Space law lifts off for a new odyssey
Amy Otchet, Unesco Courier journalist
A spacewalking astronaut floats in an environment increasingly polluted
with debris from rockets and satellites.
December 1998: construction of the International Space Station begins
as a U.S. node is joined to a Russian module by the crew of a Space Shuttle mission.
‘Obviously countries and companies investing
astronomical sums should be rewarded for their inventions. But should a formula with
universal benefits, like a cure for flu, be licensed strictly on a commercial basis
or should there be provisions to make it accessible?’
In this false-colour satellite image of Tokyo’s metropolitan area,
red stands for vegetation and blue for buildings. Remote sensing systems can now
capture details with a resolution of one metre.
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UN heavyweights in space law • Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and other Celestial Bodies (1967):
The most important of all space law agreements; assures the free exploration and
use of space, including the moon and celestial bodies provided that these activities
are for the benefit and in the interest of all countries. States are responsible
for all activities conducted by their nationals. No-one can appropriate outer space.
There is no explicit notion of national sovereignty recognized in space, unlike aerospace.
95 states have ratified the treaty. |
As commercial
interests and international partnerships dovetail in space exploration and use, space
law will have to be rewritten to cut a way through an increasingly dense legal thicket
Send up a satellite,
haul an asteroid onto it and ship it to the earth… This may sound like science fiction,
but it’s on the agenda of an American industrialist bent on being the world’s first
proud owner of a celestial body. What’s to stop him, apart from the cost? How do
things stand legally, for example? According to international space law, no one can
lay claim to a celestial body. But if he manages to get his asteroid down to earth,
it will have ceased to be a heavenly body and space law won’t apply.
As technological development opens up commercial possibilities in space, a Pandora’s
box of legal questions is ready to burst open. There is, for example, no legal definition
of where airspace ends and outer space begins. So while an aircraft registered in
one country needs permission to fly through another country’s airspace, the situation
would be less clear for a microwave-powered reconnaissance device which is being
developed to fly about 30 kilometres overhead and is neither a satellite nor an aircraft.
Issues like this will take centre stage at the upcoming Third United Nations Conference
on the Exploration and Peaceful Uses of Outer Space (UNISPACE), which will be held
in Vienna, Austria, in July. Representatives from 185 states as well as industrial
leaders in the field will be attending the conference, the most important international
meeting on space affairs held this decade. The decisions arising from UNISPACE will
shape the way we envision and use outer space. Three major issues in particular will
dominate the legal discussions: space, debris, the commercialization of space, and
intellectual property.
“Environmental protection” has a special meaning in space. A bolt or a nail travelling
faster than a bullet at 75,000 kilometres an hour can seriously damage an expensive
telecommunications satellite. An estimated two million kilos of junk are already
in orbit, with about 110,000 objects between one and 10 centimetres and another 8,500
fragments even bigger. And these numbers are expected to grow exponentially. In 10
years’ time 1,000 satellites will be orbiting the earth, up from 600 circulating
today.
An orbiting
junkyard
Yet the space
debris problem may prove relatively easy to resolve because it directly concerns
major powers with the biggest investments in space hardware like the U.S., Russia
and France. “We’ve already had at least one major accident, when a piece of debris
hit the French satellite, Cerise,” says Dr. Kai-Uwe Schrogl, a lawyer with the German
Aerospace Centre. The accident didn’t cause too much of a legal ruckus, though, because
the “guilty” fragment was originally from a French launcher. “But just imagine if
that debris had come from a Russian or Chinese launcher.”
While there is some mention of environmental protection in two of the three UN conventions
governing space activities (see
box), there
are no binding rules designed to limit debris. “The United States doesn’t want anything
resembling international regulations,” says Schrogl, but many other countries are
pushing for a UN agreement on the issue. Ironically, the U.S. is the only country
with national regulations concerning space junk and, says Shrogl, the U.S. government
is now in the process of strengthening these laws which are expensive to implement.
It costs much more to build a satellite that doesn’t shed its spent rocket boosters
than one that does. “When cheaper, more polluting launchers developed by other countries
begin to reduce America’s competitive edge, we will find a U.S. administration favourable
to international rules,” Schrogl says. “The United States would prefer to see regulations
set in a non-governmental forum where they can do what they like. But they’ll eventually
be forced to go to the United Nations.”
The issue of liability is highlighting a major gap in existing international space
law. All the major agreements in this field were negotiated during the Cold War,
when states were the sole actors in space. Today, private companies are increasingly
involved in the construction, launch and operation of space objects. Yet there is
no formal licensing system. As Shrogl describes the situation, it’s as if countries
have failed to set up a driving licence system for space traffic, thereby setting
the stage for international collisions.
Consider the case of the new Sea Launch Company which is launching satellites from
the high seas beyond the bounds of national jurisdiction and therefore beyond the
control of governments. The consortium is registered in the Cayman Islands and consists
of four partners: Norwegians, Russians, Ukrainians–each owning about 20 per cent–and
the American company Boeing, which owns 40 per cent. Complicating matters further,
the ship and platform used for the launches are registered in Liberia. What if a
failed launch accidentally drops a rocket on a fifth country? Which government will
be held responsible for ensuring that the company pays the damages?
A condominium
in space
In the case
of Sea Launch, the United States unilaterally decided to assume responsibility for
political and economic reasons, says Dr. Frans von der Dunk, co-director of the International
Institute of Air and Space Law at the University of Leiden, in the Netherlands. “If
Boeing was allowed to circumvent U.S. jurisdiction, it could offer launches to China
and other countries,” says von der Dunk, who explains that a substantial amount of
technical knowledge is passed on in the process of fitting a satellite into a launcher–a
sensitive point for the U.S. While a solution was found for Sea Launch, the bottom
line remains, says von der Dunk: “the law has to come to grips with the complexities
of the business.” Pressure is beginning to build up within the United Nations Committee
on the Peaceful Uses of Outer Space (UNCOPUOS) to develop an international agreement
or at least a set of guidelines to resolve questions of responsibility and liability.
Intellectual property is also likely to attract a lot of attention at UNISPACE, especially
in light of preparations to launch the International Space Station (ISS). A project
involving 16 countries, the station will be the largest and most complex structure
ever placed in orbit. Arrays of solar panels with a total surface of half an acre
will be connected up to a column the length of a football field comprising a series
of round modules where a crew of seven will live and conduct scientific experiments.
Over 40 space flights will be needed to deliver and assemble the components of the
station, which will weigh about 460 tons. The ISS is scheduled for completion in
the year 2004.
“It’s essentially a marriage of convenience,” says Dr. Ram Jakhu of the Institute
of Air and Space Law at McGill University in Canada. The partner states are setting
up a kind of condominium, sharing the expenses of communal services but retaining
control of their individual modules. The station’s lawyers have had almost as difficult
a time as the engineers. They’ve had to iron out everything from visas and possible
death certificates for astronauts to customs duties. Topping the list of technicalities
has been intellectual property rights.
The ISS will provide an environment of microgravity, sometimes described as “weightlessness”,
giving researchers a unique opportunity to study solids, liquids and gases and the
forces that affect them. This may turn out to be a goldmine, since scientists expect
to make some phenomenal breakthroughs in biotechnology, research on combustible and
renewable fuels, pharmaceuticals and the development of metal alloys of unprecedented
strength. Pharmaceutical companies are also whetting their appetites. They have plans
to grow in the ISS very pure and precisely ordered protein crystals which could be
used to design new strains of very effective drugs. Imagine the scenario, says Jakhu,
in which an Indian scientist is allowed to conduct experiments in Russia’s research
module where he or she discovers a cure for cancer. Who owns the intellectual property
rights? Now chances are the two countries would broker some kind of agreement ahead
of time. But that doesn’t mean the Japanese, for example, couldn’t copy the experiment
in their module. Space is a free zone beyond the bounds of terrestrial copyright
laws and bodies like the World Trade Organization.
“Should we try to apply traditional rules, which are very protective and nationalistic,
or should we change the approach when the invention contains a benefit for the whole
of mankind?” asks Prof. Maureen Williams, space law expert at the University of Buenos
Aires. “Obviously countries and companies investing astronomical sums should be rewarded
for their inventions. But should a formula with universal benefits, like a cure for
flu, be licensed strictly on a commercial basis or should there be provisions to
make it accessible?” Here Williams is evoking a major principle of space law embodied
in the Outer Space Convention of 1967: “the exploration and use of outer space .
. . shall be carried out for the benefit and in the interest of all countries, irrespective
of their degree of economic or scientific development. . . .”
The question of intellectual property rights arises in a particularly acute form
in the case of remote sensing, which has a wide range of applications, from monitoring
deforestation to predicting mud-slides and improving agricultural irrigation. It
is also a somewhat elegant way of referring to observation by satellite. During the
Cold War, most countries tacitly accepted the fact that they were being watched or
“sensed” but this “gentleman’s agreement” is coming under increasing strain for two
reasons. To begin with, the technology has dramatically improved. The old remote
sensing systems only had a resolution of 30 metres or larger–referring to the amount
of detail, or land area, that could be seen. The latest systems offer resolution
of just one metre. Until a few years ago, these advanced systems were basically in
the hands of national intelligence communities in the U.S., Russia and a handful
of other countries. The technology is now making its way into the commercial sector,
and companies are selling the information they acquire to the highest bidder. “There
is particular concern that terrorist groups will be able to get their hands on detailed
information about potential targets that they never had access to before,” says Stephen
Doyle, a former deputy head of international affairs with the U.S. National Aeronautical
and Space Administration (NASA). “The groups could go through third parties to buy
the data and no-one would be able to trace them.”
For 10 years, developing countries have been calling for rules to regulate remote
sensing which they see as an infringement of their national sovereignty. With high-resolution
images, a company like Shell can explore a developing country’s oil resources without
even setting foot on its territory. As things stand, a company can take pictures
of a country’s natural resources without the country’s consent and is under no obligation
to share that information. The company “owns” that data and is therefore free to
sell it at any price. The most the country of origin can hope to do is buy the rights
to the data. If not, that country may well find itself in a situation in which another
company or government that did buy the data has a better understanding of their resources
than they do.
“This is a highly sensitive and political issue,” says Williams. Although the UN
has adopted a series of principles to ensure fair access to remote sensing data,
the fact remains that countries being sensed have no right to prior consent, nor
do they have a preferential right to access the data.
Uses and
abuses of remote sensing
“We haven’t
got a very good deal, to say the least,” says Dr. José Monserrat Filho, vice-president
of the Brazilian Society of Aerospace Law. “We [developing countries] need a legally
binding agreement to regulate remote sensing. Obviously, governments and enterprises
from industrialized countries don’t see the need for a new agreement. They prefer
customary law” and voluntary codes or principles which, says Filho, “just maintain
the status quo.”
“You must be practical,” warns He Qizhi, legal adviser on space affairs to the Chinese
Ministry of Foreign Affairs. “If you set too high a goal, you achieve nothing.” Instead
of pushing for a legally binding convention, He is hoping to see “softer instruments”
like declarations and resolutions designed not only to limit abuses of remote sensing
but to extend its benefits. “This could be a very powerful tool for improving the
environment and saving lives, particularly in developing countries. . . . The principles
for this co-operation and fair access are in the existing conventions but they’re
just not clear or conspicuous.” He is hoping that UNISPACE will spotlight the need
for co-operation through declarations or principles which may later pave the way
for regional or bilateral agreements.
As one positive step, Shrogl points to a new European Union policy providing scientists
with access to remote sensing data while still permitting its commercial sale. “We’re
going to see national and regional legislation negotiated on an ad hoc basis,” he
says, “but we’re not going to see something like the Law of the Sea. . . . The question
is how to organize international co-operation, not force it.”