommended to execute existing ITU procedures and regulations.

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The exchange touched on relevant issues for university projects. In summary this roundtable was very valuable since it pointed out the indispensable role of universities in the cycle of developing and operating small satellites (constellations). The event helped to clarify several open issues especially with respect to ITU regulations and the notification procedure.

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IAA-IISL INTERNATIONAL CONFERENCE ON CLIMATE CHANGE AND DISASTER MANAGEMENT

KERALA, INDIA (26-28 February 2015)

Report of the Conference Rapporteurs: Mr. Gopalkrishnan, Policy Analyst, ISRO HQ, Mr. Shripad Jagdale, and Mr. Kumar Abhijeet, Assistant Professor, National Law School of India University, Bangalore This Conference, co-organised by the International Academy of Astronautics (IAA), the International Institute of Space Law (IISL) and the Kerala State Council for Science, Technology and Environment (KSCSTE), addressed all aspects of the contribution of space activities to understanding and solving the problems of climate change and disaster management, from technical/technological, policy and legal perspectives. The conference served as a prelude to the next Heads of Space Agencies Summit being organised by the IAA on Sept 14-15, 2015 at Mexico. Two legal sessions were held during the 3-day conference, which gathered some 200 participants from various backgrounds. During the opening session, the Governor of Kerala delivered a speech, and many high profile speakers honoured the gathering with their presence in beautiful Kovalam. Session 1: Legal Aspects of Climate Change and Disaster Management

Chair: Prof. K.R. Sridhara Murthi, Vice-President, IISL Of the seven papers accepted for this session, four were presented by their authors. In addition, Prof. Paul Larsen’s paper was summarized by V. Gopalakrishnan, and Prof. Balakista Reddy’s paper was presented by his research scholar Ms Anita Singh from NALSAR University of Law, Hyderabad. The first speaker, Mr. Shripad Jagdale spoke about “International Programmes and initiatives on Space for Disaster Management”. Mr. Jagdale proposed an idea for developing a common satellite for SAARC (South Asian Association for Regional Cooperation) countries, since they share common geophysical, meteorological and oceanographic factors and this high risk region is poorly populated with observational networks. He highlighted the legal challenges of evolving satellite based disaster support such as privacy and national security, IPR issues, liability issues, mechanism for integration of data and services etc. The author concluded that international cooperation amongst stakeholders is essential for effective implementation, and governments should enable sharing of data. The second speaker, Mr. Kumar Abhijeet presented his paper titled “The Role of Non-State Actors in Enforcing Environmental laws vis-à-vis Remote Sensing Technology and International Obligations”. He highlighted the role

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of non-state actors in environmental protection, examined how satellite remote sensing is a tool to realize it. He also identified the increased strength of the National Green Tribunal via space-based evidences and advocated for a legal regime promoting participation of non-state actors. He suggested that in designing the legal landscape, compliance with international obligations, national security and safety should be the top priority. Liability for misinterpretation/ misuse of data needs to be addressed. He also cautioned that satellitebased evidence should be interpreted in a language which courts can understand. Kumar concluded that after the first phase (developing environmental jurisprudence in India by making optimum use of public interest litigation) and the current second phase (bringing environmental cases to an exclusive environmental court – the National Green Tribunal), the third phase will be to grant direct access to space data to non-state actors, thus making satellite based evidence easily available. Dr. Ranjana Kaul was the third speaker of the session. She spoke about “Space technology for a common future for all citizens of the World: Managing Climate Change for Long Term Sustainable Development”, and reiterated the discourse of ecology versus economy and gave an overview of the various environmental summits addressing this discourse. Dr. Kaul explored existing statutory, institutional and technological challenges. Her concerns regarding climate change challenges for India were twofold: firstly, the need to observe international treaties, and secondly, the need to achieve sustainable development. She emphasized the necessity of clearly defining climate change and national land use policy. The final presentation was made by the session chair, Prof. KR Sridhara Murthi. His paper was titled “Climate Change and Role of Outer Space: A Multilevel Framework for Legal and Policy Issues”. He stated that issues of new development agendas of different nations are interwoven with impacts from and actions on climate change. Impacts and actions that arise from climate change involve levels ranging from the total community of nations to national governments, to local bodies. He concluded that having a comprehensive policy still remains an achievable goal despite significant initiatives by the various forums. Coordination is needed at all three levels: global, national and local. Session 2: Legal Aspects of Data Management and Related Issues

Chair: Prof. Tanja Masson-Zwaan, President IISL The second legal session featured three speakers. The first, Ms. Sadaf Amrin Fathima B., discussed “Intellectual Property Rights Protection for Data Received from Outer Space”. Ms. Fathima gave a brief overview of the international legal framework for protection of satellite data. She highlighted the pitfall in applying the domestic IPR regime to outer space, stating that the former has national territorial application whereas the latter does not recognize territoriality. She expressed that although IPR on earth and in outer space have several common

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principles, there are many differences in their application. The author concluded that in the light of increasing commercialization of space, there is a need for international data policy, as the existing regime is not capable of addressing this aspect. The shift from state-owned data to private participants requires economic and ethical guarantees. Thus, IPR on satellite data is needed. She shared the experience of space-faring nations towards IPR protection and data distribution policy at international and national fora, and cautioned that IPR should not reduce the availability of data for developing nations. The second speaker for the session was Mr. Malay Adhikari. He spoke about “Legal Framework of Indian Satellite Data Measuring Climate Change”. Mr. Adhikari indicated that there is no major Indian policy to regulate the remote sensing. Though scattered policy exists, he expressed the concern that climate change variables are not addressed in these documents. He concluded that there has to be synergy between satellite data technology and its regulation and their effective implementation. He suggested that with free availability of data for climate change analysis, the number of users and data use will escalate, especially by private bodies, which necessitates legal regulation. The last speaker of this session, Mr. V. Gopalakrishnan presented a paper on “Policy Dimension of Free and Unrestricted Exchange of Meteorological – a Critical Review.” The paper explored the perspective of public versus private sector policies in respect of multi-sourced databases and impact of diverse framework of research versus policies in respect of multi-sourced databases. He highlighted that the general international policy of data sharing is based on rights and obligations of members and raised the discourse of free access to data policy versus price for such services, sharing the best practices from the world. He compared the WMO policy with National Meteorological Services (NMS) and shared his opinion that NMS suffers on economic issues. Recent developments like the GEOSS data sharing principles and the UN initiative on Global Geospatial Information Management were also reflected upon. The need for binding international instrument for convergent geospatial environment was stressed. At the concluding session of the conference, two awards were announced after evaluation of oral and written skills of the young scholars in the two legal sessions. The award for the best written paper by a young scholar was given to Mr. Kumar Abhijeet. The award for the best oral presentation by a young scholar was given to Ms. Sadaf Amrin Fathima B. Several books, donated by the IISL, were handed over by Mr. K.R. Sridhara Murthi, Vice-President of IISL to the awardees and rapporteurs. In conclusion, the two legal sessions provided a good platform for scholars working on legal issues pertaining to climate change and the role of spacebased technology in disaster management, and demonstrated that the consideration of legal issues is an essential element in the debate, in addition to technical and scientific issues.

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Role of Non-State Actor in Enforcing Environmental Laws vis-a-vis Remote Sensing Technology and International Obligations Kumar Abhijeet*

Abstract The general problem faced in enforcing environmental laws is access to necessary information and lack of sufficient evidence. Satellite images can be effectively used for ensuring compliance with environmental laws, maintaining national data base, as evidences in courts of laws etc. The effectiveness of remote sensing technology lies in the capability to acquire data, process them and timely dissemination of processed data. Today private sector has repeatedly demonstrated their capability in this area both financially and technologically. The non-state actors need to be encouraged more and more as they can meaningfully play a vital role in defending the mother earth against human activities via space based technology. India is a Country where environment crimes are rampant and much vulnerable to climate change. The participation of private sectors via space based technology shall be an asset in complying with the Environment Protection Laws strengthening the National Green Tribunal. But the participation of non-state space acotrs is dependent on the respective State policy/ laws under whose jurisdiction they excel. The Outer Space Treaty considers governmental and non-governmental space activities as their national activities imposing an obligation upon the State parties to continuously authorize and supervise the activity of nongovernmental activities. Authorization and supervision being procedural aspects creates a basis to legislate, enabling the participation of non-governmental actors.

I.

Introduction

Adverse human activities are the primary cause for climate change and nonimplementation or poor implementation of law compliments as an aggravating

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Assistant Professor of Law, National Law School of India University, Bangalore. Doctoral Candidate Institute of Air and Space Law, University of Cologne, Germany, [email protected]. This paper was presented at the International Conference on Climate Change and Disaster Management, February 26-28, 2015 Thiruvananthapuram. The paper was awarded the best paper among young researchers in session on legal aspects of climate change and data exchange.

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factor. The traditional methods of supervision and inspection have their inherent limitations and are not so effective for various reasons. Effective implementation of law requires action to take measures to ensure that international legal obligations are complied with and obtain appropriate orders from the courts or other appropriate bodies in case of violation of these obligations (Sands). Remote-sensing technology is an emerging method to ensure effective implementation of laws via satellite based evidence wherein the non-state actors have to play a lead role. 1980s was an era of Public Interest Litigation (PIL) wherein the non-state actors contributed in a humongous way in laying strong foundation of environmental jurisprudence in India. The establishment of National Green Tribunal (NGT) in 2010 provided them a specialized platform equipped with necessary expertise to handle environmental disputes. The next phase reform is to grant direct access to non-state actors to outer space increasing accessibility of satellite based evidences. Current international legal regime of remote sensing has lot of uncertainty especially the issues of data policy and liabilities (Ito, 2008). Keeping in mind the environmental concerns, there is an urgent need of comprehensive domestic legislation enabling direct access to space to non-state actors prescribing their liabilities and limitations. The aim of the paper is to highlight the role of non-state actors in environment protection, examine how satellite remote sensing is a tool for environment protection, identify increased strength of the National Green Tribunal via space based evidences and then propose the legal land scape needed to facilitate the non-state actor’s vis-à-vis remote sensing technology. II.

Role of Non-State Actors in Enforcing Environment Laws

The increased locus standi of non-state actor by way of PIL enabled them to significantly contribute in the rapid development of environmental jurisprudence in India. From A. P. Pollution Control Board v. Prof. M.V. Nayud (1999 2 SCC 718) wherein the ‘precautionary principle’ was explained to the Shriram Gas Leak case (M. C. Mehta V. UOI 1987 SCR (1) 819) wherein the ‘Polluter pays principle’ was laid on ‘absolute liability principle’; the Span Motel case (M. C. Mehta v. Kamal Nath 1997 1 SCC 388.) laying the ‘Public trust doctrine’ and many other cases1 have notably contributed in protection and enforcement of environmental laws. These milestone developments would not have been possible but for the non-state actors who took painstaking efforts to bring the matter before the courts. With operationalization of NGT many more non-state actors have enthusiastically participated and environmental cases have been disposed off much

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See Dehradun Quarrying Case (Rural Litigation Entitlement Kendra v. UOI AIR 1987 SC 359); Shrimp Culture Case (S. Jagannath v. UOI 1997 2 SCC 87); Goa foundation v. Diksha Holdings (P) Ltd. AIR 2001 SC 184; Tehri bandh Virodhi sangarsh Samiti v State of UP JT 1990 (4) SC 519 Narmada Case (2000 10 SCC 664).

ROLE OF NON-STATE ACTOR IN ENFORCING ENVIRONMENTAL LAWS VIS-A-VIS REMOTE SENSING TECHNOLOGY AND INTERNATIONAL OBLIGATIONS

more diligently. Now it is high time to armor them with space based evidences. Satellite based evidence is the third phase development needed to ensure effective compliance of laws and their enforceability. Currently remote sensing activity is limited to governmental organization but realizing the immense potential of non-state actors it is desirable to open the doors of space to nonstate actors as well within the defined boundaries. The Non-state actor has had a robust history in protection of environment and has a promising task with satellite based evidences. If properly facilitated they can play subservient role of environmental watch dogs orbiting in space. III.

Satellite Remote Sensing a Tool for Environment Protection

Astyo Ito has expressed in her book ‘Legal Aspects of Satellite Remote Sensing’ (2011, Martinus Nijhoff Publishers) that satellite remote sensing is suited for environmental protection from several technical standpoints: 1. It enables to make enviro maps and assessments of different regions including atmosphere, land and oceans. Monitoring land includes the assessment of land and forest cover change, which can identify urbanization, desertification and deforestation. Coastal features can be studied by satellite mapping of water lines, coral reefs and wetlands (Rao, 1997). Satellite monitoring of oceans includes studies of climate, surface biology, ice conditions and pollution and fish population. 2. It can provide information on otherwise inaccessible areas such as islands, deep forests and mountainous areas at high altitude. Besides this satellite remote sensing also offers assessment of the timing and frequency of a particular operation that adversely affect the environment, such as illegal landfill (Purdy, 2006). Remote sensing also permits the assessment and analysis of changes in local, regional, and global environment over long periods of time through the comparison of data from the past with that of present which shall improve understanding of the environment enabling predictions to be made for the future about such phenomena like climate change. 3. Remote sensed data from satellites can be easily integrated with other sources of information such as statistical information, population density, geographic information systems, and aerial photography to provide useful knowledge in the form of detailed environment assessments ready for immediate use by decision makers (George, 1998). Remote sensing is a highly effective tool for Earth’s environment observation which can supplement the existing information generating more comprehensive and reliable information facilitating effecting assessment and analysis.

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IV.

Strengthening the National Green Tribunal

Generally it is the duty of governmental agencies to take all such measures necessary for protecting and improving the quality of environment and preventing, controlling and abating environment pollution.2 Failure to comply with the Governmental orders makes it inevitable to invoke the jurisdiction of domestic courts which are important agencies for enforcement of environmental obligations. For effective and expeditious disposal of cases relating to environmental matters, the National Green Tribunal has been established3 which is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. Though the tribunal is not bound by the rules of Civil Procedure Code, 1908 (See Section 19(1) of the NGT Act) and Rules of evidences as laid under the Indian Evidence Act, 1872 (See Section 19(2) of the NGT Act) but justice demands credible evidences. Gathering evidences in environmental matters is a herculean task for obvious reason that such evidences are most mostly within the domain of perpetrators itself. Therefore the efficacy of NGT is dependent upon availability of concrete evidences. It is to be noted that statutorily, powers of entry and inspection is limited to persons empowered by the Government.4 Access to such sites with prior permission has generally resulted in destruction of evidences and probability of corrupt practices within the Governmental agencies cannot be negated. In either case it is the environment and the people who are suffering. Traditional methods of ensuring compliance with the requirements of environmental regulation based on licensing and bureaucratic physical inspection regimes can be resource intensive and may be ill suited to contemporary challenges (Purdy, 2006). Remote sensing technology is a potent tool to overcome these procedural hurdles. Meticulous Earth environment observation through satellites can generate sufficient evidences which shall serve as powerful machinery for the National Green Tribunal to effectively enforce the environmental protection laws.

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M. C. Mehta V. Union of India, AIR 1988 SC 1037; Vellore Citizens Welfare Forum v. Union of India, AIR 1966 SC 2715. The National Green Tribunal has been established on 18.10.2010 under the National Green Tribunal Act 2010 for “effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto” Power of entry and inspection: Section 10 – of the Environment (Protection) Act, 1986; Section 24 of the Air (Prevention and Control of Pollution) Act, 1981; Section 23 of the Water (Prevention and Control of Pollution) Act, 1974; Section 50 of the Wild Life (Protection) Act, 1972.

ROLE OF NON-STATE ACTOR IN ENFORCING ENVIRONMENTAL LAWS VIS-A-VIS REMOTE SENSING TECHNOLOGY AND INTERNATIONAL OBLIGATIONS

V.

Shaping Legal Landscape for Space Watch Dogs

Satellite evidences have been increasingly used by courts all over the world (Purdy & Leung, 2013). Even in India usage of satellite based evidences has been encouraged and its demand is likely to increase in near future. Though facilitation of non-state actors via satellite technology is laudable but it has to be exercised with due care and caution. With regard to space activities unlike other international instruments Article VI of the Outer Space Treaty (OST) removes the distinction between the governmental and non-governmental activities making the respective state responsible for all its space activities. It further imposes an obligation upon the states to authorize and continuously supervise the activities of non-governmental activities which is the primary basis for enacting domestic legislation. In compliance with Article VI of the Outer space Treaty, the Remote Sensing Principles (Principle III r/w Principle XIV) imposes international responsibility upon states operating remote sensing satellites for their activities and assure that such activities are conducted in accordance with these principles and norms of international law, irrespective of whether such activities are carried by governmental or non-governmental entities. In accordance with Article IV of the Registration Convention and article XI of the OST a state carrying out a programme of remote sensing shall inform the Secretary-General of the United Nations (Principle IX). The general concern of a state while granting authorization to non-state participant shall be compliance with international obligation, national security and safety. Authorization and supervision being a procedural aspect, it is in the interest of nation to lay down the rule of law enabling non-governmental participation, ensuring transparency and good governance in space application technology. As an authorization condition concerns for state shall be recovery of cost of damages paid if any on their behalf, conditions of transfer of space objects, environmental safe-guards and others. Besides these data accuracy and authenticity shall also be of prime concern for courts to accept it as reliable evidence. Article VII of the OST together with liability Convention, establishes the international liability of a launching state for damage caused by a space object or component part incurred on the Earth; however they do not provide an adequate answer to the question of whether damage arising from remotelysensed data is covered. Whereas the Liability Convention measures damage in terms of identifiable physical damage caused by space objects,5 the UN Remote Sensing Principles do not offer any adequate answer. Whether liability extends to damage of indirect nature such as misinterpretation of data and/or misuse of data has been a subject matter of discourse. Till the time international community resolves this discourse domestic legislation can fill the void

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Article 1(a) of the Liability Convention defines damage as loss of life, personal injury or other impairment of health or loss of or damage to property.

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enabling full exploitation of the remote sensed data and reducing the risk of damage arising from the use of remote sensed data. Assessing the various sources of remote data, selecting and operating the most appropriate software, and producing final images that are fit to purpose and presenting them, when necessary, to judges in language they can trust shall be the major task (Lowes). Currently the Indian Remote Sensing Policy 2011 has granted limited access to private participants. The issues of liability and credibility of satellite based evidences has not been reflected upon. It is advisable to substitute the policy by hard law as Aristotle long back said rule of law is always better than rule of men. VI.

Way Forward

The degradation of the earth’s environment is a serious problem which has aggravated due to ineffective enforcement of environment laws. The general problem faced in enforcing environmental laws is access to necessary information and lack of sufficient evidence. Satellite images generated through remote sensing technology can be effectively used for ensuring compliance with environmental laws, maintaining national data base, as evidences in courts of laws etc. Effective protection of environment hinges on action taken at domestic level and how state adopts measures implements them and enforces them. The effectiveness of satellite based evidence lies in capability to acquire data, process them and timely dissemination of processed data. Today non-state actors have repeatedly demonstrated their capability in this area both financially and technologically and can play a vital role via space based technology in defending the mother Earth against adverse human activities. India is a Country where environment crimes are rampant and is much vulnerable to climate change. The participation of non-state actors via space based technology shall be an asset in complying with the Environment Protection Laws strengthening the National Green Tribunal. The enactment of domestic legislation in consonance with international obligations is the need of the hour. References

George, Remote Sensing for Earth Resources: Emerging Opportunities for Developing Countries, H.; 14 Space Policy p. 27-37 1998. Ito, Atsyo; Improvement to the Legal Regime for the Effective Use of Satellite Remote Sensing Data for Disaster Management and Protection of the Environment in 34 Journal of Space Law Vol.1 p. 45-66 2008. Lowes, Tony; Remote Sensing a Tool for Enforcing EU Environmental Law, Irish Environment, May 1, 2010 available at http://www.irishenvironment. com/commentary/remote-sensing-a-tool-for-enforcing-eu-environmental-law/ last accessed on 22 February, 2015.

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Nieuwenhuis, G.J.A, and R.A. Vaughan, and M. Molennar, Operating Remote Sensing for Sustainable Development, Balkema, Rotterdam, 1999. Purdy, Ray & Leung, Denise (Eds.) Evidence from Earth Observation Satellites Emerging Legal Issues, Martinus Nijhoff Publishers 2013. Purdy, Ray; Satellites: A New Era for Environmental Compliance? Journal for European Environmental & Planning Law, Volume 3, Issue 5, p. 406413, 2006. Rao, U.R.; Space for Sustainable Development, Recent Trends in International Space Law and Policy, Lancer Books, New Delhi, 1997. Sands, Philip; Principles of International Environmental Law, Cambridge University Press, Cambridge, p. 182, 2003. Staelin, D. H. & Kerkes, J.; Remote Sensing Capabilities, Heaven and Earth: Civilian Use of New Earth Space, Martinus Nijhoff Publishers, The Hague, p. 174, 1997.

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Legal Framework of Indian Satellite Data Measuring Climate Changes Malay Adhikari*

Abstract Climate changes follow global warming, depletion of the ozone layer, air, water and soil pollution, loss of biodiversity, deforestation and desertification etc. It is measured through scientific experiments as well as observations. But the root cause is human activities all over the world. There are many advancements of climate change analysis in India through earth observation data captured by ISRO satellites like RESOURCESAT, CARTOSAT, RISAT, OCEANSAT, Megha-Tropiques and SARAL. There are currently eleven operational ISRO satellites in orbit. These are built to make study about the data required for different analysis in environment, forestry, agriculture, ocean resources etc. Some like OCEANSAT has specific task to observe the data and its changes in and around ocean. Therefore it confirms how ISRO has been developed its satellite for specific studies in climate change analysis. There are many to be developed by ISRO in due course of time. Moreover, the possibility of private sector entry to make such satellites could not be ruled out in the upcoming years. Alongside there is no major Indian policy or even legislation to regulate the earth observation data or geospatial data that are to be analyzed to know climate change variables. But legal regulation is much needed for easy availability of data to the end users. India has still now Remote Sensing Data Policy 2011 that is a mere change of earlier policy in 2001. There is draft of National GI Policy 2012. Some Bills like National Geospatial Data Authority Bill is pending for few years. It is yet to see how much are to be finally included in these legal instruments to use the satellite data for observing climate changes. In case of private sectors disseminating satellite data, there are other legal problems that may not be so much stringent for government sector. Therefore developing excellent satellites by ISRO could not alone fulfill the climate change study in India. The ultimate requirement is a good synergy between satellite data technology and its regulation, which is the driving force to understand the process of climate change and to implement the protective measures in a sound way. The ambit of this paper covers this synergy.

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Ph.D., Assistant Professor, Alliance School of Law, Alliance University, Bengaluru 562106. India, [email protected] and [email protected].

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I.

Introduction

India is now very much sound in space technology. The space science and technology and its advancement in India is highly discussed all over the world. The other countries are also getting the benefits of Indian satellites. The satellite data are very cost effective but at the same time there are so many problems to share these data for societal purposes. One of such purposes is to use these data for measuring climate changes. Though it is more or less accepted internationally that the data required for any disaster management programme including the climate changes should be freely available or could be shared without restrictions but there are some problems at the policy or legal regulatory levels in India. There are till now the satellites launched by Indian Space Research Organization (ISRO) but the idea of private satellites cannot be ignored. In fact the later one is fastly coming up in India but it is a matter of time now to launch satellite by private body. In this background, the purpose of this paper is to highlight these problems along with some recommendations. II.

Analysis

Achieving the cutting edge space technology through self-reliant process does not mean that the same could be implemented to Indian society specifically here for measuring the climate changes. This is the case for India. Implementation of technology would require solid policy and regulatory framework. The position of India in this regard is very restricted till now. The space policy or regulation related with satellite data is confined within Remote Sensing Data Policy 2011 (RSDP 2011)1 followed by some draft Bill or Policy like National Geospatial Data Authority Bill2 and National Geographic Information Policy 20123 which are not yet framed at its final shape. Therefore RSDP 2011 is the one and only policy initiative made by the Government of India. The main reason of such less regulatory norm is the government monopoly in Indian satellite market concerning manufacturing and dissemination of data to the users. It is ISRO satellites always when measuring the climate changes through satellite data are considered. The Government of India through ISRO and its division like National Remote Sensing Centre (NRSC)4 and other governmental bodies like Indian National Centre for Ocean Information

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dos.gov.in/pdf/RSDP-2011.pdf (Accessed on 28 September, 2015). Adhikari, M. (2012), High Resolution Data Dissemination against the Background of National Security in India. In Janseen, K. and Crompvoets, J. (Eds.) Geographic Data and the Law Defining New Challenges. Leuven: Leuven University Press, p. 133. www.nias.res.in/docs/R11-2012-GI-Policy.pdf (Accessed on 28 September, 2015). www.nrsc.gov.in/ (Accessed on 28 September, 2015).

LEGAL FRAMEWORK OF INDIAN SATELLITE DATA MEASURING CLIMATE CHANGES

Services (INCOIS)5 are first and last one to monitor climate change data through satellite and disseminate it for public uses. The INCOIS is especially dedicated for ocean monitoring. So it takes the help of data from OCEANSAT which is solely dedicated for measuring data related with ocean. The above analysis reveals that Indian regulatory system for satellite data is absolutely made for ISRO satellites. The problem from this system is that the interested stake holders besides Governmental bodies could not get enough opportunity to share the satellite data according to their organizational policy. What Government is framed for them, the private organization has to simply follow it to get the data from Indian satellites and share it for further uses. There is no such provision in the RSDP absolutely made for private stake holders in satellite data industry. This policy is right now sub-judice before the Hon’ble Delhi High Court. Another problem may come up with the increasing number of users of satellite data within the Governmental organizations. Sometimes the data related with climate change specifically value-added data may face some official restriction for common sharing amongst the Governmental bodies itself. There is very recent case though it is not related with satellite data but it relates with environmental issues. The conflict is whether information related with environment could be restricted in public domain if such area falls within military complex where the national security is concerned. The conflict is between the Central Information Commission (CIC)6 and the Ministry of Environment, Forest and Climate Change (MoEF)7 along with the Karnataka government.8 The MoEF does not want to disclose the information about implementation of National Green Tribunal (NGT)9 order because of security interests. The CIC asked how informing about implementation of environmental protection order of NGT can affect security of India.10 The above example discloses the fact that there is difference in opinion between two Governmental bodies about sharing information related with environment in public domain when the issue of national security is concerned. Therefore if the climate change data being gathered through satellite, such type of controversy may arise to use or share data in public domain.

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www.incois.gov.in/ (Accessed on 28 September, 2015). http://cic.gov.in/ (Accessed on 28 September, 2015). www.moef.gov.in/ (Accessed on 28 September, 2015). www.karnataka.gov.in/ (Accessed on 28 September, 2015). www.greentribunal.gov.in/ (Accessed on 28 September, 2015). ‘Disclose Info on Military Complex’, Times of India (Bengaluru edition), October 29, 2015, p. 8.

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III.

Conclusion and Recommendations

There is legal vacuum in case of satellite data regulation for climate changes. This conclusion is followed by the recommendations below: 1. Climate change data available through Indian satellites would require a separate policy or a part of Remote Sensing Data Policy may be considered separately. 2. A concerned legislation, as a next step to policy, should be considered. 3. For futuristic private commercial uses of satellite data especially for health hazards due to climate changes – a dedicated satellite is needed. Recommendation for separate policy/legislation for this. 4. A regulatory body not ISRO is necessary to audit the quality and price of data acquired from upcoming private commercial satellites. 5. Draft of legal regulation of satellite data for climate change purposes should be initiated at the same place where the scientific & technical studies are going on. 6. Example – Regulation for Aerosol may be considered in the concerned division of Space Physics Laboratory (SPL),11 Thiruvananthapuram. Recommendation for environmental law division within SPL. 7. To consider ‘Climate Apps’ using satellite data and to get data in real time in users’ mobile sets. Accordingly ISRO or MoES should have a policy. 8. An Indian satellite should be dedicated to follow up environmental legislations and detect the areas or organizations causing climatic disorders violating these legislations.

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spl.gov.in/ (Accessed on September 28, 2015).

Intellectual Property Rights Protection for Data Received from Outer Space Sadaf Amrin Fathima*

Abstract This paper seeks to discuss the international framework established for protection of satellite data while emphasizing on the legal uncertainty prevailing in applying national IPR regime to Outer space as the existing international space law formulated at the beginning of space era focused only on Nation’s involvement for exploring space with the sense of responsibility for using space in benefit of all mankind; consequently there exists a legal launce in addressing individual’s interest and protecting one’s innovation were not a prior concern within the text of International space law. The need for refining the international space law has taken the center stage of debate among the space experts is with the view that, in recent years the nature of space exploration has been transformed from state owned activities to private sector involvement. Aspects of commercializing space have indicated the need for legal reformation in applying IPR to data acquired through satellite and to bring about a confined international data policies as IPR protection should not reduce the availability of data for the developing countries. Finally, the paper seeks to analyze the legal perspectives of space faring nations in implementation of IPR protection and data distribution policy at International and National forums.

I.

Introduction

Space age is considered as the biggest leap in history of Mankind, where human fantasy to reach out to a region beyond the Earth took its shape into reality. Since then, Space endeavors have taken the center stage for economic and societal development of every individual and Nation’s as whole. Today one of the major concerns observed in every industry is how and up to what extent protection should be provided in regards to any invention or idea that has commercial value, so thus in space industry as space technology been highly sophisticated requires unique inventiveness and large intensives to carry out space exploration in an environment that poses drastic challenges. It requires

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Student of Master’s in Space and Telecommunication Law, Center of Air and Space Law (CASL), NALSAR University of Law, India, [email protected].

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new techniques and knowledge when attempting to work in such environment where there are no firm boundaries and limits. In pursuit to encounter intellectual growth in space exploration, it is of greater importance to provide economic and ethical guarantees for one’s innovation and inventiveness. In accordance to provide such guarantees, Intellectual Property Rights regime has to be adopted to protect the intellect creation resulting from the space investigation. In advent to the fact that major source of revenue in space industry is incurred through commercialization of data acquired through satellites. It is one such technological boom that articulated to use space as a tool for monitoring and maintaining the Earth. II.

IP Recognition for Space Technological Assets

Emphasizing on the fact that IP laws are one such regulatory framework that not only protects one’s intellectual creation but also facilities the grant of intensive for further development. The shifting nature of industrial development has urged the need for adopting IP to every sector that guarantees sustainable intellectual gain. Despite of the fact that space technology is been one of the most advanced technical area that has tremendous global impact in diversified fields for social, economic and scientific development, it is only in recent years that intellectual property protection in concerns with outer space activities has raised wider attention. Whereas it cannot be debated that there are no laws relating for IP protection in outer space, placing our interest on the major international intellectual property rights protection regimes that is PARIS convention which provides provision in concerns with protection of invention related to outer space by granting patent rights, BERNE regime that provides copyrights protection for computerized data obtained through satellites, TRIPS agreement providing provisions for acquiring patentability of invention related to outer space and Inter-Governmental Agreement (IGA) providing protection of rights in International Space Station (ISS). These international IPR regimes have provided certain converging and diverging nature of applying IPR to outer space. III.

IP Laws and Outer Space Treaty

III.1.

Common Principles with Contradicting Application

Evidently, focusing on the legal parameters based on which Intellectual Property rights regime as well as laws relating to outer space explorations were drafted it is of great interest to note both these legal frameworks sustain common principles though their applications differ widely. For instance, IP laws adopt (1) National Treatment & MFN Principle for granting intellectual rights without any discrimination for national and foreign applicants; (2) Exhaustion of rights with territory; (3) Independence of use of rights granted; (4) Rights are territorial; and (5) granting rights in persistent to human rights

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and sustainable development of economic. Whereas, Outer space regime adopts similar principles which states non-discrimination to all for using outer space only for peaceful purposes; no appropriation for use of space as outer space is considered as extra-territorial in nature; States using the space shall focus on scientific development rather than individual or national development. IV.

National IP Laws to Data Received from Outer Space

Remote sensing technology is considered as greatest inventive step forward that influenced the scientific and commercial growth to a vast extent in the space industry. The sensing technique has provided a unique advantage of providing space based services to non-space faring nations. Thereby, the signals are sent to the satellite from one specific country but they can be received in two or more countries. During such international transmission few consensuses seems to be emerging, first of all it is greater interest to determining the fact which IP law or laws would apply; is it the law of the country from which the transmission originates, or is it the law of the countries in which it can be received. This question is of particular interest in those cases where, under Article 11bis(2) of the Berne Convention, that proposes nonvoluntary licenses for defining the applicable IP laws for an international transmission. Another question of concerns is the identification of the relevant right-owners in those cases where the rights have been granted on a territorial basis, and where there are different owners of the rights in the country where the transmission originates and in the country or countries where it can be received. Finally, focusing at the technological outset it is evident that the signals or data received through satellite are in form of raw data which has no value of human intellect to it, IP value is added to only to encrypted data. In few cases, this encryption technology is provided from a country which has no rights of transmission or reception: but indeed has IP rights.1 V.

Legal Certainties in Outer Space Treaty in Defining IPR

The existing space law which was formulated in the beginning of space era focused only on Nation’s involvement in conducting outer space exploration along with the obligations to drive benefits from outer space with the sense of international responsibility and in accordance to international law. Consequently there exists a legal launce in addressing individual’s interest and protecting one’s innovation were not a prior concern within the text of International space law. Within the context of International space law, the outer space treaty deals with the legal status of space activities. The norms in outer space treaty has no replication

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www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch7.pdf.

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in stating IP rights for space affairs, since nation’s have the obligation to conduct space exploration activities in concern to international law which has drawn an indirect relation in stating IP rights as stated in few articles within the outer space treaty. V.1.

Article VI: Obligation of Responsibility and Supervision – National Security Issue

Outer space treaty reflects legal norms with conformity for recognition of common interest of mankind in the exploration and use of outer space including the Moon and other celestial bodies, with certain obligations on the states to maintain peace, security and to promote international co-operation. In connection with the fundamental principles of the Outer Space Treaty, its article VI has a vital role in defining the responsibility on States party for all activities whether such activities are carried by governmental or nongovernmental entities and for assuring that such activities are carried out in conformity with the provisions provided in the treaty. This article paved the way for the private sector to conduct space activities but obligating the State party to authorize and continuous supervise for all such activities of the private legal persons of their nationality. A legal launce exists in this article while addressing the IP rights that rise form such private participation thus failing to provide any provisions that defines ownership rights within the treaty.2 Indeed, this article stipulates only to the responsibility that the State party shall execute as National security issue is the major concern during the transmission or reception of satellite data. Article VIII: Jurisdiction and Control-Exercise of Moral Rights “Fitness of Purpose”

V.2.

The most prominent issue in concern to satellite data while conducting the activities of transmission or reception is in determining its actual intended usage. In accordance to the provisions under OST, State party shall execute jurisdiction and control for all space activities or space objects being used to carry out such activities.3 This relation has be drawn for data received through satellites as State shall exercise the principle of moral rights as such provide within the provisions of TRIPS agreement or any such IP related legal frameworks. Further, State party providing the satellite service shall be obligated to assure ‘fitness of purpose’ for the data been provided on basis on mutual agreements and shall be considered liable for any such negligence.

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Art. VI of OST, deals with international responsibility, stating that “the activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty”. Art.VIII of OST, states “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”.

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V.3.

Article X & XI: Obligation to Transparency with Exclusive Rights

Outer Space Treaty was drafted for recognizing the common interest of mankind in the exploration and use of outer space for peaceful purposes. The provisions provided in OST has stipulated the fact that the States Parties to the Treaty shall consider all space activities on a basis of equality, which emphasizes to provide the satellite data as afforded by developing or any nonspace faring nations. The state party is obliged to provide opportunity for other state parties to the treaty to observe the flight of space objects launched by those states.4 Further, OST treaty states that space faring nations shall agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities.5 VI.

International and National Data Policy

Remote Sensing data has a major role in space commerce. Remote sensing of the Earth from Outer Space not only involves simply the collection of information from a distance about an object or an area without being in physical contact with it, the principles relating to remote sensing identify various stages from primary data collection, activities is processing, intercepting and disseminating the processed data. A great deal of creativity is involved for manipulation of raw data into useful information; hence IPR protection for data received from satellite has become a subject of international context. The Berne Convention negotiated in 1886 is the international agreement relating to literary and artistic works. According to this convention, copyright will not be granted to idea but rather to the creation of it. With remote sensing, unenhanced data is the raw material to which an interpreter applies an idea and enhances it to for useful information. Unenhanced data in either digital or photographic form is a mere representation of the Earth as it exists and has no protection granted under Berne Convention. Another way in which Berne Protection extends to remote sensing data is through the data’s relation to software used for formulating the enhanced data.6

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5

6

Art X & XI of OST, states “the States Parties to the Treaty shall consider on a basis of equality any requests by other States Parties to the Treaty to be afforded an opportunity to observe the flight of space objects launched by those States.” And states shall “agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities.” J. Richard West, “Copyright Protection for Data Obtained by Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries” Fall 1990, http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1320 &context=njilb.

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European Union has adopted a directive to acknowledge copyrights to the databases and also created a sui generis database right for the protection of databases and its content. The European Union Database Directive was formulated in 1996, to establish copyrights protection for members of European Union, by granting database right to all databases representing a collection of data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. Under the database directive, extracting data is the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form and may be measured quantitatively or qualitatively.7 Indian space research programme is majorly focused on development of remote sensing technology and it has one of the largest fleets of Earth observation or remote sensing satellites for civilian uses. Space commerce in Indian space program relies on satellite data dissemination; thereby India has adopted Remote Sensing Data Policy (RSDP2001) and Remote Sensing Data Policy, (RSDP2011). Remote sensing policy provides provisions in relation to licensing rights for up-linking rights, license for direct broadcasting services and strict liability by providing rights on content regulation. VII.

Conclusion

Today one of the contemporary issues addressed by world community is to apply Intellectual Property Rights regime to Outer Space regime. The basic principles of providing ownership rights established under these two regimes have become a controversial reason to narrow down the legal perspectives between them. The need for sensed data has increased dramatically due to the large number applications which can be exploited from the sensed data. It is useful in metrology, agriculture, forestry, analyzing environmental changes, disaster management, intelligence and warfare. This makes the protection imperative. One of the major controversial issues in concern to the global commons while providing IP protection might reduce the availabilities of data to the developing Countries or will these exclusive rights overlap with the provisions of International Space Law for providing assistance to developing nations. Consequently, the shifting nature of outer space activities from state owned to private sector involvement has raised the need to bring about welldefined IPR regime to outer space that would provide guarantees to private entities for their investment on the invention and innovation. In this concern, major space faring nations like United States, European Member states and few others have formulated national Intellectual Property Rights laws in rela-

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Dr. Rahul Jairam Nikam, “Space Activities and IPR Protection, need for a new legal regime”, pp. 301.

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tion to outer space so as to facilitate their private industry to carry out space exploration with a long term guarantee. References

Christol, Carl Q, Remote sensing and international space law 16J, SpaceL.21(1988). http://www.spacelaw.olemiss.edu/jsl/back_issues.html. Digitalcommons at University of Nebraska-Lincoln, “Protecting Intellectual Property in Space”, http://digitalcommons.unl.edu/spacelawdoc. Fundamentals of remote sensing. www.nrcan.gc.ca/sites/www.nrcan.gc/ [...] /pdf/. Jakku R, “Regulation of space activity in India”. www.cissm.umd.edu /papers/files/jakku.pdf. Jakku, R, International Law Governing the Acquistion and Dissemination of Satellite Imagery, 29 J Space L, 65 (2003). http://www.spacelaw.olemiss. edu/jsl/back_issues.html. Mukund Rao, V Jayaraman, S Kalyanraman, George Joseph, RR Navalgund and K Kasturiranga, Strategising for the Future Indian EO programme. Paper presented at International Astronautical Federation Congress of 2002. IAF-01-B.2.03 OCTOBER 2, 2001. Principles relating to remote sensing of earth from outer space. www.oosa.unvienna.org/pdf/gares/ARES_41_65E.pdf. Satellite Remote sensing from outer space. www.geo.mtu.edu/rs4hazards /ksdurst/website/ [...] /Remotesensing.pdf. Stowe, Ronald F, The Development of International Law Relating to Remote Sensing of the Earth from Outer space, 5 J. Space L. 101 (1977). http://www.spacelaw.olemiss.edu/jsl/back_issues.html.

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International Programs and Initiatives on Space for Disaster Management Shripad Jagdale*

Abstract All countries are vulnerable to natural disasters. While this may not be avoidable the impacts on affected populations can be minimized through implementing an efficient disaster management policy. This is particularly significant given that the cost to human life and the economy rises each year, regardless of how many natural disasters occur per annum. The tropical region of South Asia with non-linear processes need denser network of observations. What is presently available in South Asia is hardly 20-30% of these requirements. An extremely high-risk region is in fact poorly populated by the observational networks. The idea is of a common satellite in South Asian Association for Regional Co-operation (SAARC) whose members are Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka. All South Asian countries share common geophysical, meteorological and oceanographic factors. Space-based platforms can provide trans-boundary perspectives invaluable for more accurate weather forecasting, disaster risk reduction, crop harvest projections and other purposes. Many challenges still remain before these satellite applications can be made widely accessible to all nations for disaster management. This paper identifies ongoing challenges in space policy and law, correlating remote sensing practices, and data sharing issues for humanitarian relief following natural disasters. This paper concludes that, a new policy framework should be developed specific to the application of satellite technologies for real time sharing of regional satellite data is especially critical in disaster risk reduction.

I.

South Asia and Disasters:

South Asia is highly exposed to a variety of natural as well as human induced hazards. SAARC Member States in the last one and a half decades have experienced major disasters, which caused great human and economic losses. In

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Advocate Bombay High Court, Prospective Member IISL, Ground Floor, Old Oriental Bldg, 65 M.G.Road, Fountain, Mumbai, India 400001, [email protected].

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2010, Pakistan was hit by the worst floods in its history rendering 20 million people homeless and bringing one-fifth of the country under water. The 2010 and later 2011 floods (in Sindh) also drew attention to the patterns of natural disasters occurring in South Asia and the response mechanisms of the respective states, and local and international humanitarian agencies. This also brought into the spotlight the extreme vulnerabilities that South Asia as a region, being a climate change red zone faces. The SAARC region is home to more than one-fifth of the world population. With a large population of 1.75 billion which accounts for 34% of Asia’s and 22% of the world’s population and with a surface area which comprises roughly 10% of Asia’s and 2.4% of the world’s land surface, the vulnerability of the region to natural disasters acquires significance on a global level. The high rates of population growth and natural resource degradation, with continuing high rates of poverty and food insecurity make South Asia one of the most vulnerable regions to the impact of climate change. Land use, land degradation, urbanization and pollution affect the ecosystems in this region directly and indirectly through their effects on climate. These drivers can operate either independently or in association with one another. The region which is home to more than 1.5 billion people has around 600 million people living below the poverty line, in other words, more than 40% of the world’s poor. Over 37% of the adult population is illiterate. Over 62% of the population is without access to basic sanitation. More than 50% of the women are illiterate and more than 40% of the children under five are malnourished. This part of the population is most vulnerable to the risk of any disaster, be it natural or man-made. As per the global database of natural disasters, South Asia faced as many as 1333 natural disasters over the last four decades (1970-2009) that took the lives of 9,80,000 people affected 24,13,100 individuals and damaged assets worth US$ 105 billion.1 A total of 291 natural disasters, which occurred in South Asia, constituted about 96.5% of the total global natural disasters.2 The costs of hydro-meteorological disasters have increased sharply since the 1980s and the average costs peak at just below US$ 100 billion.3 While there is a gradual reduction in the number of deaths reported, the number of people reported to be affected increased rapidly in the last 40-50 years, and has averaged at more than 300 million by 2010.4 The major reasons for the increasing vulnerability of the population and the countries in the region are largely related to demographic conditions, rapid technological and socioeconomic changes, lower level of human development

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Emergency Data Base (EM-DAT) on natural disasters, Centre for Research on Epidemiology of Disasters, Leuven, www.em-dat.net/. EM-DAT, South Asia Disaster Report, 2011. EM-DAT, 2011, a, b. EM-DAT, 2011, a, b; Djalante & Thomalla, 2012.

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and rapid urbanization. In addition, the region is also particularly sensitive and exposed to the impact of climate change and variability. Every analysis and projection indicates that the vulnerability of the general population will increase in natural disasters in South Asia due to the impacts of climate change and rapid urbanisation; with its consequent migration of poor households to urban areas that the region is witnessing at an unprecedented scale. Climate change will impact food security, nutritional standards and human health, negatively affecting the segment of the human population which is most vulnerable in the event of a natural disaster. Natural disasters tend to cause economic and social disruptions on a gargantuan scale on a very short notice. In such situations, the administrative and economic structures of the country require a considerable amount of time to restore normalcy to the lives of the affected population. Although no region of the world is completely spared from the wrath of nature, manifested in natural disasters, the poorest countries are hit the most, on account of the inability of the administrative and economic structures of such countries to quickly adapt to and make provision for the emergent situations in the aftermath of any natural disasters. The fourth assessment report of the Inter-Governmental Panel on Climate Change (IPCC), published in 2007, highlighted climate change would bring some challenges to South Asia, such as: a) Melting of glaciers in the Himalayas would increase flooding and this in turn would affect long-term water resources and availability in South Asia. b) Compound pressure on natural resources and environment owing to rapid urbanization, industrialization and economic development. c) Crop yields would likely decrease up to 30% by the middle of the 21st century. d) Periodic floods and droughts would impact upon the health of the population. e) Rising sea level would exacerbate inundation, storm surge, soil erosion and other coastal hazards. The fifth Assessment Report of the IPCC has highlighted the risk of increase in intensity and frequency of climate related hazards. It indicates the greater variability in monsoons and the emergence of new hazards turning into major disasters that will be manifested in the form of sea level rise and new vulnerabilities. Due to geographic layout of the region, with the Hindu Kush Himalayan mountain range in the north, the Indian Ocean in the south, the Bay of Bengal in the east and the Arabian Sea in the west, high population density, large population under the poverty line and poor infrastructure, the SAARC countries have been historically vulnerable to natural and man-made disasters.

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Now climate change has added a new dimension to the region’s existing socioeconomic and environmental vulnerability. Human life as well as property will continue to be lost in prodigious amounts and increasingly so unless we shift towards proactive solutions instead of reactive ones. II.

Space Technology for Detection and Management of Disasters

The issue of detection and management of disasters; whether natural or manmade, raise certain requirements which have to considered and provided for in any effective system or solution for the detection and management of disasters. Some of those requirements are enumerated below: a. Any effective system has to be able to carry out surveillance of an extremely large area in a very short time. b. It must not be dependent upon any ground based infrastructure within the area under surveillance. c. The surveillance system must be in operation round the clock. d. The surveillance system must be able to interface and communicate with a multitude of information gathering and communication systems. Satellite remote sensing refers to technology used for observing various earth phenomena with instruments that are typically onboard a spacecraft. These observations consist of measuring the electromagnetic energy of phenomena that occur without initiating physical contact with the object of interest. Many types of disasters will have certain precursors that satellites can detect. Satellite remote sensing enables information to be provided throughout the different phases of disaster management including assessment, preparedness and mitigation planning, early warning, impact assessment, and emergency communications. This diagram illustrates the remote sensing process as applied to disaster management.

Figure 1 The remote sensing process applied to disaster management. (Source: Enrique Urquijo, 2013) Response

Recovery

Preparedness

Image

Mitigation

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Processing Interpretation

Sensor Data

Geospatial data

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Satellite remote sensing systems from their vantage point have thus unambiguously demonstrated their capability in providing vital information and services for disaster management. The Earth observation satellites provide comprehensive and multi temporal coverage of large areas in real time and at frequent intervals. Thus they have become invaluable for continuous monitoring of atmospheric as well as surface parameters related to disasters. Polar orbiting satellites have the advantage of providing much higher resolution images, even at low temporal frequency, which could be used for detailed monitoring, damage assessment and long-term relief management. Geo-stationary satellites provide continuous and synoptic observation over large areas with respect to weather patterns including cyclone monitoring. The vast capabilities of communication satellites are available for timely dissemination of early warning and real-time coordination of relief operations. The advent of Very Small Aperture Terminals (VSAT) and Ultra Small Aperture Terminals (USAT) have enhanced the capability further by offering low cost, viable technological solutions towards management and mitigation of disasters. Satellite communication capabilities – fixed and mobile is vital for effective communication, especially in data collection, distress alerting, position location and coordinating relief operations in the field. The use of remote sensing has become an integrated, well developed and successful tool in disaster management, and the requirement for hazard mitigation and monitoring rank high in the planning of new satellites. The deliverables that can be expected from space data sets at the present scenario include high temporal revisit, high spatial resolution, stereo mapping capability, interferometric SAR and onboard processing. Since each individual satellite covers a relatively small portion of the Earth’s surface, a rapid response using high-resolution satellites can only be achieved with several satellites operating simultaneously. Hence, a separate constellation of satellites for disaster management is the need of the hour. The end product obtained from remote sensing that is particularly useful for disaster management is geospatial data. III.

Application of Space Technologies for Disaster Management

The availability of remote sensing technologies data interpretation skills for disaster management is limited in the case of many member nations. Some major differences existing between the member nations with significant economic capacity and those with developing or underdeveloped economic capacities are mentioned below. Major economies: The majority of the member nations with significant economic capacities have developed complex mathematical models based on meteorological stations placed on a grid over a certain region to provide real time data. These models have evolved to incorporate remote sensing data.

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Developing economies: The hydrological models, telemetric models and radar data are scarce.5 Hence, access to this tool is still limited due to several factors. Some of the international organizations that use satellite technology for humanitarian activities are the United Nations Institute for Training and Research (UNITAR)6 through its Operational Satellite Applications Programme (UNOSAT), and the United Nations Platform for Space-based Information for Disaster Management and Emergency Response (UN-SPIDER).7 The core missions of these UN agencies involve improving and increasing the use, access, and know-how capabilities of satellite technology, especially in developing States. However, the existing lack of training, knowledge, and infrastructure of end users in these developing countries impacts the State’s decisionmaking abilities and complicates the tasks of UN agencies. For example, in October 2011, Thailand, Cambodia, Laos, and Vietnam, faced floods that affected over 6.5 million people and claimed at least 500 lives. This particular region has been identified as one of the most impacted by natural disasters. As a result, UNITAR is leading efforts in Thailand to develop satellite based maps and GIS analysis to aid with assessing floods as well as to assist national, regional, and local agencies with planning an efficient disaster management response. UNOSAT and the Asia Disaster Preparedness Centre (ADPC) both have acknowledged that countries in South Asia are increasing their knowledge base, expertise, and utilisation of satellite data for this purpose.8 Consequently, these nations are able to respond to and minimise the impact of disasters to a larger degree as compared to the past. Optimizing the institutional knowledge of this technology on a decision-making level and providing for prompt and effective communication and application of this satellite-derived information requires a lot of further effort. The situation is such that merely attempts to facilitate the transfer of satellite data and images through international platforms is not a complete solution. The frequency of natural disasters in various areas of the globe necessitates not only a prompt response to such disasters, but also requires that attention be paid to the other phases of disaster management. The paucity of distributors of

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See e.g. Lettenmaier, De Roo and Lawford, Towards a capability for Global Flood Forecasting, World Meteorological Organisation Bulletin 55 (3), July 2006. UNITAR (The United Nations Institute for Training and Research), The mission, United Nations Institute for Training and Research www.unitar.org/the-institute. UNITAR delivers satellite imagery analysis and knowledge transfer to develop capacities of beneficiaries and NGO’s in the field of disaster management and assist other UN agencies with their humanitarian activities for free. UN-SPIDER ensures and provides capacity building to States for better disaster management using UNITAR’s satellite expertise per region. See e.g. IRIN, ASIA: How space technology aids a flood response, available at www.irinnews.org/report/93933/asia-how-space-technology-aids-a-flood-response (last accessed Sept. 2 2013).

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high quality satellite imagery raises the financial and time cost for the humanitarian and disaster management agencies to obtain the requisite satellite data and images to aid their efforts. Though the Disaster Charter is an example of a free and useful repository for the sharing of satellite imagery for any disaster, its mandate restricts its use of resources only to disaster response, limiting the time and opportunities for data utilization. This excludes the other phases of the disaster management process.9 According to Article I, the Charter can be activated during a “crisis,” this is defined as “the period immediately before, during or immediately after a natural or technological disaster, in the course of which warning, emergency or rescue operations take place.” Moreover, the imagery available under the Charter has a limited authorized duration of only 15 days, immediately following Charter activation. The financial cost of obtaining satellite data and imagery remains one of the major factors, as private companies continue to be the sole providers for specific satellite imagery. But economics is not the only factor to be considered. The political aspects of usage of satellite data and imagery continue to loom large in any discussion in relation to the sharing of satellite data and imagery. Consequently, it is up to the disaster prone member nations to start establishing appropriate political guidelines to overcome economic costs, facilitate the transfer, sharing and use of data and build up satellite network capabilities with tailored technologies able to continuously monitor for natural disasters and provide warning for the same in sufficient time. The table below illustrates the need for sharing satellite technology. As the chart indicates, these are all developing countries without satellite remote sensing resources, except for the United States. The list includes the top 10 countries that have used the Charter resources in the past five years, from 2008 to 2012. Table 1 The top 10 countries that have accessed Charter resources in the past five years (2008-2012) (based on the Charter activations archive, 2013) Country USA Chile Vietnam Pakistan China Philippines Colombia Canada Nigeria Algeria

Total 18 10 6 6 6 6 5 5 5 4

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The Disaster Charter does not authorize the release of images for the other phases of the disaster management cycle, such as mitigation, preparedness, risk and reduction.

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Given the need to enhance or establish national guidelines and policies on disaster management, some member nations inevitably require more attention than others in elaborating national frameworks. It is generally agreed, that governments should endeavour to put in place national disaster risk reduction guidelines established under strong institutional frameworks to ensure the safety of the lives and property of their citizens. Some countries, however, have at most a superficial institutional framework or have no such framework at all. Moreover, availability of personnel knowledgeable and trained in the effective utilisation of satellite data and imagery may be deficient as well. When the State (end user), has only partial access to knowledge and expertise of GIS and related applications this often results in a slow or difficult coordination of satellite imagery resources, as well as hinders third party assistance in data interpretation and distribution. To overcome this situation, States should adopt UN recommended practices to promote national efforts in establishing efficient disaster management phases. In 2012, UN-SPIDER prepared a set of activities, to promote the use of spacebased information to reduce the impacts of natural disasters under these topic frameworks, with a special emphasis on developing countries, in regard to their application of the aforesaid activities:10 • Satellite imagery inventories; • Geo-spatial information management; • Imagery processing; • Changes in natural hazards associated with land-use changes; • Strategies to promote the use of information generated using recommended practices. The orgranigram below illustrates efficient management of domestic space resources, with contributions from international aid agencies. The core of this system is based on the objective of national governments improving their domestic knowledge and management of technology by cooperating with key international actors and domestic space agencies.

______ 10 UNOOSA, 2012, Technical Cooperation Concept Note, available at www.unoosa.org/pdf/donors/FRT_2012_spider.pdf (last accessed Aug. 4 2013).

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Figure 2 An efficient domestic Disaster Risk Management and Cooperation Framework would suggest a disaster management organization scheme like Thailand’s disaster management structure using satellite resources.11

Regional and National Support

Regional Satellite Constellation (if exists)

Capacity - building and Institutional Strengthening

UNITAR/ UNOSA UNOCHA

International Access and Support

Local Satellite Agency

Disaster Charter

UNSpider

Besides establishing a solid political framework, a legal framework is necessary on both the international and national levels to manage the acquired satellite data. The following section describes the legal challenges the international community faces in obtaining and making use of satellite data for natural disasters. IV.

Legal Challenges to Application of Space Technologies for Disaster Management

To start with, it is pertinent to note that a single overarching legal framework governing satellite data for disaster management does not yet exist.12 Consequently, various instruments and legal regimes are applicable, depending on the case and any enacted inter-party legal instruments between the parties involved in the situation. Broadly speaking, five types of legal issues have been identified which are significant in regard to space based applications for disaster relief and management. The implications of these issues affect the

______ 11 See e.g. Srivastava, Sanjay K, Satellite Imagery for Disaster Risk Management: Policy Issues for South East Asia, UNESCAP, p7, available at www.unescap.org/idd/events /2012-Workshop-on-flood-risk-reduction-through-space-applications-in-south-eastasia/Satellite-imagery-for-disaster-risk-management-Sanjay.pdf (last accessed Sept. 2 2013). 12 Ito, Atsuyo, “Legal Aspects of Satellite Remote Sensing” at 162 (2011).

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acquisition, sharing, and use of remote sensing data, which can result in conflicts of law and interests between the parties providing and consuming the aforementioned technological products and services. An evaluation of the applicable law is therefore required on a case-by-case basis, even where the provision of any such satellite data and imagery is strictly for humanitarian purposes. This illustrates the evolving nature and challenges that (space) technologies pose for the legal community and governments while simultaneously seeking to maintain the certainty and sovereignty of national laws and frameworks:13 1.

National Security and Privacy

The very nature of satellite networks and remote sensing technologies makes any data and images obtained from such networks, very sensitive from a military and intelligence point of view. The geo-political situation in south-east Asia, particularly the relations between China, India and Pakistan, the three major powers in the south-east Asian region; render any attempts to establish an institutional framework for the sharing of satellite data and imagery between the agencies of these countries fruitless. The domestic political situation in India and Pakistan, especially in light of their past history, will prove to be a major obstacle in any attempt to facilitate sharing of satellite data and images between these countries. The differing legal and administrative frameworks of each member nation, which are intended to protect the national safety interests of the respective member nations, place restrictions on the private providers of satellite data and images in the form of resolution restrictions or limits on the transfer and sharing of satellite data and images with entities belonging to other nations.14 These administrative and legal frameworks and the existing geopolitical climate pose significant challenge to the formulation of a supranational policy and institutional and legal framework based thereupon, for the seamless sharing of satellite data and images among the disaster relief and management agencies of the respective member nations. The rapid development in data collection and data processing technologies of satellites have led to the rise of serious concerns in regard to the privacy of individuals. This assumes importance particularly in the present scenario where sweeping and pervasive surveillance of private individuals over electronic communication networks, by both public and private organisations is proving to be the norm rather than the exception. The data of the individu-

______ 13 See e.g. Annelie Schoenmaker, “Community Remote Sensing Legal Issues” p2, available at http://swfound.org/media/62081/Schoenmaker_Paper_C ommunity_Remote_Sensing_ Legal_issues_Final.pdf (last accessed Aug. 3 2013). 14 The Land Remote Sensing Laws and Policies of National Governments: A Global Survey”, National Center for Remote Sensing, Air, and Space Law, University of Mississippi (2007).

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als, which often consists of private communications and personal details, thus collected is used for a plethora of purposes, which are not stated in the public domain. The lack of adequate and transparent legal framework which regulates the privacy interests of individuals in the south-east Asian region15 creates an uncertain administrative and regulatory environment. On account of these conditions, acquisition of satellite data and images of adequate quality can prove to be difficult for disaster relief and management efforts. 2.

Intellectual Property

It is generally held that the ownership of any intellectual property or creative work is vested in the creator of the work. Different legal instruments, both national and supranational, are applicable to different forms of intellectual property such as images, music, literature, scientific formulae, technological products and services, collections or databases of any form of intellectual property. However, the underlying principles of ownership and control of such intellectual property are based on the traditional definitions and concepts of creation and ownership of property. The nature of scientific and technological development in the twenty first century is different from the preceding periods, wherein scientific and technological development was usually undertaken by an individual or a singular organisation. In the twenty first century, scientific and technological development is more often than not, a collaborative effort involving the endeavours of many individuals and organisations. This is particularly true in the case of any intellectual property related to space, as it involves the use of technological products and services sourced from or owned by different parties. Thus determining the ownership of intellectual property on the basis of traditional concepts of creation and ownership becomes difficult. In the absence of a concrete legal framework for identifying the ownership of space based data and information, the generation and consequent sharing of such data and information is adversely affected. 3.

Liability

The importance of high quality satellite data and images cannot be over emphasised in disaster relief and management efforts. Satellite data and images are a vital component in all phases of disaster management from disaster warning to search and rescue operations and disaster mitigation efforts. It goes without saying that thousands of human lives and millions of dollars’ worth of property are at stake during such operations. The success of these operations depends, to a large extent, on the quality of the satellite data and images made available to the agencies conducting the disaster management efforts. The satellite data and images, in order to be effective, must be accurate with highly detailed resolution and must be as proximate to the current situation on ground zero as possible with continuous updates. In those situations,

______ 15 DLA Piper’s Data Protection Laws of the World Handbook, 2012; pg. 160, 283.

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where the satellite data and images available with the providers of such information is only partially accurate or not up to date, the providers of satellite data and images may find themselves vulnerable to legal liabilities for any losses which may arise on account of the usage of such data. In such cases, in order to pre-empt any possibility of situations involving litigation or claims for damages or compensation, providers of satellite data and images may abstain from the transfer or sharing of any partially accurate satellite data and images even though they may have the potential to save lives. 4.

Licensing

Utilisation of satellite data and images provided by private and commercial satellite providers to other parties is governed by licensing contracts between the satellite providers and the other parties. These contracts place limitations on the transfer of satellite data from the purchasing parties to third parties. The rapid technological development in satellite data collection and data processing; made it possible for a plethora of applications, both public and commercial, to integrate the use of satellite data on a large scale in various technological products and services. However, the existing legal framework governing ownership and use of intellectual property and satellite data has not kept pace with the aforementioned technological developments. Consequently, the data generated by these products and services occupy a legal grey area which deters the substantial dissemination and use of remote sensing data by the agencies involved in disaster relief and management. 5.

Harmonisation of Data

In order for the national authorities, disaster management bodies, and emergency agencies of member nations to use the satellite data and images for disaster management, the data is required to be organized into user-friendly categories. Such categories include: searchability, findability, usability, and shareability (as free of charge as possible). The Open Geospatial Consortium (OGC) and UN-SPIDER are two relevant organizations working towards the standardization of geospatial data. The goal is to establish uniform and compatible standards at both the domestic and international levels. These standards include, for instance, how the data is sourced, organized etc. For the purposes of this article, the most significant legal issues faced by international organizations and governments in utilizing satellite technology for disaster management and relief are illustrated below:

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Figure 3 Summary of Legal Challenges. Source: Sandra Cabrera Alvarado (based on 2013 interview with Mr. Luc St-Pierre from UNOOSA) Privacy and National Security

Liability

Licensing and distribution

Harmonization of Data

Intellectual property

V.

• Subjective to the cultural values and geopolitical climate • Lack of National law may create legal uncertainty

• Accuracy of data

• Ownership issues prevent dissemination of RS data • Case-by-case and state-by-state analysis

• Definitions i.e. disaster, hotspot. • Validation process for data quality and distribution

• Copyright

Recommendations for the Use of Space Technologies for Disaster Management in the SAARC Region

1. Devise mechanism for integration of policy, planning and programmes The SAARC member states have separate set of policies, planning and programmes with respect to the development, regulation and integration of satellite information and communication technologies within the sphere of various activities and purposes. Though, these are often in consonance with each other, there is a need for convergence of processes for integrating satellite technologies with Disaster Management (DM) and Disaster Risk Reduction processes through policies, plans and programmes. A mechanism is therefore required to be put in place within individual countries as well as the region as a whole for ensuring complete integration of legal and administrative policies and structures, plans and programmes undertaken for the improvement of DM and DRR through satellite technology. The transboundary impact of disasters underlines the need for integrated policies and programmes. 2. Set up platform for knowledge management A number of regional and national institutions are working on various measures to advance DM and DRR through satellite technologies such as database of geological and weather fluctuations, etc. A platform is required for facilitating sharing of such knowledge or information in the form of images, databases, mathematical climate models, etc., conducting regional research studies and pilots and replication of good practices on both these issues among the member states. Therefore, it may be appropriate to

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3.

4.

5.

6.

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consider setting up a SAARC Knowledge Management Centre on the lines of the SAARC Disaster Management Centre (SDMC). Alternatively, a Knowledge Management Division may be opened in the SDMC itself for better integration of technology at a regional level. Set up regional coordination mechanism SDMC could help member states in establishing a regional mechanism for coordination between sector agencies in the member states on managing regional common resources and also to facilitate seamless integration of technology capabilities of the member states in times of natural Disasters. Establish mechanism for monitoring, evaluation and quality control In addition to the governmental agencies, a number of organisations/agencies, regional intergovernmental, regional alliances and networks, etc. are involved in activities pertaining to collection and processing of weather and geological information. The activities related to collection of weather and geological information and data across sectors and disciplines by various agencies result in data which tends to be relied upon in the event of a disaster. Thus, there is a need for developing a mechanism for monitoring and evaluating the information, whether in the public or private domain, which is gathered by various agencies so as to ensure compliance to a certain standard of quality. Guidance notes on compliance, quality control and evaluation criteria with different scales may be developed to guide both policy makers and organisations. A set of quality criteria with respective indicators to monitor and evaluate the data may also be developed for various levels on the basis of which member states or organisations involved in DM and DRR can depend on with respect to the reliability of the information received by them. Develop strategy for integration of tools and techniques The tools and techniques used in information and communication techniques such as cloud computing, data analytics, mobile data networks, etc. should be integrated in DM and DRR policies and programmes. It may be beneficial to consider a common strategy for SAARC member states to integrate such tools and techniques in DM and DRR policies and programmes. Create and maintain roster of experts The SAARC member states have developed considerable scientific and administrative expertise on integration of information and communication technologies in various aspects of DM and DRR which should be utilised for the common good in the region. The SAARC Secretariat should create and maintain a pool of experts and institutions from the member states that may be utilised as when required by any member state. This list should also draw upon the expertise available with civil society organisation, including the corporate sector.

INTERNATIONAL PROGRAMS AND INITIATIVES ON SPACE FOR DISASTER MANAGEMENT

7. Provide financial support integration of satellite detection and communication technologies in DM and DRR would be a long term process requiring sustained efforts on the part of various national and regional institutions. Promotion of satellite technologies in DM and DRR would thus necessitate long-term financial support. The SAARC Secretariat may consider making dedicated nonlapsable funding support for the purpose on a long-term basis. The SDMC could anchor such a facility. 8. Provide for corporate engagement As the developing of the SAARC region is attracting many foreign corporate entities in the information and communication technology sector to set up their businesses in the region, SDMC should explore the idea of providing a platform to them for their engagement and the pooling of corporate/foundation resources to augment government resources earmarked for leveraging satellite and other communication technologies for undertaking DM and DRR. SDMC should also provide a platform for continuous engagement with the corporate to support risk sensitive development. VI.

Conclusions

No country can effectively monitor the entire planet. International cooperation is the only way to get the most up to date satellite imagery for disaster relief and humanitarian efforts. Indian satellites already have the South Asia neighbourhood and parts of Indian Ocean well covered. If governments can agree on modalities for sharing the massive stream of data coming from the skies, countries can focus on building or expanding systems that apply it for national needs. For this to succeed, India must engender greater trust among its neighbours. One measure is to place technical and humanitarian cooperation above the interests of commerce and politics. To effectuate this objective, an open data access policy is key, allowing for the free and timely sharing of data. International organizations, along with several nations, have already acknowledged this necessity instigating a trend of open data policies and guidelines. Challenges to achieve this purpose still remain, mainly in the political and legal sectors. Consequently, the political will and authority to make these changes lies with States. The urgency and humanitarian nature of this framework, however, should serve to spur Nations into acting. Even laws may be modified for this purpose. The particular and effective use of existing and available satellite technologies for improving disaster risk management strategies is too significant to be waylaid by regional politics.

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Disaster Management Law in the Space Age Paul B. Larsen*

I.

Introduction

Climate change entails prospective increase in natural disasters. Too often governments fail to anticipate and mitigate despite known vulnerability at the disaster site. To illustrate, this paper describes two recent landslide disasters. One landslide is in a developed economy (the United States), the other landslide is in a developing economy (Sri Lanka). Although the country with the developed economy could be expected to have more resources to deal with a disastrous landslide, it appears that neither of these countries was effectively proactive, and neither was prepared for disaster relief after the events. Instead, the main burden falls upon local authorities and the people involved or who live nearby. These observations apply not just to landslides, but to all types of disasters. The prevailing disaster philosophy of the International Red Cross and Red Crescent is that international disaster assistance should become available only when States are unable to cope with their local disasters. Should such assumptions apply in the space age where satellite technology is available? Satellites can observe and locate disasters as they develop; and the data they collect can be preserved in international data banks and be made available to national authorities to improve their capacity to handle disasters. In the future States may well have to resort to assistance from international sources on a continuing basis rather than wait until they become overwhelmed. This paper discusses how international resources can be activated for use at an early stage, in particular outer space resources such as remote sensing, Global Navigation Satellite Systems (GNSS) and communications satellites. Existing international authorities, such as the Group on Earth Observations

______ *

The author taught air and space law for more than 40 years respectively at Southen Methodist University and at Georgetown University. He is co-author of Larsen, Sweeney and Gilick, Aviation Law, Cases, Laws and Related Sources, second edition (Martinus Nijhof, 2012) and of Lyall and Larsen, Space Law A Treatise (Ashgate 2009). [Send comments to [email protected]]. An updated version of this paper was published in Volume 40, Issue 2 of the William & Mary Environmental Law and Policy Review.

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(GEO), UN-SPIDER and the International Telecommunication Union (ITU) as well as Non-Governmental Organizations (NGOs) can assist in disaster situations. There is a fundamental humanitarian duty to assist in emergency situations. That duty was expressed in United Nations General Assembly (UNGA) Resolution 41/65 of 1986 (UN Principles Relating to Remote Sensing of the Earth from Outer Space, UNGA Res. 41/65). Principle X of the UNGA Resolution states that remote sensing shall be used to protect Earth’s natural environment so as to avoid harm, and concerned States shall be informed of the danger remotely. States in possession of information about impending natural disasters “shall transmit such data and information to States concerned as promptly as possible.” Likewise the Liability Convention, Art XXI, expresses that States, in particular launching States, “shall examine the possibility of rendering appropriate and rapid assistance to the State which has suffered the damage [from a space object], when it so requests.” The same humanitarian principle about helping affected States is expressed in the 1972 Stockholm Declaration, Principle 18 (Declaration of the UN Conference on Human Environment, Stockholm 1972, 11 ILM 1416). It is expressed in Principles 18 and 19 of the 1992 Rio Declaration II.

Comparison of Two Recent Disastrous Landslides

The concern of this paper is with disasters in general. But it is useful to compare two actual similar disasters. One is in the developed economy of the United States and one is in the developing economy of Sri Lanka. II.1.

Disaster in a Developed Economy: Washington State, USA, Landslide in 2014

The landslide in Oso, just North of Seattle, Washington in the United States, occurred on March 22, 2014. The event has now been thoroughly studied and analyzed and its causes and effects are well understood. Forty three people perished. The landslide demolished many buildings and caused great physical damage to roads, rivers and to the environment. The hilly area of the slide was prone to slide. The fragile hills were formed by retreating ice age glaciers about 20.000 years ago. The sediments of the glaciers consist mostly of sand and gravel interspersed with clay and rocks. Steep hills are prone to slide when the level of ground water rises. There were sustained heavy rains prior to the landslide, as described in the 2014 Geer Report. The area of the 2014 Oso slide has a long history of prior similar slides. “[T]he 2014 Oso Landslide was a reactivation of one of these ancient landslides.” At the time of the slide no earthquake activity was recorded on any seismic measuring instrument, thus excluding seismic activity as the cause of the slide. However, heavy rains (as much as 30 inches or 76 centimeters

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fell during the month prior to the slide. Heavy logging of timber may have increased the lubricating effect of the groundwater. Trees and plants help to hold hills from sliding. Lacking knowledge of the land slide history of the area, many people built houses in the dangerous slide-prone area. In fact neither the United States government nor the State of Washington government have existing landplanning regulations or guidelines governing the risks of building and living in the natural landslide-prone areas. On the US Federal level of government the US Federal Emergency Management Agency (FEMA) is charged with Federal management of disasters in the United States. However, other government agencies also become involved in US disaster management. No agency, including FEMA, keeps comprehensive records of disaster remedial efforts by agencies. Such lack of record-keeping undermines US national preparedness for disaster. A report for the US Government Accounting Office recently reported that “FEMA is not aware of the full range of information” possessed by other government agencies. The Geer Report on the Oso landslide was sponsored by the US National Science Foundation. This report is just a recommendation. The US National Science Foundation, is not a government regulatory agency. It has no enforcement authority. However, the federal government and the state of Washington are free to adopt and enforce these recommendations. The Geer report studied the Oso landslide from a national perspective and recommended as follows: 1. That the geological history of landslide-prone areas be carefully considered by government authorities when planning human activities in those areas. 2. The risks of building in landslide areas must be effectively communicated to people wanting to build in those areas. 3. Slide-prone areas must be closely monitored and for that purpose monitors must be built into the system. 4. Weather must be closely monitored by use of rain gauges and otherwise, and dangers must be communicated to people in slide-prone areas. 5. (5.) New ways to monitor earth slides must constantly be considered. 6. LIDAR and remote sensing imagery should be used to identify potential landslides. The Governor of the state of Washington also appointed a commission to study the Oso landslide (SR 530 Landslide Commission, Final Report, December 15 2014). It viewed the Oso landslide from the local perspective. The commission made several useful recommendations to the Governor: 1. Using the latest technology such as LIDAR the State should collect data on landslides for local land-use planning. The State should also establish a geological hazards resilience institute.

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2. The State emergency management system is in need of improvement and should include proactive preparations for landslides and other disaster emergencies. 3. The State should standardize tracking, mobilizing and demobilizing requests for disaster emergency resources. 4. The State should continue to investigate potential landslides in the area of the 2014 Oso landslide. 5. The State should prioritize requests for emergency assistance in order not to overwhelm emergency management. 6. The State should manage local volunteers for emergencies such as landslides. (7) The State should organize a more effective unified communication system. 7. The State should establish guidelines for designating geological hazard areas and for making assistance available. The Governor is now acting on several of the Washington state commission’s recommendations. Some of the recommendations require the state legislature to provide money for their implementation II.2.

Disaster in a Developing Economy Country: Landslide in Badulla, Sri Lanka, 2014

Sri Lanka has many active landsides. The Sri Lankan government estimates that 20% of Sri Lanka, mostly on the inland tea plantations, is prone to landslides. The Sri Lankan National Building Resources Organization (NBRO) has issued “active warnings for the districts of Kalatara, Niswera Eliya, Badulla, Kand, Matale, Kegalle and Ratnapura which have a combined pulation of 5.3 million.” The emergency management problems regarding the 2014 landslide in Badulla, Sri Lanka are not unlike the emergency management problems in the US state of Washington. The Sri Lanka, landslide occurred on 29 October 2014 on a tea plantation. Initially several hundred people were feared killed. Like the OSO landslide, the Sri Lanka landslide was preceded by heavy rainfall which caused the hillside to collapse and to bury the tea workers and their homes in a thick layer of mud. The Sri Lankan Disaster Management Center had warned people about the danger of a slide and had conducted evacuation drills. Because Sri Lanka suffered severely from the 2004 Indian Ocean tsunami in 2004, in which 31,000 people died, the government has been diligent about organizing exercises and drills about escaping from natural disasters. The Sri Lanka Disaster Management Center selects locations that are most likely to experience disasters. The Badulla disaster location had a simulated disaster exercise one year prior to the 2014 landslide. However, the tea plantation workers are very poor and do not have alternative places to live, so they tend to remain where they grew up.

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In consequence of the Badulla land slide, Sri Lanka is preparing to focus its emergency preparedness more on landslides. In fact the National Building Resources Organization (NBRO) surveyed the Badulla landslide area and proposed that the entire settlement be relocated elsewhere. The Sri Lanka government’s Disaster Management Center has included its relocation in its long term plan. II.3.

Evaluation

Failure of disaster management in the United States and Sri Lanka landslides resulted in significant loss of lives and property damage. In some ways Sri Lanka was better prepared than the United States for landslides, having identified vulnerable sites and having marked the site which did slide. But that knowledge did not translate into relocation of the people affected by the landslide. So whether the landslides in both countries were surprises or not, the outcome was the same. Both relied primarily on local resources for prevention and for emergency assistance. Neither of the two countries significantly used international proactive nor post-disaster management assistance. Several important international tools, that can benefit individual countries, will be discussed in the following sections. III.

International Disaster Tools

III.1.

Weather Forecasting: World Meteorological Organization (WMO)

Excessive rainfall is a basic ingredient of the Earth liquification process that causes landslides. Therefore, advance information about approaching rains is important in predicting landslides. Storms and hurricanes are also causes of disasters and advance warnings are essential. Warnings are available through highly developed weather prediction. Meteorological satellites observe and report on developing weather patterns. Countries exchange meteorological information within the framework of the WMO. It is now reliably known when it is going to rain 3 days before that happens. If available meteorological data is used skillfully, governments can put effective disaster management into effect before the event occurs. WMO facilitates the international distribution and availability of metrological information. Developed economy countries are rich sources of weather information. Both the United States and Sri Lanka receive weather information under the framework of the WMO. III.2.

Tracking Disasters: Remote Sensing

Lots of remote sensing data about potential landslides are available The main problem is for the data to be collected, coordinated, analyzed, and then to submitted to government decision-makers who are supposed to transmit it down to the low government level at the location of potential disaster areas. The Oso landslide reports indicated both ineffective data collection and

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failure of the high and low level government to act despite known dangers. Finally, the people who live in landslide-prone locations may refuse to move for reason of poverty as happened on the Badulla tea plantation in Sri Lanka. III.3.

Tracking Disasters: GNSS

Global Navigation Satellite System (GNSS) satellites provide positioning, timing and navigation services all around the globe. There are four GNSS services in existence: The US Global Positioning System, (GPS) The Russian Global Navigation Satellite System (GLONASS), The European GALILEO, and the Chinese Beidou, in addition to several GNSS augmentation systems. GLONASS faltered financially during the 1990s but is now reestablished. However during that period most of the world became dependent on GPS. European Galileo and Chinese Beidou are available in limited areas. They are in the process of becoming globally available. GNSS can identify and track Earth movements and can track the dynamics and energy of hills likely to slide. Atomic clocks on board each GNSS satellite measure time and movement precisely. Receivers on the ground receive timing signals from several satellites. The receivers on the ground are programmed to compare timing signals and to establish location. Thus receivers planted on the Earth’s surface will be able to identify Earth movements at landslide areas. III.4.

Tracking Disasters: Telecommunication

Emergency telecommunication provides important support during disasters. A disaster requires instant decision-making by a coordinator of resources that includes assessment of dangers, knowledge of whether people are trapped, and deployment of rescue workers and their equipment. Communication is needed not only to locate victims at the site of the disaster but also to connect with the outside world to inform government authorities of the magnitude of the disaster so that more resources can be delivered. These are basic lessons learned in past disasters such as the Oso landslide, the Sri Lanka landslide, as well as the 2004 Indian Ocean tsunami and the 2010 Haitian earthquake. IV.

United Nations International Disaster Observation and Management

IV.1.

The United Nations Coordination Attempts

The UN Office for the Coordination of Humanitarian Affairs (OCHA) was created to be the centralized coordinator for disaster assistance. However the coordination functions of OCHA are carried out by a number of other UNrelated bodies: There is an Emergency Relief Coordinator (ERC) who chairs the Interagency Standing Committee (IASC). The non-governmental assistance groups participate in the IASC. The ERC must coordinate with individual country humanitarian coordinators who in turn represent the assistance team of that country. Coordination with other UN offices is also necessary, including the UN Disaster assistance team, the International

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Search and Rescue Advisory Group (INSARAG), the UN Commissioner for Refugees (UNHCR), the World Health Organization and the UN Children’s Fund. The responsibilities of these UN offices tend to overlap with each other. Shortly after the 2 Indian Ocean tsunami disaster, The 2005 United Nations World Conference on Disaster Reduction (WCDR) met in Hyogo, Japan to establish the important International Strategy for Disaster Risk Reduction. The objective of the Conference was to create a strategic and systematic approach to reducing vulnerabilities to hazards. The resulting disaster risk reduction strategy applies to all disasters including earthquakes, tsunamis, and landslides such as those in described in this paper. IV.2.

UN-SPIDER in the United Nations Office of Outer Space Affairs (UNOOSA)

UNGA Resolution 61/110 of 14 December, 2006 established the “United Nations Platform for Space-based Information for Disaster Management and Emergency Response” – UN-SPIDER, Satellite capabilities have developed significantly since 2006. This Resolution gives UN-SPIDER a significant mandate to engage in space-based disaster risk reduction. As a result, UN-SPIDER was created as the United Nations Platform for Space-based Information for Disaster Management and Emergency Response. It was created in 2006: “[T]o provide universal access to all countries and all relevant international and regional organizations to all types of space-based information and services relevant to disaster management to support the full disaster management circle by being a gateway to space information for disaster management support, serving as a bridge to connect the disaster management and the space communities and being a facilitator of capacity-building and institutional strengthening in particular for developing countries.”

V.

Beyond the United Nations: The Disaster Charter and Tampere Convention

V.1.

The Disaster Charter

The International Charter on Space and Major Disasters (Disaster Charter) stems from a recommendation of the 1999 UNISPACE III conference. The Charter is not a treaty. It is an interagency agreement among outer spacerelated agencies in several countries including the United States, Russia, China, ESA and Canada. All the parties participate in the governing board. It is a voluntary organization. Each participant contributes its own resources (remote sensing, meteorological information, geological information etc). They do not contribute money. The governing board has adopted a policy of universal access to disaster assistance. All countries, whether members of the Charter or not, have the right to obtain assistance from Charter members. The Disaster Charter has been activated hundreds of times and has been

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activated in several landslide disasters. One single communication to the Executive Secretariat of the Charter will activate all the resources committed under the Charter, thus providing an efficient delivery of help. The assistance is free to the recipients. However the assistance is limited to the period immediately after the occurrence of the disaster. That includes evacuation and saving of people, immediate assistance and damage assessment. Preparedness, mitigation, risk assessments before the event is outside the scope of the Charter. Furthermore, ongoing assistance, reconstruction, redevelopment activities after the disaster are also outside the scope of the Charter. The Charter must be activated within 10 days of the occurrence of the disaster and is limited to 15 days after the occurrence. Countries may assist individually outside the scope of the Charter. V.2.

Tampere Convention

Several UNGA Resolutions have recommended sharing telecommunication resources. The ITU Constitution Art. 46 requires ITU Member States to accept and communicate emergency distress signals giving them due priority. States are also required to investigate false distress signals within their individual jurisdictions. The Tampere Convention on the provision of Telecommunication Resources for Disaster Mitigation and Relief Operations (Tampere Convention) facilitates and expedites communication during disasters. The Convention was adopted in Finland in 1998 and entered into force in 2003. The parties are bound by the terms of this treaty to share telecommunication services with countries suffering from disasters. The treaty is a recognition that in the space age disasters are not only local events but they affect communication with other countries. Communication satellites can play a vital part. The experience in many natural disasters has been that local land-based communication systems were destroyed and that the management of the emergency urgently requires replacement communication systems. Frequently satellite communication becomes the main medium of communication. Many countries do not have large scale access to communication satellites. Thus countries in possession of satellite technology must provide it. V.3.

The Group on Earth Observations (GEO)

The aim of the Group of Earth Observations (GEO) is to fill the international gap in Earth observation and particularly in distribution of Earth observation data. GEO is a voluntary international partnership of governments and scientific and technical organizations collaborating to develop a Global Earth Observation System of Systems (GEOSS). The ultimate vision is to create an informed overview of the entire panoply of Earth resources by a coordinated, comprehensive and sustained Earth observation and information service. GEO is independent of the United Nations, but membership of States is limited to UN Members including the European Union.

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VI.

Coordination of international Disaster Assistance

There is a mixture of efforts supported by a variety of international agreements. There is no single core of multilateral law specifically on international disaster assistance. International disaster assistance stems from a mixture of international agreements, charters, UN Resolutions, State laws, special humanitarian impulses and voluntary actions. Some of the technologies relied on are specifically for disasters, but many are not, for example Earth observation satellites that happen to orbit over disaster areas and observe images of unfolding disasters. The mixture of sources include the Disaster Charter, the Tampere Convention, UN-SPIDER, GEO, and many UNGA resolutions as well as numerous nongovernment organizations (NGOs), specifically the 2007 guidelines of the International Red Cross and Red Crescent Federation and many national humanitarian organizations VI.1.

Lack of Coordination among the International Governmental Organizations

Lack of over-all coordination leads one knowledgeable observer to conclude: “The costs of coordination failures are serious. Uncoordinated responses lead to duplication, confusion, increased expenses, inefficient use of resources, inappropriate aid and sometimes fatally result in disaster affected persons “not receiving the right aid at the right time, delivered in the right way.”

Thus lack of coordination is a great problem for international disaster assistance. The law governing disasters, whether hard or soft law, needs to be clarified, made uniform, and needs to be extended to cover more than just the aftermath of disasters. It should be broadened to provide relevant assistance prior to disasters in order to mitigate the effects of disasters such as landslides, earthquakes and tsunamis. It should also cover coordination of more of the post-disaster recovery activities including assignment of personnel and allocation of supplies and equipment, assistance to victims. Recognition of the need for greater coordination both among the NGOs and with the UN and with the States that suffer disasters motivated the International Red Cross and Red Crescent in 2007 to address this as an urgent need. “The International Federation [of the International Red Cross and Red Crescent) believes that improving the regular environment governing all international disaster response actors will increase the speed and effectiveness of both Red Cross and Red Crescent assistance and the overall, response, saving more lives in disasters and public heath emergencies, and more completely addressing disaster impact. Sensibly balancing the interest in speed and efficiency of international assistance with the needs for coordination, quality control and complementarity will also help to check the erosion of the roles of local responders that has occurred in some major international operations and that has been regularly criticized in “lessons learned” evaluations.”

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VI.2.

Lack of Coordination in the Activities of Individual States

Most individual States do not have protocols and laws that assure coordination of relief when a disaster strikes. There are usually few contacts within the national government to deal with disaster assistance from the United Nations and from NGOs. There are usually many government offices with authority only in their area of responsibility. Existing regulations and practices prove to be inadequate for these extraordinary situations. Establishment of new regulations after the disaster is extremely difficult and often comes too late. Some ministries are not able to change. The result is tremendous confusion and consequent frustration of assistance personnel and waste of resources in spite of the very best intentions. For instance, two particularly difficult problems are obtaining entry visas for relief workers and customs entry clearances for relief shipments through local customs. VI.3.

The 2007 Red Cross and Red Crescent Guidelines

As a consequence of the Indian Ocean tsunami disaster, the Red Cross and Red Crescent Federation issued their 2007 Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (IDRL). The IDRL guidelines are widely appreciated. NGOs are concerned with wasted relief assistance due to lack of coordination. These are the guidelines: 1. The rules are voluntary recommendations. They do not have the binding effect of international law. 2. The guidelines apply to the United Nations as well as to NGO relief organizations. 3. Humanitarian assistance is recognized as a fundamental right by all people. 4. Assistance will not be given to further any political or religious objective. 5. Relief organizations will not act as political instruments of foreign governments. 6. Relief organizations must respect local culture and customs. 7. Relief organizations shall seek to use local sources to provide relief. 8. The beneficiaries of assistance should be involved in relief management. 9. Assistance shall be given with a view towards reduction of future dependence on assistance. 10. Relief organizations will hold themselves accountable both to people being assisted and to those people, organizations or States providing relief resources. 11. Relief organizations will respect the human dignity of disaster victims. 12. Host governments should provide rapid access to the disaster victims. 13. Host governments should facilitate entry of relief goods. 14. Governments should coordinate with and keep relief organizations informed about essential events.

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15. Donor governments should respect the independence and impartiality of relief organizations. 16. Cooperation among Inter-governmental organizations and relief organizations is essential. VII.

Conclusion and Recommendations

The following options for improvements in coordination of international disaster management exist: VII.1.

A Future Short Term Strategy: Reorganization within the International Organizations and Agencies (incl. UN-SPIDER and UN Committees)

Art. 1 of the UN Charter gives the United Nations mandate to “achieve international co-operation in solving international problems of [...] humanitarian character. This gives the UN authority to coordinate international humanitarian assistance in disaster situations. It is commended that data about satellite Earth observation of disaster risks and relief be collected and exchanged on a centralized basis by UN-SPIDER which operates within the scope of the United Nations. Establishing a clearing house of space-related data would not be an unusual activity for UNSPIDER because UN-SPIDER functions within UNOOSA which already collects space-related data. VII.2.

Three Long Term Strategies: Extensions of Tampere, World Trade Organization, and Customary International Law

At the present time it seems that a new UN treaty on disaster assistance is impractical. There are three other legal regimes that could be changed to permit more effective disaster relief. VII.2.1.

Extension of the Tampere Convention to Include Disaster Assistance Additional to Telecommunications.

The Tampere Convention is remarkable because it is the first and only treaty on civilian disaster assistance. The treaty recognizes that major disasters can be global issues and that the space age is now available to deal with these issues. The scope of the convention is currently limited to telecommunication assistance, but the Convention has succeed in breaking new ground on the difficult issues of entry into those sovereign States experiencing the disaster by donor groups (both international governmental and NGOs). The Convention respects the sovereignty of the donor State, it also places responsibility on the host State to arrange for entry of relief workers and relief goods.(Art 9). The Convention is moving in the direction of shifting the legal basis for international assistance from the rights of the donors to provide assistance, to placing the responsibility on the host State to arrange for aid and to facilitate the entry of the donors into the host State.

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It is recommended that that the scope of the Tampere Convention be broadened beyond telecommunication to include aspects of international disaster assistance problems. VII.2.2.

Extension of World Trade Organization to Require Unhindered Importation of Relief Supplies

The World Trade Organization (WTO) deals with international trade and trade restrictions among States. It might be possible to attach a clause to the WTO trade agreements permitting free imports of goods and services into countries experiencing severe disasters. That would resolve one limited but important problem of disaster relief. Using as a precedent the establishment of the Tampere Convention by the ITU, perhaps WTO could be similarly motivated to adopt a narrow disaster relief clause into the next WTO multilateral trade agreement, because import and export through customs are an aspect of international trade. VII.2.3.

New Customary International Law Based on the Red Cross and Red Crescent Guidelines

The Red Cross and Red Crescent Guidelines are de minimus guidelines for coordination of all disaster assistance among the NGOs and United Nations as well as for individual disaster assistance. It is in the interest of these parties to avoid waste. They have a self-interest in using these guidelines for coordination. The guidelines are considerate of the concerns of the host countries. They place responsibility on host States to facilitate the entry and use of the disaster assistance being offered to their countries. These guidelines are gaining in acceptance. In the short term they operate as a code of conduct for everybody. They could eventually become generally accepted as customary international law.

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Climate Change and Role of Outer Space A Multilevel Framework for Legal and Policy Issues K.R. Sridhara Murthi and V. Gopalakrishnan*

Abstract Outer Space technologies play an inalienable role both in the field of research aimed at greater understanding of Climate Change phenomenon and in monitoring of the state of climate and compliance to international agreements. Various legal and policy measures evolved under different conventions including those under the aegis of UN Framework Convention for Climate Change contain provisions relating to systematic observations and research relating to climate phenomena and also verification needs where in, space technology could play an important role. Notable initiatives in International Cooperation had been taken under the aegis of the UN, CEOS/IGOS, GEOSS and a host of other bodies. Notwithstanding these developments, defining a set of comprehensive capabilities and policies that address long term needs in this area is still a goal to be realized; As the convergence towards global actions for climate change have been gaining strength as evidenced by the Lima Call for Climate action (2014) and the historic and universal Climate Agreement at Paris, it is pertinent to assess how the diverse initiatives of past and opportunities of New Space developments can be dovetailed into the progress being achieved on global efforts in this arena. Issues of new developmental agendas of different nations are interwoven with impacts and actions on Climate Change. Such impacts and actions that arise from Climate Change thus involve various levels ranging from the total community of global nations, to national governments to local bodies. In view of the multiple stake holders involved and wide ranging diversities, Policy and legal measures and the processes for their renewal need a flexible and multi-level framework. The paper analyses the diverse policy and legal principles that exist and the rationale and needs for a multi-level framework in this arena.

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K.R. Sridhara Murthi, Director, IIAEM, Jain University, Jain Global Campus, Jakkasandra post, Kanakapura Taluk, 562112, [email protected]. V. Gopalakrishnan, Policy Analyst, ISRO Head Quarters, Antariksh Bhavan, New BEL Road, Bangalore, 560231, [email protected]. The authors are grateful to dr. Murthy Remilla of Isro Satellite Centre, Bangalore for his encouraging support and informative discussions on the subject.

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I.

International Legal Framework for Climate Change

United Nations Framework Convention on Climate Change (UNFCCC, 1992) is a guiding international instrument in the arena of Climate Change, with near universal participation of 196 Parties, with an objective to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.1 It was aimed that such a level should be achieved within a timeframe sufficient to allow ecosystems to adapt to natural climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. The framework encompasses (1) Consideration for special circumstances of Developing Countries to compensate disproportionate or abnormal burdens under the Convention (2) Principle of Precautionary measures to anticipate or prevent or minimize the causes of climate change (3) Commitments on the basis of Common but Differentiated Responsibilities and it calls to promote and co-operate in development, application, diffusion of transfer of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases.2 The aspect of promotion and cooperation is emphasized for scientific, technological, technical, socio-economic and other research, systematic observation and development of data archives related to climate system.3 Also, provisioned is the full, open and prompt exchange of relevant scientific, technological, technical, socio-economic and legal information related climate system and climate change.4 The framework reflects commitment of the developed country Parties and other Parties included in Annex I for adoption of National Policies and taking corresponding measures on the mitigation of climate change by limiting anthropogenic emissions of greenhouse gases.5 Other provisions of the Framework interalia include cooperation in education, training and public Awareness6 and, provisions on adoption of Protocols to the Convention.7 The international response to climate change is captured through a timeline of decisions, action plans adopted at the Conferences of Parties over the years at different venues,8 the most recent of which was the adoption of Paris Agreement on 12 December, 2015 reflecting culmination of the negotiations

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http://newsroom.unfccc.int/about/ last accessed on 07/03/2016. See Articles 3 & 4 of the UNFCC Convention, http://unfccc.int/files/essential_background/background_publications_htmlpdf/applica tion/pdf/conveng.pdf last accessed on 07/03/2016. Ibid., Articles 4.1 (g) and 5. Ibid., Article 4.1 (h). Ibid., Article 4.2 (a). Ibid., Art. 4.1.i, and Art. 6. Ibid., Art. 17. http://unfccc.int/essential_background/items/6031.php last accessed on 07-03-2016.

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under the Adhoc Group on the Durban Platform for Enhanced Action. The Paris agreement reflected commitment of 195 nations to keep global temperature rise well below 2 degrees Celsius above pre-industrial levels by slowing the pace of green gas emissions through national climatic action plans and transparent accounting of climate actions, strengthening adaptation capabilities and support to developing nations.9 It is instructive to see that beginning with 1987 Montreal Protocol on substances that deplete Ozone Layer (preUNFCCC time) there had been progressive movement to galvanize international cooperation and proactive steps for assessing, monitoring and reducing the impacts from the climate change phenomena. The setting up of Intergovernmental Panel on Climate Change (IPCC) by UNEP and WMO in 1998 helped in systematic review of scientific, technical and socio-economic information produced worldwide on a regular basis with international participation. At the risk of being too brief, some important steps, milestones and epochs leading to the latest accomplishment at the Paris Conference is captured as follows: - Kyoto Protocol adopted in 1997 was an initial major step to operationalize the Convention (UNFCCC) and it set binding emission reduction targets, committing industrialized countries to stabilize greenhouse gas emissions and setting a Clean Development mechanism to achieve sustainable development. - The year 2001 saw crossing of several milestones including release of IPCC’s Third Assessment Report. Marrakesh Accords was adopted at the Conference Of Parties 7, detailing rules for implementation of Kyoto Protocol, setting up new funding and planning instruments for adaptation, and establishing a technology transfer framework. - In 2005, Kyoto Protocol entered into force. - Nairobi Work Programme on Adaptation is accepted and agreed in 2006, facilitating and catalysing the development and dissemination of information and knowledge that would inform and support adaptation policies and practices.10 - IPCC’s Fourth Assessment Report released in 2007. Climate science entered into popular consciousness. Bali roadmap was agreed at the Conference of Parties-13, setting in motion a new negotiation process under Adhoc Working Group on Long Term Cooperative Action. - Copenhagen Accord was drafted in 2009. Countries later submitted emissions reductions pledges or mitigation action pledges, all nonbinding.

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http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ last accessed on 08-032016. https://www3.unfccc.int/pls/apex/f?p=333:1:1921002095217007 last accessed on 0703-2016.

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Cancun Agreements drafted and largely accepted in 2010 represented a set of key steps forward in mitigation, adaptation and measures for financial, technology and capacity building support. The Durban Platform for Enhanced Action (2011) was drafted and accepted, marking a turning point in climate change negotiations where all governments committed to a comprehensive plan and recognised the need to draw up the blue print for a fresh universal, legal agreement to deal with climate change beyond 2020.11 The Doha Amendment (2012) to the Kyoto Protocol opened a gateway to greater ambition and action on all levels, and it set a second commitment period from 2013 through 2020. 2013 – Key decisions emerged on further advancing the Durban Platform, the Green Climate Fund and Long-Term Finance, the Warsaw Framework for REDD Plus (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries) and the Warsaw International Mechanism for Loss and Damage. LIMA CALL in 2014 is a notable development and it envisaged the following:12 - Step towards a new 2015 agreement on climate change that will harness actions by all nations with elaboration of the elements of the new agreement planned to be agreed in Paris in late 2015. - Agreed ground rules on how all countries can submit contributions to the new agreement during the first quarter of the following year. - LIMA Call catalysed the parties to work on Intended Nationally Determined Contributions (INDCs) which are designed to form as basis for climate action post 2020. This has potential for significant progress in elevating adaptation onto the same level as action to cut and curb emissions.

II.

Space Technology Inputs for Climate Change Action Needs

Space Technologies aid and offer several advantages in observation and monitoring of Climate Change based on the principle of Remote Sensing, for example in measurement of Greenhouse Gas concentrations through passive remote sensing techniques. Remote Sensing through space based sensors offers unique advantages as the Outer Space providing a vantage point for observing entire globe for climatic change drivers as well as effects. The space based observations overcome the

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limitation of ground observations which are not distributed evenly and hence less supportive to accurate predictions of Global Warming. Along with the observing platforms, the availability of ground systems for data collection, processing and analysis & interpretation aid in converting the data to information leading to better decision making and monitoring of compliance to international standards. Such scientific data will not only help in informed decision making but also assist in actions aiming to monitor the drivers of Climate Change. Applications examples include but not limited to studies on environment and pollution control, forestation studies involving Carbon stock measurements, marine observations, and monitoring of Sea Surface Temperatures. Over the past five decades, there has been continuous advance in space capabilities, which proved to be immensely valuable in our endeavour to understand the natural environment and the impacts of anthropogenic activities. Through observations made from space platforms in near-earth polar and inclined orbits as well as geostationary orbits valuable inputs for Climate change actions could be derived as highlighted in Table 1. Table 1 Inputs for climate change actions No. 1.

Climate Change Action Needs Detection of Changes

Space Technology Input Unique capability for repetitive, well calibrated and consistent global observations on a long term basis Enables verification and validation of theoretical frameworks (observations from space play a complementary role)

2.

Determining causes of climate change

3.

Modelling and predictions

Provides objective data (complementary role)

4.

Assessing impacts

5.

Monitoring policy effectiveness Climate information services

7.

Technical means of compliance verification

Validation through observations from space (for synoptic level, space provides unique capability) Enables verification/ provides rich source of data representing inputs and outcomes Space provides Critical Infrastructure for timely service and global access capability Provides objective data, large coverage on cost effective basis

8.

Sustainable development

Enables Integrated analysis and decision support

6.

The range of spatial, spectral and temporal dimensions of data and information derived from space makes it pertinent that for tackling a problem of global dimension such as climate change, the role of space technology is inalienable.

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III.

International Space Law and the Climate/ Environment Change

It is interesting to examine adequacy or otherwise of the existing International Legal Framework relating to activities in outer space, in particular the provisions of the Outer Space Treaty (1967) vis-a-vis the Climate Change action needs, The key provision of Outer Space Treaty to grant freedom and right of access to all countries without discrimination of any kind and use of outer space for the benefit and in interests of all countries becomes highly relevant for the context of actions to combat the Climate change, particularly for monitoring its state and providing an independent method to assess compliance. The treaty emphasizes international cooperation requiring the States Parties to the treaty to be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space with due regard to corresponding interests of all other States Parties to the Treaty.13 The Treaty also obligates the States Parties to bear international responsibility for the national activities in space irrespective of whether they are carried out by the government agencies or non-government entities under their jurisdiction. Thus many of the provisions in Outer Space are in harmony with goals sought by the international agreements and actions relating to Climate change. In the context of Climate Change, a branch of space activity which is intimately connected is remote sensing from space. However, till now the remote sensing principles14 evolved under the aegis of United Nations Committee on Peaceful Uses of Outer Space (UN COPUOS), is in the nature of soft law and are nonbinding. Among other things, these principles lay emphasis on the following: - ‘Use of Remote sensing from space’ for the purpose of improving natural resources management, land use and the protection of the environment (Principle I); - Consideration for the needs of developing countries (Principle II) in accordance with Art I of Outer Space Treaty (Principle IV); - To promote international cooperation (Principle V); - To provide for establishment and operation of data collecting and storage stations and processing and interpretation facilities (Principle VI); - To promote the protection of Earth’s natural environment (Principle X); - To promote the protection of mankind from natural disasters (Principle XI); - Right of sensed state to access the data on non-discriminatory basis and at reasonable cost (Principle XII).

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, vide STSPACE11E.pdf accessible at http://unoosa.org/pdf/publications/STSPACE11E.pdf, last accessed on 08-03-2016. Principles Relating to Remote Sensing of Earth from Outer Space, See pp. 44-47, United Nations Treaties and Principles on Outer Space, ST/SPACE/11, United Nations, New York, 2002.

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While these principles are highly tuned to the goals of various agreements and initiatives on the Climate Change, in the light of Progress achieved in the field of Climate Change actions, it would augur well to evolve binding principles from currently non binding set of Remote Sensing Principles. This could mainly in the nature of harmonizing diversities of laws and policies in different countries. Another set of Principles relating to outer space having a bearing for Climate Change is UN principles on International Cooperation and access to space benefits,15 which is titled, “Declaration of International Cooperation in the exploration and use of Outer Space for the benefit and in the interest of all states, taking into particular account the needs of developing countries”. Like the other principles, these are also non-binding and are not enforceable. Ensuring the availability of space derived climate data to all countries in a timely manner is quite important in the global context. However, the above provisions of these principles being non binding in nature, their interpretation and implementation by the States vary widely. To help assist meeting various needs of Climate Change actions as detailed in the foregoing section II and effective implementation of international agreements, a multi lateral system of systems is needed to meet the continuity, transparency, reliability and long term sustainability of data and information deliveries. The hitherto existing Principles on Remote Sensing and International Cooperation have to be further elaborated to specifically address the needs of Climate change action programs of international and intergovernmental bodies, national agencies and wherever relevant they have to be translated into legally binding norms. IV.

National/International Space Systems for Climate Observation

Today, there are a host of International Space Systems with a variety of observational capabilities useful for Climate Observation. Some prominent among them can be summarized as below: • NASA’s Cloudsat, GPM, OCO-2, TERRA, TRMM missions; • JAXA, Japan’s Greenhouse Gases Observing satellite (GOSAT); • EUMETSAT’s Meteosat, MetOp, Jason-2 missions; • European Space Agency’s (ESA) ENVISAT-SCIAMACHY payload for observing greenhouse gas; • ESA’s Copernicus Programme (erstwhile GMES), Sentinel-4, 5 and precursor Missions for monitoring atmospheric composition; • ISRO’s Kalpana, Megha tropiques, INSAT-3D Missions; • The Chinese FY séries and the Russian Electro-L.

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Declaration of International Cooperation in the exploration and use of Outer Space for the benefit and in the interest of all states, taking into particular account the needs of developing countries, ST/SPACE/11, United Nations, New York, 2002, pp. 55-56.

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V.

Global Observing System under WMO

World Metrological Organization (WMO) employs the Global Observing System (GOS) for Climate Change studies and monitoring. The GOS provides observations of the state of the atmosphere and ocean surface for the preparation of weather analyses, forecasts, advisories and warnings for climate monitoring and environmental activities. GOS is operated by National Meteorological Services, national or international satellite agencies. Developing the space-segment of the GOS is one of the four main components of WMO Space Programme. This includes planning16 for operational geostationary satellites and low-earth orbit satellites at global level, as developed in consultation among WMO and satellite operators within the Coordination Group for Meteorological Satellites (CGMS). It includes a nominal configuration and a global contingency plan. For such global observations, the nominal constellation of operational geostationary satellites includes minimum of six spacecraft to ensure full coverage from 50°S to 50°N with a zenith angle lower than 70°. In the Low Earth Orbit (LEO) sun-synchronous operational missions, the requirement is for four operational satellites optimally spaced in time, two in morning orbits (am), two in afternoon orbits (pm), and also another two spacecraft as inorbit back-up An overview of space based Global Observing System is presented in Table 2. Table 2 Geostationary satellites Geo Satellite GOES-West (3rd Generation) GOES-East (3rd Generation) METEOSAT (3rd Generation) METEOSAT IO Electro L INSAT 3D FY-4 FY-4 GEO-KOMPSAT HIMAWARI 8

GSO location 135 degrees W 75 degrees W 0 degrees 57.5 degrees E 76 degrees E 82 degrees E 86.5 degrees E 105 degrees E 128 degrees E 140 degrees E

Operated by USA (NOAA) USA (NOAA) EUMETSAT EUMETSAT Russia India China China S. Korea Japan

The non geostationary segment of GOS, in low earth sun synchronous or inclined orbits include satellite missions of several space agencies such as A Train (GCOM-W/ Aqua/ Calipso/ Cloudsat), Meteor, FY-3, S-NPP, METOP, TRMM, Sentinel-3, JASON, PCW (Canada) and Arctica (Russia). WMO has also developed a Vision for the GOS in 2025 that provides a long term goal

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to foster development of GOS and meet the challenges of future weather and climate observation.17 VI.

Global Climate Observing System (GCOS)

GCOS is an internationally coordinated network of observing systems18 and a programme of activities that support and improve the network. Established in 1992 as an outcome of the Second World Climate Conference, it is designed to meet evolving national and international requirements for climate observations. GCOS is a joint undertaking of the World Meteorological Organization (WMO), the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational Scientific and Cultural Organization (UNESCO), the United Nations Environment Programme (UNEP) and the International Council for Science (ICSU). The goals of GCOS include – provision of comprehensive information on the total climate system, involving a multidisciplinary range of physical, chemical and biological properties, and atmospheric, oceanic, hydrological, cryospheric and terrestrial processes. GCOS includes both in-situ and remote sensing components, with its space based components coordinated by the Committee on Earth Observation Satellites (CEOS) and the Coordination Group for Meteorological Satellites (CGMS). As a system of climate-relevant observing systems, it constitutes, in aggregate, the climate observing component of the Global Earth Observation System of Systems (GEOSS). While the Global Observing Systems and GCOS represent enormous progress in the international cooperation and coordination, it is timely to review emerging informational needs out of the latest accomplishments in the Multilateral Agreements on Climate Change and the resultant requirement of Actions at national and international levels. This would take forward the agenda as well as organisational strengthening of global cooperative systems such as GCOS and GEOSS in meeting goals of the Paris Agreement. VII.

Multilevel Framework of Climate Change: Challenges for Law and Policy

Climate Change as a phenomenon is influenced by natural as well as anthropogenic factors and intricately connected with actions at individual, local, national, and international levels cutting across multiple domains of social, cultural, political and economic activities. Hence unitary and prescriptive approaches to deal with the challenges are inadequate. Systems addressing this

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www.wmo.int/pages/prog/sat/globalplanning_en.php accessed on 08-03-2016. https://www.wmo.int/pages/prog/gcos/index.php?name=AboutGCOS last accessed on 08-03-2016.

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challenging frontier should be able to accommodate pluralistic approaches to norms and diverse organisational forms, promoting a learning behaviour. However the unifying thread for all these diverse systems is the supremacy of environmental ethics, which are ultimately in harmony with the well being of human and other species inhabiting our planet and connecting the individual with the collective. With the above backdrop, a multi level framework can be conceptualised for human actions at individual, local, national and international levels as illustrated in the diagram that follows. Economic factors and vulnerability issues are the two key determinants (though not exclusive) for human needs which in turn drive human actions that lead to impacts on climate. These impacts in turn will have feedback effects for human needs. The impacts would also demand Adaptation efforts. The intervention to moderate climate change and their impacts require information derived through observation of essential climate variables and through models and prediction techniques. There are inherent uncertainties in predictions of future climate state and also imperfections in any prescriptive action to change the climatic state and these are to be addressed by precautionary approaches and other political, legal and managerial mechanisms. Climate change actions, particularly the human actions, originate at diverse levels starting from individual to international level and are highly complex to be controlled. The key to effective outcomes are the sound legal and policy environment, coordination among diverse levels of actors and creation of learning systems. While the development and implementation of such a multilevel framework seems ideal to meet the diverse requirements for a comprehensive Climate Change action plans, some challenges are as follows. • Balancing the interests of global, national and sub-national regimes – coordination complexities • Institutional issues on integrating scientific inputs into policy/law, managing uncertainties • Changing influences of state and non-state actors – multiple authorities, interest groups, & diverse silos of policy making organs • Complexity of incentivizing precautionary principle across the board, and accepting diversity of environmental norms even beyond the economic criteria • Education and capacity building in best practices

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Figure 1

Multilevel framework of climate change

In conclusion, the concept of a multi level framework is to recognise inherent multiplicity of actors and systems at different levels of aggregation. There are consequent challenges to address the goal congruence, capacity building, and access to information in support of decision making. Coordination across the multiple levels is the key to success. Thus multilevel framework addresses the fundamental diversities of human needs and motivations, and the role of empowerment through learning process.

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UNITED NATIONS 2015 IISL-ECSL SPACE LAW SYMPOSIUM HELD ON THE OCCASION OF THE 54th SESSION OF THE LEGAL SUBCOMMITTEE OF UNCOPUOS

VIENNA, AUSTRIA SPACE TRAFFIC MANAGEMENT (13 April 2015)

Program of the Symposium International Institute of Space Law (IISL) and European Centre for Space Law (ECSL) SPACE LAW SYMPOSIUM 2015 “Space Traffic Management” Monday, 13 April 2015 15.00 – 18.00h Board Room D Building C Vienna International Centre On the occasion of the 54th Session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space Introduction

Space Traffic Management (STM) is a concept, which emerged in the first decade of this century. The first comprehensive approach was presented in the 2006 study prepared by the International Academy of Astronautics with the involvement of numerous members of the International Institute of Space Law and the European Centre for Space Law. STM provides an approach to enter into, operate in and return from space, safe from any interference. The Symposium provides a status report of the concept of STM and puts it into context of current discussions on the governance and regulation of space activities. It shall discuss the viability of the concept and its potential benefits. The question shall also be raised, when and under which conditions, States might be ready to negotiate a completely new set-up for space activities. The Symposium therefore will cast a look into the future but at the same time respond to regulatory needs of today. Coordination Committee of the Symposium: Joanne Gabrynowicz (Board of Directors, IISL) Corinne Jorgenson (Board of Directors, IILS) Diane Howard (Executive Secretary, IISL) P.J. Blount (Assistant Executive Secretary, IISL) Sergio Marchisio (President, ECSL) Edmond Boulle (Executive Secretary ECSL)

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Programme

Welcome by Chair LSC and Presidents IISL and ECSL Kai-Uwe Schrogl, Tanja Masson-Zwaan, Sergio Marchisio From the 2006 to the 2016 Space Traffic Management Studies of the International Academy of Astronautics Corinne Jorgenson, Advancing Space Rights and Obligations in the International Commons: the case of Outer Space Stephan Hobe, University of Cologne Space Safety and Space Traffic Management Isabelle Rongier, International Association for the Advancement of Space Safety Frequency Management and Space Traffic Management Yvon Henri, International Telecommunication Union Space Traffic Management and the Governance of Space Activities Guoyu Wang, Beijing Institute of Technology/Chatham House ICAO/UNOOSA AeroSpace Symposium – an Inter-Agency Effort on Space Traffic Management Simonetta Di Pippo/Niklas Hedman, OOSA “Roadmap to the Stars” – a Conference Report Diane Howard, Embry-Riddle Aeronautical University Concluding Remarks Tanja Masson-Zwaan, President IISL Sergio Marchisio, President ECSL Kai-Uwe Schrogl, Chair of the Legal Subcommittee of COPUOS

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Report of the Symposium Carol A. Anderson and Mclee Kerolle*

On the first day of the 54th Session of the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space (the Subcommittee), the afternoon session was reserved for the joint Symposium organised by IISL and ECSL on Space Traffic Management (the Symposium). Mr. Kai-Uwe Schrogl in his capacity as the Chair of the Subcommittee opened the Symposium noting that such symposia were not only for information, but were also a source of inspiration for the Subcommittee, before passing the floor to Ms. Tanja Masson-Zwaan, President of IISL. Ms. Masson-Zwaan referred to an earlier IISL/ECSL symposium on Space Traffic Management (or STM), which was held during the 2002 session of the Subcommittee. She also noted that it was 40 years since the Convention on Registration of Objects Launched into Outer Space (Registration Convention) had entered into force. Ms. MassonZwaan further noted that the seminal International Academy of Astronautics (IAA) 2006 study on STM1 was being updated, with results expected for 2016. STM was defined by the IAA in its 2006 study as being “[...] the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference”. Eight speakers were invited to share their thoughts and perspectives of what STM meant to them and how it will develop in future years. Ms MassonZwaan then passed the floor to the first speaker, Mr. Alexander Soucek, Legal Counsel, European Space Agency (ESA), who spoke on behalf of Ms. Corinne Jorgenson, of Advancing Space. He set out his presentation entitled “From the 2006 to 2016 Space Traffic Management Studies of the International Academy of Astronautics”. Mr. Soucek again reiterated the definition of STM as stipulated by the IAA and stated above. Mr. Soucek noted that the IAA does not only look at taking regulatory approaches but also focuses on the technical side. STM is structured by 3 elements: safe access to outer space

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1

At the Symposium, the Rapporteurs were both candidates for the Advanced LLM in Air and Space Law offered by Leiden University’s International Institute of Air and Space Law (IIASL). All references and links are current as at November 2015. The present report has been edited by Rafael Moro-Aguilar, Co-Editor of the IISL Proceedings. “Cosmic Study on Space Traffic Management” edited by Corinne ContantJorgenson, Petr Lála, Kai-Uwe Schrogl (DLR) 2006 at page 10 (2006 Study).

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(i.e. pre-launch and launch), operations in outer space, and return from outer space where “safe” means free from interference. Mr. Soucek reviewed the background to the forthcoming STM Study 20162 and the research carried out since 2006.3 The idea of studying STM dates back to Lubos Perek in the 1980s. Academic research has been extensive on the topic since then, there are public and private institutions working on the concept of STM. An example is the 2011 publication entitled “The need for an integrated regulatory regime for space traffic management: ICAO for space?”4 Mr. Soucek also referred to further activities in this field, specifically ICAO’s5 aim to establish its role at the ICAO/UNOOSA6 AeroSPACE Symposium held in March 2015 at its headquarters in Montreal entitled “Making Civil Space A Reality” as well as set up a learning group for civil space activities. Additionally, there have been regulatory initiatives such as ESA’s Clean Space Initiative.7 As a result of all these academic and diplomatic initiatives, the IAA Cosmic Study on STM is now being updated, and the 2nd edition of the IAA study, entitled “STM: Towards a Roadmap for Implementation” (the 2016 Study), is due to be published in November 2016. Interestingly the Study includes comparative sections in relation to the law of the air, sea and Antarctica. This Study will be a multidisciplinary approach consisting of global participation through contributors and advisers, with 20 contributors from 8 countries. Mr. Soucek took the opportunity to address the academic research that’s occurred since the 2006 Study in relation to the rights and obligations in the international commons with respect to outer space. Mr. Soucek then hypothesized that the current legal regulation for international use of commons and outer space in particular is relatively well prepared, and legally we are on the way to effective STM. Mr. Soucek then reminded the Subcommittee that international commons refer to the commons that can be used and explored by all mankind. Each commons is subject to an international legal regime and while each regime may have similar characteristics they are not the same between commons. For any possible differentiation, it’s crucial to determine whether all States, as with the Law of the Sea, or only a group of States, as with Antarctica, are considered to be guardians for international commons.

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3 4 5 6 7

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See slide 3 of Mr. Soucek’s presentation entitled “From the 2006 to the 2016 Space Traffic Management Studies of the International Academy of Astronautics” which is available here: www.unoosa.org/oosa/en/ourwork/copuos/lsc/2015/symposium.html. See slide 4, Ibid. Jakhu R.S, Sgobba T., Dempsey P.S “The Need for an Integrated Regulatory Regime for Space: ICAO for Space?” (Springer) 2011. International Civil Aviation Organization. United Nations Office for Outer Space Affairs. See ESA’s website for further details: www.esa.int/Our_Activities/Space_Engineering_Technology/Clean_Space.

REPORT OF THE SYMPOSIUM

Mr. Soucek then addressed how the international community has already made outer space into a commons as depicted in Art II8 of the Outer Space Treaty (or OST) and how resources may be appropriated even though territory cannot. In conclusion, Mr. Soucek stated that a new inter-disciplinary approach was the key to STM in the future and as such formed the goal of the 2016 Study. The next speaker to take the floor was Mr. Stephan Hobe of the University of Cologne. Mr. Hobe’s chosen topic was “Rights and obligations in the International Commons: the case of Outer Space”. His first point was to refer to the holistic nature of the international commons9 and stated that the “current legal regulation [...] is well prepared for STM, legally we are very much on the way” in that no further new legislation would be required to facilitate STM in the future. The international legal regime depends on the “space” under discussion and, according to Mr. Hobe, it is questionable as to whether States all have the same levels of rights and obligations. Mr. Hobe also set out the common regulatory elements10 as being (1) territorial, i.e. a flag is not necessarily recognition of territorial gain; (2) military, i.e. that there are different degrees of peaceful uses e.g. Antarctic, outer space; (3) exploration and use; and finally (4) the protection of the environment. In relation to outer space, the legal regime has the following characteristics:11 (a) Freedom of exploration of use and scientific investigation (Article I OST) as the province of all mankind; (b) Prohibition of national appropriation of territory (Article II OST); (c) Peaceful uses (Article IV OST); (d) Environmental regulations (Article IX OST; Articles 4 and 5 of the Moon Agreement;12 NPS Principles13 and Space Debris Mitigation Guidelines14); (e) Telecommunications and the supervisory regime of ITU15 in the allocation of orbital slots free of interference;

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9 10 11 12 13 14

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Article II states “[O]uter space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” See Slide 2 of Mr. Hobe’s presentation in which he lists them as (a) High seas; (b) Deep seabed; (c) Antarctica; and (d) Outer space. See Slide 4 of Hobe’s presentation. Extracted from Hobe’s presentation, slide number 5. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 1979 (Moon Agreement). Principles Relevant to the Use of Nuclear Power Sources, See www.unoosa.org/oosa/en/ourwork/topics/nps.html for further information. Space Debris Mitigation Guidelines of the Subcommittee, See http://orbitaldebris.jsc.nasa.gov/library/Space%20Debris%20Mitigation%20Guidelin es_COPUOS.pdf for a copy. International Telecommunications Union.

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(f) Transparency by way of a system of regulation in the Registration Convention16 (Articles II, III, IV Registration Convention). STM in relation to safety and security must be viewed as multifaceted and the main concerns were to ensure that it remains the province of all mankind, is used peacefully in an ecologically responsible way whilst managing liability, ensuring the application of the due regard principle (Art. IX OST), and establishing a regime, similar to that for Antarctica for non-living resources. According to Mr. Hobe, the existing legislation “anticipates” STM and can serve as guidance for a future STM regulation. The UN has to play an active role in STM, in particular UNCOPUOS and the Subcommittee. Finally, Mr. Hobe also referred to the celebratory seminar to be held at Cologne University on 28 May to commemorate the 90 years since the birth of the Institut für Luft und Weltraumrecht17 and invited participants to attend. The next speaker was Ms. Isabelle Rongier, President of the International Association for the Advancement of Space Safety, who addressed the topic of “Space Safety and Space Traffic Management”. Ms. Rongier started her presentation with some basics stating that the total number of operating satellites in terrestrial orbits was 1,265, and we live in a time where the private sector has launched more satellites than governments. Ms. Rongier depicts examples of what she referred to as an upcoming satellite internet “Gold Rush”. In 1-2 years she stated that there will be more than several thousands of satellites in space due to current plans of prospective constellations, such as SpaceX’s plan to build a 4,000 satellite constellation or STEAM-1’s plan to launch 4,257 satellites in KU-band. As a result, in a few months Ms. Rongier believes that the discussion regarding congestion of GEO orbit will switch to a one on LEO orbit. Ms. Rongier referred to the 2009 collision of what Iridium-Cosmos and that STM requires international cooperation. She also referred to ICAO as a model of international cooperation in its sphere of competence: safety regulation for international aviation. Ms. Rongier highlighted the fact STM consists of safe access into outer space, prevention of collisions in outer space, and the safe return/re-entry from outer space. Furthermore, she emphasized that STM is an important element of space safety because of the risk to public safety that occurs during launch and re-entry as well as the safety risk inherent in human spaceflight. In regards to space safety, the IAASS looks at 6 areas when addressing STM: (1) human

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Convention on Registration of Objects Launched into Outer Space of 1975 (Registration Convention). “Air Law – Space Law – Cyber Law: Looking at 100 years of Air Law and 60 years of Space Law – The Institute of Air and Space Law at Age 90 Years” on 28 May 2018 at the Institut für Luft und Weltraumrecht, Cologne University.

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on-board safety; (2) public safety; (3) environmental protection; (4) ground personnel safety; (5) cosmic threats, and (6) STM. Next, Ms. Rongier discussed space safety as a driver for the development of STM techniques with a brief history of collision avoidance manoeuvres. The arrival of the ISS18 required the development of more precise methods to compute the collision probability, as there are uncertainties for both debris and satellite movements. After the 2009 collision between Iridium 33 and Russian Kosmos 2251, the space community had to take into account the great care needed for maximum predictability. As a result, the U.S. military JSpOC (Joint Space Operations Center) started sending notices of close approaches, called Conjunction Summary Messages (CSM), to satellite operators. CSM are not direct recommendations to perform an avoidance manoeuvre and therefore must be deeply analysed. Satellite operators receiving these CSM must assess the uncertainties and evaluate the risk level and compare it to their own data, among other procedures. This has resulted in the emergence of Middle-Man (MM) public services such as the Space Data Association (SDA) that brings together satellite operators to share more precise data for collision avoidance and prevention of RF interferences. Ms. Rongier then discussed how at the IAASS’19 last conference, part of the discussion focused on the Launch Collision Avoidance (COLA). A launch window is said to have a COLA blackout period when the vehicle trajectory is too close to another object already in space. In the US, a launch is not allowed if the rocket will pass within 200 km of the ISS. This procedure has been used in Europe for the last 4 years. Ms. Rongier then went to describe what is known as the ‘COLA gap’ which was triggered 56 hours after the launch of a GPS IIR-20 satellite which unexpectedly passed within 20 km of the ISS, when there was no data from the JSpOC. As a result, new probabilistic methods are used to compute the trajectory of two bodies so that no problem of collisions will occur during this gap. It is important to note that the Chicago Convention20 does not apply to State Aircraft compared to space objects as regulated by the U.N. Outer Space Treaties21 which were – although now less so – all publicly owned and

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The International Space Station. The International Association for the Advancement of Space Safety, See http://iaass.space-safety.org/ and http://iaassconference2014.space-safety.org/ for a programme overview from the 7th IAASS conference in 2014. Convention on International Civil Aviation signed on 7 December 1944, referred to as Chicago Convention. Specifically the five Space Treaties referred to are (1) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies adopted by the General Assembly in its resolution 2222(XXI) of 19 December 1966 (the Outer Space Treaty or OST); (2) The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space adopted by the General Assembly in its

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financed by governments. According to Ms. Rongier, a working group on STM was required. Ms. Rongier concluded her presentation calling for an organized international cooperation on STM. She reinstated the importance of this because of the several thousands of satellites that might be launched in the upcoming years. Ms. Rongier believes that some of the first steps to extend responsibility internationally to organize STM could be defining borders and interfaces between military and civil/commercial STM, and launching an intergovernmental cooperation between space-faring countries for creating international voluntary STM rules. In addition, the IAASS suggests establishing a working group using ICAO as a model of international cooperation because of their use of technical specifications, called Standards and Recommended Practices (or SARPs), in order to achieve “the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.”

Furthermore, the Chicago Convention does not generate any prerogative, right or obligation for individual nationals of the contracting States but they can also make recommendations for changes to national rules. Following Ms. Rongier, Mr. Yvon Henri of the International Telecommunication Union (ITU) gave a very informative presentation on ITU as an organisation and its potential role in STM. Mr. Henri gave a short overview of the history of the ITU and the process for allocation of frequencies amongst applicants, recalling the ITU’s mission to promote “rational equitable efficient and economical use [...]”. Mr. Henri stated that there is always a trade-off. ITU regulations do not distinguish between civil or state use. Mr. Henri went on to discuss the importance of TTNC,22 i.e. in order to provide a service from space you need these critical operation functions, which make possible the proper management of satellite platforms. Mr. Henri also gave some statistics: there are currently 410 satellites operating in GSO (36,000 km above the surface of the Earth); there are also 40,000 objects (i.e. debris) which con-

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resolution 2345 (XXII) of 19 December 1967 (the Rescue Agreement); (3) The Convention on International Liability for Damage Caused by Space Objects adopted by the General Assembly in its resolution 2777 (XXVI) of 29 November 1971 (the Liability Convention); (4) The Convention on the Registration of Objects Launched into Outer Space adopted by the General Assembly in its resolution 3235 (XXIX) of 12 November 1974 (the Registration Convention); (5) The Agreement on the Activities of States on the Moon and other Celestial Bodies adopted by the General Assembly in its resolution 34/68 of 5 December 1979 (the Moon Agreement). Also commonly known as corpus juris spatialis internationalis. Tracking, timing and network communications.

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tinue to grow. Also, we need to consider other orbits in addition to GSO. Several constellations in low earth orbit are coming, some of them involving hundreds of satellites. We need to be able to operate all of them safely, without intereference not only with space systems but also with ground-based telecommunications systems, With respect to the new and/or upcoming satellite projects – more than 700 to 4,000 satellites which is challenging from several perspectives, manufacturing, launching, how to ensure that they work together and do not interfere with each other? In order to do this, the satellite industry needs to evolve. Smaller satellites (i.e. 150-250 kg which cost US$ 500k or less) are reducing cost and bringing benefit to whole industry although space debris mitigation measures still need to be considered. As far as Mr. Henri is concerned, any STM concept needs to ensure safe operation in GSO or on any orbit and in order to achieve that, the protection of the radio frequency spectrum is paramount. The next speaker to take the floor was Mr. Guoyu Wang23 of the Beijing Institute of Technology and Chatham House, whose topic focused on “Space Traffic Management and the governance of space activities”. Mr. Wong stated that governance of space activities (or GSA) depends on several factors, including the type of system, timelines, and whether an STM regime is necessary and feasible for the governance, including any national regulatory rules. He indicated that the current challenges were: increasing congestion of space, space tourism take-off, space debris removal, moon exploration, and asteroid mining, and that STM is possible at both national and international levels. Mr. Wang stated that STM is conducive to the academic research of GSA. As a result, he informed the Subcommittee that he will be taking a question driven approach which is in the spirit of the purpose of the Symposium. The main questions that Mr. Wang explored were: (1) What is a STM regime? and (2) Whether a STM regime is necessary and feasible for the governance of space activities at this stage? Concerning the first question, Mr. Wang addressed it by presenting sub-questions regarding whether an STM regime should be considered soft law, composed of technical standards, regulatory guidelines, code of conduct or a combination; or would it be considered hard law composed of regulatory rules only or extending to technical standards? In addition, another sub question regarding the nature of a STM regime was whether the vision of a STM regime is one for near term (within 10 years), medium (10-20 years) or long term (20 years or more)? Concerning the second question, Mr. Wang also approached it by asking two subquestions: (1) What are the technical, regulatory, legal and political implications and requirements of STM? And (2) what’s the relationship and interaction between a STM regime and the existing GSA regime?

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Currently writing a PhD at Chatham House.

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Mr. Wang then presented the challenges to GSA which included: the stagnant status of the 5 governing Space Treaties, the rapid development of space technology and non-traditional commercial space activities such as 3d printing in space and asteroid mining, and the insufficiency of national regulatory frameworks to deal with those advancements. When addressing the dimensions of GSA, Mr. Wang posed the question regarding whether governance is more appropriate on a national or international level. Mr. Wang followed up that question by referring to the reciprocity principle which holds that the state who bears responsibility for GSA is the one that has the right to govern its activities, thus the state might be more appropriate. For the international level of governance, Mr. Wang inquired whether there is a relation between a STM regime and the existing international rules and standards. Moreover, he considered whether there is a gap between the rules and standards. Mr. Wang indicated a belief that these questions are important and should be discussed on each level to keep consistency and efficiency. Furthermore, Mr. Wang believes that the technical standards of GSA should be harmonized under one platform and one regime. He highlighted that there is a major gap between the technical and regulatory rules. On the political level, Mr. Wang asked whether an international STM treaty should be established. He continued his question oriented approach by asking to which extent could such a regime be recognized, acceptable and applicable for the majority of space faring states and between space faring states and non-space faring states? He admitted that this is a difficult task to accomplish because it is a political issue. Mr. Wang concluded his presentation by stating that at this stage, it is not necessary or practical to establish a treaty-basis STM regime, due to the technical, legal or regulatory and political concerns. However, referencing the movie Interstellar, Mr. Wang suggested that a possible way forward for GSA is to build up a quintic element space by the strongest will of human being, which is already sanctified in OST: The principle of free exploration and use of outer space and for the benefits and in the interests of all mankind. Following Mr Wang, Ms. Simonetta di Pippo and Mr. Niklas Hedman gave an overview of UNOOSA activities in the realm of STM over the last year. The Joint Symposium between ICAO and UNOOSA held in Montreal in March 2015 had been a great success with over 350 participants. The challenges and opportunities – i.e. more actors in the space arena – will impact implementation of legal instruments in the near future. Ms. di Pippo stated that the objective of the Symposium was to create for the first time a platform for dialogue among stakeholders of both the aviation and the space communities. This goal was clearly met, and the March Symposium focused on commercial space transportation, both orbital and suborbital flights.

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As a result, ICAO and UNOOSA decided to host a follow-up symposium in 2016 and a third event in 2017. Ms. di Pippo reviewed the list of issues as follows: - Interrelationship between developed and developing nations – space agendas are becoming more complex; - Rapid progress needs to be dealt with by the Subcommittee and/or UNOOSA, i.e. confidence building measures and long term sustainability of outer space activities; - Pillars of Symposium – i.e. space tools which are fundamental to development of human society/resources. Ms. di Pippo then passed the floor to her colleague Mr. Hedman who gave an overview of the discussions at the March Symposium, i.e. a review of air /space law and implementation, two themes, uniting community and regulatory perspectives and a concluding session to integrate the two cohesively. Given that the commercial space sector is rapidly growing, from a regulatory perspective, the general observations and requirements of any new regulatory system were reliability, predictability and consistency. In conclusion, Ms. di Pippo stated that the overall benefit had been to create a platform for discussion which had allowed the creation of a Learning Group (jointly led by ICAO and UNOOSA), which is responsible for the preparation of the next meetings. Ms. Masson-Zwaan then introduced Ms. Diane Howard of Embry Riddle Aeronautical University who spoke on the topic of STM and the Roadmap to the Stars, which had been a two-day conference in 2014 hosted by Embry Riddle. Ms. Howard confirmed that all the papers presented at the conference were available on the Embry Riddle website.24 Addressing the 2014 Conference, Ms. Howard said that Embry Riddle made a suitable host because of its campus facilities, which include Commercial Space Operations, Air Traffic Management Meteorology, Aerospace Safety, and Physical Sciences and Space faculties. Ms. Howard laid out the objectives of the conference which was to: bring the space traffic roadmap into focus, identify surfacing issues in STM, provide leadership in planning, and facilitate agreement on the next steps. The conference was unique in which it prioritized initiatives, legal and policy, and space weather in the roadmap sessions along a spectrum of high, mid, and low. In addition, the conference was unique because it was not US centric. Moreover, the panels at the conference were as follows: Air & Space Traffic Integration: Operational Perspectives, Air & Space Traffic Integration: Initiatives, Air & Space Traffic Integration: Legal & Policy Issues, Weather (space and otherwise [...]), Space Situational Awareness. In concluding, Ms. Howard

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See http://commons.erau.edu/stm/2014/ for further information.

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went on to expand on future work which included that the papers are to be made into a digital e-book; further research will be carried out; a new electronic interactive version of the roadmap will be developed; and finally she hopes to increase international participation. Next conference would take place on 11-13 November 2015 at Embry Riddle in Daytona, Florida. Following the presentations, delegates and participants were invited to provide questions and observations to the panel participants and a lively debate ensued. The Chair of the Legal Subcommittee concluded the session by noting that one question had not been posed, namely: why IISL and ECSL were bothering with the STM topic? Mr. Schrogl stated that the debate had demonstrated that STM was not a visionary topic but something that was already relevant today. He further remarked that even those who understand the basics of STM benefit from such presentations which were extremely enlightening, interesting and stimulating. He concluded by stating that the Subcommittee is going to have to think forward and decide what role it wishes to play in the future. End of session. All presentations can be found on the website of UNOOSA.25

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See www.unoosa.org/oosa/en/ourwork/copuos/lsc/2015/symposium.html.

Rights and Obligations in the International Commons The Case of Outer Space Stephan Hobe*

I.

Introduction

In my presentation I will give you an overview on obligations in international common spaces, the so called international commons. Thereby this legal analysis will be viewed in the perspective of Space Traffic Management. As shall be mentioned later space traffic management can be seen as the attempt to regard outer space in a holistic perspective – and we will see that the legal structure of outer space as one of the international commons gives very precise guidelines for such a holistic analysis. According to an IAA study of 2006 Space Traffic Management must be understood as “[...] the set of technical and regulatory provisions for promoting safe access into outer space, operations in outer space and return from outer space to Earth free from physical or radio-frequency interference.”1 My hypothesis is that the current legal regulation for the exploration and use of the international commons in general and for outer space in particular is relatively well prepared for the new concept of space traffic management. II.

The International Commons – A General Description

Only very few spaces of the earth belong to the international common spaces or the international commons. These are areas of the world that like the High Seas, the Deep Seabed, Antarctica and Outer Space are not subject to sovereignty of states.2 Rather, basically through international conventions, those spaces are

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Professor of International Law, Director, Institute of Air and Space Law, University of Cologne. C. Joergensen/P. Lála/K.-U. Schrogl (eds.), Cosmic Study on Space Traffic Management, International Academy of Astronautics (IAA), 2006, available online at: https://iaaweb.org/iaa/Studies/spacetraffic.pdf (last accessed on November 15th 2015). See for a general account on common spaces outside national jurisdiction: R. Wolfrum, “Die Internationalisierung Staatsfreier Räume”, in: Veröffentlichungen des Max-

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designated as common areas which in principle can be used and explored by all mankind. As has been mentioned If one wishes to make a designation those spaces are more or less subject to an international legal regime, i.e. a specific regime designed and agreed at by the international community. This international legal regime has somehow common characteristics but is by no means the same for all commons. It differs from space to space. Thereby it is crucial whether the legal regime treats all countries in an equal way or grants particular rights and obligations to a specific group of states with regard to specific forms of use of these spaces. In other words: for any possible differentiation it is crucial whether all states (Seabed, High Seas and Outer Space) or only a group of states (Antarctica) must be considered to be the guardians for the international common. In the following I shall give an overview on such rights and obligations. This highlights the very fact that even in the international commons there is no lawless room. Rather these spaces are characterized through the granting of specific rights and obligations. Thereby the Law of the Sea Convention of 1982/1994,3 the Antarctic Treaty of 19594 with its Additional Protocol on Environmental Protection5 of 1991 as well as finally the Outer Space Treaty of 19676 and the Moon Agreement of 19797 – all those Agreements are subject to international common regulation. To say it again: the granting of rights and obligations is different from treaty to treaty. This becomes clear if one compares the Law of the Sea Convention, the Antarctic Treaty and the Outer Space Treaty. The Law of the Sea Convention as well as the Outer Space Treaty provide for freedom of exploration and commercial use, whereas the Antarctic Treaty does only guarantee freedom of scientific investigation and no commercial freedom. Any exploration and exploitation activity in Antarctica is prohibited by law (Article 7 of the Protocol on Environmental Protection to the Antarctic Treaty). Opposed to that the Law of the Sea Convention in its Articles 2, 56, 77, 81, 116, 137 pa-

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Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht, Band 85, Berlin/Heidelberg 1984. United Nations Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16 November 1994; 1833 UNTS 3 (referred to hereinafter as ‘UNCLOS’). Antarctic Treaty of 1 December 1959, entered into force 23 June 1961 402 U.N.T.S. 71. Protocol on Environmental Protection to the Antarctic Treaty, adopted on 4 October 1991, entered into force on 14 January 1998. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, open for signatures on 27 January 1967, entered into force on 10 October 1967, 610 U.N.T.S. 205 (referred to hereinafter as ‘Outer Space Treaty’). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, entered into force on 11 July 1984, 1363 U.N.T.S. 3 (referred to hereinafter as ‘Moon Agreement’).

RIGHTS AND OBLIGATIONS IN THE INTERNATIONAL COMMONS

ra. 3 and the Outer Space Treaty in its Article I provide for freedom of exploration and use. This basically means that activities beyond mere exploration, i.e. (commercial) exploitation are allowed in the High Seas, in the Deep Seabed and in Outer Space. However, all these spaces, the High Seas, the Deep Seabed, and particularly Outer Space and the Celestial Bodies are subject to the fundamental rule of non-appropriation.8 The very nature of these spaces is, as mentioned, that they are so-called common spaces. III.

The Distinct Legal Feature of the International Commons

In this respect it is, however, important to distinguish between the appropriation of territory and the appropriation of resources as a consequence of the use of these resources.9 All of the international commons have a regime prohibiting the appropriation of territory – that’s the very essence of their character as common space – no part of the Deep Seabed, or the High Seas, of Outer Space and of the Celestial Bodies may be appropriated and even in Antarctica the respective claims of the specific states are ‘frozen’10 and cannot therefore be effectuated. But – with the exception of Antarctica – none of those spaces especially prohibits the appropriation of resources. Rather, in the Deep Seabed and the High Seas as well as in Outer Space and on Celestial Bodies the use of resources is made subject to a specific legal regime. For this reason we speak of the internationalization of the use of those resources.11 If one wishes to characterize the classic legal feature of the international commons one can observe pretty similar characteristics with regard to the shape of these legal regimes: there are always regulations on exploration, exploitation, military uses and environmental protection. As mentioned there is always a territorial element. All of these spaces are not subject to national appropriation. E.g. the flag on a celestial body as well as on Antarctic ice or on the Deep Seabed are no indication for the international recognition of a territorial gain. Another element which is contained in all of the legal regimes for the international commons is the military element. This is evident for the Antarctic re-

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Art. II OST, Art. 11 Moon Treaty. All international common spaces make such a distinction. The Antarctic Treaty in Art. IV and the Protocol, the UNCLOS in Art. 137 para. 1 for the Area and its resources and for Outer Space we can See this in Art. II OST for the Area and Art. I for the resources as well as in the Moon Agreement in Art. 11 para. 2 for the area and Art 11 paras. 3, 5, 6 and 7 for the resources. Art. IV para. 2 of the Antarctic Treaty. For different forms of realization of the concept of Common Heritage of Mankind See inter alia S. Hobe, Was bleibt von der gemeinsamen Erbe der Menschheit?, in: K. Dicke, S. Hobe, K.-U. Meyn, A. Peters, E. Riedel, H.-J. Schütz, C. Tietje (eds.): Weltinnenrecht, Liber Amicorum Jost Delbrück, 2005, pp. 329-346.

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gion where already according to the Antarctic Treaty no armament may be installed (Art. 1). Moreover, the Law of the Sea Convention contains provisions that prohibit in times of peace the use of armament on the High Seas and in other parts of the Seas as well as on the Deep Seabed.12 The situation in outer space is a bit more complicated. But generally speaking we can distinguish: On the one hand, paragraph 2 of Article IV of the Outer Space Treaty basically prohibits the installation of armaments on celestial bodies. It describes the use of the celestial bodies as “peaceful”.13 And this regime is interpreted by the majority of countries in the sense of “nonaggressive”.14 This allows particularly through the widespread interpretation of Article IV para. 1 of the Outer Space Treaty as prohibiting only the military use of outer space when containing and using a full orbit around the Earth for the use of intercontinental ballistic missiles, a condition of uttermost importance for the dominating superpowers when the Outer Space Treaty was negotiated.15 They both could still use their ICBMs for their deterrence policy. Today the security situation after the end of the duopole situation (USA-USSR) has become much more complicated. But the interpretation stays the same. So certain military uses, including ASAT testing is still permitted although from a space debris point of view the non-legally binding space debris mitigation guidelines try to limit ASAT testing or even prohibit it.16 But one must underline: these guidelines are not legally binding and are not meant to be. There is a third element allowing or respecting partially or totally the exploitation of the resources in situ. In the commons we find different types of legal regulation: a total prohibition of commercial exploitation in Antarctica with the Additional Protocol to the Antarctic Treaty of 199117 on the one hand, and the general permission of economic exploitation of the High Seas and the Deep Seabed in the UNCLOS. Outer Space does not know yet any specific regulation in that the taking of territory is prohibited but no explicit regula-

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UNCLOS Art. 146, 301. On the different military doctrines of States for the use of outer space, See Schrogl/Neumann, Article IV OST, in Hobe/Schmidt-Tedd/Schrogl (eds.), Cologne Commentary on Space Law Vol. 1 (2009), p. 90 et seq. On the US doctrine, See: the White House, National Space Policy of the United States 3 (2010), available at www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf (last accessed on Nov. 15th 2015). See for an illustration W. McDougall, The Heaven and the Earth: A Political History of the Space Age, New York 1985. See Guideline 4 of the – however legally unbinding – UNCOPUOS Space Debris Mitigation Guidelines, endorsed with GA Resolution 62/117 of 22 December 2007. See Art. 7 of the Protocol, ‘Any activity related to mineral resources, other than scientific research, shall be prohibited’.

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tion of the exploitation is made – article 11 of the Moon Agreement contains only rudimentary regulation and postpones this regulation to a date “when commercial exploitation of the Moon and other celestial bodies becomes feasible”.18 Until such legal regime has been agreed at, however, the Moon Agreement prohibits the taking of resources according to Art. 11 para. 3 Moon Agreement. As already mentioned there is a specific legal regime for using the mineral resources of the Deep Seabed that are considered to be the common heritage of mankind.19 In outer space the situation is similar but not equivalent. Exploration and use of outer space is free subject to the clause that they are no national appropriation and that they are the province of all mankind.20 This limitation of the freedom of exploration and use is currently interpreted in a way that outer space legislation prohibits the exclusive use in a sense that not all the benefits may exclusively benefit the exploring and exploiting state. But it must still be worked out how – the Moon Agreement in its Article 11 para. 5 asks for the elaboration of such a specific legal regime for use. Generally there is also an environmental element of different dimensions. Protection of the marine environment is foreseen in the UNCLOS 1982/9421 in the sense that resource mining must not damage the ecological balance as well as fuel spilling in the sea or, as another ecological impediment to exploitation, the eradication of species through fishing must be avoided, the Protocol of 1991 to the Antarctic Treaty prohibits almost any form of commercial exploitation for reasons of environmental safety (see Art. 7 of the Additional Protocol of 1991)22 and space legislation still provides a rather broad, and not very specific kind of regulation generally asking for the taking of care in Art. IX of the Outer Space Treaty23 and a bit more specific in Articles 4 and 7 of the Moon Agreement.24 Moreover, Article III of the Outer Space Treaty allows to have recourse to general international environmental law where one can find some fundamental duties for the preservation of the environmental balance of outer space. This general regulation has meanwhile however been confined by some, however legally non-binding – requirements of the use on nuclear power on board of a satellite25 and for the mitigation of space debris.26

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Art. 11 para. 5 Moon Agreement. Art. 136 UNCLOS. Art. II OST. Supra note 3. Supra note 5. S. Marchisio, Art. IX OST, in: Hobe/Schmidt-Tedd/Schrogl (eds.), Cologne Commentary on Space Law Vol. 1 (2009), marginal notes 23-27, p. 175. See Hobe/Tronchetti, Art. 4 Moon Agreement), pp. 364-368 and S. Freeland, Art. 7 Moon Agreement, pp. 372-377 in: Hobe/Schmidt-Tedd/Schrogl (eds.), Cologne Commentary on Space Law Vol. 2 (2013). Principles Relevant to the Use of Nuclear Power Sources in Outer Space, adopted with UN GA Resolution 47/68 of 14 December 1992.

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IV.

The Legal Regime of Outer Space: Is It Ready for STM?

Coming now exclusively to the status of legislation for outer space, I would first like to underline that the legal regime is in fact making outer space a common space. Article II of the Outer Space Treaty prohibits any appropriation of areas in outer space. That means that no area on celestial bodies can be appropriated. But this does not necessarily mean that it is prohibited to appropriate resources. The Outer Space Treaty as well as the Moon Agreement each possess a distinct legal order for a particular regulation for the exploitation activities. This order is different from the rather strict rules on the non-appropriation of territory as contained in Article II of the Outer Space Treaty and Art. 11 para. 2 of the Moon Agreement.27 Art. 11 para. 7 of the Moon Agreement calls for the adoption of a legal regime for the exploitation of the resources of celestial bodies “as soon as this exploitation is considered to be feasible”. If one wants thus to characterize the legal regime for outer space one can make the following remarks: a) There is freedom of exploration and use as well as of scientific investigation of outer space which may in principle guarantee the transfer of space objects into, from and through outer space for scientific and commercial purposes. b) There is an absolute prohibition of any appropriation of territory. c) The activities in outer space must be peaceful, e.g. at least nonaggressive.28 d) Activities must be undertaken in accordance with international environmental regulations, ie particular care must be taken in case of using nuclear power on board of a satellite and the uttermost must be undertaken for the mitigation of space debris in the process of the design and fabrication of a space object. e) Moreover with regard to the use of telecommunication satellites it is guaranteed through the supervisory legal regime of the International Telecommunication Union that all uses are undertaken free of interference with other possible uses – this is kind of a due regard – consideration that pays respect to possible other users.29 f) Transparency with regard to activities in Outer Space is aimed at through a system of registration provided for in the Registration Convention of

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28 29

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UNCOPUOS Space Debris Mitigation Guidelines, adopted with GA Resolution 62/117 of 22 December 2007. On the non-appropriation principle See: S. Freeland/R. Jakhu, Article II Outer Space Treaty, in: Hobe/Schmidt-Tedd/Schrogl (eds.), Cologne Commentary on Space Law, Vol. 1 (2009), pp. 50-55. Supra note 14. See, for example, Art. 15 of the ITU Radio Regulations 2012.

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1975.30 In principle launching states are requested to furnish information to the Secretary General of the United Nations under Article IV of the Registration Convention and shall help to identify space objects and their missions with regard to the nodal period, apogee and perigee as well as to the function of the object and also concerning such objects that are no longer in orbit. Moreover the – however legally unbinding – Registration Resolution of 200731 is an attempt to sharpen a bit the all to loose obligations which are considerably diluted already in the text of the Registration Convention. g) Finally, space activities shall be “the province of mankind”;32 this is complemented by the characterization of the resources as “the common heritage of mankind”.33 In other words: outer space legislation allows for the exploration and even commercial use under specific conditions which are however not clearly spelled out. This basic description shall now allow for an account how many of the legal requirements for an STM regime are met in current outer space legislation. What consequences can be drawn from this legal situation? Space traffic management is considered to be an approach to realize safety and security in outer space. It looks at outer space as a holistic concept. Space must be viewed as one unit allowing for the transportation of humans, goods and cargo into space, through space and from space, considering thereby global security concerns as well as the security concerns of specific countries and enabling to a sustainable use in the sense of the pristine environment of outer space and on celestial bodies shall be preserved for the use of future generations. STM thus needs transportation rules, safety rules, rules that provide for transparency concerning the existing use of specific orbits, an authority for the implementation of these rules and collision avoidance rules. We will finally look in how far there are already such rules or at least a legal regime directed to the promotion of such rules. What can be seen from our considerations in the previous section already by now is that the use of the international commons in general and the use of outer space in particular provide a kind of legal regulation that addresses these main concerns of the future. 1. Outer space is a medium that allows for transportation as a specific use of outer space “as a province of all mankind”. Thus the transport into

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32 33

Convention on Registration of Objects Launched into Outer Space, entered into force on 15 September 1976, 1023 U.N.T.S. 15. GA Resolution 61/101 from 17 December 2007 on “Recommendations on enhancing the practice of States and intergovernmental organizations in registering space objects”. Art. I para. 1 OST. Art. 11 para. 1 Moon Agreement.

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and from outer space and the presence in outer space are covered by a regime of freedom but this freedom may be used in a responsible way taking into account the interest of other states. This sense of responsibility is expressed in a threefold legal way: Resources in outer space can be used in a way that is also beneficial to humankind – but so far there is no strict limitation to the use of these resources and it remains to be seen whether in the future such limitations will be contained in specific legal regimes. Moreover the use must be peaceful and with due regard to ecological and user interests of others. 2. Outer space may thus be used only for peaceful purposes. Thereby it is clear that none of the celestial bodies including asteroids may be used for the placement of arms. It seems also to be clear that other security concerns are taking care of the space legislation as explained above. 3. Moreover outer space can only be used in an ecologically responsible way. This is probably the area which is mostly left open for future discussion. The rather broad current legislation in the Outer Space Treaty and the Moon Agreement has been enriched through nonbinding normative pieces in the form of a UNGA resolution on the Use of Nuclear Power Sources and the Space Debris Mitigation Guidelines which were endorsed by the UN General Assembly calling each for a responsible use of outer space. So any transportation into, from and through outer space shall be undertaken with what in the language of aviation law would be called safe vehicles, i.e. under close observation of the safety concerns. Current safety regulation is good but not yet enough: it is questionable whether the rules on the registration of space objects, in particular those which demand the transmission of orbital parameters to the UN Secretary General are sufficient in order to safeguard the possibility of transparency with regard to space objects, in respect of the exact location and approximate duration of the mission. Compared to Air Traffic Control, the necessary constant tracking and readjustment through airspace from the Earth as a legal requirement for the conduct of space objects is still at the beginning. And most importantly: the entire obligation insofar weakened in that it is made practically a decision at the discretion of the launching state when it will furnish what kind of information. With all this justified criticism it should however not be forgotten that with regard to the use of certain telecommunication satellites the legal element of due regard to the interests of other users is already introduced into the legal regime for the use of outer space. 4. Finally, as to the form of use of non-living resources in outer space as one possible activity of the future other important questions must still be answered. Shall it in the future be permitted to use non-living, e.g. mineral resources of the celestial bodies, perhaps combined with very strict accompanying environmental duties? Or will mankind follow the concept

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of Antarctica and claim for a preservation of the resources of outer space in the future? This is the case for an international legal regime for the exploitation of such resources on celestial bodies that Art. 11 of the Moon Agreement anticipates. V.

Conclusion

We can see that the currently existing legal framework for human activities into and in outer space is relatively well equipped and thus fits well into the concept of space traffic management. One can even go so far to say that this legislation anticipates more or less this concept and thus asks for its realization rather sooner than later. This will, however, demand still a lot of work to be done, thereby requiring an active role of the United Nations in general and of its Committee on the Peaceful Uses of Outer Space – with its Legal and Scientific Subcommittees – in particular.

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10th EILENE M. GALLOWAY SYMPOSIUM ON CRITICAL ISSUES IN SPACE LAW, WASHINGTON D.C., UNITED STATES THROUGH THE LOOKING-GLASS OF TIME: WHAT HAS BEEN ACHIEVED AND WHERE IT LEADS (December 2015)

Program of the Symposium 8:30-9:00

Registration and Coffee

9:00-9:15

Welcome and Introduction • •

9:15-9:35

Opening Keynote •

9:35-10:50

Dennis Burnett, Treasurer, International Institute of Space Law Message from Jonathan Galloway, Honorary Director, International Institute of Space Law delivered by Marcia Smith

Representative Brian Babin, Chairman, Space Subcommittee, House Science, Space, and Technology Committee

Space Technology Moderators:

Chris Hearsey, Counsel, Bigelow Aerospace Clay Mowry, President, Arianespace, Inc.

Panelists: • Dr. Jay Falker, Early Stage Portfolio Executive, Space Technology, NASA HQ • Kevin O’Connell, President and CEO, Innovative Analytics • Brian Weeden, Secure World Foundation 10:50-11:05

Break

11:05-12:20

Business Models, Finance & Risk Management Moderators:

Maury Mechanick, Counsel, White & Case Franceska Schroeder, Principal, Fish & Richardson P.C.

Panelists: • Demitrius Anthony, Associate General Counsel, DigitalGlobe, Inc.

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• • 12:20-1:30

Lunch and Keynote •

1:40-2:00

Sumara Thompson-King, General Counsel, National Aeronautics and Space Administration

Afternoon Keynote •

2:00-3:15

Carissa Christensen, Managing Partner, The Tauri Group Chris Kunstadter, Senior Vice President, XL Group

Doug Loverro, Deputy Assistant Secretary for Space Policy, U.S. Department of Defense

Space Policy Moderators:

Dr. Scott Pace, Director, Space Policy Institute, George Washington University Marcia Smith, Editor, SpacePolicyOnline.com and President of Space and Technology Policy Group, LLC

Panelists: • Nicholas Cummings, Senate Commerce, Science, and Transportation Committee, Ranking Member Bill Nelson • Tom Hammond, Staff Director, Space Subcommittee, House Committee on Science, Space and Technology • Doug Loverro, Deputy Assistant Secretary for Space Policy, U.S. Department of Defense • Benjamin Roberts, Assistant Director, Civil and Commercial Space, White House Office of Science and Technology Policy 3:15-3:30

Break

3:30-4:45

Frequency Spectrum & Regulatory Challenges Moderators:

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Peter Marquez, Vice President, Global Engagement, Planetary Resources Inc. Matthew Schaefer, Professor and Director, Space Cyber and Telecommunications LLM Program, University of Nebraska

PROGRAM OF THE SYMPOSIUM

Panelists: • Anthony Dearth, Director of Licensing, Directorate Defense Trade Controls, Department of State • Don Jansky, President, Jansky-Barmat Telecommunications, Inc. • Laura Montgomery, Manager, Space Law Branch, Office of the Chief Counsel, Federal Aviation Administration, Department of Transportation • Glenn Tallia, Chief, Weather Satellites and Research Section, Office of General Counsel, National Oceanic and Atmospheric Administration, Department of Commerce • Julie Zoller, Senior Deputy Coordinator of the Office of Multilateral Affairs, Communications and Information Policy Directorate, Economics and Business Affairs Bureau 4:45-5:00

Closing •

Tanja Masson-Zwaan, President, International Institute of Space Law

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Report of the Symposium P.J. Blount*

The International Institute of Space Law held the 10th Annual Eilene M. Galloway Symposium on Critical Issues in Space Law on December 9, 2015 at the Cosmos Club in Washington, D.C. The theme of the decennial installment of the symposium was fittingly “Through the Looking-Glass of Time: What has been Achieved and Where it Leads,” and the symposium was used to reflect on the near past of space law as well as its immediate future. The symposium spent the day exploring the dynamism over time in the development of space law. The morning sessions of the symposium framed this theme of past and future through a variety of perspectives. The symposium started with a tribute to the conference’s namesake, Eilene M. Galloway. Marcia Smith (Editor, SpacePolicyOnline.com & President, Space and Technology Policy Group, LLC) gave a brief biographical sketch and read a statement from Jonathan Galloway (Honorary Director, International Institute of Space Law), Eilene Galloway’s son. Both Smith’s and Galloway’s remarks emphasized Eilene Galloway’s historical work in helping to establish and maintain the use and exploration of space for peaceful purposes. They emphasized that Eilene Galloway was a visionary thinker who was concerned with the future of human exploration and innovation in space. Smith stated that Eilene Galloway’s work was “[a]s timely today as it was then.” Jonathan Galloway noted that his mother would have approved of the forward-looking nature of the 10th Symposium because of its focus on innovation and opportunity. EIlene Galloway, he said, “would hope that outer space would witness the evolution of cooperation, incrementally and pragmatically, and, despite setbacks and problems our frontiers in space are still filled with amazing opportunities that can supplant conflict and zero-sum thinking.” The first keynote speaker of the day turned the symposium’s attention away from history and to the present and future. Representative Brian Babin (Chairman of the Space Subcommittee of the House of Representatives Science, Space, and Technology Committee) gave the opening keynote which addressed a major topic for the day, the recently passed U.S. Commercial Space Launch Competitiveness Act (CSLCA).1 His comments reflected on each of

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University of Mississippi, USA, [email protected]. U.S. Commercial Space Launch Competitiveness Act, Public Law 114-90 (2015).

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the four titles of the new legislation: I. Spurring Private Aerospace Competitiveness and Entrepreneurship; II. Commercial Remote Sensing; III. Office of Space Commerce; and IV. Space Resource Exploration and Utilization. Chairman Babin stated that one of the goals of the act – and of the future regulation that the act contemplates through its extensive reporting requirements – was to “unburden” private industry through clear regulations that allow the industry to innovate. He said that the government must not lose sight of its duty to protect the public but that it should also try to “facilitate innovation.” Finally, Chairman Babin noted that he felt there is still a great deal to be done in the future for space regulation including ensuring that the United States complied with its Article VI obligations as new technologies emerge. Chairman Babin’s remarks highlighted the role innovation plays in changing legislation. The first panel of the day further investigated the dynamic technologies that are at the heart of this process. The panel was moderated by Chris Hearsey (Counsel, Bigelow Aerospace) and Clay Mowry (President, Arianespace, Inc.). Each of the panelists highlighted the legal and policy challenges of space technology. Kevin O’Connell (President and CEO, Innovative Analytics) spoke first on innovation in the remote sensing field. He stated that remote sensing is an example of a clear path to commercialization, and that the law and policy in that field was being driven by the fact that remote sensing is a single component of “an emerging global geospatial ecosystem.” He also stressed the need to view commercial remote sensing as information capability, rather than as aerospace technology. The next speaker, Brian Weeden (Secure World Foundation), discussed the technology of space situational awareness, on orbit servicing and active debris removal – in that order, indicating the current level of progress in decreasing order. He noted that there has been a “shift in thinking from satellites as static investments to dynamic investments.” This shift is pushing operators to be more data driven and opening commercial opportunities for extending operations. The panel was rounded off by Jay Falker (Early Stage Portfolio Executive, Space Technology, NASA HQ), who discussed visionary technologies such as long-term habitations in space. He stated that NASA supports commercial actors in innovative projects, and that many of these projects would be the disruptive technologies pushing law in policy in the future. The second panel, titled “Business Models, Finance & Risk Management,” was moderated by Maury Mechanick (Counsel, White & Case) and Franceska Schroeder (Principal, Fish & Richardson, P.C.). If the first panel served to show the possibilities of space technologies, the second looked at questions of why, commercially speaking, a private actor would engage in these possibilities. The panel was held in a round robin format with panelists Demitrius Anthony (Associate General Counsel, DigitalGlobe, Inc.), Carissa Christensen (Managing Partner, The Tauri Group), and Chris Kunstadter (Senior Vice President, XL Group) each highlighting different aspects of fu-

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ture space business models. Christensen discussed the effects of venture capital in the space industry and the limits on its ability to fund startups in space, although venture capitalists are attracted to this business because of the promise of large returns and large growth. Christensen noted that the valuations of many start-ups were exaggerated. Anthony, on the other hand, discussed the government as a partner and customer through the perspective of remote sensing. He noted that the government was key in commercialization of the remote sensing industry, as a regulator and as a customer of the industry’s data (through advance contracting, which allowed financing of the spacecraft). Finally, Kunstadter discussed how to manage risk from an insurance perspective. He stated that insurance companies could improve their risk management practices by being less “reactive” and more “proactive.” In the next five years, all launch vehicles would be replaced by new ones, and the satellite manufacturing market is changing as well, from five or six Western manufacturers of large satellites to dozens of new ones worldwide. Hence, insurers need to “get smart on technology”. The lunchtime keynote speaker was Sumara Thompson-King (General Counsel, NASA). She began her talk with a discussion of the evolution of the National Aeronautics and Space Act (Space Act).2 She noted specifically, that the Space Act was amended in 1985 to provide for NASA’s support of commercial activities. She then highlighted the role that NASA’s “other transactions authority” plays in fostering commercial innovation through programs such as the Commercial Orbital Transportation System and Commercial Crew programs. She stated that the emphasis on developing commercial transportation systems for low earth orbit would allow NASA to focus on its mission to explore space beyond low earth orbit. Lunch was followed by an afternoon keynote by Doug Loverro (Deputy Assistant Secretary for Space Policy, U.S. Department of Defense). He emphasized the role of cooperation and coordination in creating opportunities as new actors, both state and non-state become stakeholders in space activities. He noted that these opportunities came with many challenges, a primary one being how to understand the role of entrepreneurship and innovation in space within the framework of national security. Loverro stated that we are seeing a renaissance in space business and that the national security community must be prepared to address both the risks and opportunities that these actors present. The first afternoon panel was titled “Space Policy,” and was moderated by Scott Pace (Director, Space Policy Institute, George Washington University) and Marcia Smith. The policy panel focused specifically on the CSLCA from

______ 2

National Aeronautics and Space Act of 1958, Pub.L. 85-568 as amended.

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a policy perspective.3 Each panelist highlighted the political negotiation that accompanied the bill. Nicholas Cumming (Senate Commerce, Science, and Transportation Committee, Ranking Member Bill Nelson) stated that the final act represented the voices of many stakeholders. Tom Hammond (Staff Director, Space Subcommittee, House Committee on Science, Space and Technology) noted that it is a substantial bill, but that there is still a great deal to do. He highlighted that the reporting requirements in the bill are forward looking to facilitate future regulation. Finally Benjamin Roberts (Assistant Director, Civil and Commercial Space, White House Office of Science and Technology Policy) discussed how the future regulation contemplated in the reporting requirements needs to contemplate new technologies to avoid “legal gray areas” and ensure that the United States complies with international obligations. The final panel of the day served as a fitting capstone to the other panels. The panel, moderated by Peter Marquez (Vice President, Global Engagement, Planetary Resources, Inc.) and Matthew Schaefer (Professor and Director, Space Cyber and Telecommunications LLM Program, University of Nebraska), addressed “Frequency Spectrum & Regulatory Challenges.” The earlier panels focused on the dynamism found in technology, in the commercial market, and in law and policy. The final panel investigated how regulators meet the challenges presented by these dynamics. In particular, this panel focused on the interface between commercial interests and the goals of the regulator. First, Glenn Tallia (Chief, Weather Satellites and Research Section, Office of General Counsel) discussed the National Atmospheric and Oceanic Administration draft Commercial Space Policy. He stated that one of the key goals of this policy is to address the “dynamic tension” between full and open access to NOAA data and downstream commercial opportunity. Next, Laura Montgomery (Manager, Space Law Branch, Office of the Chief Counsel, Federal Aviation Administration, Department of Commerce) noted the specific example of the “government astronaut” definition in the new CSLCA. She stated that this solved a specific problem presented by the government procurement of commercial human space transportation. Anthony Dearth (Director of Licensing, Directorate of Defense Trade Controls) discussed the export control reform process that lead to changes in the International Traffic in Arms Regulations (ITAR) last year. He noted that this reform was progress but that it did not deal with the larger problem of keeping ITAR “dynamic enough” to keep pace with innovation. Finally, Julie Zoller (Senior Policy Directorate, Economics and Business Affairs Bureau) and Don Jansky (President, Jansky-Barmat Telecommunications, Inc.) discussed the

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Doug Loverro also participated on this panel but chose not to make opening remarks in light of his preceding keynote.

REPORT OF THE SYMPOSIUM

issue of spectrum allocation and how rapid innovation is outpacing regulators at both the national and international levels. The day was concluded by Tanja Masson-Zwaan (President, International Institute of Space Law). Her comments highlighted the importance of international cooperation, stating that “we must build awareness that law has a role to play.” These remarks drew a fitting close to the 10th Galloway Symposium by reflecting the visionary spirit of Eilene M. Galloway and her vision of law as a mechanism to facilitate future opportunities in space. The 10th Annual Galloway Symposium on Critical Issues in Space Law was made possible by the generous support of Arianespace, Fish & Richardson, Planetary Resources, Moon Express, Nebraska College of Law, and the AIAA Legal Subcommittee. The IISL extends its gratitude Dennis Burnett whose leadership was instrumental in organizing the Galloway Symposium. Additionally, the IISL would like to thank those that assisted in making the symposium a success: Michael Mineiro, Nathan Johnson, Amber Charlesworth, Franceska Schroeder, James Rendelman, Marcia Smith, Matthew Schaefer, Clay Mowry, Chris Hearsey, Maury Mechanik, Scott Pace, Peter Marquez, Diane Howard, and P.J. Blount.

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Excerpts from and Expansion of Luncheon Keynote Sumara M. Thompson-King*

Thank you to the International Institute of Space Law for sponsoring this annual symposium which provides a forum to discuss critical issues of space law.1 I am honored to have this opportunity to speak at the 10th Annual Eilene M. Galloway Symposium and I extend a special thanks to Dennis Burnett, the Treasurer of the International Institute of Space Law for inviting me to speak today. I love to talk about the National Aeronautics and Space Act of 1958, how it’s changed over time to expand and support NASA’s mission. I’m struck by how appropriate it is to have this conversation at a symposium memorializing one of the key authors of the 1958 Space Act. I love to talk about it because of the marvelous vision contained in the 1958 Space Act and how for almost 60 years, the Space Act has provided the foundation for NASA’s achievements in civil space and aviation, including in aeronautics, human space exploration and operations, science, and space technology. At the same time, the Space Act has proven to be a living document; amended as needed to support and change NASA’s roles and missions. Today, I want to focus on two features of the Space Act: its direction to engage in “a program of international cooperation” which was an integral element of the 1958 vision and the more recent requirement “to seek and encourage, to the maximum extent possible, the fullest commercial use of space,” which expanded that original vision. So through the looking glass of time, let me highlight what NASA has achieved in these two areas and how those achievements have led the way to where NASA is going – our Journey to Mars.

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General Counsel, National Aeronautics and Space Administration. The 2015 Symposium was made possible by the support of Arianespace Inc., Fish and Richardson P.C., Planetary Resources, Moon Express, the University of Nebraska College of Law and the cooperation of the American Institute of Aeronautics and Astronautics.

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International cooperation has been a component of the Space Act since its inception. Section 102 of the 1958 Space Act, recodified as 51 section 20102(d)(7), provides that one of the 1958 Act’s objectives is “[c]ooperation by the United States with other nations and groups of nations in work done pursuant to [the Space Act] and in the peaceful application of the results thereof.” Section 205 of the 1958 Space Act, now codified in Title 51, section 20115 (International Cooperation), provides that: “The Administration, under the foreign policy guidance of the President, may engage in a program of international cooperation in work done pursuant to this Act, and in the peaceful application of the results thereof, pursuant to agreements made by the President with the advice and consent of the Senate.”2

Including in the legislation (which had strong bipartisan support) language specifically addressing and encouraging international cooperation showing remarkable foresight for the time. With the support of President Eisenhower and the rest of the Executive branch, NASA began cooperation with foreign partners, which has continued to grow to over 500 active agreements today. The Administrator is further authorized to develop and conduct appropriate international collaborations. Think about the time preceding the passage of the Space Act: in 1957, the Soviet Union launched Sputnik which immediately started the “space race” between the Soviet Union and the United States. Moreover, political and military tensions between the Western Bloc (the United States, its NATO allies, and others) and powers in the Eastern Bloc (the Soviet Union and its allies in the Warsaw Pact) were high. Since enactment of the 1958 Space Act, NASA has been utilizing a broad range of cooperation mechanisms with international partners in a diverse portfolio of civil and commercial space activities. Arguably, NASA’s most significant international collaboration to date is the International Space Station (ISS). The ISS is the most politically and operationally complex space exploration program undertaken to date. The 1998 Agreement among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station

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In President Eisenhower’s signing statement, he wrote: “I regard this section merely as recognizing that international treaties may be made in this field, and as not precluding, in appropriate cases, less formal arrangements for cooperation. To construe the section otherwise would raise substantial constitutional questions.” This signing statement provided a broad framework for NASA to use developing and solidifying international partnerships in conducting space activities.

EXCERPTS FROM AND EXPANSION OF LUNCHEON KEYNOTE

is the foundational agreement underpinning the ISS. The international partnership of space agencies of the United States (NASA), Russia (Roscosmos3), Europe (ESA), Japan (JAXA), and Canada (CSA) provides and operates the elements of the station. Forging this cooperation had and continues to have its challenges within the United States Government. For example, obtaining funding the ISS development during the 1990’s involved spirited interactions among United States Government stakeholders; you may recall in 1993, a bill appropriating necessary funds for the ISS program passed by just one vote in the House of Representatives. So the challenges within the United States that NASA has been facing regarding the ISS recently are not new. Through all of NASA’s domestic challenges, the international partnership has moved forward. The international Partners agreed to extend the ISS through 2020. Utilization of the ISS has increased substantially. In sum, ISS is an extraordinary international achievement. NASA engages in a diverse portfolio of civil and commercial space activities. We use a range of cooperation mechanisms to engage in these activities with international partners. For example we have bilateral agreements binding under international or U.S. law with many space agencies and other foreign partners regarding, for example, cooperation in earth science, observations and monitoring, space sciences, human space flight, and human and robotic exploration through activities on space and earth, exchanges of scientific data, earth and space applications, and education and public outreach activities. For example, we participate fully in many multilateral space policy and technical fora not established through binding agreements, such as the Committee on Earth Observation Satellites, the Group on Earth Observations, the Coordination Group for Meteorological Satellites, the International Space Exploration Coordination Group, and the International Space Exploration Forum. NASA is pleased that the Commercial Space Launch Competitiveness Act of 2015 (CSLCA),4 signed by the President last year supports the transportation of NASA and International Partner astronauts on commercial vehicles by including a definition of “Government Astronaut.” This definition ensures that NASA and International Partner astronauts flying to the ISS on commercial vehicles licensed by the FAA are provided the full protections that the United States is required to provide under the ISS international agreements. This ensures that NASA’s use of FAA-licensed commercial space capabilities for crew transportation will enable the continuation of important scientific and exploration research on the ISS, will provide support for the commercial ac-

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4

See Russian Federation Federal Law on the Space State Corporation Roscosmos approved by the President of the Russian Federation on July 13, 2015 and Decree No. 666 of the President of the Russian Federation on the Abolition of the Federal Space Agency, signed December 28, 2015. Pub. L. No. 114-90 (November 25, 2015).

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tivities of the ISS National Laboratory, and will ensure stability for the continued development and growth of the US commercial space sector. Which gives me the perfect transition to my next topic. While the Space Act of 1958 specifically addressed international cooperation, it did not specifically address the commercial use of space. The National Aeronautics and Space Administration Authorization Act of 19855 amended the Space Act with the following provision: “The Congress declares that the general welfare of the United States requires that the National Aeronautics and Space Administration (as established by title II of this Act) seek and encourage, to the maximum extent possible, the fullest commercial use of space.”

The United States Congress continued to expand NASA’s engagement with the commercial space sector. Beginning with the 2005 NASA Authorization Act6 and the advent of the Vision for Space Exploration, Congress directed NASA to work closely with the private sector by encouraging the work of entrepreneurs seeking to develop new means to launch satellites or payloads for commercial purposes and entrepreneurs seeking to develop new capabilities for transporting crew and cargo to and from the ISS. Such support continued with NASA’s 2008 Authorization Act7 which recognized the ability of the commercial sector to provide on-orbit services, expressed its continued approval of NASA’s progress in these areas and “encourage[d] NASA to look for such service opportunities and, to the maximum extent practicable, make use of the commercial sector to provide [such] services.” In order to support commercial capabilities,8 NASA proposed to invest in the development of new capabilities and committed itself to using such capabilities to meet its own requirements when they came online. The Commercial Orbital Transportation Services (COTS) was intended to encourage the commercial sector to develop, build, and operate their own transportation systems, and to successfully demonstrate the ability to commercially deliver cargo to low-Earth orbit. NASA initiated a competition to select commercial partners that NASA would fund. NASA implemented these partnerships through agreements using NASA authority under the Space Act (often referred to as “other transactions” authority) to award Funded Space Act Agreements (FSAA). Under these agreements, NASA provided some funding

______ 5 6 7 8

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Pub. L. 98-361 (July 16, 1984), recodified as 51 USC 20102(c). Pub. L. 109-155 (December 30 2005). Pub. L.110-422, Sec. 902 (October 15, 2008). Continuing the theme of developing the commercial space sector, NASA’s 2010 Authorization Act, Pub. L.111-267 (October 11, 2010), directed NASA to continue to support COTS and formally authorized a “Commercial Crew Development Program” using funded SAAs to support the development of commercial capabilities.

EXCERPTS FROM AND EXPANSION OF LUNCHEON KEYNOTE

to our commercial partners and the commercial partners were required to make significant investments of their own financial resources as well. NASA now uses commercial providers, selected competitively, for NASA needs under the Commercial Re-supply Services (CRS) contracts. After the Space Shuttle retired, NASA had a continuing need for delivery of cargo to ISS. U.S. law required NASA to use procurement contracts to acquire cargo transportation services because the services fulfilled a government need. As a result, NASA used procurement contracts to obtain cargo transportation services from commercial providers. NASA used the same model to foster the development of commercial crew transportation services. First by working with systems developers and potential service providers as partners under competitively-awarded FSAAs and now working together under our competitively-awarded Commercial Crew Transportation Capability (CCtCap) contracts, which will allow NASA to certify crew transportation services which will meet our needs for transporting both NASA and International Partner astronauts to the ISS. NASA’s Journey to Mars also anticipates a close relationship between NASA and its commercial partners and suppliers. As a result, support for commercial spaceflight and support of commercial activities in low-Earth orbit are not separate from Journey to Mars. They are key components of that Journey. The focus of NASA’s own space vehicle development efforts presently is devoted to exploration beyond low-Earth orbit (Space Launch Services (SLS) and the Multipurpose Crew Vehicle (Orion)). However, both NASA and the commercial sector will still need access to low-Earth orbit while NASA pursues its larger Mars efforts. Therefore, it is imperative that U.S. domestic industry include commercial providers with the capability to provide transportation from Earth to low-Earth orbit to meet governmental and private sector needs. NASA will also need commercial providers who can offer on-orbit accommodations to support exploration research and commercial utilization after the ISS is retired. NASA will stay in low-Earth orbit, but will be a user of services provided by the commercial sector and will no longer be a provider of those services. Ladies and Gentlemen, thank you for your attention. I would be pleased to answer any questions you may have.

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24th MANFRED LACHS SPACE LAW MOOT COURT COMPETITION

The 2015 Manfred Lachs Space Law Moot Court Competition Case Concerning Planetary Defense SPIDR v URA

PART A: INTRODUCTION

The 24rd World Final of the Manfred Lachs Space Law Moot Court Competition took place in Jerusalem, Israel, on Thursday, 15 October, 2015, at the Crown Plaza Hotel. This event was produced within the framework of the 58th IISL Colloquium on Space Law in conjunction with the 66th International Astronautical Congress. The 2015 Moot Problem Case Concerning Planetary Defense (SPIDR v. URA) was written by Prof. Dr. Frans G. von der Dunk (The Netherlands) and Leslie I. Tennen, Esq. (United States). There were national funding rounds in China (12 teams) and India (13 teams). China Institute of Space Law financed the champion team members to attend the 2015 Asia Pacific Regional in Bandung, Indonesia. Correspondingly, the India Space Research Organization financed the winner of the India National Funding Round to attend the Asia Pacific Regional. Sixty one teams from around the world registered for the Manfred Lachs Competition and submitted memorials. More than 150 persons judged memorials and/or oral pleadings and many more were involved in logistics and sponsoring. Two Semi-Finals took place in parallel sessions on 13 October, 2015. The winner teams of each semi-final proceeded to compete in the World Final, which was judged by Judges Peter Tomka, Dalveer Bhandari and Kirill Gevorgian, from the International Court of Justice. The IISL’s Moot Court Committee expresses its gratitude to the following persons that helped with the local organization of this event and the IISL Dinner:

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Sponsors The following organizations kindly sponsored the World Finals’ teams:

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North American Finalist sponsor: Secure World Foundation (SWF) Asia Pacific Finalist sponsor: Japan Aerospace Exploration Agency (JAXA) European Finalist sponsor: European Centre for Space Law, ECSL/ESA African Finalist sponsor: Individual Donations from IISL Members

The following organizations kindly sponsored the IISL Annual Awards Dinner and the Moot Court Competition:

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ESA Excalibur-Almaz Ltd. Heinlein Prize Trust IAF Matthew & Lee Love Foundation Sterns & Tennen

Book donations and brochure design:

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Martinus Nijhoff Publishers Eleven International Publishing South African Space Association

Individual sponsors:

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Dr. Dennis Burnett Ms. Axelle Cartier Dr. Diane Howard Ms. Marta Gaggero Ms. Kimi Ide Foster Ms. Justine Limpitlaw Mr. George Long (Esq.) Ms. Tanja Masson-Zwaan Mr. Maury Mechanick Dr. Martha Mejía-Kaiser Dr. Peter Nesgos Dr. Kai-Uwe Schrogl Ms. Marcia Smith Dr. Milton ‘Skip’ Smith H.E. Judge V.S. Vereshchetin

The IISL is most grateful to all these generous sponsors.

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The Moot Court Committee is also thankful to all its members for their voluntary work through the year:

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Dr. Martha Mejía-Kaiser (Mexico/Germany), Co-Chair Ms. Melissa K. Force Esq. (US), Co-Chair Mr. Les Tennen (Esq.) (US), Co-Chair Adv. Lulu Makapela (South Africa), Regional Organizer for Africa Ms. Siti Noor Malia Putri (Indonesia), Regional Organizer for Asia Pacific Dr. Milton S. ‘Skip’ Smith (US), Regional Organizer for North America, through March, 2015 Prof. Sergio Marchisio, ECSL Chairman, Regional Organization for Europe Ms. Maria-Vittoria ‘Giugi’ Carminati Esq. (US/Italy), Regional Organizer for North America, from April, 2015 Mr. V. Gopalakrishnan (India), Associate Regional Organizer for Asia Pacific Mr. Christopher D. Johnson Esq. (US/UK) to April, 2015 Mr. Nathan Johnson (US) Ms. Sara Langston Esq. (US/Italy) Mr. James D. Rendleman Esq. (US) Dr. Zhenjun Zhang (China)

World Finals Winner of World Finals / Lee Love Award:

University of Mississippi, School of Law, US Students: Ms. Olivia B. Hoff, Mr. C.J. Robison and Mr. Ian Perry Faculty Advisor: Prof. Michael Dodge Faculty Advisor Assistant: Prof. Dr. Michael Mineiro Runner up:

National and Kapodistrian University of Athens, Greece Students: Ms. Maria Vasilaki, Ms. Marianthi Koutri, Mr. Athanasios Plexidas Faculty Advisor: Prof. George D. Kyriakopoulos Faculty Advisor Assistant: Charalampos Panagiotopoulos Semi-finalists:

Obafemi Awolowo University, City of Ile-Ife, Nigeria Students: Ms. Peace Omotayo Onashile, Mr. John Benjamin Odey, and Mr. Toheeb Oluwabukola Amuda Faculty Advisor: Dr. Orifowomo Odunola Akinwale and NALSAR University of Law, Hyderabad, India

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Students: Ms. Chinmayi Sharma, Mr. Ravishankar Krishnan, and Mr. Debarpan Ghosh Faculty Advisor: Prof. Balakista Reddy Best memorials / Eilene M. Galloway Award, sponsored by Ms. Marcia Smith:

University of Mississippi, School of Law, US Best oralist / Sterns and Tennen Award:

Mr. Athanasios Plexidas, National and Kapodistrian University of Athens, Greece Judges for Final:

H.E. Judge Peter Tomka, International Court of Justice H.E. Judge Dalveer Bhandari, International Court of Justice H.E. Judge Kirill Gevorgian, International Court of Justice Judges for Semi-Finals (Oral Pleadings):

Dr. Marco Ferrazzani (Italy) Prof. Dr. Steven Freeland (Australia) Dr. Diane Howard (United States) Dr. Ranjana Kaul (India) Dr. Kai-Uwe Schrogl (Germany) Prof. Dr. Frans G. von der Dunk (The Netherlands) Judges for Semi-Finals (Memorials):

Dr. Ulrike M. Bohlmann (Germany) Ms. Icho Kealotswe (Botswana) Prof. LI Juqian (China) Maury J. Mechanick, Esq. (United States) Prof. Dr. Vernon Nase (Australia) Dr. Zeldine Niamh O’Brien (Ireland) Chris Okegbe, Esq. (Nigeria) Ms. Marcia Smith (United States) The IISL gave a Certificate of Gratitude to the Japan Aerospace Exploration Agency (JAXA) for it continued support since 2002 to the Asia Pacific Regional Winner teams to attend the World Finals. Participants in the regional rounds Africa:

1. 2. 3. 4. 5.

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Babcock University, Ilishan-Remo, Nigeria Makere University, Kampala, Uganda Mount Kenya University, Thika, Kenya Niger Delta University, Wilberforce Island, Nigeria Obafemi Awolowo University, City of Ile-Ife, Nigeria

THE 2015 MANFRED LACHS SPACE LAW MOOT COURT COMPETITION

6. University of Juba, College of Law, Juba, South Sudan 7. University of Pretoria, Faculty of Law, Pretoria, South Africa Asia Pacific:

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Amity Law School, Delhi, India Beijing Foreign Language Study University (BFSU), Beijing, China Beijing Institute of Technology (BIT), Beijing, China China University of Political Science and Law (CUPL), Beijing, China Government Law College, Mumbai, India Gujarat National Law University, Gandhinagar, India Hidayatullah National Law University, Raipur, India Indian Law Society Law College (ILS), Pune, India Institute of Law, Nirma University, Ahmedabad, India Kyoto University, Kyoto, Japan Murdoch University, Murdoch, Australia NALSAR University of Law, Hyderabad, India National Law Institute University, Bhopal, India National Law School of India University (NLSIU), Bangalore, India National Law University, Delhi, India National Law University, Jodhpur, India National Law University, Odisha, India National University of Singapore, Singapore Nepal Law Campus, Tribhuvan University, Kathmandu, Nepal Padjajaran University, Bandung, Indonesia Universitas Islam, Yogyakarta, Indonesia Universitas Katolik Parahyangan, Bandung, Indonesia The West Bengal National University of Juridical Sciences, Kolkata, India Zhongnan University of Economics and Law, Wuhan, Hubei Province, China

Europe:

1. Faculty of Law, University of Cologne, Cologne, Germany 2. Jagiellonian University, Krakow, Poland 3. International Institute of Air and Space Law, Leiden University, Leiden, The Netherlands 4. Leuphana University, Lüneburg, Germany 5. National & Kapodistrian University, Athens, Greece 6. National Research Tomsk State University, Tomsk, Russia 7. Union University Law School, Belgrade, Serbia 8. University of Bucharest, Bucharest, Romania 9. University of Edinburgh, Edinburgh, United Kingdom 10. University of Helsinki (Law), Helsinki, Finland 11. University of Lodz (Law and Administration), Lodz, Poland 12. University Nicolae Titulescu, Bucharest, Romania

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13. University of Warsaw, Warsaw, Poland 14. University of Wroclaw, Wroclaw, Poland 15. Université Paris Sud, Paris, France North America:

1. Arizona State University Sandra Day O’Connor, College of Law, Tempe, Arizona, USA 2. Florida State University College of Law, Tallahassee, Florida, USA 3. Georgetown University Law Center, Washington D.C., USA 4. George Washington University, Washington D.C., USA 5. McGill University, Institute of Air and Space Law, Montreal, Quebec, Canada 6. St. Thomas University School of Law, Miami, Florida, USA 7. Temple University, Beasley School of Law, Philadelphia, Pennsylvania, USA 8. University of California Davis School of Law, Davis, California, USA 9. University of Mississippi, School of Law, Oxford, Mississippi, USA 10. William S. Richardson School of Law, Honolulu, Hawai’i, USA 11. Universidad Sergio Arboleda, Bogotá, Colombia University of Nebraska College of Law, Lincoln, Nebraska, USA Regional organizers of the 2015 competition:

Africa: Adv. Lulu Makapela (South Africa) Asia Pacific: Ms. Siti Noor Malia Putri (Indonesia) and Mr. V. Gopalakrishnan (India) Europe: ECSL North America: Dr. Milton ‘Skip’ Smith (USA) and Ms. Maria-Vittoria ‘Giugi’ Carminati (US/Italy) Contact details of 2015 regional organizers:

Africa: Adv. Lulu Makapela Asia Pacific: Ms. Siti Noor Malia Putri and Mr. V. Gopalakrishnan Europe: ECSL, attn. Prof. Sergio Marchisio North America: North America: Dr. Milton Smith and Ms. Maria-Vittoria Carminati Dedicated internet sites to the competition:

Lachs Space Law Moot Court (main page): http://www.iislweb.org/lachsmoot Facebook page Lachs Moot Court: http://www.facebook.com/spacemoot Twitter account Lachs Moot Court: http://twitter.com/SpaceLawMoot

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PART B: THE PROBLEM Statement of Facts

1. The United Republic of Adventura (URA) and The Sovereign Peoples Independent Democratic Republic (SPIDR) are separated by the Cold Ocean, a large body of water with URA on its Western shores and SPIDR sharing its Eastern shores with a number of other countries. Both have major space agencies conducting civil space activities: the Federal URA Space Agency (FUSA) and the SPIDR Space Agency. 2. FUSA and the SPIDR Space Agency have developed programs to address potential threats posed by near-Earth objects (NEOs). In addition, URA and SPIDR have been actively engaged in the Working Group on NearEarth Objects of the United Nations Committee On Peaceful Uses of Outer Space (UNCOPUOS). 3. URA is the lead state of a consortium of nations which was formed for the purpose of developing capabilities to address actual collision threats posed by individual NEOs. Those programs focus on development of “gravity tractors”1 to deflect NEOs such that they do not pass through any threatening “keyholes”.2 The URA Consortium (URAC) also licenses the utilization of NEO resources. All of the members of the consortium have signed or ratified the Moon Agreement, however, not all the states that have signed or ratified the treaty are part of the URAC. 4. The most ambitious element of FUSA’s NEO Program involves the development, construction, launch and operation of a Titanium Autonomous Save-the-Earth Robotic Orbiting Industrial Depot (TASEROID) in an Earth orbit at an altitude of approximately 1,000 km. TASEROID, an unmanned space station, was launched into orbit by FUSA and became fully operational as of 1 February 2019. It serves as an on-orbit warehouse for consumables. FUSA uses the depot for its own space activities and stores and then sells oxygen, hydrogen, and other natural resources

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A ‘gravity tractor’ works on the basis of two-way gravitational attraction between the NEO and the ‘tractor’, such that placing the tractor in front of the NEO would marginally ‘speed it up’ within its orbit whereas placing the tractor behind the NEO would marginally ‘slow it down’ likewise. By speeding it up, the NEO would pass a future intersection with the orbit of the Earth well ahead of Earth passing that intersection, hence avoiding a collision; whereas slowing the NEO down leads it to pass that intersection sufficiently much later than the Earth to achieve the same net result – no collision. A ‘keyhole’ is a fairly limited three-dimensional area in outer space of such a nature that if the orbit of a NEO passes through it, that NEO is quite certain to collide with the Earth a number of years later on a date which can be rather precisely determined. Consequently, making sure a NEO misses a keyhole (‘keyhole deflection’) ensures it will not collide with the Earth.

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5.

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brought back from NEO missions to other space-faring nations or commercial entities. Anticipating the launch and operation of TASEROID, FUSA started development of TYRUS (Twelve Yard Resource Utilization System) in July 2010. TYRUS is a highly capable robotic space system designed to be launched to NEOs in order to harvest valuable mineral resources there and deliver them to TASEROID. Meanwhile, the SPIDR Space Agency had developed its own national space program, which included the establishment and operation of a manned space station in Earth orbit. SPIDR also conducted a NEO program, and in that context, had realized in 2003 that Floyd-4, a roughly pig-shaped asteroid of some 600 by 150 by 200 meters in size, would make a near-Earth pass in June 2011. That discovery came to public attention in November 2010, when the SPIDR Space Agency announced that its calculations undertaken in April 2010 had shown a heightened likelihood for Floyd-4’s trajectory to present a serious risk of colliding with Earth sometime in the future. the SPIDR Space Agency also announced that it had been preparing a robotic spacecraft called KNUD-1 (Kosmic Near-earth Utility Developer) to visit the asteroid and if possible land3 on it to conduct scientific research as part of an early phase of its own NEO assessment and threat mitigation program. KNUD-1 was launched in November, 2010. Over the Spring of 2011, based on the general scientific information available regarding Floyd-4, FUSA singled out that same asteroid as a particularly interesting target for its first mission, with a second nearby pass in February 2024 giving rise to a launch window of less than two months in the course of late 2023. While KNUD-1 was en route, FUSA scientists examined Floyd-4 with telemetry using ground based equipment and lunar-orbiting spacecraft, and concluded that it likely was a carbonaceous chondrite containing considerable deposits of water and hydrocarbons. At a press conference in May 2011 FUSA announced that it had established a telepresence on Floyd-4 by such telemetry, and would establish a physical presence on the asteroid by sending the first TYRUS mission to the NEO. This announcement gave rise to public protests and heated debate within SPIDR as the public viewed the TYRUS mission as an affront to the SPIDR space program. The SPIDR government published an official statement on 1 June 2011 which included claims that SPIDR had ‘priority’ rights to any use or exploitation of Floyd-4, that KNUD-1 was due to

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Spacecraft such as are mentioned in the text do not “land” on an asteroid in the traditional sense due to its weak gravity. Rather, a spacecraft will attach itself to the surface by means of a variety of mechanisms.

THE 2015 MANFRED LACHS SPACE LAW MOOT COURT COMPETITION

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arrive at the NEO later that month, and that once KNUD-1 attached to Floyd-4 only the SPIDR Space Agency would have the competence to properly judge the safety risks involved in attaching a second craft to the surface, including possible risks of altering the structural consistency and/or orbital characteristics of the asteroid. the SPIDR Space Agency issued a press release that declared that it had authorized the development of a much larger spacecraft, KNUD-2, to visit Floyd-4 during its next pass close to Earth during February 2024, to harvest the resources of the NEO and deliver any resources so collected to the SPIDR space station. While in transit to the NEO, sensors on board KNUD-1 examined Floyd4 and a landing/attachment site was designated as the most feasible and convenient location on the asteroid due to its complicated topography. KNUD-1 arrived at Floyd-4 as scheduled, and after orbiting the asteroid for a few weeks, successfully touched down at the designated attachment spot on the NEO’s surface and anchored itself to the asteroid’s regolith in June 2011. In the following months, KNUD-1’s scientific instruments radioed back a wealth of information on the Floyd-4. The scientific results of the KNUD-1 mission were widely shared with the global space operator and scientific community. Notably, KNUD-1 confirmed FUSA’s conclusion that Floyd-4 was a carbonaceous chondrite and contained significant deposits of water and hydrocarbons. The URAC decided to commercially exploit the resources of Floyd-4 to provide a funding source for further NEO planetary defense activities. The URAC announced that it intended to leverage the innovation capacities in the private sector, and invited private entities so interested to develop autonomous NEO docking capabilities and engage in NEO threat mitigation activities together with the URAC. In return for the technologies developed and future royalties, the URAC stated it would license such private entities to undertake missions to Floyd-4 for the purpose of harvesting the mineral resources. The URAC declared that there was a moratorium on the extraction and exploitation of the resources of Floyd4 and other NEO’s pending the issuance of the licenses, and that only those entities from states which are party to the Moon Agreement would be allowed to apply for a license. Both SPIDR and URA issued periodic warnings to each other not to interfere with or otherwise put at risk their own respective missions. During the meetings of UNCOPUOS, URA and SPIDR each asserted they had the right under international law to land on Floyd-4 and conduct their respective missions on the asteroid. Both FUSA and the SPIDR Space Agency proceeded with preparations for their respective missions. FUSA launched TYRUS on 22 October 2023 from the FUSA launch facility in URA. The spacecraft rendezvoused with Floyd-4 on 6 February 2024, and tried to touch down in the same preferred attachment area as

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KNUD-1. After several unsuccessful attempts, TYRUS managed to attach itself to the asteroid. The surface of the NEO was altered in the process. Whilst SPIDR had made a great effort to launch KNUD-2 before the launch of TYRUS, it was not able to overtake URAC’s mission; the original launch date of KNUD-2 had to be postponed twice because of minor but potentially risky anomalies. Ultimately, the spacecraft was launched on 3 December 2023, a few days before the launch window for Floyd-4 closed. Following the launch, SPIDR announced, without any consultations with either FUSA, URAC, or other states members of the UNCOPUOS NEO Working Group, that KNUD-2 was scheduled to arrive at Floyd-4 on 7 March 2024. SPIDR publicly summoned FUSA to ensure that TYRUS would have disengaged from its position by that date to allow KNUD-2 upon its arrival to use the same preferred attachment area where the KNUD-1 had attached to the surface. SPIDR stated that the presence of TYRUS in the proximity of the attachment area substantially increased the risk of a failure in attaching KNUD-2 to the NEO. Neither URA nor the URAC made any public response to the demand to disengage TYRUS. As TYRUS was undertaking its first thorough close-up inspection of Floyd-4 from its attached site on the surface and KNUD-2 was making its way to the same site, new developments took place with respect to an asteroid named Syd-1. Syd-1 was a more or less diamond-shaped NEO estimated to be about 100 meters in size, with a preliminary indication of being a carbonaceous chondrite. Syd-1 had already been detected by FUSA in 2020, and had been estimated at the time to have a chance in the order of 1 to 650 of colliding with the Earth on 27 October 2031 because of a keyhole in its trajectory which it was scheduled to pass on 27 October 2028. On 17 February 2024, however, following analysis of new tracking data FUSA officially announced a recalculated estimate of a 1 in 80 chance of Syd-1 encountering the keyhole resulting therefore in a subsequent impact with Earth on 27 October 2031. The risk corridor of potential impact points was shown to cross the Earth passing over both URA and SPIDR as well as the Cold Ocean between the two countries, with the Earth situated approximately at the center of the uncertainty ellipse.4 FUSA also calculated that, within six months, Syd-1 would happen to enter a window whereby it would be in a position where the TYRUS could be relaunched from Floyd-4 and rendezvous with the Syd-1. This would offer a unique opportunity to redirect the TYRUS mission to act

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The “uncertainty ellipse” is the area around a central virtual impact point where, due to the margins of error in the calculations of orbital trajectories, there is a possibility of impact, with statistically speaking the most likely actual impact being in the heart of the ellipse – the central virtual impact point.

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as a gravity tractor on Syd-1, causing the asteroid to change velocity sufficiently for the risk of collision with the Earth to be removed. Once that objective would have been achieved, any valuable natural resources on Syd-1 could also start to be harvested, if feasible. On 26 February 2024, after various rapidly drafted alternative options for addressing the threat posed by Syd-1 had been discarded, FUSA announced that URAC would relaunch TYRUS from Floyd-4, fly it to Syd1, confirm whether the asteroid was indeed on a trajectory for the keyhole, and if so, employ gravity tractoring for the asteroid to miss the keyhole. Four days later, the TYRUS relaunch from Floyd-4 took place. However, the KNUD-1 was knocked over in the process and its antenna was oriented down toward the surface of the asteroid. This resulted in the loss of all communications to and from KNUD-1. TYRUS reached Syd-1 on 19 August 2024. Based on TYRUS transponder tracking shortly after arrival, it was determined that the asteroid was indeed headed for the 2028 keyhole and that the nominal impact point of Syd-1 in 2031 would lie in the Cold Ocean between URA and SPIDR. Within three days FUSA decided to station the spacecraft ahead of the asteroid to speed it up in order to ensure that the asteroid would miss the 2028 keyhole. Within three more days, FUSA announced that TYRUS had been able to move itself into a relatively stationary position ahead of the asteroid, and that the process of gravity tractoring to gradually speed it up had been successfully initiated. Following the announcement of the decision on 22 August 2024 to speed up Syd-1, the SPIDR Space Agency quickly calculated that the effects of the TYRUS mission on the asteroid would amount to virtually dragging the potential impact point across the surface of, inter alia, SPIDR before it would disappear off the Earth altogether. This also meant, according to the SPIDR Space Agency, that if something went wrong in the course of TYRUS’ operations, the chances of Syd-1 actually crashing into SPIDR territory would be considerably larger. The government of SPIDR consequently protested in various fora, most notably UNCOPUOS, against the “unilateral decision by FUSA to put SPIDR at greater risk”, even temporarily, where in its opinion moving the Syd-1 in the other direction – that is slowing it down rather than speeding it up – “would have virtually moved the possible impact points over a considerably smaller amount of territory before disappearing off the earth altogether, even if that would have included a portion of URA territory”. Meanwhile, on 7 March 2024 KNUD-2 had rendezvoused with Floyd-4 according to plan, found the preferred attachment site available since TYRUS had left on its second mission. The physical structure of the surface had been altered due to TYRUS’ previous efforts to attach to Floyd4, and KNUD-2 had a difficult time successfully attaching to the NEO. In

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the process, the scientific instruments which were planned to further investigate Floyd-4 were damaged irretrievably. In addition, the solar panels of KNUD-2 were damaged and could operate only at 30% of their intended capacity. As a consequence KNUD-2, instead of remaining on Floyd-4 for over three years as originally intended, had to depart just four months after docking, on 4 July, in order to safely make it to the SPIDR manned space station. It did so on 20 August 2024, and delivered just 10% of the resources intended to have been extracted from Floyd-4. The government of SPIDR immediately issued a statement that it held URA responsible and liable for the damage caused to KNUD-2 and the consequent limitations to the ability of KNUD-2 to harvest any valuable minerals. URA responded by claiming the right to prior harvesting in combination with its decision to redirect the TYRUS mission to mitigate the threat posed by Syd-1 for the benefit of SPIDR as well as the rest of mankind. The orbit of the Syd-1 was altered by the gravity tractoring, however it was determined after the keyhole event of 2028 that the risk corridor for the 2031 encounter did not completely miss the Earth but rather moved toward the SPIDR coast of the Cold Ocean. In September 2031, the asteroid entered the atmosphere and produced an air burst with the estimated equivalent of 2.1 megatons of TNT at an altitude of roughly 10.1 kilometers over the Cold Ocean near SPIDR. The airburst completely destroyed the town of Dropgum, a fishing village located on the coast in northern SPIDR. Mass evacuations had been conducted along the impact corridor within SPIDR in advance of the impact, including Dropgum, and the loss of life was held to several dozen people. Ensuing diplomatic discussions failed to resolve the dispute. Both states agreed to bring their dispute before the International Court of Justice by way of this Compromis. The government of the Sovereign Peoples Independent Democratic Republic requests the Court adjudge and declare that: (i) URA is liable for damages under international law to SPIDR for changing the orbit of Syd-1, which resulted in the loss of life and damage to Dropgum; and (ii) URA is liable under international law for the loss of or damage to the first KNUD-1 spacecraft, and the loss of the KNUD-2 harvesting operation on Floyd-4; and to dismiss all claims to the contrary. The government of the United Republic of Adventura requests the Court adjudge and declare that: (i) URA is not liable under international law for damages to SPIDR caused by Syd-1;

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(ii) URA is not liable under international law for any loss of or damage to the two KNUD spacecraft; and to dismiss all claims to the contrary. 30. Both URA and SPIDR are parties to the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention, the UN Charter, the ITU Constitution and ITU Convention, as well as members of the UNCOPUOS Working Group on Near-Earth Objects, having signed up to the general commitments undertaken in that context. URA is a party to the Moon Agreement. There is no issue regarding the jurisdiction of the Court. The law at the time the case is heard is substantially the same as of 31 December 2014. Problem Clarifications

1. Did URA made (sic) formal consultations before it had launched TYRUS from FLOYD-4 to Syd-1? Response: Further clarification is declined 2. If there was the reasonable doubt that the Syd-1 will crash in SPIDR’s territory why weren’t any actions undertaken in order to mitigate the potential damage to SPIDR territory? Response: Further clarification is declined 3. In addition to extraction for scientific purposes as stated in paragraph 6 of the Problem, did the SPIDR Space Agency also intend to use the resources extracted from Floyd-4 for commercial purposes? Response: Further clarification is declined 4. As per paragraph 3 of the Problem, is the URAC an inter-governmental agency which, in addition to its competence to issue exploitation licences, also serves public administrative functions? Response: Further clarification is declined 5. By whom will the “further NEO planetary defence activities” be undertaken? (par. 10) Response: Further clarification is declined 6. By whom “was it determined” that the risk corridor was moved toward the SPIDR coast of the Cold Ocean? (par. 25) Response: Further comment is declined 7. Which one or ones of the space crafts were manned or were any of the space crafts manned in the case? Response: Unless otherwise indicated, spacecraft should be considered to be unmanned. 8. What is the correct time for the re-launch of Tyrus. Is it four dates later (on March 1st 2024) as written in point 19 of the problem, or on March 2nd 2024 (5 days later) as written in the overview? Currently the description of the problem and the overview are not matching. Response: TYRUS launched on 2 March 2024.

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9. Who is the responsible actor regarding the TYRUS mission? The formulation “FUSA announced that URAC would relaunch TYRUS” in No. 18 Sentence 1 gives the impression that since then URAC is the responsible actor. In No. 19 Sentence 6 again FUSA makes a decision regarding TYRUS. Such potential permutations of FUSA, URA and URAC occurs throughout the whole fact scenario (compare: No.13 S.1 (“URAC’s mission”); No.19 S.7 (“FUSA announced that TYRUS”); No.21 S.1 (“unilateral decision by FUSA”); No.24 S.2 (“URA responded [...] with its decision to redirect the TYRUS mission”). Response: Further clarification is declined 10. Does the formulation “claiming the right to prior harvesting” in No. 24 S.2 mean, that URA claimed “priority rights” on Floyd-4 as well as SPIDR did? Or does the “prior” indicate the chronology of the events? Response: Further clarification is declined 11. What is the “keyhole event of 2028” as referred to in paragraph 25? Response: Further clarification is declined 12. Does loss of communication with KNUD-1 mean that SPIDR also lost its ability to operate KNUD-1? Response: Yes 13. Is TYRUS registered by URA (a State) or by URAC (an international organization)? Response: Further clarification is declined 14. Please clarify what date is being referred to in paragraph 20? Pursuant to paragraph 19 TYRUS reached SYD-1 on 19 August 2024, and within three days (22 August 2024) FUSA had made a decision and within three more days (25 August 2014) FUSA made an announcement. Response: Further clarification is declined 15. When was this dispute brought before the ICJ? (For purposes of statute of limitations). Response: The Compromis specifies that there is no issue regarding the jurisdiction of the Court. 16. Did URA and SPIDR register their rockets, space crafts, space objects, or missions with the UN as required by article 8 of the outer space treaty? Response: Further clarification is declined 17. Is URAC a private or public entity? Response: Further clarification is declined 18. Whether the URA Consortium is recognized as an official licensing authority by the International community and the UNCOPUOS? Response: Further clarification is declined 19. 19. Prior to the attempted landing of Knud-2, was the URA aware of the alterations made to the surface of Floyd-4 caused by TYRUS? Response: No.

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20. In 2020, when the URA detected the NEO Syd-1, did the URA publicly announce the discovery? Response: Yes, in conformity with its general commitments undertaken in the COPUOS Working Group on NEOs. 21. Whether URAC is an international organization? Response: Further clarification is declined 22. If URAC is not an international organization, is there a contract/ treaty between the member states which governs their right and liabilities within URAC and the status of URAC? Response: Further clarification is declined 23. According to Paragraph 7 of the problem, FUSA singled out Floyd-4 as a target mission based on general scientific information available. Was this based on the information released by SPIDR only, or did other sources also give the same information? Response: Further clarification is declined 24. According to Paragraph 14, SPIDR announced the KNUD-2 was scheduled to arrive on Floyd-4 at on 7 March, 2024 without any consultation. Was this consultation done by URA and SPIDR in their earlier space operations? (specifically, landing of TYRUS and KNUD-1) Response: Further clarification is declined PART C: FINALISTS MEMORIALS Memorial for the Applicant, the Sovereign Peoples Independent Democratic Republic (SPIDR)

National and Kapodistrian University of Athens, Greece Students: Ms. Maria Vasilaki, Ms. Marianthi Koutri, Mr. Athanasios Plexidas Faculty Advisor: Prof. George D. Kyriakopoulos Faculty Advisor Assistant: Charalampos Panagiotopoulos Argument I.

URA is Liable for Damages under International Law to SPIDR for Changing the Orbit of Syd-1, Which Resulted in the Loss of and Damage to Dropgum

URA is liable to SPIDR for the loss of life and damage caused to Dropgum after changing the orbit of Syd-1, under the LIAB. In doing so, URA must also be found responsible for the violation of primary rules of the OST. Furthermore, URA’s action violated fundamental principles of international environmental law. Finally, it is submitted that URA cannot invoke the existence of circumstances precluding the wrongfulness of its actions.

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A.

URA is Liable under Article II LIAB for the Loss of Life and Damage to Dropgum

According to Article II LIAB, “a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth [...].”5 In the present case, Article II is applicable since its conditions are indeed fulfilled: 1.

The Destruction of Dropgum Constitutes Damage under Article I LIAB

Article I(a) LIAB stresses that the term “damage” includes “loss of life, personal injury or other impairment of health; or loss of or damage to property.”6 The definition of damage is broad, as is the scope of application of the Convention.7 According to the agreed facts, the town of Dropgum was completely destroyed and the loss of life was held to several dozen people.8 This resulted from the gravity tractoring operation of TYRUS, which altered the orbit of Syd-1, resulting in the risk corridor moving toward the SPIDR coast of the Cold Ocean.9 Subsequently, the asteroid produced an airburst over the Cold Ocean near SPIDR. Following the provisions of LIAB, both loss of life and damages to property fall within the scope of Article I(a). 2.

The Damages Sustained by Dropgum Are Covered under Article II LIAB

The Respondent might argue that the damage caused to Dropgum by Syd-1’s entrance in the atmosphere is an indirect one and, thus, it is not covered by the LIAB. In this respect, SPIDR submits that, although the damage to Dropgum is indeed indirect (a), the LIAB covers not only direct but also indirect damages (b). It follows that URA must be held absolutely liable under Article II LIAB for indirect damages caused to Dropgum, as there is proximate causal connection between TYRUS’ gravity tractoring and the damages (c). Therefore, URA is under an obligation to pay compensation for the damages caused by its TYRUS mission. a) The Damage Caused to Dropgum Is Indirect In the present case, it was calculated by FUSA, URA’s Space Agency, that Syd-1 was heading for the 2028 keyhole, being quite certain that it would collide with the Earth in the future. It was FUSA’s unilateral decision to try to mitigate the threat posed by Syd-1 which resulted in the alteration of the

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8 9

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Article II, Convention on International Liability for Damage Caused by Space Objects, entered into force Sept. 1 1972, 24 U.S.T. 2389, 961, U.N.T.S. 187 (LIAB). Article I, LIAB. Armel Kerrest & Lesley Jane Smith, Article VII, I COLOGNE COMMENTARY ON SPACE LAW, 142 (Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrogl eds. 2009 (Kerrest/Smith), II, 113. Special Agreement between the United Republic of Adventura and the Sovereign Peoples Independent Democratic Republic (Compromis), §26. Compromis, §25.

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asteroid’s trajectory, id est, the shift of its risk corridor toward the SPIDR coast of the Cold Ocean.10 As already submitted, this action inevitably caused the loss of life of several dozen people and the total destruction of Dropgum. Hence, these losses constitute damages connected to and indirectly caused by TYRUS’ gravity tractoring, as the consequences of this initial act. b) The LIAB Covers Both Direct and Indirect Damages Article II LIAB establishes that in cases of damage caused by the space object of a launching State on the surface of the Earth or to aircraft in flight, that State shall be absolutely liable to pay compensation for such damage.11 Thus, Article II contains a non-fault based liability system, in which liability is automatic and unlimited, providing full compensation for victims.12 However, the Convention does not comprise any further explanation or reference as to whether only direct or indirect damage are covered as well; nor does any international legal document stipulate that only direct damages are covered by said Article.13 Damage in the context of Article II LIAB would be direct if it flowed directly and immediately from the operation of a space object, e.g. damage caused by contact with a space object.14 A damage without those characteristics, which is remote or consequential to the act, would be indirect.15 Indirect damage is in any event not explicitly denied.16 On the contrary, the compensability of indirect damage is widely accepted in legal doctrine.17 Furthermore, it is contended that the omission of any requirement regarding the way in which damage occurs leads to the conclusion that both

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14

15

16

17

Ibid. Article II, LIAB. Kerrest/Smith II, 121-122. Special Agreement between the United Republic of Adventura and the Sovereign Peoples Independent Democratic Republic (Mosteshar), 404; Ricky J. Lee, Reconciling International Space Law with the Commercial Realities of the Twenty-first Century, 4 S. J. I. C. L., 194, 225 (2000) (Lee). Elena Carpanelli & Brendan Cohen, Interpreting “Damage Caused by Space Objects” Under the 1972 Liability Convention, IAC-13.E7.1.5, 2013, (Carpanelli/Cohen), 2. Carl Q. Christol, International Liability for Damage Caused by Space Objects, 74 No 2 A.J.I.L., 346, 359-362 (1980) (Christol); Report of the Committee on Aeronautical and Space Sciences (1972) (U.S) (Report of CASS). Joseph A. Burke, Convention on International Liability for Damage Caused by Space Objects: Definition and Determination of Damages After the Cosmos 954 Incident, 8 FORDHAM INT’L L.J. 255, 282 (1985) (Burke); CARL QUIMBY CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE, 96 (1982). (CHRISTOL, THE MODERN INTERNATIONAL LAW). William F. Foster, The Convention on International Liability for Damage Caused by Space Objects, 10 CAN. Y.B. INT’L L. 157, 158 (1972) (Foster); Carpanelli/Cohen, 5; BRUCE HURWITZ, STATE LIABILITY FOR OUTER SPACE ACTIVITIES, 15 (1992) (HURWITZ).

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types of damage, directly and indirectly caused, are included.18 Specifically, it has been elaborated that the operating state of a space mission which causes damage on Earth as a consequence of only partially deflecting an asteroid is absolutely liable for that damage.19 Apart from that, this reasoning is enforced via treaty interpretation. Therefore, recourse must be made to the rules of interpretation of the 1969 VCLT in order to clarify Article II LIAB in this respect. In citing the general rule and the supplementary means of interpretation of treaties, Articles 31 and 32 VCLT codify customary international law.20 Article 31 VCLT emphasizes that a treaty shall be interpreted “in the light of its object and purpose”.21 The purpose of the LIAB is stressed in its Preamble which, according to the VCLT, is considered as an integral part of the text of a treaty.22 More explicitly, States Parties recognize, inter alia, the need to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage and seek to elaborate effective international rules and procedures concerning liability.23 It follows that the LIAB is a victim-oriented treaty, with a primary aim to protect individuals from the activities of those undertaking an inherently dangerous activity.24 Since the purpose of the Convention is to ensure a prompt payment, id est, the efficient protection of the victims of damage caused by space objects, “damage” must be interpreted so that it includes both direct and indirect damage.25 Therefore, the recovery must be authorized for damages resulting both from a direct contact and for the indirect or consequential aspects caused by the operation of a spacecraft.26

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19 20

21

22 23 24

25 26

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Andre G. DeBusschere, Liability for Damage caused by Space Objects, 3 J. INT’L L. & PRAC., 101, 102 (1994) (DeBusschere), 101, 102; E.R.C. VAN BOGAERT, ASPECTS OF SPACE LAW, 172 (1986) (VAN BOGAERT); Foster, 157, 158. Association of Space Explorers, Asteroid Threats: A Call for Global Response, 50 (Jessica Tok, ed., 2008) (ASE), 50. MALCOLM N. SHAW, INTERNATIONAL LAW, 839 (2008) (SHAW); Evan Criddle, The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 VIRG. J. INT. L., 2 (2004) (Criddle); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) (Judgment) 1991 I.C.J. 53 (Nov. 12) (Arbitral Award of 31 July 1989 (Judgment)). Art. 31, Vienna Convention on the Law of Treaties, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331 (VCLT); Libyan Arab Jamahiriya/Chad Territorial Dispute (Libya v. Chad) (Judgment) 1994 I.C.J. 6 (Feb. 3) (Territorial Dispute 1994 (Judgment)). Art. 31(2), VCLT. Preamble to the LIAB. Armel Kerrest, Liability for Damage Caused by Space Objects, SPACE LAW – CURRENT PROBLEMS AND PERSPECTIVES FOR FUTURE REGULATION, 92 (Marietta Benkö & Kai-Uwe Schrogl eds., 2005) (Kerrest). Philippe Sands, Principles of International Environmental Law, 898 (2003) (Sands). Supra, note 13.

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The settlement of Soviet Cosmos 954 incident also supports this view. After the satellite crashed on Canadian territory in 1978, the government of Canada addressed a claim to the Soviet Union based on the LIAB.27 This incident constitutes subsequent State practice,28 reaffirming the compensability of indirect damage. c) The Causal Connection between TYRUS’ Gravity Tractoring and the Damage to Dropgum Is Adequate and Proximate Article II LIAB stresses that damage must be “caused by” the space object of a launching State.29 It follows that a causal link must exist between the damage and the space object, in order for the former to be compensable under Article II.30 The required degree of causality for liability to arise is determined as adequate and proximate.31 A cause is defined as adequate when the outcome flows from the conduct in natural sequence. With regards to proximity, there must be proof of an uninterrupted initial causal link, namely of the absence of intervening causes “cutting off” the initial course of action.32 Moreover, “caused by” can also be interpreted as simply directing attention to the need for a causal connection between the operation and the damage. It is the Applicant’s submission that causation under the aforementioned requirements is established. Any damage, therefore, that is one way or another linked with the initial act is compensable under LIAB.33 Furthermore, it is submitted that the action must be the actual cause of damage, a sine qua non condition for its occurrence,34 so that damage would not have occurred “but for” the initial action.35

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28 29 30 31

32

33 34

Settlement of Claims Between Canada and the Union of Soviet Socialist Republics for Damage Caused by “Cosmos 954”, Released on April 2 1981, Article I (“Cosmos 954” Settlement of Claims). Article 31(3) (b), VCLT. Article II, LIAB. Supra, note 20, at 97-99. Bin Cheng, International Liability for Damage Caused by Space Objects, in I MANUAL ON SPACE LAW, 115, 117 (Nandasiri Jasentuliyana, Roy S. K. Lee, eds., 1979). (Cheng, Liability); Second Report on State Responsibility by Gaetano Arangio-Ruiz, U.N. Doc. A/CN.4/425 & Add. 1 (1989) (Arangio-Ruiz), 12; Stephen Gorove, Implications of International Space Law for Private Enterprise, 7 ANNALS AIR & SPACE L., 141, 319, 141 (1982) (Gorove); P. Dembling, Cosmos 954: Space Treaties, 6 J. SPACE L. 135 (1978) (Dembling). Leon Castellanos-Jankiewicz, Causation and International State Responsibility, AMSTERDAM CENTER OF INTERNATIONAL LAW, 46, 47 (2012) (Castellanos-Jankiewicz); CHRISTOL 1991, 223; Lesley Jane Smith, Facing up to Third Party Liability for Space Activities: Some Reflections, in PROCEEDINGS OF THE 52ND COLLOQUIUM ON THE LAW OF OUTER SPACE, 257 (2009) (Smith). Kerrest, at 91-93, 158. JEAN COMBACAU, SERGE SUR, DROIT INTERNATIONAL PUBLIC, 545 (1995) (COMBACAU/SUR); Max Planck Encyclopedia of Public International Law, Vol. XI, 2007 (MPEPIL), Compensation.

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In this case, the facts evolved in the following sequence: TYRUS initiated the gravity tractoring of Syd-1 to speed up the orbit of the asteroid. The orbit of Syd-1 was thus altered.36 Nevertheless, Syd-1 did not miss the 2028 keyhole event and its collision with the Earth became certain.37 Therefore, it was due to TYRUS’ intervention that the risk corridor did not miss the Earth, but rather moved toward the SPIDR coast of the Cold Ocean. Moreover, there is no indication of any subsequent incident altering the causal link between URA’s action and the orbit of Syd-1, thus establishing adequacy and proximity. Because of this alteration in Syd-1’s trajectory, said asteroid entered the atmosphere in 2031 and produced an airburst which destroyed the town of Dropgum and killed several dozen people.38 Thus, the damage caused to Dropgum resulted from TYRUS, launched by FUSA. Consequently, URA is liable towards SPIDR, under Articles I and II LIAB. 3.

No Fault Is Required for Liability to Arise

The damages to property and the loss of life suffered by SPIDR occurred on the surface of the Earth, therefore Article II LIAB is applicable. This Article highlights that a State does not need to be at fault to be held liable.39 Given the fact that outer space activities are ultra-hazardous,40 namely inherently dangerous, a higher standard of caution is imposed on States, so that only the prerequisite of damage is needed.41 In the case at hand, TYRUS’ gravity tractoring operation on Syd-1 was potentially risky, as calculated by the SPIDR Space Agency42 and as evidenced by the subsequent damages sustained to Dropgum. Indeed, had TYRUS not altered Syd-1’s initial orbit, SPIDR would not have been exposed to greater risk and damage would have most probably been avoided. Therefore, URA must be held absolutely liable for the damages to Dropgum.

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40

41 42

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H.L.A. Hart, T. Honore, Causation in the Law, 114-121 (1985) (Hart/Honore). Compromis, §§19, 25. Compromis, footnote 2. Compromis, §§25, 26. MANFRED LACHS, THE LAW OF OUTER SPACE – AN EXPERIENCE IN CONTEMPORARY LAW-MAKING, 115 (2010) (LACHS 2010); Rylands v. Fletcher [1868] UKHL 1, 3 HL 330 (Rylands v. Fletcher). Alexander Soucek, International Law, in OUTER SPACE IN SOCIETY, POLITICS AND LAW, 342 (Christian Brünner, Alexander Soucek eds., 2012) (Soucek); MICHAEL G. FAURE & SONG YING, CHINA AND INTERNATIONAL ENVIRONMENTAL LIABILITY, LEGAL REMEDIES FOR TRANSBOUNDARY POLLLUTION, 328 (2008) (FAURE/YING); BUNKER, 74; LACHS 2010, 115; VIIKARI, 278; WASSENBERGH, 92; Marchisio, 176. Kerrest/Smith II, 118. Compromis, §20.

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4.

URA is under an Obligation to Provide SPIDR with Full Compensation under Article XII LIAB

The issue of compensation for damages caused by outer space activities is regulated by Article XII LIAB. According to this Article, the measure of compensation to be granted to the injured State is such that will restore the State “to the condition which would have existed if the damage had not occurred”.43 This Article is therefore based on the applicable rule of international law restitutio in integro ex ante.44 Nevertheless, international jurisprudence has ruled that, according to customary law, in case restitutio in integro is not possible, full monetary compensation would bear to cover the damages sustained by the claimant State.45 In the present case, restitutio in integro is no longer possible, as several dozen people died and the town of Dropgum was completely destroyed. Consequently, compensation is owed to SPIDR by URA for the aforementioned losses. B.

URA Is Responsible for the Destruction of Dropgum, as It Violated Rules of International Law under the corpus juris spatialis

1.

The General Rules of International Law Are Applicable in Outer Space

SPIDR also submits to this honorable Court that URA must be held internationally responsible for the destruction of Dropgum due to TYRUS’ gravity tractoring, under the rules of international law on responsibility of States. Pursuant to Article III OST, international law applies to outer space;46 this includes not only long-established rules of customary international law, but other branches, inter alia, international environmental law.47 The regime of international responsibility of a State is reaffirmed in the OST, under Article VI, which states, inter alia, that “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies.”48 Thus, for every activity in outer space, a State shall bear international responsibility, even for private operations,49 as paragraph 2 of this Article broadens the scope of interna-

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46 47 48 49

Article XII, LIAB. UN Doc. A/AC.105/85, 3; Maureen Williams, International Law in the Wake of UNISPACE III, in JUDICIAL REVIEW IN INTERNATIONAL PERSPECTIVE, 79 (M. Adenas, D. Fairgrieve eds., 2000) (Williams International Law), 79; NICOLAS MATEESCO MATTE, AEROSPACE LAW, 169 (1977) (MATTE). Opinion in the Lusitania Cases (USA v. Germany) 1923, R.I.A.A. 32 (Lusitania), 39; Factory at Chorzów (Germany v. Poland) (Merits) 1928 P.C.I.J. (ser. A) No 17 (Sept. 17) (Chorzów Factory), 47. Article III, OST. Olivier Ribbelink, Article III, I COLOGNE COMMENTARY ON SPACE LAW, 67 (Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrogl eds. 2009) (Ribbelink). Article VI, OST. Manfred Lachs, The Law of Outer Space-An Experience in Contemporary Law Making, 22, 122 (1972) (Lachs).

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tional responsibility in outer space. Responsibility shall be borne especially when violation exists of the other provisions of the OST.50 Article VI is understood as a specification of the general scheme for State responsibility.51 Therefore, Article VI is a secondary rule of international law, which stresses the requirements for international responsibility to arise regarding outer space activities, once a primary obligation is breached. In the OST, including its context as well as the travaux préparatoires, there is no indication or evidence that a deviation from the general concept of public international law was intended.52 Articles III and VI OST provide a basis for invoking the responsibility of URA for damages to SPIDR under the general rules of international law on the responsibility of States, as codified in the “Articles on Responsibility of States for Internationally Wrongful Acts” (hereinafter ‘ARSIWA’), adopted by the International Law Commission (hereinafter ‘ILC’) in 2001. ARSIWA are widely regarded as a codification of the customary law of State responsibility53 and pre-existing rules, since the Commission was based on State practice and international jurisprudence.54 The ARSIWA set out the consequences for the breach of primary rules.55 Article 1 ARSIWA stipulates that “every internationally wrongful act of a State entails the international responsibility of that State.” An internationally wrongful act exists when, according to Article 2, conduct consisting of an action or omission (a) is attributable to a State under international law and (b) constitutes a breach of an international obligation of this State.56 These elements are mentioned in several judicial decisions such as the Phosphates in Morocco case,57 the Diplomatic and Consular Staff case58 and the Dickson Car Wheel Company case.59

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54 55 56 57 58 59

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Michael Gerhard, Article VI, I COLOGNE COMMENTARY ON SPACE LAW, 104, 114 (Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrogl eds. 2009) (Gerhard). H. L. van Traa-Engelmann, Problems of State responsibility in international space law, in PROCEEDINGS OF THE 26th COLLOQUIUM ON THE LAW OF OUTER SPACE, 140 (1983) (Van Traa-Engelmann). Supra note 46, at 114. Robert Rosenstock, The ILC and State Responsibility, 96 A.J.I.L., 792 (2002) (Rosenstock); Olufemi Amao, Corporate Social Responsibility, Human Rights and the Law – Multinational Corporations in Developing Countries, 173 (2011) (Olufemi). Ian Brownlie, State Responsibility, 35-41 (2001) (Brownlie). Rep. of the Int’l Law Comm’n, 53rd session, April 1-June 1, July 2-August 10, 2001, 151 U.N.Doc. (A/56/10) (Report of the ILC 53rd session). Yearbook of the International Law Commission, 2001, vol. II (Part Two), 34, 55 U.N. Doc. A/CN.4/SER.A/2001/Add.1 (ILC Yearbook). Phosphates in Morocco (Italy v. France) (Preliminary Objections) 1938 P.C.I.J., (ser. A/B) No 74 (Jun. 14) (Phosphates in Morocco (Preliminary Objections)). United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran) 1980 I.C.J. 3 (May 24) (Diplomatic and Consular Staff). Dickson Car Wheel Company (U.S. v. Mexico) 1931, R.I.A.A. 669 (Dickson Car Wheel).

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Therefore, the ARSIWA are applicable in the case at hand, with regards to responsibility, an issue extraneous to the LIAB. Indeed, URA has breached its primary obligations both under the corpus juris spatialis and general international law as will be elaborated below. 2.

URA Breached Its Duty to Cooperate and Did Not Achieve an International Response to the Threat Posed by Syd-1

The first sentence of Article IX OST stresses that “[i]n the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation.” In the field of space law, the principle of international cooperation is widely accepted as a prerequisite for any State activities in outer space.60 Legal doctrine is firm in stating that international cooperation is a statutory obligation, rather than a mere aim, verifying the binding character of the principle on States.61 Equally, cooperation in good faith is a general obligation on all States, with the United Nations Charter defining “cooperation in solving international problems” as one of its purposes.62 In addition, URA’s obligation is more apparent by the fact that cooperation is a principle of the OST,63 the ITU Constitution64 and the MA.65 Thus, it is evident that the principle of cooperation has permeated through all sectors of international law, being a sine qua non condition in the lawful and orderly conduct of States.66 Specifically, this Court ruled in the Nuclear Tests case that “[t]rust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential.”67 Finally, the binding character of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, and therefore the principle of cooperation, as pars pro toto, was verified in the jurisprudence of this Court.68

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62 63

64 65 66 67 68

Williams, Derecho Internacional, 489. Manuelo Augusto Ferrer, Contenidos Eticos y Juridicos de la Transferencia de Tecnologia Espacial, in Estudios Internacionales Avanzados: Etica, Derecho, Ciencia, Tecnologia y Cooperacion Internacional, 223 (1985) (Ferrer). UN Charter, Article 1(3). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, entered into force Oct. 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (OST), Preamble; Article IX, OST. Constitution and Convention of the International Telecommunication Union as amended by the 2010 Plenipotentiary Conference (2011) (ITU Constitution), Article 1. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, entered into force July 11, 1984, 1363 U.N.T.S. 3 (MA), Article 4(2). Malcolm N. Shaw, International Law, 1205 (2008) (Shaw). Nuclear Tests Case (New Zealand v. France) (Judgment) 1974 I.C.J. 457 (Dec. 20) (Nuclear Tests), para. 49. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of American) (Merits) 1986 I.C.J. 14 (Jun. 27) (Nicaragua), para. 191; Accor-

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The obligation of international cooperation in outer space has been further elaborated and specified under the auspices of the UNCOPUOS, concerning the mitigation of Near-Earth Objects (NEOs) – celestial bodies which might cross the Earth’s orbit.69 As NEOs constitute a possible danger to the Earth, their mitigation requires an international and interdisciplinary approach. In 2001, the UNCOPUOS established an Action Team on Near-Earth Objects (Action Team 14), aiming to formulate recommendations of principles governing NEO threat mitigation. Additionally, the Scientific and Technical Subcommittee of COPUOS established, in 2007, a Working Group on NearEarth Objects, to propose international procedures to address the NEO threat.70 Paragraph 186 of the Report of the Scientific and Technical Subcommittee in 2013 stresses that “activities in protecting the Earth from an asteroid impact involved diverse and complex scenarios that could be best addressed through international cooperation.”71 Paragraph 23 of the Action Team 14 Recommendations in 2011-2012 stipulates that “[r]esponse to the NEO impact hazard requires measures to detect, track and characterize the orbital and physical properties of potentially hazardous NEOs, as well as measures to modify the trajectory of such NEOs in order to prevent an impact and measures to limit the consequences on the ground.”72 Concerning the long-term preparation and detection on planetary defense, there has been extensive practice from States and international organizations. Specifically, the European Space Agency has developed a multi-segment Space Situational Awareness Program. The European Commission established the NEO Shield preparing techniques’ program. Moreover, the Russian Federation operates the MASTER network of robotic telescopes for asteroid discovery.73 It follows that the NEO threat can be effectively addressed only through international cooperation.

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dance with International Law of the Unilateral Declaration of the Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403 (Jul. 22) (Kosovo), para. 80. Silvia Maureen Williams, International Responsibility Vis-à-Vis Natural Near-Earth Objects (NEOs) and Their Possible Implications, IAC-08-E8.4.1, 2008, at 4, 5 (Williams). G.A. Res. 62/217, U.N. GAOR, 62nd Sess., U.N. Doc. A/RES/62/217 (2008) (A/RES/62/217). Report of the Scientific and Technical Subcommittee, U.N. GAOR, 56th Sess., at 30, U.N. Doc. A/AC.105/1038 (2013) (Report of Scientific and Technical Subcommittee); Interim report of the Action Team on Near-Earth Objects, U.N. GAOR, 44th Sess., at 7, 8, U.N. Doc. A/AC.105/C.1/L.290 (2007) (Interim report); G.A. Res. 51/122, U.N. GAOR, 51st Sess., at article 4, U.N. Doc. A/RES/51/122 (1996) (A/RES/51/122); DON DAVIS, NEAR-EARTH OBJECTS: RESPONDING TO THE INTERNATIONAL CHALLENGE, 14 (2014) (DAVIS). Recommendations of the Action Team on Near-Earth Objects for an international response to the near-Earth object impact threat, U.N. GAOR, 50th Sess., Supp. No. 20, at 5, 10, U.N. Doc. A/AC.105/C.1/L.329 (2012) (Recommendations of the Action Team; Planetary Defense Conference Report), 11. Davis, 8, 9.

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Albeit said recommendations are not a formal source of international law under Article 38 of the I.C.J. Statute, their elaboration was accompanied by an active participation of States, including SPIDR and URA.74 Such participation is indicative of a positive opinio juris75 and a consensus of the international community with regard to their implementation. Although these recommendations are not binding themselves upon States, the duty to international co-operation is already established in Articles I and III of the Outer Space Treaty. Specifically, co-operation under Article III is an essential principle of both the UN Charter and the Friendly Relations Declaration of 1970 and has, therefore, binding character upon States. It is the principle of good faith that shapes States’ obligations. Therefore, the UN COPUOS Recommendations are regarded as an elaboration of the principle of co-operation, and must be followed by States.76 Nevertheless, URA chose to ignore them. In this case, URA acted unilaterally in order to mitigate the threat posed to Earth by Syd-1. URA followed a unilateral course of action during the gravity tractoring operation, contrary to the COPUOS Recommendations. Indeed, not only URA disregarded SPIDR’s proposal for an effective threat mitigation technique,77 but also the alternative options assessed in URAC were rapidly discarded and URA proceeded unilaterally in an attempt to mitigate the threat.78 It also failed to determine the risk of potential damage to SPIDR by Syd-1. URA did not operate any long-term preparation or telescoping system so as to be prepared for Syd-1’s threat, contrary to current widespread practice. Consequently, URA did not verify the alteration of Syd-1’s orbit and thereby did not inform SPIDR of the consequences, as owed to.79 Following this unilateral action, URA failed to effectively mitigate the threat posed by Syd-1, which caused significant damage to SPIDR. Since URA did not act in accordance with its duty of international cooperation under the COPUOS Recommendations, it is internationally liable for the damage to Dropgum.80

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77 78 79 80

Compromis, §§2, 30. Luis F. Castillo Argañarás, Natural Near Earth Objects and the International Law of Outer Space, IAC-08-E8.4.2, 2008, at 8 (Argañarás). JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 8th EDITION, 723 (2012) (CRAWFORD); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) (Preliminary Objections) 1998 I.C.J. 4 (Jun. 11) (Land and Maritime Boundary 1998 (Preliminary Objections)); Robert Kolb, General Principles of Procedural Law, in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, A COMMENTARY, 872 (Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm, Christian J. Tams eds., 2012) (Kolb). Compromis, §§20, 21. Compromis, §18. Compromis, §25. Report of the Scientific and Technical Subcommittee; Interim report.

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3.

URA Did Not Act with “Due Regard to the Corresponding Interests of All States Parties to the OST”

SPIDR submits that URA has simultaneously violated the “due regard” principle under Article IX OST, stressing that States shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.81 The principle of due regard encapsulated in Article IX imposes the duty to explore and use outer space and conduct space activities with a certain standard of care, taking into account the rights and interests of other States.82 This duty was first introduced in the field of air law83 and then included in the OST, thus being generally accepted as legally binding. The degree of care is measured ad hoc, so that it is appropriate to the demands of the particular case.84 Specifically, it must be proven, in the context of an activity in outer space, beyond reasonable doubt, that everything were made to avert the occurrence of harm.85 In the case at hand, however, no such proof can be established. URA’s TYRUS interfered with Syd-1’s trajectory and altered it. In response, the SPIDR Space Agency warned that, if something went wrong, the risk and chances of Syd-1 actually crashing into SPIDR territory would be considerably larger.86 This “unilateral decision by FUSA to put SPIDR at greater risk” disregarded the interests of SPIDR. As a result, URA acted solely for its own interests, and did not perform the mitigation technique with due regard to the corresponding interests of all other States Parties to the Treaty. 4.

URA Failed to Avoid Adverse Changes to the Environment of the Earth Resulting from the Introduction of Extraterrestrial Matter and Failed to Undertake Appropriate Measures under Article IX OST

Article IX OST further stresses that States “shall pursue studies of outer space, including the Moon and other celestial bodies and [...] conduct exploration of them so as to avoid [...] adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.”87 This is a primary rule of international law whose violation brings about the international responsibility of States.

______ 81 82 83 84 85 86 87

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Article IX, OST. Sergio Marchisio, Article IX, in I COLOGNE COMMENTARY ON SPACE LAW, 175 (Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl eds., 2009) (Marchisio). Chicago Convention on Civil Aviation, entered into force Apr. 4 1947, Art. 3(d), 15 U.N.T.S 295 (Chicago Convention). Black’s Law Dictionary 544, 590 (4th ed. 1968) (Black’s 4th edition). Marchisio, 176. Compromis, §20. Article IX, OST.

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In the present case, Article IX OST has been violated by URA, whose spacecraft caused adverse changes to SPIDR’s territory through its gravity tractoring operation and the measures adopted unilaterally were inappropriate. Article IX OST refers to “adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter.” The notion of “adverse changes” is closely related to that of “harmful contamination” which refers to a contamination that is capable of causing significant harm.88 In parallel, the obligation to take all appropriate measures to prevent harm, or to minimize the risk thereof, is not confined to activities appreciated as presenting such a risk, but extends to identification of a possible risk involved in any activity in outer space.89 It requires reasonable efforts by a State to inform itself of factual and scientific data regarding a contemplated activity and address it through measures in timely fashion. Said Article must be read in conjunction with Article 7 (1) MA, which imposes the obligation on States to take measures to avoid the disruption of the existing balance of outer space and “also take measures to avoid harmfully affecting the environment of the Earth through the introduction of extraterrestrial matter or otherwise.”90 In the case at hand, the asteroid’s entering the atmosphere of the Earth due to TYRUS’ gravity tractoring of Syd-1 constitutes “introduction of extraterrestrial matter”. The subsequent airburst led to the total destruction of Dropgum, loss of lives and damage to properties in SPIDR territory.91 Such damage constitutes an “adverse change” of SPIDR territory, as human lives cannot be revived and the environment cannot be restored to its pre-existing shape. Moreover, the measures undertaken by URA were inappropriate: it did not take into consideration the warnings of the SPIDR Space Agency about increasing the risk of potential damage to SPIDR and disregarded the alternative proposal of the Applicant’s government.92 Thus, URA has violated its obligations under Article IX OST. C.

URA Is Responsible for the Destruction of Dropgum under General International Law

Under general international law, States are prohibited from conducting activities without regard for the rights of other States. States’ obligations may arise from conventional rules, but also from international custom, as evidence of a general practice accepted as law.93 It is widely supported that a duty of prevention of

______ 88

89 90 91 92 93

D. A. Cypser, International Law & Policy of Extraterrestrial Planetary Protection, 33 JURISMETRICS-JOURNAL OF LAW, SCIENCE AND TECHNOLOGY, 315, 324 (1993) (Cypser). Marchisio, 177. MA, Article 7. Compromis, §26. Compromis, §§20, 21. Article 38 (1)(b), Statute of the International Court of Justice (I.C.J. Statute).

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harm already exists, not just as a rule of responsibility for injury ex post facto,94 but imposing the adoption of appropriate measures before actual damage has occurred, or to exert a State’s best possible efforts to minimize the risk.95 International jurisprudence and legal doctrine consistently reaffirm the existence of the principle96 and its application to the environment as a principle of general international law.97 As crystallized in Principle 21 of the Stockholm Declaration,98 the prevention principle has acquired the status of customary law,99 stressing the responsibility of States “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.” Furthermore, a fundamental rule of customary nature is the “no harm” principle,100 namely a State’s duty not to cause damage to the environment of other States. This customary obligation has been emphasized by the I.C.J.101 Notably in the Corfu Channel case, the Court stressed a State’s obligation “not to allow knowingly its territory to be used for acts contrary to the rights of other States”.102 The application of the principle extends to situations where harm is caused by an activity not within the territory of a State, but merely under its control e.g. a polluting spacecraft.103 Therefore, it has

______ 94 95 96

97 98 99

100

101

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Patricia W. Birnie & Alan E. Boyle, International Law and the Environment, 95 (1993) (Birnie/Boyle). Philippe Sands & Jacqueline Peel, Principles of International Environmental Law, 201 (2012) (Sands/Peel). Trail Smelter Arbitration (U.S v. Canada) 1941, R.I.A.A. 1905 (Trail Smelter); Lac Lanoux Arbitration (France v. Spain) 1957, R.I.A.A. 281 (Lac Lanoux); QuentinBaxter, Preliminary Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law, II YEARBOOK ILC 247 (1980) (Baxter). Iron Rhine Arbitration (Belgium v. Netherlands) 2005, R.I.A.A. 35 (Iron Rhine case). U.N. Doc. A/Conf.48/14/Rev.1 (1973), 11 ILM 1416 (1972) (A/Conf.48/14). De Sadeleer, The principles of prevention and precaution in international law: two heads of the same coin?, in RESEARCH HANDBOOK ON INTERNATIONAL ENVIRONMENTAL LAW, 182 (Malgosia Fitzmaurice, David M.Ong & Panos Merkouris eds., 2010) (De Sadeleer); G.A. Res. 2996, U.N. GAOR, 27th Sess., U.N. Doc. A/RES/3049, 112 (1972) (A/RES/3049). Duncan French, International Guidelines and Principles, in 1 CONVENTIONS, TREATIES AND OTHER RESPONSES TO GLOBAL ISSUES, 5 (Gabriella Maria Kutting ed., 2009) (French), 5. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 242 (Legality of Nuclear Weapons); Case concerning the GabčíkovoNagymaros Project (Hungary v. Slovakia) (Judgment) 1997 I.C.J. 7 (Sept. 25) (Gabčíkovo-Nagymaros (Judgment)). Corfu Channel (UK v. Albania) (Merits) 1949 I.C.J. 4 (Apr. 9) (Corfu Channel (Merits)). Ruwantissa Abeyratne, Space Security Law, 62, 63, (2011) (Ruwantissa); Lotta Viikari, the Environmental Element in Space Law, 150 (2008) (Viikari).

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evolved so as to forbid States to cause damage to the environment of other States due to their activities.104 The aforementioned principle, in conjunction with the principle of prevention, is codified under Principle 21 of the 1972 Stockholm Declaration and has been reiterated in Principle 2 of the 1992 Rio Declaration,105 reflecting a customary rule of international law.106 What is more, the obligation not to cause environmental damage is absolute, thus it is valid irrespective of fault.107 However, even if fault is normally required, it is accepted that an exception is justified once the activity of the State is ultra-hazardous.108 In the present case, by applying gravity tractoring on Syd-1, URA damaged the environment of SPIDR. Indeed, it is TYRUS’s activity of altering the trajectory of Syd-1, which was under URA control, which caused damage to SPIDR.109 No appropriate measures were taken by URA in order to minimize the risk of collision; the alternative options for addressing the threat were rapidly discarded, indicating the absence of substantial determination of the risk. Taking into consideration that outer space activities are par excellence ultrahazardous,110 URA’s gravity tractoring operation does not demand fault for URA to be responsible. Furthermore, given that URA had developed other threat mitigation programs under the auspices of URAC,111 extreme care was reasonably expected. On the other hand, substantial damage to the territory of the injured State is a precondition for the no harm principle to be breached.112 Damage is “substantial” if the injured State can no longer exercise its rights. Accordingly, the injured State is entitled to reparation.113

______ 104 Shaw, at 851-853; Tim Hilier, Sourcebook on Public International Law, 808 (1998) (Hilier). 105 U.N. Doc. A/Conf.151/26 (vol.II), 31 ILM 874 (1992) (A/Conf.151/26). 106 G. Handl, Transboundary Impacts, THE OXFORD HANDBOOK ON INTERNATIONAL ENVIRONMENTAL LAW, 534 (Daniela Bodansky & Jutta Brunnée, Ellen Hey eds., 2007) (Handl); Kathy Leigh, Liability for Damage to the Global Commons, 14 AUST. YB. INT’L L., 134, 135 (1992) (Leigh), 134, 135; P. N. Okowa, Procedural Obligations in International Environmental Law, 67 BR. YB. INT’L L., 280 (1996) (Okowa), 280. 107 Jan Schneider, World Public Order of the Environment-Towards an International Ecological Law and Organization, 170-174 (1979) (Schneider); MPEPIL, Liability for Environmental Damage. 108 SHAW, 887, 888. 109 Compromis, §§25, 26. 110 I. H. P. Diederiks-Verschoor, an Introduction to Space Law, 14 (1993) (DiederiksVerschoor). 111 Compromis, §3. 112 L. Oppenheim, I International Law-A Treatise, 291 (1905) (Oppenheim), 291. 113 Leigh, 129, 143.

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URA caused severe damage to SPIDR’s environment during the gravity tractoring. It is due to its conduct that Syd-1’s impact moved towards the SPIDR coast of the Cold Ocean and resulted in damages to Dropgum.114 Consequently, URA is responsible for the damage to property as well as for the loss of lives in Dropgum. D.

URA Cannot Claim That the Wrongfulness of Its Action Is Precluded

At this point, the Applicant submits that a claim of URA precluding the wrongfulness of its act based on the defense of necessity must be dismissed. The prerequisites for invoking necessity are determined in Article 25 ARSIWA. Said Article states that “[n]ecessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.”115 The conditions for the plea of necessity are considered of customary nature, as reiterated in international jurisprudence.116 Necessity is accepted only on a strictly exceptional basis, only in case there is an irreconcilable conflict between an essential interest and an international obligation of a State.117 Arguments invoking Article 25 are discarded if there were other means available, even if those options cost more or require the State to do more to achieve its goal, or if cooperation with international organizations or other States is needed.118 In the present case, URA cannot invoke necessity. In August 2024, URA used TYRUS to speed up Syd-1, in order to ensure that the asteroid would miss the 2028 keyhole.119 Firstly, there was another possible manner of addressing the Syd-1 threat, since a gravity tractor can equally slow down an NEO “to achieve the same result – no collision” even if that would temporarily include

______ 114 Compromis, §26. 115 Article 25, International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1 (ARSIWA). 116 Russian Indemnity Case (Russia v. Turkey) 1912, R.I.A.A. 421 (Russian Indemnity); Société Commerciale de Belgique (Belgium v. Greece) 1939 P.C.I.J. 160 (Ser. A/B) No 78 (Jun. 15) (Société Commerciale); Gabčíkovo-Nagymaros (Judgment). 117 ARSIWA Commentaries, 80. 118 ARSIWA Commentaries, 83; BROWNLIE, 311; Sarah Heathcote, Circumstances Precluding Wrongfulness in the Articles on State Responsibility: Necessity, in THE LAW OF INTERNATIONAL RESPONSIBILITY, 493 (James Crawford, Alain Pellet, Simon Olleson eds., 2010) (Heathcote). 119 Compromis, §19.

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a portion of URA territory.120 Moreover, several dozen human lives were lost and damages to property were sustained to Dropgum. Therefore, the conditions for necessity are not met, making a potential argument on behalf of URA void. II.

URA Is Liable under International Law for the Loss of or Damage to the First KNUD-1 Spacecraft, and the Loss of the KNUD-2 Harvesting Operation on FLOYD-4

SPIDR submits that URA is liable under the LIAB and the OST for the damage to KNUD-1, as well as for the loss of the KNUD-2 harvesting operation on Floyd-4. Additionally, it is SPIDR’s submission that URA is also responsible for said losses or damages under the provisions of the OST. A.

URA Is Liable for the Loss of or Damage to the First KNUD-1 Spacecraft

1.

URA Is Liable under Article III LIAB

According to Article III LIAB, “in the event of damage being caused elsewhere than on the surface of the Earth to a space object [...] of a launching State by a space object of another launching State, the latter shall be liable only if the damage is due to its fault [...].” It is the submission of the Applicant that URA is liable under Article III, since its requirements are fulfilled. a) The Damage to KNUD-1 Is Covered under the LIAB As demonstrated above, the term “damage” means, inter alia, loss of or damage to property of States.121 This damage is covered regardless of whether it is direct or indirect.122 In the present case, the damage caused to KNUD-1 is direct. KNUD-1 was knocked over in the process of TYRUS’ re-launch and lost all of its communications. b) The Damage Was “Caused by” TYRUS The damage to KNUD-1 resulted from TYRUS’ re-launch. It must be noted that 1) prior to TYRUS’ re-launch from Floyd-4 KNUD-1’s scientific instruments were in perfect condition and functioned properly123 2) KNUD-1 was knocked over in the process of TYRUS’ re-launch and 3) KNUD-1’s antenna was oriented down toward the surface of the asteroid only after the TYRUS

______ 120 Compromis, footnote 1, §21. 121 See above, I A 1. 122 Anubhav Sinha, Responsibility and Liability – A Requirement to Change our Perceptions, IAC-07-E6.2.01, 2007, at 4, 5 (Sinha); S. Houston Lay & Howard J. Taubenfeld, Liability and Space Activities: Cause, Objectives and Parties, 6 VA. J. INT’L L., 252, 259 (1965-1966) (Houston Lay/Taubenfeld); See above, I A 2. 123 Compromis, §9.

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re-launch. This rendered KNUD-1 uncontrollable and resulted in the loss of all its communications.124 It follows that the damage to KNUD-1 was indeed caused by TYRUS. c) URA Is at Fault As far as fault under Article III LIAB is concerned, fault is considered as intent or negligence.125 Negligence exists when the launching State has not shown the appropriate amount of care or “observant attention”, id est, a standard of reasonable diligence exercised by a government in attempting to prevent the occurrence of harm.126 The standard for negligence is due diligence.127 Due diligence is an obligation which encompasses not only the adoption of appropriate rules and measures, but also a certain level of caution in their enforcement to safeguard the rights of others.128 The due diligence standard is measured ad hoc.129 This means that in outer space activities, which are considered to be ultra-hazardous, a high level of diligence is demanded.130 URA has shown negligence for failing to present due care and attention during its re-launch operation on Floyd-4. This duty of due care required from URA to assess the already known circumstances, namely the complicated topography, the existence of KNUD-1 on the preferred attachment site, as well as the difficulties TYRUS faced during landing. Therefore, it should have shown extra caution when re-launching TYRUS. However, it failed to do so. The lack of this attention is indicative of URA’s negligent behavior which establishes its fault.

______ 124 Clarification 19. 125 MPEPIL, Fault, 2007; Riccardo Pisillo Mazzeschi, Forms of International Responsibility for Environmental Harm, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, 16 (Francesco Francioni & Tullio Scovazzi eds., 1991) (Mazzeschi). 126 Diplomatic and Consular Staff (Judgment) 3; BLACK’S 4th edition; Martha MejíaKaiser, Collision Course: 2009 Iridium-Cosmos Crash, in PROCEEDINGS OF THE 52nd COLLOQUIUM ON THE LAW OF OUTER SPACE, 274 (2009) (Mejía-Kaiser). 127 Horst Blomeyer-Bartenstein, Due Diligence, in 10 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 138, 141 (R. Dolzer et al. eds., 1981) (Blomeyer-Bartenstein). 128 Pulp Mills case (Argentina v. Uruguay) 2010 I.C.J. 69 (Apr. 20) (Pulp Mills) 69; Robert P. Barnidge, Jr., The Due Diligence Principle Under International Law, INTERNATIONAL COMMUNITY LAW REVIEW 81 (2006) (Barnidge). 129 Responsibilities and Obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10, 43 (Advisory Opinion 2011 ITLOS); Alabama Claims Arbitration (U.S. v. Gr. Britain) 1872, R.I.A.A. 125 (Alabama Claims). 130 Soucek, 342; Faure/Ying, 328; Donald H. Bunker, Space Opportunity, Risk and Liability: A Banker’s Perspective, 74 (1985) (Bunker); Lachs, 115; Viikari, 278; Henri Abraham Wassenbergh, Principles of Outer Space Law in Hindsight, 92 (1991) (Wassenbergh); Marchisio, 176.

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Even if it is held by this Court that fault constitutes any act or omission which violates an obligation,131 URA is at fault for breaching its obligations under Article IX OST. URA violated the principle of due regard to the corresponding interests of all States as well as its duty to undertake appropriate consultations, as shown below.132 2.

URA Is Liable under Article VII OST

Even in the case it is held by this Court that URA is not at fault, it must still be held liable under Article VII OST. This Article is applicable since according to Article 23 of the Liability Convention, the provisions of this treaty shall not affect other international agreements between the States Parties. In fact, it must be read in conjunction with Article 30 para. 2 of the VCLT, which states that, when a treaty specifies that it is subject to an earlier or later treaty, the provisions of that other treaty prevail.133 Therefore, Article VII OST, which prescribes, inter alia, that each State Party which launches an object into outer space and from whose territory or facility an object is launched, is internationally liable for damage to another State Party by such object in outer space applies. Given that only the prerequisites of damage and causal link are required for this article to be applied, Article VII incorporates the objective nature of international liability and does not require the existence of fault (strict liability).134 Since the aforementioned prerequisites are met, URA is liable for the damage to KNUD-1 even if it is not at fault. 3.

URA Is Responsible under Article VI OST and the General Rules of State Responsibility

It has already been stated that a State bears international responsibility for the violation of a primary rule of international law which is attributable to it.135 Once such breach is established, secondary rules on State Responsibility are drawn into effect. In the present case, a violation of primary rules has taken place on behalf of URA resulting to the damages to KNUD-1 spacecraft; therefore, Article VI OST, as well as the ARSIWA, are applicable.

______ 131 CHENG GENERAL PRINCIPLES, 225; H. Accioly, Principes Généraux de la Responsabilité Internationale d'après la Doctrine et la Jurisprudence, 96 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW, 369, 370 (1959) (Accioly); Russian Indemnity. 132 See below, II A 3. 133 Article 30, VCLT; Jason R. Bonin, Responsibility and Liability in International Space Law as a Matter of Sequence of Sequence and Succession, IAC-09. E8.1.5, 2009 (Bonin). 134 MPEPIL, Outer Space, Liability for Damage; Cheng, Liability, 115, 117; BROWNLIE, 423; I.H.P DIEDERIKS-VERSHOOR & V. KOPAL, AN INTRODUCTION TO SPACE LAW 37 (2008) (VERSHOOR/KOPAL); Frans G. von der Dunk, Liability Versus Responsibility in Space law – Misconception or Misconstruction?, in PROCEEDINGS OF THE 34th COLLOQUIUM ON THE LAW OF OUTER SPACE 363-365 (1991) (von der Dunk, Responsibility); Kerrest/Smith I, 121, 132; Jochen Pfeifer, International Liability for Damage Caused by Space Objects, 30 GER. J. AIR & SPACE L., 221 (1981) (Pfeifer). 135 See above, I B 1.

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a) URA Violated Article I OST According to the first sentence of Article I OST, “[t]he exploration and use of outer space [...] shall be carried out for the benefit and in the interests of all countries.” However, this freedom is limited by the OST itself; any activity is allowed in space as long as it is carried out for the benefit and interests of mankind.136 States are prohibited from disregarding or harming the interests of any other State when conducting space activities.137 In the case at hand, URA acted against the benefit and interests of SPIDR by damaging the KNUD-1 spacecraft. When TYRUS knocked KNUD-1 over and caused the loss of all its communications, it also rendered KNUD-1 uncontrollable.138 Therefore, KNUD-1 could not resume its operation nor be directed from Earth, essentially becoming a piece of space debris.139 It is clear that the activity of TYRUS hampered the interests of SPIDR served by the KNUD-1 mission. Furthermore, URA also acted against the interests of the international community as a whole by increasing the number of space debris in outer space, and by depriving the scientific community of the further information derived from KNUD-1’s scientific research on the asteroid.140 b) URA Violated Article IX OST (1) URA Did Not Act with Due Regard to the Corresponding Interests of SPIDR Under the first sentence of Article IX, “in the exploration and use of outer space [...] States Parties to the Treaty [...] shall conduct all their activities in outer space with due regard to the corresponding interests of all other States Parties [...].” The obligation which, therefore, derives from the wording of this Article is that of respecting other States’ interests when conducting space activities.

______ 136 Ram Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, 32 JOURNAL OF INTERNATIONAL LAW, 41 (2006) (Jakhu); Marco G. Marcoff, Télédiffusion par satellites et droit international, in BEITRAGE ZUM LUFT- UND WELTRAUMRECHT: FESTSCHRIFT ZU EHREN VON ALEX MEYER, 339 (Manfred Bodenschatz, Karl-Heinz Böckstiegel, Peter Weides eds., 1975) (Marcoff). 137 Edwin W. Paxson, Sharing the Benefits of Outer Space Exploration – Space Law and Economic Development, 4 Mich. J. Int’l L., 494 (1993) Paxson; Ricky J. Lee, Law and Regulation of Commercial Mining of Minerals in Outer Space, 195 (2012) (Lee Mining). 138 Clarification 12. 139 ILA on the Protection of the Environment from Damage Caused by Space Debris, Final Report to the Sixty-sixth ILA Conference, 305-325 (1994) (ILA International Instrument Protection of the Environment from Damage Caused by Space Debris); InterAgency Space Debris Coordination Committee, IADC Space Debris Mitigation Guidelines, 3.1, 1 (2002) (Space Debris Mitigation Guidelines); International Academy of Astronautics, Position Paper on Orbital Debris, Prepared by an ad hoc Expert Group on Safety, Rescue and Quality, 3 (1993) (IAA Position Paper on Orbital Debris). 140 Compromis, §9.

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The principle of due regard is understood as an obligation to take into account, both prior to planned and during ongoing operations, the legal rights of other States.141 Non-interference with activities of other States is a general rule of international law, applied by this Court in the 1974 Fisheries Jurisdiction case.142 According to that ruling, a State has to take into consideration the legitimate interests of other States when it exercises its freedom of action and conduct itself with due regard to the other States’ rights. The failure of a State to demonstrate due regard to the rights of other States may result in the harmful interference with other States’ space activities.143 Accordingly, States should avoid taking any measures aimed at hampering the space activities of other States.144 In the case at hand, URA did not demonstrate due regard when re-launching TYRUS. URA attached TYRUS on the same area of the asteroid as KNUD-1, despite SPIDR’s warnings about safety risks involved in attaching a second spacecraft on the surface of Floyd-4.145 URA’s failure to show due regard is also proven by the damage to KNUD-1. Therefore, URA failed to show the required due regard, and thus violated Article IX OST. (2) URA Did Not Undertake Consultations Regarding the Re-Launch of TYRUS The third sentence of Article IX stipulates that “[i]f a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, [...], would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, [...], it shall undertake appropriate international consultations before proceeding with any such activity or experiment.” For this provision to be applicable, two conditions must be met: First, there must be a planned activity or experiment in outer space. Second, there must be reason to believe that the activity or experiment would cause potentially harmful interference

______ 141 International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, U.N. GAOR 56th Session, Supp. No. 10, U.N. Doc. A/56/10 (2001) (Draft Articles on Transboundary Harm); MPEPIL, Due Diligence; BLACK’S 4th edition, 590; DICTIONNAIRE DE DROIT INTERNATIONAL PUBLIC 770 (2001) (DICTIONNAIRE). 142 Fisheries Jurisdiction Case (U.K. v. Ice.) 1974 I.C.J. 3 (Feb. 2) (Fisheries Jurisdiction 1974). 143 Michael C. Mineiro, Principles of Peaceful Purposes and the Obligation to Undertake Appropriate International Consultations in Accordance with Article IX of the Outer Space Treaty, in 5th E. Galloway Symposium on Critical Issues in Space Law Washington, D.C., 4 (2010) (Mineiro). 144 Marchisio, 175; Cypser, 324. 145 Compromis, §11.

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with activities of other States Parties in the peaceful exploration and use of outer space.146 URA was under an obligation to undertake consultations before the relaunch of TYRUS from Floyd-4 since all of the above conditions are fulfilled. URA had indeed planned an activity in outer space; that is, TYRUS’ relaunch from Floyd-4 to Syd-1.147 Moreover, taking into account TYRUS’ problematic attachment to the asteroid, the alterations on the surface of Floyd-4, and KNUD-1’s presence on the same attachment spot it was to be expected that TYRUS’ re-launch could cause potentially harmful interference with KNUD-1. Since all conditions are fulfilled, it is clear that URA should have requested consultations before re-launching TYRUS as well. B.

URA Is Liable for the Loss of the KNUD-2 Harvesting Operation on Floyd-4

1.

URA Hampered SPIDR’s Harvesting Operation on Floyd-4

a) SPIDR Had the Legal Right to Harvest Floyd-4 (1) The Harvesting of the Resources of Celestial Bodies Is Lawful Article I(2) OST states, inter alia, that celestial bodies shall be free for use by all States.148 The term “use” describes both the economic and non-economic use of celestial bodies. Thus, the use of outer space for economic ends includes exploitation of the celestial bodies for profit.149 In addition, the “common interest” principle of Article I(1) OST should be interpreted in terms of economic benefits resulting from the exploitation of outer space.150

______ 146 George T. Hacket, Space Debris and the Coprus Juris Spatialis, in FORUM FOR AIR AND SPACE LAW, 109 (Marietta Benkö & Willem de Graaf eds. 1994) (Hacket). 147 Compromis, §18. 148 Article I, OST. 149 Stephan Hobe, Article I, I COLOGNE COMMENTARY ON SPACE LAW, 35 (Stephan Hobe, Bernhard Schmidt-Tedd & Kai-Uwe Schrogl eds. 2009) (Hobe I); David Tan, Towards a New Regime for the Protection of Outer Space as the “Province of All Mankind”, 25 YALE J. INT’L. L., 145, 161 (2000) (Tan); Karl-Heinz Böckstiegel & Marietta Benkö, Weltraumrechts, in HANDBUCH DER VEREINTEN NATIONEN, 282 (R. Wolfrum ed. 1991) (Böckstiegel/ Benkö); H. L. VAN TRAA-ENGELMANN, COMMERCIAL UTILIZATION OF OUTER SPACE LAW AND PRACTICE, 20 (1993) (VAN TRAAENGELMANN, COMMERCIAL); S.B. Rosenfield, “Use” in Economic Development of Outer Space, in PROCEEDINGS OF THE 24th COLLOQUIUM ON THE LAW OF OUTER SPACE, 73-77 (1981) (Rosenfield). 150 M. Benkö, W. de Graaff & G. C. M. Reijnen, Space Law in the United Nations, 74 (1985) (Benkö/ Graaff/ Reijnen); Ogunsola Ogunbanwo, International Law and Outer Space Activities, 214 (2013) (Ogunbanwo).

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(2) Property Rights Exist on the Harvested Natural Resources of Celestial Bodies Harvesting natural resources of celestial bodies would not be possible without the granting of property rights on the resources extracted. The nonappropriation principle of Article II OST is unclear on whether the ban of national appropriation applies only to the area of the celestial bodies or also to their natural resources. As distinguished scholars have stated,151 property rights exist on the extracted mineral resources.152 Besides, Article II establishes said principle against a territorial concept.153 Extraction of minerals is compatible with Article II OST154 as the territorial nature of the celestial bodies is not threatened. Additionally, the appropriation of natural resources is considered as part of the object and purpose of this Treaty, namely the “free use” of outer space.155 The implementation of this purpose leads to the conclusion that property rights must exceptionally be granted on the resources extracted.156 Such a conclusion is reinforced through interpretation based on the effet utile, which takes into account the treaty’s object and purpose together with good faith to ensure the effectiveness of the terms of the treaty.157

______ 151 Kurt Anderson Baca, Property Rights in Outer Space, 59 J. AIR L. & COM., 1069 (1993) (Baca), 1069; J. Benson, Space Resources: first come first served, in PROCEEDINGS OF THE 41st COLLOQUIUM ON THE LAW OF OUTER SPACE, 46 (1999) (Benson); P.A. Dasch, M.M. Smith & A. Pierce, CONFERENCE ON SPACE PROPERTY RIGHTS: NEXT STEPS, in PROCEEDINGS OF THE 42nd COLLOQUIUM ON THE LAW ON OUTER SPACE, 174 (2000) (Dasch/Smith/Pierce). 152 Wayne White, The Legal Regime for Private Activities in Outer Space, in Space: The Free Market Frontier, 83 (Edward L. Hudgins ed. 2002) (White); Fabio Tronchetti, the Exploitation of Natural Resources of the Moon and Other Celestial Bodies – a Proposal for a Legal Regime, 214 (2009) (Tronchetti); G. Gal, Acquisition of Property in the Legal Regime of Celestial Bodies, in Proceedings of the 39th Colloquium on the Law of Outer Space, 47 (1996) (Gal); Ricky J. Lee, Creating an International Régime for Property Rights under the Moon Agreement, in Proceedings of the 42nd Colloquium on the Law of Outer Space 409, 413 (1999) (Lee, Property Rights); Christol, The Modern International Law, 262. 153 Bin Cheng, The Extra-Terrestrial Application of International Law, 1965 CURRENT LEGAL PROBS. 132, 142 (1965) (Cheng, Extra-Terrestrial); White, 13. 154 D. Goedhuis, Some Recent Trends in the Interpretation and the Implementation of the Rules of International Space Law, 19 COLUMBIA J. OF TRANSNATIONAL L., 219 (1981) (Goedhuis). 155 Ibid.; TRONCHETTI, 31. 156 Baca, 1041, 1069; Benson, 46; Dasch/ Smith/ Pierce, 174; White, 83. 157 MARK EUGEN VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 428 (2009) (VILLIGER); Exchange of Greek and Turkish Populations, Advisory Opinion, 1925 P.C.I.J. (Ser. B), No 10 (Feb. 21) (Greek/ Turkish Populations); Lighthouses case between France and Greece (France v. Greece) 1934 P.C.I.J. (Ser. C), No 74 (Mar. 17) Anzilotti ‘dissenting opinion’ (Lighthouses case); Gabčíkovo-Nagymaros (Judgment), D. P. O’CONNELL, INTERNATIONAL LAW, 253 (1970) (O’CONNELL); Chorzów Factory.

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Thus, since the right to “free use” could not be exercised without property rights,158 national property rights do exist over natural resources of the celestial bodies. b) URA Ignored SPIDR’s Priority Rights to Exploit Floyd-4 There can be no commercialization in outer space without the acceptance of the existence of priority rights in commercial exploitation. Regarding the exploitation of mineral resources, priority is justified due to their limited amount and the limited access to them. In addition, the principle “first come, first served” applies to activities of commercial nature in space, once a space object occupies a location.159 A precedent already exists in international law, with regard to the geostationary orbit. More specifically, the ITU allocates orbital slots in the geostationary orbit on a “first come” basis.160 The reason is that the GEO constitutes a natural resource that is limited, as the ITU has stated.161 It follows that, since it is impossible for all States so interested to simultaneously station their satellites in the GEO, only a certain number may be allowed at a time. The same applies to any area in space that is similarly limited in access.162 The aforementioned assertions apply in the present case. The attachment site of Floyd-4 was limited in area due to its complicated topography.163 Additionally, KNUD-1 was the first spacecraft to land on Floyd-4. This meant that KNUD-1 would occupy a large part of the preferable attachment site. As such, any other spacecraft landing on the same site would unavoidably find itself in alarming proximity to KNUD-1, compromising both operations. SPIDR’s KNUD missions had priority on the asteroid and SPIDR was the only State competent to judge the safety risks involved in attaching a second spacecraft on the asteroid. SPIDR had indicated its priority to URA in time; nonetheless, URA ignored it. For these reasons, SPIDR’s priority in harvesting Floyd-4, as well as URA’s failure to respect it, should be recognized. Even if it is claimed by the Respondent that it had the right to ‘prior harvesting’ in accordance with Article 11(5) MA,164 it is the Applicant’s submission

______ 158 H.G. Darwin, The Outer Space Treaty, 42 B.Y.I.L., 278 (1967) (Darwin). 159 Gabriela Catalano Sgrosso, International Space Law, 63 (2011) (Sgrosso); White, 83. 160 W. Henry Lambright & Anna Ya Ni, The Environmental Frontier of Space, in HANDBOOK OF GLOBALIZATION AND THE ENVIRONMENT, 106 (Khi V. Thai, Dianne Rahm, Jerrell D. Coggburn eds. 2007) (Lambright/Ya Ni); Rob Frieden, Balancing Equity and Efficiency Issues in Global Spectrum Management, in GOVERNING GLOBAL ELECTRONIC NETWORKS-INTERNATIONAL PERSPECTIVES ON POLICY AND POWER, 127 (William J. Drake, Ernest J. Wilson III eds. 2008) (Frieden). 161 ITU Constitution, art. 44. 162 Brendan Cohen, Cleary Gottlieb Steen & Hamilton LLP, Use Versus Appropriation of Outer Space: The Case for Long-Term Occupancy Rights, IAC-14-E.07.1.3, 2014 (Cohen/Steen/Hamilton) at 3. 163 Compromis, §9. 164 Article 11 (5), MA.

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that the MA has not attained widespread support from States as most are opposed to the “common heritage of mankind” concept. This was also the case concerning Part XI of the 1982 UNCLOS which was after all amended by the 1994 Agreement.165 In the present case, SPIDR had every right to prior harvesting of the resources on Floyd-4. However, its activities were unlawfully hindered by URA, which not only demonstrated a disregard for SPIDR’s priority, but also prevented SPIDR from exercising its harvesting rights on the asteroid. Due to surface alterations caused by TYRUS on Floyd-4, KNUD-2 was severely damaged during the landing phase. Consequently, KNUD-2 was not able to operate at its full harvesting capacity and had to depart from the asteroid earlier than planned.166 Hence, KNUD-2 only managed to deliver a fraction of the resources it was supposed to collect.167 Thus, SPIDR suffered huge consequential damage, in the form of loss of profits from the resources it was unable to gather. Therefore URA prevented SPIDR from fully exercising its lawful rights of exploitation under Article I(2) OST. 2.

URA Is Liable under Article III LIAB

a) The Damage to KNUD-2 Is Covered under the LIAB The damage to the instruments and solar panels of KNUD-2 was caused indirectly by TYRUS. Specifically, the damage was caused by the adverse changes introduced by TYRUS on the surface of Floyd-4. b) The Damage Was Caused by TYRUS There is a proximate causal connection between the actions of TYRUS and the damage to KNUD-2. Specifically, TYRUS managed to attach on the regolith of Floyd-4 only after irreversibly altering the NEO’s surface.168 It was TYRUS’ impact on the surface of Floyd-4 that caused irreparable damage to the instruments and solar panels of KNUD-2, since the landing of the latter on the altered surface was problematic due to said alteration. c) Loss of Profits Constitutes Damage under the LIAB The damage caused to the KNUD-2 spacecraft led to the loss of the harvesting operation on Floyd-4. Loss of profits is covered under indirect damage,169

______ 165 United Nations Convention on the Law of the Sea, entered into force November 16, 1994, 1833 U.N.T.S. 397 (UNCLOS); Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, in CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW 320 (James Crawford & John S. Bell eds. 2005) (Klein). 166 Compromis, §22. 167 Compromis, §23. 168 Compromis, §22. 169 Kerrest/Smith I, 141. Carpanelli/Cohen, 10; Amco Asia Corporation and Others v. The Republic of Indonesia, Case No. ARB/81/8, ICSID., Final Award (5 June 1990)

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when it is shown that the profit would have been expected in the ordinary cause of events.170 In the present case, KNUD-2’s scientific instruments were damaged irretrievably and its solar panels could operate only at 30% of their intended capacity.171 Hence, KNUD-2 managed to deliver only 10% of the resources it was supposed to collect and had to depart just four months after docking.172 The fact that KNUD-2 had already begun the extraction of a fraction of the resources (10%) is indicative of the future resources (90%) it would have collected had it not been damaged. Consequently, because of the damage to KNUD-2, SPIDR suffered huge economic damage in the form of loss of profits from the resources it was unable to gather. d) URA Is at Fault As demonstrated above, fault is considered as intent or negligence.173 URA has shown negligence for failing to present due care and attention during its landing operation on Floyd-4. Specifically, it is stated in the agreed facts that TYRUS required several unsuccessful attempts in order to attach on Floyd-4, and altered the surface in the process. Although it is clarified that URA was not aware of these alterations until KNUD-2’s arrival it should have become aware of the conditions of TYRUS’ landing, and informed SPIDR accordingly, bearing in mind the upcoming KNUD-2 mission.174 This negligent behavior of URA establishes its fault. Even if it is held that fault constitutes any act or omission that violates an obligation,175 URA is still at fault for the damage to KNUD-2 since it has breached its obligations under Articles IX and XI OST as demonstrated below.176 3.

URA Is Liable under Article VII OST

As already shown above, URA is liable for the damages to both KNUD spacecraft even if it is not at fault.177

______ 170 171 172 173 174

175 176 177

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(Amco Asia); Libyan American Oil Company (LIAMCO) v. The Government of the Libyan Arab Republic 16, 17, 20, Award (12 April 1977) (LIAMCO); Chorzów Factory; O’CONNELL, 987. Compromis, §22. Compromis, §23. Supra, note 121. Clarification 19, Manfred Lachs Moot Court Problem; Report of the ILC 53rd session; Draft Articles on Transboundary Harm; James Crawford & Simon Olleson, The Nature And Forms of International Responsibility, in I INTERNATIONAL LAW, 460 (Malcolm D. Evans ed., 2003) (Crawford/Olleson). Supra, note 127. See below, II B 4. See above, II A 2.

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4.

URA Is Responsible under Article VI OST and the General Rules of State Responsibility

a) URA Violated Article I OST178 By introducing adverse changes on the surface of Floyd-4, URA hampered SPIDR’s interests of harvesting Floyd-4’s resources since KNUD-2 was irrecoverably damaged.179 Therefore, by acting against the interests of SPIDR, URA violated Article I OST. b) URA Violated Its Duty to Undertake International Consultations under Article IX OST URA was under the duty of undertaking international consultations before the launch of TYRUS since the conditions mentioned above are met.180 Firstly, URA had planned the launching of TYRUS to Floyd-4.181 Secondly, URA had serious reason to believe that its landing might potentially have a harmful interference with SPIDR’s mission as SPIDR had already informed the international community of the complicated topography of Floyd-4.182 Moreover, URA had been promptly informed of the safety risks involved in attaching a second spacecraft on the asteroid. Potential alteration of the surface of the asteroid during TYRUS’ attachment would possibly be harmful to any future attachment on the same preferable area. For these reasons, URA was under the obligation to undertake international consultations before launching TYRUS. c) URA Violated Its Duty to Inform under Article XI OST According to Article XI OST, States Parties to the Treaty agree to inform the Secretary-General of the United Nations as well as the public and the scientific community, to the greatest extent feasible and practicable, inter alia, of the results of such activities. The provisions of this Article incorporate the general concept of international cooperation in space activities.183 In the present case, URA was under an obligation to inform SPIDR of the results of TYRUS’ landing on Floyd-4, namely the alterations of the asteroid’s surface. The fact that URA was not aware of the alteration until KNUD-2’s arrival, is of no importance since it should have taken measures to become informed.184 However, URA breached Article XI OST by failing to

______ 178 179 180 181 182 183

See above, II A 3 a. Compromis, §22. See above, II A 3 b 2. Compromis, §7. Compromis, §9. Jean-François Mayence & Thomas Reuter, in I COLOGNE COMMENTARY ON SPACE LAW, 191 (Stephan Hobe, Bernhard Schmidt-Tedd, Kai-Uwe Schrogl eds., 2009) (Mayence/Reuter). 184 See above, II A 1 c.

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inform the international community and specifically SPIDR whose interests were directly affected, of said results. C.

Even if URA Had the Right to Free Access on Floyd-4 under Article I OST, It Abused This Right

Last but not least, even if it is accepted by the Court that URA had the right to access Floyd-4, regardless of SPIDR’s priority rights, the Applicant submits that URA is responsible for abusing its right to free access under Article I of the OST.185 The concept of “abuse of rights” provides that States are responsible for their acts, which are not unlawful in the sense of being prohibited, however cause injury to other states.186 The prohibition of abuse of rights is considered a general principle of law187 and has been widely accepted in international law188 as the PCIJ has ruled in the case concerning Certain German Interests in Polish Upper Silesia case.189 In the aforementioned case, the Court ruled that a misuse of the right of Germany to dispose of its property would entail the character of a breach of the Treaty. In the present case, URA misused its right of free access under Article I OST by introducing adverse changes190 on Floyd-4 and by depriving SPIDR of its right to landing KNUD-2 safely and on the preferred attachment spot. The Respondent exercised this right in a way that prevented the Applicant from exercising its own respective right. Therefore, URA abused its right. Submissions to the Court

For the foregoing reasons, the government of the Sovereign Peoples Independent Democratic Republic, Applicant, respectfully requests the Court to adjudge and declare that: i. URA is liable for damages under international law to SPIDR for changing the orbit of Syd-1, which resulted in the loss of life and damage to Dropgum; and

______ 185 Article I, OST; Jakhu, 31, 44. (2006). 186 Hersch Lauterpacht, The Function of Law in the International Community 286 (2011) (Lauterpacht). 187 Michael Byers, Abuse of Rights: An Old principle, a New Age, 47 MCGILL L. J., 390, 391 (2002) (Byers). 188 Fisheries Case (United Kingdom v. Norway) 1951 I.C.J. (Dec. 18) Alvarez ‘individual opinion (Fisheries 1951); Free Zones of Upper Savoy and the district of Gex (France v. Switzerland) (Judgment) 1932 P.C.I.J. (June 7) (Free Zones); United States-Import Prohibition of Certain Shrimp and Shrimp Products (Complaint by the United States) (1998), WTO Doc. WT/DS58/AB/R (Appellate Body Report) (Shrimp WTO). 189 Certain German Interests in Polish Upper Silesia (Germany v. Poland) (Merits) 1926 P.C.I.J. (May 25) (Certain German Interests). 190 Article VII, MA.

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ii. URA is liable under international law for the loss of or damage to the first KNUD-1 spacecraft, and the loss of the KNUD-2 harvesting operation on Floyd-4; and to dismiss all claims to the contrary. Respectfully submitted on behalf of the Applicant, Agents for the Applicant. Memorial for the Respondent, the United Republic of Adventura (URA)

University of Mississippi, School of Law, US Students: Ms. Olivia B. Hoff, Mr. C.J. Robison and Mr. Ian Perry Faculty Advisor: Prof. Michael Dodge Faculty Advisor Assistant: Prof. Dr. Michael Mineiro I.

URA Is Not Liable for Damages to SPIDR Caused by Syd-1

A.

URA Is Not Liable for Damages Caused by Syd-1 under the Liability Convention

According to the Liability Convention, “[a] launching state shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to an aircraft in flight.”1 However, URA is not liable for damages to SPIDR caused by Syd-1 because SPIDR cannot meet the burden of proof to demonstrate causation. Furthermore, the damage resulting from the airburst of Syd-1 is not within the purview of risk established by the Liability Convention. 1.

SPIDR Cannot Prove Causation

Though the Liability Convention established a regime of strict liability in which fault need not be proved for damages within the scope of the Convention, causation of damages must still be proved. However, SPIDR cannot prove that URA’s actions caused damage to Dropgum. Even when analyzing claims of damage using the Liability Convention, causation remains a factual question. In its most recent discussion of questions of fact, this Court has reaffirmed that “the burden of proof rests in principle on the party which alleges a fact.”2 Given this rule, SPIDR has the burden of proving URA’s actions did in fact cause damage. It is stipulated between the parties that both URA and SPIDR were inside the “risk corridor of potential impact points,” and

______ 1 2

Convention on International Liability for Damage Caused by Space Objects art. II, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter Liability Convention]. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), 2015 I.C.J. 1, 65 (Feb. 3).

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therefore SPIDR was already at risk of impact.3 This is analogous to the Pulp Mills case, in which the fact that an algae bloom was similar to the type of damage that would be expected in increasing nutrient levels in a river was found insufficient to prove causation given the preexisting risk of such a phenomenon.4 As a village on the Cold Ocean over which the potential impact points were centered, Dropgum was on the side of SPIDR closer to the center of the uncertainty ellipse. Using a gravity tractor to alter an asteroid’s orbit results in risk being shifted east or west, rather than north or south.5 As a result, the method of operation of gravity tractors and the geographical position of Dropgum imply it was one of the areas of SPIDR already at risk of an impact or airburst. A claim of increased risk to Dropgum fails to take into account the fact that small asteroids present the possibility of a devastating tsunami.6 Scientific models indicate that an asteroid with a diameter of 100 meters has the potential to create a major tsunami several hundred kilometers from its impact point.7 In the absence of clear proof that URA’s action caused damage to Dropgum, the burden of proof of factual causation cannot be met and URA must be exonerated from liability for the airburst of Syd-1.8 2.

The Damage Resulting from the Airburst of Syd-1 Is Not within the Purview of Risk Established by the Liability Convention

Further, even if the Court finds that the probability of damage to SPIDR was increased due to URA’s deflection efforts, it would still be inappropriate to apply the strict liability standard of the Liability Convention because the Convention was not designed to address pre-existing risks to the entire Earth.

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8

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Compromis §16. Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 1, 9697 (Apr. 20). Alexis Madrigal, Saving Earth from an Asteroid Will Take Diplomats Not Heroes, WIRED (Dec. 16, 2009), www.wired.com/2009/12/saving-earth-from-an-asteroid/. J. Kunich, Planetary Defense: The Legality of Global Survival, 41 A.F. L. REV. 119, 124 (1997). For one specific scenario, a 100 meter diameter asteroid with a density of 3000 kg/m3 and 45° angle of impact is predicted, if impacting 1000 meter deep water at 17 meters per second, to create a tsunami with an amplitude of just over a meter at 200 kilometers and about 2 feet at 400 kilometers. See Earth Impacts Effects Program, IMPERIAL COLL. LONDON, http://impact.ese.ic.ac.uk/ImpactEffects/ (last visited Mar. 8, 2015), cited in by L. F. Castillo Arganaras, Natural Near Objects and The International Law of Outer Space, 2008 INT’L INST. SPACE L. 283, 285. Note that amplitude gives the height of the deep water wave which is often several times lower than the run-up height created as the wave encounters the shore. SMS TSUNAMI WARNING, www.sms-tsunami-warning.com (last visited Mar. 3, 2015). The run up-effect poses a particular threat to many coastal population centers because of how the water is channeled by ports. Id. See supra note 67 and accompanying text.

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The Liability Convention stipulates that a state is “absolutely liable” for damages it causes to the ground, yet it has no provision for holding a state liable for only the percentage of risk shifted to an already at-risk country.9 Holding URA liable for the entire damage in a case like the present would impose an inequitable burden on states taking action to protect the Earth.10 Such a manifestly absurd and unreasonable application of the Liability Convention fails to account for its “object and purpose.”11 One space law scholar has gone so far as to say: The provisions of the Convention are, thus, limited in scope to liability cases for damages caused by a space object only. With regards to disaster management issues, this means that these provisions are only applicable if a satellite or another system used for disaster management purposes falls down on Earth and causes damages. As a consequence, all the others [sic] liability cases which may arise in connection with the use of space technologies for disaster management activities are not covered by the terms of the Convention.12 This statement conflates the question of causation under the Liability Convention with the question of whether the Liability Convention is applicable at all. However, the scholar references in an exaggerated way the fact that the intended scope of the Liability Convention’s strict liability regime encompassed novel risks introduced to the Earth by spaceflight. Damages that occur in the course of disaster prevention are not of this nature. a) The Text of the Outer Space Agreements Supports the Idea That the Context of the Liability Convention Is Limited to Novel Situations Arising from Human Activity “The intention, indeed the whole – ‘teleological’ – context of the Outer Space Treaty was to deal with activities of mankind and man’s entry into outer space and to provide a legal context and framework for those.”13 This mindset is clearly reflected in the current text of the outer space agreements. The other major space treaties confirm that the risks of human space activity form the context and circumstances in which the Liability Convention was concluded.14

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11

12 13 14

Liability Convention, supra note 64, art II. This Court has explicitly taken equity into account in previous cases. See, e.g., North Sea Continental Shelf Cases (F.R.G. v. Den./F.R.G. v. Neth.), 1969 I.C.J. 4, 48-50 (Feb. 20). Vienna Convention on the Law of Treaties art. 31-2, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention].The Vienna Convention is generally accepted as summarizing customary international law and has been cited by this Court often. Maritime Dispute (Peru v. Chile), 2014 I.C.J. 1, 18-19 (Jan. 27). F. Tronchetti, Space Treaties and Disaster Management, 2008 INT’L INST. SPACE L. 673, 678-79. Frans G. von der Dunk, Defining Subject Matter Under Space Law: Near-Earth Objects Versus Space Objects, 2008 INT’L INST. SPACE L. 293, 294-95. Vienna Convention, supra note 74, arts. 31, 32.

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The Outer Space Treaty creates rules for space in the context of humans “launching” objects into space and provides a framework for assigning responsibilities and liabilities based on which state conducted the launching.15 The Rescue Agreement creates a framework for the international community to give aid to these launching states and calls for return of a “space object” and its “component parts” belonging to the “launching authority.”16 The Registration Convention, a document drafted in close proximity with the Liability Convention, provides instructions regarding how an individual state is to notify others of its placement of a space object in order to assign liability to risks introduced by such activity.17 The text of the Liability Convention itself shows that it is similar in scope to the aforementioned space agreements. For example, the Convention shows its concern with risk introduced by human activity in its broad definition of space object as including “its component parts, its launch vehicle, and parts thereof.”18 b) The Intended Scope of the Liability Convention Is Limited to Risks Introduced by Human Activity Interpreting the scope of the Liability Convention as being tied to increased risks resulting from human activity receives confirmation upon examination of its travaux préparatoires: So far it seemed that no significant damage had been done to any State or person not directly associated with the launching; the risks would increase, however, as the number and size of the objects launched into outer space increased. It was primarily for the protection of the interests of the States and people who occupied the greater part of the land masses of the earth, but who had no substantial direct concern in space activities, that there was an urgent need for an affirmative and satisfactory liability agreement.19 Consequently, it can be said that “the intention of all delegations was quite clear: the intention was to refer to [space objects as] objects which had been introduced or were sought to be introduced into outer space by human agency.”20 As they sought to make sure the Convention was broad enough to deal with all of the

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16

17 18 19

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Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. VII, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space art. V, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. 119. Convention on Registration of Objects Launched into Outer Space, Jan. 14 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15. Liability Convention, supra note 64, art. I. Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Draft Agreement on Liability for Damage Caused by Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/SR.92 (1968) [hereinafter U.N. Doc. SR.92]. Id.

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new risks of human spaceflight, several states voiced concern about damage originating from parts “detached from or torn from the space object.”21 Because the point here is to cover all of the risks introduced by spaceflight, it would be an absurd construction of the Liability Convention to limit its scope to direct impacts of space objects. However, it is likewise absurd and unreasonable to expand its scope to apply to risks to the Earth not introduced by human activity, or to punish states that take action against such pre-existing risks. The application of strict liability to intervention against asteroids would in effect reward states for inaction, allowing them to reap the benefits of deflection if another state conducted it successfully, while reserving them an absolute right to fine the rescuing state upon failure. Such a situation is absurd and unreasonable, and recourse to the preparation documents shows that punishing attempts to mitigate natural disasters was outside the drafters’ intention.22 Whether or not the damage results from the physical impact of a space object, the logic of the Liability Convention holds states liable for risks their space activities introduce to the Earth. Thus, a mission which brought a celestial body into Earth’s orbit would be strictly liable for any damage resulting from the risk it had introduced and unable to exonerate itself even if there was no showing of fault or negligence. By the same logic, a mission which attempts to stop a celestial body that is already on a collision course with Earth is not within the scope of the Liability Convention if it does not increase the aggregate risk to Earth. Syd-1 was destined to strike Earth unless URA or another state took immediate action. If URA had chosen not to intercept Syd-1, damage would still have been inflicted upon the Earth’s surface, possibly upon another populated area through means of direct impact or consequent natural disasters. The compromis provides no indication that the total risk to Earth was increased. Rather, it hints that the “risk corridor did not completely miss the Earth” and that the URA mission had partially shifted the risk corridor in a direction in which the possible path of the asteroid now included a greater area of empty space.23 The fact that these improved odds did not ultimately result in Syd-1 missing the Earth does not change the fact that the mission, unlike the

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22

23

Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Argentina, Belgium, France: Working Paper, Definition of a Space Object, U.N. Doc. PUOS/C.2/70/WG.1/CRP.16 (1970). During the drafting of the Liability Convention, one delegate “urged the space Powers to ponder the words of Professor Lachs, a Judge of the International Court of Justice, who had stated that the jurists task in shaping the law of outer space involved more than the framing of technical treaty clauses and the analysis of documents” and instead was to “remove threats to survival.” Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Draft Agreement on Liability for Damage Caused by Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/SR.128 (1969). See Compromis §§20, 25.

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situations envisioned by the Liability Convention, decreased the risk to the Earth.24 c) International Law Limits the Scope of the Liability Convention Article III of the Outer Space Treaty affirms that broader international law applies to space, and the principles of international law help to provide context to the treaties and deal with gaps in their explicit provisions.25 There is precedent for narrowly reading the scope of applicable treaties to limit conflict with established international law. In the Advisory Opinion on Nuclear Weapons, this Court has said, “[It] does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment.”26 In the same manner, the space treaties remain in effect during emergencies, but should not be interpreted in such a way as to undermine the right of states to protect themselves. The present situation is outside the scope of the Liability Convention, but is addressed by the broader norms of international law. B.

URA Is Not Liable for Damages to SPIDR Caused by Syd-1 under General International Law or the Outer Space Treaty

First, URA is not liable for damages because it is not at fault as its actions are justified by necessity. Second, URA fulfilled its obligations under the Outer Space Treaty.27 Lastly, SPIDR is estopped from holding URA liable because of its own actions and failure to make a timely protest against URA’s planetary defense activities. 1.

URA Is Not at Fault under General International Law

Under general international law, liability cannot be imputed to URA’s actions of planetary defense as fault is to be identified with an unlawful act.28 This principle is illustrated in the Prats Case in which a Mexican national, Salvador Prats, claimed that the United States was liable for its failure to prevent Confederate armies from burning a ship containing his property.29 However, the Commissioner of the arbitral tribunal stated:

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25 26 27 28 29

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SPIDR’s claims about relative risks to territory from deflection make no claim about the amount of population at risk and fail to account for the risk of tsunami. See Compromis §20. Outer Space Treaty, supra note 78, art. III. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 242 (July 8). Much of the analysis for Article II of the Liability Convention also applies to Article VII of the Outer Space Treaty and is not duplicated here. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals 223 (2006) [hereinafter Cheng, General Principles]. U.S.-Mex. Mixed Claims Comm’n (Prats v. U.S.), 29 R.I.A.A. 187, 189 (1868).

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There is no responsibility with fault (culpa), and it is too well known that there is no fault (culpa) in having failed to do what was impossible. The fault is essentially dependent upon the will, but as the will completely disappears before the force, whose action cannot be resisted, it is self-evident result that all the acts done before such force, without the possibility of being resisted by another equal or more powerful force, can neither involve a fault nor injury nor responsibility.30 In addition to illustrating the general rule of liability on the basis of fault, Prats held that an unlawful act is associated with the voluntary character of the act. But more importantly, Prats held that fault only “goes as far as permitted by possibility.”31 Therefore, absent a showing of fault, states are not liable for the actions of hostile third parties (or by the same logic, asteroids) which they do not succeed in preventing from doing damage. SPIDR might attempt to differentiate the present case by saying that here, URA didn’t merely fail to stop a third party, it intervened in the Syd-1 emergency in a way that was prejudicial to SPIDR. Such an argument can be shown to be incorrect from the principles of international law. 2.

URA Has a Right under International Law to Take Necessary Actions to Preserve Itself and Its Population

Self-preservation is a basic premise of international law. Article 51 of the U.N. Charter makes this clear in the qualification it places on its other provisions dealing with conduct between states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense.”32 The terminology refers to the classical international law doctrine of self-defense, which was grounded in the more basic right of self-preservation.33 However, we are not left to infer a modern international law right of self-preservation against natural threats from the right of self-defense against people.34 The doctrine of necessity, now codified in the Articles on State Responsibility,35 provides a legal category to deal with, inter alia, threats that are similar to

______ 30 31 32 33 34 35

Id. at 198. Id. at 196. U.N. Charter art. 51. See HUGO GROTIUS, ON THE LAW OF WAR AND PEACE 18-41 (A.C. Campbell trans., Batoche Books ed., 2001). Cf. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 242 (July 8). Responsibility of States for Internationally Wrongful Acts art. 25, G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (Jan. 28, 2002) [hereinafter State Responsibility]. The Articles are generally accepted as a summary of customary international law. Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 39 (Sept. 25).

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self-defense insofar as the nature of the risk, but which do not involve war against another state.36 In accordance with the inherent right of self-preservation, a state may invoke necessity in order to preclude the wrongfulness of an act not in conformity with an international obligation.37 A State may invoke necessity if the act is the “only way for the State to safeguard an essential interest against a grave and imminent peril,” and “[the act] does not seriously impair an essential interest of the State or States towards which the obligation exists, or the international community as a whole.”38 TYRUS’ interception and subsequent deflection of a near-Earth object was the only way for any State to safeguard against damage to sovereign territory or the loss of human life that would have resulted from impact. The probable point of impact was somewhere in the Cold Ocean, but this was not completely certain. Furthermore, assuming that Syd-1 was to reach this impact point, it is known that an impact of Syd1’s size could create a devastating tsunami affecting URA, SPIDR, or neighboring coastal states.39 a) URA’s Actions Did Not Seriously Impair the Interests of SPIDR Claims of necessity may be precluded if they seriously impair the interest of another state. Clearly, SPIDR has an essential interest in not sustaining asteroid impact. However, in the present case, SPIDR was already at risk both directly and indirectly. The science of the more feasible deflection methods means that “[r]isk shifting is an inseparable element of risk elimination in NEO deflection.”40 This Court has recognized that equity is part of the underlying foundation of international law.41 It would be inequitable to consider the interest of one already-at-risk state in not having risk temporarily increased to be an essential interest which blocks other states from taking action that is necessary to eliminate the risk. This is especially the case given

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Some scholars have analyzed NEO issues using the doctrine of self-defense: “If states are entitled to use force against a perceived attacking state in the defence of a third state, a fortiori they would in principle be entitled to use force in defending a third state without such force being applied against any particular state.” Frans G. von der Dunk, Legal Aspects of NEO Threat Response and Related Institutional Issues, 2010 SECURE WORLD FOUND. 1, 11. The doctrine of necessity is, however, a more apt way to categorize the issues arising from NEO threats than the doctrine of self-defense, given that there is no intentional use of force against human beings involved in NEO deflection. State Responsibility, supra note 98, art. 25. Id. See supra note 70 and accompanying text. Russell L. Schweickart, Decision Program on Asteroid Threat Mitigation, 2008 INT’L INST. SPACE L. 322, 326. See supra note 73 and accompanying text.

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that URA can show affirmative reasons for all steps of its actions during the use of a gravity tractor in attempting to divert a preexisting risk. b) URA Was Legally Justified in the Use of Gravity Tractors First, if SPIDR objects to the legality of gravity tractors more generally, this is not supported by the evidence of the opinion of the international community, which appears to support this method because, inter alia, it can move an asteroid without having to be concerned with its composition.42 Gravity tractors present far fewer legal problems than the most obvious alternative deflection method, nuclear weapons, as gravity tractors can be tested without fear of violating treaties. Nuclear weapons would likely be legal to use in defense of the planet, however, the Nuclear Test Ban Treaty is written broadly enough as to prevent them from being tested, even for non-military applications.43 Likewise, the Non-Proliferation Treaty limits the ability of states to access them,44 and the Outer Space Treaty prohibits stationing them in space.45 To avoid the issues associated with alternative methods, gravity tractors have been advocated by publicists,46 and have been under development by the URAC states without record of protest.47 This evidence of state practice on the part of space powers is relevant, as customary international law rules can apply for a region, like space, or among a group of states, like the space powers.48 c) The Direction of Deflection Was Legally and Scientifically Appropriate Gravity tractor technology is limited to shifting an asteroid’s orbit horizontally, which limits the feasibility of deflecting without first passing over populated areas. “‘It’s going to be slowly dragged across the Earth. You don’t have the option of dragging it down through the Antarctic.’”49 Physics provides further constraints as an examination of Gauss’s equations governing the evolution of orbit elements under a low-thrust acceleration tells us the best way to change semi-major axis in a secular way is to apply acceleration along the asteroid’s direction of motion (or in the opposing direction).50

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See Dealing with the Threat to Earth from Asteroids and Comets 58 (Ivan Bekey ed., 2009) [hereinafter Dealing with Threat]. See Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water art. I, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43. Treaty on the Non-Proliferation of Nuclear Weapons, Mar. 5, 1970, 21 U.S.T. 483, 729 U.N.T.S. 161. Outer Space Treaty, supra note 78, art. IV. DEALING WITH THREAT, supra note 105, at 58. Compromis § 3. Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6, 39 (Apr. 12). Madrigal, supra note 68 (quoting Rusty Schweickart). D.K. Yeomans et al., Near Earth Object (NEO) Analysis of Transponder Tracking and Gravity Tractor Performance, 2008 B612 FOUND. 1, 20.

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The position of SPIDR appears to be that TYRUS should have been placed opposite the direction of motion, but an examination of the scientific literature reveals a conspicuous lack of simulations involving a deflection using a gravity tractor behind the asteroid. On the other hand, a detailed study has been done on deflecting an asteroid in which the desired position for the spacecraft was the “center-of-mass along the positive velocity direction of the asteroid.”51 Given the limited time-frame for making a decision, it was reasonable to choose the more studied plan and put the spacecraft in front of the asteroid, which had the effect of speeding it up. Given Syd-1’s orbit, this meant that the risk would be redistributed to the East rather than to the West. Claiming that this difficult decision was done for an improper reason both contradicts the principle that bad faith is not presumed52 and also ignores the scientific evidence which provides affirmative reasons to believe that URA had a good-faith basis for its decisions. Given the situation, there is little doubt that it was necessary for URA to immediately intercept and deflect Syd-1. The threat was much greater than that posed to Britain in the Caroline Incident, in which it was indicated that the presence of a ship which was supporting rebels presented a peril which was “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”53 In that case, the British deliberately and directly violated American sovereignty in a case where the rebels posed no threat to the United States. Here, URA incidentally increased the risk to SPIDR while attempting to stop a threat to URA, SPIDR, and other countries. URA was afforded a narrow six-month window in order to move TYRUS into position.54 Furthermore, there is no evidence that URA had time or available resources to deliberate and create alternative solutions. Once the transponder tracking confirmed the precise location of Syd-1, the risk was, though years in the future, certain and thus imminent. As this Court in the Gabčíkovo-Nagymaros Project stated, “[A] ‘peril’ appearing in the long term might be held to be ‘imminent’ as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable.”55 3.

URA Fulfilled Its Obligations under the Outer Space Treaty

SPIDR might claim that URA’s act of planetary-defense was a violation of the Outer Space Treaty. However, such an allegation contradicts the interpretation

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Id. at 27. See, e.g., Lake Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (1957). National Jurisdiction: Its Legal Effects, 2 Moore DIGEST §217, at 412 (quoting correspondence from the Caroline Incident). Compromis §17. Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 42 (Sept. 25).

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of the international community.56 Article I of the Outer Space Treaty declares that “States shall facilitate and encourage international cooperation” when conducting activities in outer space.57 In its interpretation, the United Nations has stated that “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis.”58 Similarly, space faring powers such as the United States have declared that Article I “does not create legal obligations with respect to the terms of international cooperation on any existing or future space objects.”59 In sum, though mutual cooperation is required when conducting space activities, an individual state may participate in international cooperation in whatever lawful manner it sees fit. SPIDR might provide a follow up objection that Article XI of the Outer Space Treaty requires that states inform the “the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of [its space] activities.”60 But, with the term “feasible and practicable,” this article implies that a state is merely required to publish information “according to its own discretion.”61 Consequently, “there is no obligation to supply such information in advance, or promptly, or in full [...].”62 Though these standards are minimal, URA went beyond such standards and constantly informed SPIDR and the international community of impending risks associated with Syd-1 as well as its intention to mitigate such risks.63 SPIDR might object that there was limited notice provided prior to URA choosing to deflect the asteroid by speeding it up. However, this is a result of technological limitations rather than any dereliction of responsibility on the part of URA. Gravity tractor missions are two stage affairs. In many cases a radio transponder will have to be sent to the asteroid in order to provide adequately accurate and timely information to rationally commit to a deflection. In such instances the GT design can serve the dual role of first determining the precise orbit of the asteroid and therefore the need for deflection, and then, if a deflection is indicated, execute the mission.64

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57 58 59 60 61 62 63 64

See, e.g., Gerry L. Gilmore, Navy Missile Likely Hit Fuel Tank on Disabled Satellite, U.S. DEP’T OF DEF. (Feb. 21, 2008), www.defense.gov/news/newsarticle.aspx?id=49030 (describing an event in which the United States unilaterally destroyed its own defunct satellite). Outer Space Treaty, supra note 78, art. I. G.A. Res. 51/122, §2, U.N. Doc. A/RES/51/122 (Dec. 13, 1996). Carl Q. Christol, The Modern International Law of Outer Space 43 (1982). Outer Space Treaty, supra note 78, art. XI. Bin Cheng, Studies in International Space Law 253 (1997). Id. Compromis §§16, 18-20. Russell Schweickart et al., Threat Mitigation: The Gravity Tractor, 2006 B612 FOUND. 1.

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Therefore, prior to TYRUS arriving and using its transponder to track the asteroid, URA did not have the data to be certain of what response would be required. Upon confirming that deflection was necessary, URA needed to act quickly because tractoring efficiency is “a function of start time” in which “[l]onger durations [...] provide ever-increasing statistical confidence in the miss.”65 Furthermore, a failure to notify would likely be insufficient to find liability even in the absence of these facts as this Court has classified notification failures as procedural failures that did not result in a substantive violation. Thus, a declaration of the procedural violations was sufficient, with no other compensation required.66 4.

SPIDR Is Estopped from Assigning Liability to URA

Even aside from the general and customary principles of law which show the legality of URA’s action, SPIDR is barred from asserting a claim in relationship to many of the actions of URA because it has itself engaged in the same activity. International custom indicates that “[a] State is barred from questioning the legality of a claim which it has itself asserted or condoned.”67 For example, in a time of war between Mexico and France, the Queen’s Advocate from Great Britain determined that Mexico had the right adjudicate French prizes in neutral ports.68 Though France objected to this practice, the British advocate stated, “France can have no right to complain if its Enemy pursues the same course which she has Herself thought fit to adopt.”69 Both URA and SPIDR were both heavily engaged in the Working Group of Near-Earth Objects of UNCOPUOS, and SPIDR has directly engaged in monitoring of dangerous near Earth objects, while combining this activity with commercial projects. It cannot object to URA doing the same. Furthermore, it cannot attack URA by alleging unilateral action given that its own actions, in claiming exclusive right to monitor the risk from Floyd-4,70 involved less cooperation with other countries than did those of URA. SPIDR’s delay in publishing data regarding risks from Floyd-4 indicates that it interprets requirements of notice in the same way as URA.71 SPIDR never claimed that deflection itself was illegitimate.72 When SPIDR protested, SPIDR only

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D.K. Yeomans et al., supra note 113, at 15. Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 1, 106. I.C. MacGibbon, Estoppel in International Law, 7 INT’L & COMP. L.Q. 468, 497 (1958). Id. Id. Compromis §8. Id. at §6. The conduct of SPIDR’s Space Agency may also be considered by the Court. In the Savarkar Case, an arbitral tribunal ruled that France had implicitly consented to the arrest through the conduct of its gendarme, who aided the British authorities in the arrest. See The Savarkar Case (U.K. v. Fr.) 11 R.I.A.A. 243, 252-55 (1911). If police

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demanded that URA use a method that would have caused Syd-1 to pass over URA territory – it appears that they conceded the appropriateness of deflection as such. This Court held that the United Kingdom as a sophisticated state on the North Sea should have known that Norway was taking measures prejudicial to its rights and on that basis, the United Kingdom was held to have acquiesced in Norway’s fisheries delimitation system by not protesting earlier.73 SPIDR, a technologically advanced space power involved in NEO mitigation efforts, should have known that gravity tractor deflections involve a binary risk distribution choice and that a deflecting state might have reason to make a decision quickly upon getting a transponder in place. Yet SPIDR was completely silent and did not protest FUSA’s deflection efforts from February 2024 to August 2024.74 During this time, URA constantly informed the international community of its intentions to intercept and alter the orbit of Syd1.75 It wasn’t until three days before TYRUS was to commence deflection operations that SPIDR chose to protest the efforts of URA.76 Consequently, SPIDR is estopped from making its claim of wrongfulness through its established acquiescence. II.

URA Is Not Liable for Any Loss of or Damage to the Two KNUD Spacecraft

Under the Liability Convention, liability for damages to other spacecraft is apportioned on the basis of fault.77 URA is not liable because it had a right to freely access celestial bodies and neither the damage to KNUD-1 nor the damage to KNUD-2 was brought about as a result of fault on the part of URA. A.

URA Is Entitled to Free Access to Celestial Bodies under the Outer Space Treaty and International Law

URA’s argument before this Court hinges on the free access provisions of the Outer Space Treaty, which invalidates SPIDR’s argument that URA could not land on Floyd-4. The Outer Space Treaty makes this clear via the broad statement that, “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law.”78

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forces can indicate the attitude of a State towards apprehending a criminal such that another State is not violating international law by sending police into its territory, its space agency might provide evidence of a State’s position on asteroid deflection. Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116, 138-39 (Dec. 18). See Compromis §18-21. Id. §18-19. Id. §20-21. Liability Convention, supra note 65, art. IV. Outer Space Treaty, supra note 78, art. I.

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The Outer Space Treaty does not limit us to making an inference from the general rule, however, but immediately follows with, “and there shall be free access to all areas of celestial bodies.”79 As a result, while some areas of space law involve situations not specifically addressed by the treaties, the Outer Space Treaty clearly contemplates the issue of multiple states operating on celestial bodies, and makes it clear that they have the right to do so. Article II makes it clear that this applies to situations in which a state has been on a celestial body, and makes it clear that “use and occupation”80 does not grant the right to claim sovereignty. In other words, being the first to use or explore does not grant one “priority rights”81 to use and explore – the free access provisions remain in place regardless. 1.

Inaccurate Legal Statements from URA and URAC Do Not Affect the Claims at Bar in the Present Case

It is true that the provisions in Articles I and II of the Outer Space Treaty invalidate many of the assertions made by both SPIDR and URA in the initial exchanges of protest regarding their respective missions to Floyd-4. Firstly, it is conceded that URA and URAC had no authority to put a moratorium on the extraction of Floyd-4’s resources or to limit extraction to members of the Moon Agreement or to licensees of URAC.82 The agreement between the URAC states is valid between themselves, but it does not bind third party states.83 However, the damages in the present case did not flow from URA and its partners’ erroneous attempts to apply elements of the Moon Agreement to non-parties. Rather, the KNUD probes were damaged as a consequence of a combination of SPIDR’s refusal to take into account the right of other states to explore Floyd-4 and emergency circumstances beyond the control of any state. 2.

The Abuse of Rights Doctrine Cannot Be Applied Proscriptively to Ban Conduct

SPIDR might attempt to avoid the force of the Outer Space Treaty’s provisions by acknowledging them and then claiming that there was some abuse of these rights. This is a difficult argument because there is a presumption

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Id. During the negotiations, these provisions were described as having “flowed naturally and logically from the prohibition of claims to territorial sovereignty.” Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Conclusion of a Treaty Governing the Exploration of Outer Space, The Moon and Other Celestial Bodies, U.N. Doc. A/AC.105/C.2/SR.58 (1966). So, if SPIDR attempts to justify its interference with free access by claiming that they fall short of a claim of sovereignty, it ignores the intended effects of Article II. Outer Space Treaty, supra note 78, art. II. See Compromis §8. See id. §10. Vienna Convention, supra note 74, art. 34.

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against abuse of right.84 Therefore, the rule does not apply here as it is directed at dealing with cases where a freedom is misused in order to accomplish an illegitimate end.85 It would not justify a ban on exercising freedom of exploration as, according to the generally accepted view, “the doctrine of abuse of rights is of no force, since it does not have the support at international law to be invoked in a general manner and focuses on compensation for, not prevention of, damage.”86 Ultimately, this legal doctrine cannot be used to ban a state from exercising the general right to freedom to navigate and explore celestial bodies, though it could be used to show liability in cases where there was some ill intent in using a freedom which caused harm, rather than a mission with legitimate goals followed by the threat of a natural disaster, as in the present case. 3.

Prior Use of an Area Does Not Provide an Ongoing Right to That Location

SPIDR’s earlier launch of KNUD-1 gave it no right to demand that TYRUS not land in the location desired for KNUD-2. Moreover, TYRUS was not obligated to move in order to let KNUD-2 land because ownership inheres in the space object, not the surface.87 It is true that there is precedent for safety zones around a space object.88 However, there is no actual state practice for exclusion zones around empty previous landing sites on asteroids, and there is certainly no precedent for one state claiming an exclusive right to visit a celestial body.89 Similarly, states are required under the Outer Space Treaty to show “due regard” for the interests of other states.90 However, the general provision cannot be interpreted so as to require a state to completely surrender their explicitly guaranteed right to visit a celestial body. Even in the law of the high seas which specifically recognizes some states as having “special situations” and rights to

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Cheng, General Principles, supra note 91, at 310. See id. at 122. Howard A. Baker, Space Debris: Legal and Policy Implications 74 (1989). Compare Outer Space Treaty, supra note 78, arts. VI, VIII, with art II. See F. Kenneth Schwetje, Protecting Space Assets: A Legal Analysis of “Keep-Out Zones,” 15 J. SPACE L. 131, 132-42 (1987). Though there have been exclusion zones in near-Earth orbit and there are great physical differences between an asteroid and near-earth orbit, customary norms for the one should not automatically narrow the force of the Outer Space Treaty’s free access provisions for the other. Maritime Dispute (Peru v. Chile), 2014 I.C.J. 1, 48, 54 (Jan. 27). In this case, the Court indicated that State practice in the form of government actions at distances of up to 60-80 miles from the coast was not sufficient to establish a customary rule for waters 80-200 miles from the coast. This illustrates the caution of the court in narrowing rights to the commons in a case where the physical similarities between the two areas under consideration were greater than between near earth orbit and asteroids. Outer Space Treaty, supra note 78, art. IX.

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resources,91 the ICJ has ruled that a state cannot “unilaterally exclude” vessels from access to common resources.92 Therefore, this is much more the case in outer space, where the relevant treaties do not include such a concept and were intended to exclude it. The Court in United Kingdom v. Iceland, with Judge Manfred Lachs presiding, summarized the maritime law as follows: The concept of preferential rights is not compatible with the exclusion of all fishing activities of other States. A coastal State entitled to preferential rights is not free, unilaterally and according to its own uncontrolled discretion, to determine the extent of those rights. The characterization of the coastal State’s rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other States.93 Accordingly, given the Outer Space Treaty’s even more absolute protections of free access, SPIDR cannot invoke Article IX to assert that the mere entry of a foreign spacecraft onto a celestial body it was exploring constitutes harmful interference.94 The present wording of Article IX was framed so as avoid giving states “‘a veto’” over the space activities of other states.95 In the Treaty Preparation materials for the Outer Space Treaty, the purpose of Articles IX and V is framed as requiring “that the same universal respect for life and limb which had been traditional among mariners at sea should also exist among astronauts.”96 There is nothing in the Outer Space Treaty’s text or history to indicate that merely landing on a celestial body could violate Article IX. Even if there were some case in which that was possible, there is no evidence for any interference with the operations of KNUD-1 prior to the discovery of an emergency situation which required drastic action. SPIDR claimed that it alone had the ability to ascertain the safety of landing on the Floyd-4 asteroid. Yet, there is nothing in the facts to indicate a technological gap between the two countries which would have made SPIDR better able to assess the risks of landing on Floyd-4. Indeed, it appears that both countries had the ability to study the surface of that asteroid.97 The compromis indicates

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95

96 97

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Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.C.J. 3, 5-6 (July 25). Id. at 28. Id. at 27-28. The meaning of Article IX is illuminated by the drafters’ discussion of similar language in Article XII: “The words ‘on a basis of reciprocity’ in article XII did not confer any right or power to veto proposed visits to other countries’ facilities on a celestial body. A veto was not compatible with reciprocal rights.” U.N. GAOR, 21st Sess., 1st comm. mtg. at 428, U.N. Doc. A/C.1/PV.1492 (Dec. 17, 1966) [hereinafter U.N. Doc. PV.1492]. Given the lack of a broad power to exclude in Article XII, it is incongruent to find such a power in Article IX. Michael C. Mineiro, FY-1C and USA-193 ASAT Intercepts: An Assessment of Legal Obligations Under Article IX of The Outer Space Treaty, 34 J. SPACE L. 321, 329 (2008). U.N. Doc. PV.1492, supra note 157, at 428. See, e.g., Compromis §9, 12.

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that the probable composition of the Floyd-4 was accurately assessed independently by FUSA before this was confirmed by SPIDR’s probe.98 With regard to TYRUS itself, it is stipulated between the parties that the probe is “highly capable,”99 thus more specifically undermining SPIDR’s attempt to claim that only SPIDR had the ability to make a safety determination. The Court indicated in the Gabčíkovo-Nagymaros case that uncertain scientific claims by one state are insufficient to allow that state to derogate from the rights and obligations provided for by a treaty.100 As a consequence, SPIDR’s unsupported claims should not override URA’s right of free access to celestial bodies. B.

URA Is Not Liable for Damages to KNUD-2

URA is not liable for damages to KNUD-2 which resulted after it failed to dock with the surface. This is true firstly because the Outer Space Treaty allows for use101 of space and celestial bodies, includes the right to engage in activities which modify the surface of a celestial body.102 Further, SPIDR itself has engaged in activities intended to modify the surface,103 and is thus estopped from claiming that modifying the surface violates space law. A further problem with SPIDR’s claim is that in international litigation “the burden of proof falls on the claimant,” and in the case of KNUD-2, SPIDR cannot satisfy it with regard to the issue of causation.104 The compromis records that there were multiple delays as a result of “anomalies” with regard to KNUD-2, but it is not recorded whether these problems were resolved prior to launching.105 At the same time, the evidence indicates that SPIDR was in a hurry to launch the KNUD-2 spacecraft in order to beat TYRUS to the asteroid.106 While SPIDR was certainly within its rights to attempt to get to the asteroid first, in doing so it assumed the risk of damages resulting from rushing the mission. The mutually agreed upon facts with regard to the launch of KNUD-2 do not by themselves show negligence on the part of the SPIDR Space Agency as far as the launch itself. Nonetheless, these facts contextualize the problem KNUD-2 had attaching itself to the asteroid, an activity which was already

______ 98 99 100 101 102

103 104 105 106

Id. §7. Id. §5. Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 42 (Sept. 25). Cf. Stephen Gorove, Studies in Space Law: Its Challenges and Prospects 217 (1977). Gorove, in assessing the legality of a hypothetical mission to remove one of the moons of Mars from its current orbit stated, “the drafters did not intend to go beyond the textual stipulations and impose on outer space the requirement that it must be used exclusively for peaceful purposes.” Id. at 89 n. 12. See Compromis §8, 9, 23, 24, 28. Cheng, General Principles of Law, supra note 91, at 334. See Compromis §13. Id.

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known to be risky.107 It is stipulated that the surface had been altered as part of the ordinary operation of the TYRUS spacecraft, though it is not clear that the inability to attach resulted from the alterations.108 More specifically, this Court has said in cases of inference of fact from indirect evidence, such as would be needed to support the SPIDR claim here, the evidence would need to “leave no room for reasonable doubt.”109 If for some reason the Court does not wish to apply this strict standard to the current facts, it remains a general rule of international law that “[t]he international responsibility of the State is not to be presumed.”110 In the event of lack of clarity regarding causation, the Court should rule to exonerate URA on this issue. Even assuming this unproven connection, it is important to note that the compromis also indicates that SPIDR knew the URA spacecraft was about to begin use and exploration of Floyd-4. SPIDR had the responsibility to design a craft that could interact with a changing space environment, including changes resulting from the legitimate space activities of other parties.111 C.

URA Is Not Liable for Damages to KNUD-1

SPIDR may claim that URA’s re-launch of TYRUS from the surface of Floyd-4 caused damage to KNUD-1. However, there was a threat to human life on Earth which required urgent action as it is stipulated there was a limited window of time in which TYRUS could be used to redirect Syd-1.112 Because of humanitarian concerns, TYRUS was only on Floyd-4 for twenty five days and scrapped a possibly commercially viable mission.113 As an international tribunal put it in the Naulilaa case, it is “‘necessary to exclude losses unconnected with the initial act, save by an unexpected concatenation of exceptional circumstances.’”114 Therefore, the damage from relaunch cannot be used to show that TYRUS should not

______ 107 The European Space Agency’s probe, Philae, has similar difficulty in attaching to a comet. See Terrence McCoy, Why Rosetta’s Malfunctioning Anchoring Harpoons are ‘Clearly Worrisome,’ WASH. POST (Nov. 13, 2014), www.washingtonpost.com/news/ morning-mix/wp/2014/11/13/why-rosettas malfunctioning-anchoring-harpoons-areclearly-worrisome/. 108 See Compromis §22. 109 Corfu Channel Case (U.K. v. Alb.) 1949 I.C.J. 4, 18 (Apr. 9). 110 See CHENG, GENERAL PRINCIPLES, supra note 91, at 305 (citing Spanish Zone of Morocco Claims (U.K. v. Spain), 2 R.I.A.A. 615, 619 (1924)). 111 SPIDR claims damages for expected profits to KNUD-2 mission. Compromis §28. Note that the there is authority indicating that causation is construed more narrowly in cases like the present where there is no ill intent. U.S.-Venez. Mixed Claims Comm’n (U.S. v. Venez.), 9 R.I.A.A. 115, 121 (1903) (“[International law] denies compensation for remote consequences, in the absence of evidence of deliberate intention to injure.”). 112 Compromis §17. 113 Id. §12, 19. 114 Cheng, General Principles, supra note 91, at 242.

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have touched down in the first place. No evidence has been submitted showing TYRUS spacecraft would have hastily relaunched had it not been for the emergency. If, in the absence of the threat from Syd-1, the TYRUS spacecraft would not have relaunched during the lifetime of KNUD-1, this seriously undermines SPIDR’s attempt to attach liability on the basis of their claims regarding risks from the initial landing.115 Given what the international community has said about the special importance of human life in a variety of instances, it is consistent with international law for URA to apply a similar standard to a danger to a large area of the Earth’s surface, and send its spacecraft to attempt to protect human life with all possible speed. While not directly binding on space, the Law of the Sea Convention (“UNCLOS”) indicates the practice of states in a similar area of law, and affirmatively requires that vessels “proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance.”116 The Outer Space Treaty contains a parallel provision for the protection of astronauts: “[T]he astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties.”117 Paralleling the protections to persons at sea in UNCLOS, the protection in Article V of the Outer Space Treaty is to people, not merely to spacecraft in general. Likewise, the Convention on Rescue and Return of Astronauts applies different levels of protection to human life and property.118 Therefore, to the extent the international community has considered the issue with regard to space activities, it has continued the international practice of treating human life as of more value. Examining the travaux tréparatoires, we find this straightforward reading of the treaties confirmed. The incorporation of maritime rules for preserving human life was explicitly referenced during the negotiation of the Outer Space Treaty.119 Likewise one delegate said regarding the issue of reimbursement during the preparation of the Rescue Agreement, Clearly the same principle should not be applied to expenses arising out of operations conducted to assist or rescue astronauts, whose safe recovery and return would be analogous to air and sea rescue operations. The general rule in such cases was not to claim for the cost of rescue operations in so far as

______ 115 For emergency and foreseeability as reasons for exoneration, See BAKER, supra note 149, at 70, 84. 116 United Nations Convention on the Law of the Sea art. 98, Dec. 10, 1982, 1833 U.N.T.S. 397. 117 Outer Space Treaty, supra note 78, art. V. 118 See GOROVE, supra note 164, at 95-115. 119 U.N. Doc. PV.1492, supra note 157, at 428.

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they related to assistance and distressed persons. The return of a space vehicle [would] have no humanitarian implications.120 Liability Convention delegates specifically referenced the connection between the principles in the treaties and framed both as being driven by humanitarian considerations.121 So, the preference for human life in the major space treaties is not an illusion created by an overly close reading in the text, but was in fact a distinction that diplomats at the time considered important. Given the coherence of multiple sources of law, it is reasonable to conclude that customary international law supports giving people priority over property. URA publicly announced that it intended to make the launch four days prior to doing so, thus they gave SPIDR time to take measures to prepare KNUD-1 for the launch. It would be unreasonable to expect URA to limit potentially life-saving activity out of a concern for a robotic probe. Given that URA acted reasonably under the circumstances, it committed no wrongful or negligent act in relaunching, and in a fault-based system, cannot be held liable for damages sustained by KNUD-1. Submissions to the Court

For the foregoing reasons, the Government of the United Republic of Adventura, Respondent, respectfully requests the Court to adjudge and declare that: 1. URA is not liable under international law for damages to SPIDR caused by Syd-1; and 2. URA is not liable under international law for any loss of or damage to the two KNUD spacecraft. Report prepared by:

Dr. Martha Mejía-Kaiser Co-Chair Manfred Lachs Space Law Moot Court Committee IISL

______ 120 Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Draft International Agreement on Assistance to and Return of Astronauts and Space Vehicles, U.N. Doc. A/AC.105/C.2/L.9 (1964). 121 See U.N. Doc. SR.92, supra note 82; See also Comm. on the Peaceful Uses of Outer Space, Legal Subcomm., Draft Agreement on Liability for Damage Caused by Objects Launched into Outer Space, U.N. Doc. A/AC.105/C.2/SR.52 (1965).

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Author Index

Adhikari, M., 837 Anderson, C.A., 893 Bacsardi, L., 729 Bartolini, A., 729 Baruah, R., 23 Blount, P.J., 423, 797, 919 Burnett, D., 559 Carpanelli, E., 101 Chatzipanagiotis, M., 447, 797 Cohen, B., 101 Deiml, M., 729 Dobrowolski, K., 753 Dubois, C., 729 Fabricio dos Santos, Á., 369 Fadahunsi-Banjo, M., 211 Fathima, S.A., 841 Ferrazzani, M., 433 Flohrer, T., 433 Florey, L., 247 Frank, R.J., 675 Freeland, S., 157 Frey, S., 433 Froehlich, A., 337 Gopalakrishnan, V., 877 Green, B.D., 397 Hertzfeld, H., 533 Hobe, S., 903 Hofmann, M., 247 Howells, K., 729 Jagdale, S., 825, 849 Jakhu, R.S., 157

Jeyakodi, D., 797 Johnson, C.D., 533 Johnson, N.A., 497 Kerolle, M., 781, 893 Kumar, A., 577, 729, 825, 829 Kyriakopoulos, G.D., 303 Larsen, P.B., 865 Lechtenbörger, C., 819 Lemmens, S., 433 Li, S., 641 Linden, D., 3 Long, G.A., 345 Long, J., 709 Loukakis, A., 79, 797 Manoli, M., 739 Marboe, I., 627 Martinez, L., 319 Masson-Zwaan, T., xiii, 601 Mayer, H., 721 Mejía-Kaiser, M., 933 Monserrat Filho, J., 369, 657 Morenike John-Olorioke, V., 175 Morita, H., 461 Moro-Aguilar, R., 287, 797 Morozova, E., 483 Muñoz-Rodríguez, M., 587 Nakarada Pecujlic, A., 143 Nasseri, S.A., 729 Nester John, O., 175

Olaseeni, O.A., 175 Olateru-Olagbegi, O., 175 Paliwal, N., 23 Palkovitz, N., 601, 797 Potter, M., 267 Rendleman, J.D., 397 Reynaud, P., 433 Rinner, A., 699 Rohner-Willsch, N., 819 Smith, L.J., 471 Soucek, A., 433 Spassova, S., 79, 797 Sridhara Murthi, K.R., 877 Stanford, B., 123 Steer, C., 193 Stelmakh, O.S., 685, 797 Stotler, C., 53 Stratigentas, D., 781, 797 Stubbe, P., 223 Tao, Y., 43, 549 Thompson-King, S., 675, 925 Thro, C., 95 Todd, J., 729 Volynskaya, O., 257 von der Dunk., F., 385 Voronina, A., 761 Wang, G., 43, 549 Weeden, B., 533 Williams, M., 521 Zhao, Y., 613

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