The Farthest Shore – Chapter Ten Space Policy, Law and Security

Chapter Ten Space Policy, Law and Security

Ram Jakhu, John Logsdon and Joseph Pelton

“Opportunities like this come rarely. The human migration into space is still in its infancy. For the most part, we have remained just a few kilometers above the Earth’s surface – not much more than camping out in the backyard.” -- Global Exploration Strategy Document, 2008

10.1 Space Policy, Law and Security—Dynamic Elements Some-times in Conflict and Sometimes in Concert

Space policy, space law and space security all go together. They go together not like peas in a pod, but rather like members of a family that are mutually dependent on one another but sometimes in conflict as to goals and objectives. These three elements, each in their own way, derive from national interest and national defense on one hand, and yet from global opportunity and worldwide commercial enterprise and cooperation on the other. Space policy, space law and space security essentially boil down to attempts at the level of the nation state, and sometimes within international organizations, to solve various types of problems and address realistically various interests that derive from global interactions around the world and in outer space.

Thus, space policy, space law and space security all derive from the desire of various countries of the world (often to varying degrees) to gain benefit from what is seen as a common resource—namely outer space. In many ways, outer space has been likened to the high seas or the continent of Antarctica—a resource that no nation “owns”, but in which many countries of the world have a strong economic, political and even military interests.

As we have been more and more able to access outer space, launch satellites into Earth orbit and send machines, probes, and even people, beyond the grasp of our planet’s gravity, the needs to coordinate space activities have obviously grown. Space policy, space law and space security pacts, and even space treaties and conventions, help us to coordinate how countries view space and, to a degree, regulate its usage.

This is a complicated and sometimes difficult task because there are more and more space faring nations, and with the current membership of the U.N. Committee on the Peaceful Uses of Outer Space (COPUOS) as of June 2017 being 84 nations. Thus, there are a growing number of nations with particular interests to protect, and thus more and more problems of coordination to solve. In order to utilize various types of satellites for communications, broadcasting, networking, remote sensing, navigation, precise timing, meteorology, or even defensive applications, for instance, there is a global need to coordinate the use of the electromagnetic spectrum for sensing, telecommunications, tracking, telemetry and more. Without coordination of how the various radio frequencies are used there would be harmful interference and chaos. Likewise, if the various orbits with satellites deployed in them were not coordinated, there would be possibilities of interference and possibly even collisions. The problem of orbital coordination and space safety, unfortunately, continues to grow. There is increasing build-up of orbital space debris. There is no international agreed process to carry out outer space traffic management and control, thus the problem of space safety continues to grow. There is also the issue of the increasing plans to use the so-called “Protozone” and do so safely. This is the sub-space area above 20 km which is limit for commercial space traffic control and below 160 km which is the lowest altitude that a satellite can sustain a longer-term orbit.^[1]

For these reasons and more, the specialized agency of the United Nations known as the International Telecommunication Union (ITU) takes a leading role in providing for the coordination and registration of radio frequencies used in outer space, for assigning the usage of various orbits, and for helping to set standards for the provision of various types of space services. This is but one example of the international coordination process related to outer space.

10.2 Maturing Space Law and Policy System

As space exploration, space sciences and space applications have matured over the last half-century key elements of space policy, space law and space security have matured with the increasing number of space programs and missions. More and more countries have become involved. International organizations, like the ITU, as well as regional organizations, that address various elements of space activities have also increased their sway. Through these entities nations, to varying degrees, have agreed to various “rules of the road”, adopted guidelines for cooperation in space, such as procedures for the deployment and operation of the International Space Station (ISS). They have even formally ratified treaties governing how, when, why and how to go into space, processes for deploying and operating satellite networks, and processes for protecting astronauts. They have even considered how we might go into space to exploit the resources of the Moon and other extra-terrestrial bodies for the common benefit of humankind.

Today, as there is more and more commercial interest in exploiting the resources of space, and as there are more and more entities seeking to operate commercial vehicles taking people into space as “tourists”, the need for regulations on safety and common oversight provisions is expanding. To understand these things more clearly, we begin with some historical background.

10.3 Nation State and International Coordination

The two Treaties that ended the Thirty Years War and resulted in the Peace of Westphalia in 1648 established for the first time on a systematic basis that the “nation state” would be the prime actor in establishing of who is “in charge” around the world.^[2]The setting of rules and laws covering matters such as taxes, criminal behavior, social and religious practices, the licensing of businesses and so on, would henceforth be the duty and responsibility of the nation state. This concept has been more or less accepted now for three and a half centuries. There have been wars and “interventions” and attempts to use religious or social or political influence to undermine the authority of the nation state, but nevertheless countries and their governments establish the law of the land.

The problem is that the world, now composed of some 200 nation states, is increasingly international in scope when it comes to trade, finance and capitalization, transportation, communications and broadcasting. In order to work out problems related to international interactions, various types of international organizations have evolved. Some are universal public international organizations. Some are private international or regional organizations. Some are non-governmental organizations that carry out such tasks as international assistance or the coordination of professional standards and practices. There are even what are sometimes called “BIN-GOs”, or business international non-governmental organizations. Dealing with trade and business practices, these represent the most rapidly growing type of international organization. Indeed, the Yearbook of International Organizations records tens of thousands of various types of international organizations, ranging in import and size from the globally scoped United Nations Organization to the quite small International Institute of Communications (IIC) or the Arthur C. Clarke Foundation. Even the International Space University (ISU) is one form of non-governmental international organization. All are actors on the international stage, but the major actors are of course, the nation states, the major international inter-governmental organizations and worldwide commercial enterprises.

The world’s first entity that might be called an international organization was the Rhine River Commission. This was formed long ago to address a problem of international pollution. Printers all along the river were throwing their inks into the Rhine and not only discoloring it but also killing the fish, making the water undrinkable and hazardous. The countries along the Rhine joined together and formed the Commission, which eventually solved the problem through regulations and fines. Most of today’s major international organizations, and particularly the specialized agencies (international organizations) of the United Nations, are still largely concerned with solving a variety of economic, social, technical, cultural, environmental or security issues and problems.

10.4 International Regulation of Outer Space

The international treaties and regulations related to outer space that have evolved over time are closely related to, and often derived from, the principles of the open seas. Legal scholar Myres McDougal in his books about the “laws of the seas” and “laws of outer space” explains that the historical development of such “international laws” relates very much to those areas that a nation can “protect” from outside incursion by a hostile force. Originally international waters were defined as a 3-mile limit from a nation’s shoreline. With improved armaments, navies and surveillance equipment a nation’s international waters were extended to 12-miles. A book by David Goldsmith Loth, entitled How High Is Up?: Modern Law for Modern Man , takes a similar view about a nation’s claim to airspace over its skies.^[3]The regulation of air space has increased to higher and higher altitudes as planes, rockets and missiles were developed to fly higher and higher, and as anti-aircraft guns and rockets were able to protect a country’s airspace further overhead.

The famous U2 incident in the 1950s in which American U-2 pilot Gary Powers was shot down over the airspace of the Soviet Union seemed to confirm the principle that a nation controlled its airspace for as high as its defense systems can defend. Today the end of the Earth’s atmosphere and the start of outer space are generally defined to be at a height of 100 kilometers, or 62.5 miles. When one applies such a definition of outer space and calculates how many people have flown in outer space and thus become astronauts or cosmonauts, one finds that the number is almost 500. In future years, with the advent of space tourism, that number should increase substantially. It may well be then that “outer space” is redefined to be at an even higher level.

Exactly who should regulate commercial and governmental air space and who controls operations in outer space is not clearly established. Recently, with the advent of high altitude platform systems (HAPS) that can fly above commercial air space, there have been new questions about who should control so-called “sub-space”, or “proto-space”. This proto space is above the normal “air space” where commercial aircraft fly, i.e. to a ceiling of about 60,000 feet (or some 21 kilometers), on up to 100 kilometers.

The Chicago Convention that establishes the international regulatory authority of the International Civil Aviation Organization (ICAO)—a U.N. specialized agency for the regulation of aviation, headquartered in Montreal, Canada—establishes ICAO’s authority for the control of aircraft and winged vehicles, but its authority (or lack of it) over rockets, missiles or space planes has yet to be firmly addressed and resolved. (See, Ram S. Jakhu, Tommaso Sgobba and Paul Stephen Dempsey (eds), The Need for an Integrated Regulatory Regime for Aviation and Space: ICAO for Space? , (Springer, 2011)). Today, national entities such as the Federal Aviation Administration (FAA) in the United States or regional entities such as the European Aviation Space Agency (EASA) are to some extent responsible for regulating the safety of space planes, but this could change with new national regulations or even some form of new international charter.

10.5 The Basic Question in Space Policy: Why Go to Space?

Sending machines and people into space is technically difficult, hard to manage successfully, risky, and expensive. Why then do governments and private sector firms undertake space activities? What objectives, purposes, or goals provide the rationale to pay the costs and accept the risks of doing things in space?

The answer to this question differs for the public and private sectors. The fundamental rationale for the private sector to engage in space activities is the potential for profit, which, after all, is the basic goal of business. For the public sector – governments and intergovernmental organizations – there is a changing mix of rationales, differing in priority among different actors and at different times. The reasons that governments support space activities can be found in various places, such as speeches by government leaders, decisions taken by executives or parliamentarians, budget proposals, or formal statements. Sometimes they must be inferred from the activities undertaken. In some nations, governments develop and announce comprehensive space policies, which usually combine both a statement of goals and objectives and a statement of the paths of action - the policies - that governments will pursue to achieve those purposes.

As one example, the United States National Space Policy, announced in October 2006, during the Presidency of George W. Bush set as an objective to “strengthen the nation’s space leadership and ensure that space capabilities are available in time to further U. S. national security, homeland security, and foreign policy objectives.” But on June 28, 2010, President Obama issued a new U.S. National Space Policy directive providing comprehensive guidance for all government activities in space, including the commercial, civil, and national security space sectors. The new policy statement provided more support of U.S. business interests than any previous space policy in stating: “The United States is committed to encouraging and facilitating the growth of a U.S. commercial space sector that supports U.S. needs, is globally competitive, and advances U.S. leadership in the generation of new markets and innovation-driven entrepreneurship.”^[4]It is anticipated that there will be yet another national space policy directive issued by the Trump Presidency that might stress anti-terrorism initiatives related to space and the “America First” concepts. The bottom line is that national space polices do evolve over time and more fluid and flexible than outer space law and formal regulatory structures.

The commercial focus has been seen in the European Space Policy approved in May 2007 set as a strategic objective “a competitive European space industry.” To create and sustain such an industry, the policy declared: “it is essential that European public policy actors define clear policy objectives in space activities and invest public funds to achieve them.”

On October 26, 2016 the European Commission issued an updated policy statement that combined an emphasis on using space to better the lives and economic benefits derived from space with a resolve to improve the competitiveness of the European space industry.^[5]

Early Rationales. From the start of their space activities, the former Soviet Union and the United States pursued three overriding rationales for their space programs. Similar rationales also later motivated the decisions of other countries to become active in space. These three rationales were:

• Protecting national security
• Increasing national prestige and demonstrating international leadership
• Increasing scientific knowledge.

Other Rationales. Other rationales have emerged in the years following the start of space activity. They include:

• Enhancing military capabilities
• Creating the basis for space commercialization and supporting national space industries
• Providing tangible benefits to society
• Assisting in social and economic development

Each of these rationales is discussed in more detail below.

10.5.1 Space Policy and Space Exploration

Exploration – the travel to distant destinations to learn more about them – has been an objective of space activity since the beginning. Robotic spacecraft have visited the Earth’s Moon, every planet in the solar system and many of their moons, asteroids, and comets. A U.S. spacecraft is on its way to Pluto for a 2015 encounter with this controversial body – is it a planet, or not? However, human exploration of the solar system has not until recently been accepted as a rationale for space activity. Although U.S. astronauts did visit the surface of the Moon between 1969 and 1972, their journeys were motivated primarily by the U.S. quest for international prestige, not by a desire to explore the Earth’s nearest neighbor. In 2004, U.S. President George W. Bush proposed that the United States undertake “a sustained and affordable human and robotic program of the solar system and beyond.” Whether the United States or any other country will pursue such an ongoing program of human exploration is a major space policy issue, and will be discussed in more detail below.

10.5.2 Space Policy and Enhancing National Security

Space systems provide information to national leaders that can be used to understand what is happening around the world, and particularly information relevant to the activities of potential adversaries. This information can then be used to support planning for national and homeland security strategies. Among the space capabilities used for national security pur-poses are optical and radar observations, electronic intelligence, and measurements and signals intelligence.

The United States was the first to employ satellites for national security purposes; this action was motivated both by memories of the surprise attack on Pearl Harbor that began its participation in World War II and by the Cold War competition with the Soviet Union, which made its military preparations in secret. The U.S. leadership of the 1950s was determined not to be caught by surprise again, and saw in intelligence satellites a means of obtaining information not otherwise available about potentially threatening Soviet activities.

A question as the United States began its reconnaissance satellite efforts was the status in international law of satellite over flight. Was a satellite passing over a country’s territory without that country’s permission a violation of its national sovereignty? The precedent that this was not the case was first set by the Soviet launch of Sputnik 1 in October 1957; however, the Soviet Union protested that the operations of U.S. intelligence satellites were illegal until it also began to operate its own “spy satellites” in the early 1960s. Using space systems for national security purposes has become attractive to other countries in recent years, particularly those countries with global or regional security interests, such as China, India, France, Germany, Italy, Israel, Japan, South Korea, and member countries of the European Union. Either through dedicated national security or space systems called “dual-use” systems, which serve civilian and defense purposes alike, these actors have acquired the capability to obtain national security information from space. In response to the new Basic Space Law legislation enacted by the Diet in 2008, Japan is seen as being likely to acquire dedicated capability in this area in the coming years.

In addition, space systems have become an important means for verifying arms control and other international treaties. It can be argued that national security satellites have been a stabilizing force in international politics, avoiding miscalculations or misunderstandings about the actions and relative capabilities of potential or actual adversaries.

For many years, the kind of imagery produced by national security photoreconnaissance satellites was highly classified and available only to select government officials. Recently, however, commercial operators have provided, or are deploying, high resolution (i.e. 35 to 40 centimeter) imagery that rivals that provided by past security satellites. The implications of such global transparency are not clear; is it a stabilizing factor, or can it allow more countries and non-state actors to plan military or terrorist activities?

10.5.3 Space Policy and National Prestige

In the fifteen years after World War II ended in 1945, the United States and then Soviet Union engaged in a global rivalry for influence over international affairs known as the Cold War. Each country claimed its form of political and economic organization was a model for the rest of the world to emulate. In this competition, national prestige – a country’s reputation for excellence that was admired by others – became an important factor. When the Soviet Union was first to launch a satellite in 1957 and followed this achievement with a series of other space “firsts,” the Soviet leadership claimed that its space capabilities were evidence of its overall superiority. There was a perception in the United States and around the world that such achievements contributed to a significant increase in Soviet national prestige vis-à-vis the United States. American President Dwight Eisenhower, who was in office until January 1961, rejected the idea of a “space race” with the Soviet Union, believing that any prestige gained from space that was not based on solid scientific achievement would not be of lasting value.

On April 12, 1961, soon after John F. Kennedy came to the White House, the Soviet Union was first to launch a person into space. Kennedy reversed the Eisenhower policy and decided that the United States should enter a space competition with the USSR. He asked his advisors to identify a “space program which promises dramatic results in which we could win.” The response was that the first such undertaking that the United States had more than an even chance of accomplishing first was landing humans on the Moon. Kennedy’s advisers argued: “This nation needs to make a positive decision to pursue space projects aimed at national prestige. Our attainments are a major element in the international competition between the Soviet system and our own . . . ‘[C]ivilian’ projects such as lunar and planetary exploration are, in this sense, part of the battle along the fluid front of the cold war.” Project Apollo, the successful U.S. effort to send astronauts to the Moon, was thus driven primarily by considerations of national prestige; it was a very visible, and peaceful, way of demonstrating to the world U.S. technological and organizational superiority.

Apollo was a unilateral demonstration of U.S. space leadership, and maintaining that leadership has been an important consideration in U.S. space policy ever since. It was one of the rationales cited in the 1972 decision to develop the Space Shuttle and the 1984 decision to develop a Space Station. The Soviet Union did try to compete with the United States in missions to the Moon, but for a variety of factors was not successful. The USSR in the early 1970s shifted its emphasis to activities in low Earth orbit, and by the late 1980s claimed that its accomplishments had earned it leading space status.

In the 1960s, countries other than the Cold War rivals, most notably France, identified space capability as one of the attributes of a leading nation. Although other rationales have been important for the now almost fifty countries operating their own systems in space, the quest for national prestige and leadership influences almost every country’s decision to go into space. In 2003, China became the third country to launch one of its citizens into orbit. Like their predecessors in the Soviet Union and the United States, Chinese leaders hailed this achievement as signifying China’s success in becoming a modern nation; after the third Chinese spaceflight in 2008, President Hu Jintao, who had met with the three Chinese taikonauts shortly before their launch, suggested that the mission was “another feat on the Chinese people’s journey to ascend the peak of science and technology.”

After its success in being first to the Moon, the United States shifted its approach to space leadership and the accompanying desire for prestige towards a more cooperative strategy. In both the Space Shuttle and Space Station projects, the United States invited other countries to participate, although on terms set by the United States. The U.S. goal was to demonstrate its leadership by being a respected “managing partner” in a multilateral undertaking. The U.S.-led International Space Station program has been carried out by a coalition of sixteen countries, and represents the largest cooperative technological project ever undertaken. Russian Space Agency (Roscosmos) participation in the International Space Station has not only been critical to its success because of problems in the Space Shuttle launch program, but has been a key means of fostering international cooperation during the past decade.

One issue associated with seeking national prestige through space activities is whether the direct involvement of humans is essential, or whether highly visible robotic programs such as the Hubble Space Telescope, the Cassini-Huygens mission to Saturn, or the Mars Exploration Rovers also make major contributions to national prestige. The 1961 rec-ommendation to the President to undertake Apollo suggested that “it is men, not machines, that captures the imagination of the world.” As human access to space becomes relatively more common, it is not clear that the mere fact of human presence contributes to the prestige element of a particular space mission.

10.5.4 Space Policy and the Search for Knowledge

Scientists are motivated in their work by a persistent desire for new understanding of some aspect of the natural world. That understanding is enabled by new data to test existing theories and by new theories based on the ability to extend the reach of observations to new phenomena. The end product of the scientific process is new knowledge. As it became clear in the 1950s that it would soon be possible to send their instruments into the new environment of outer space, scientists were quick to identify unanswered questions about the Earth, the solar system, and the Universe that could be addressed by space missions. Science from, and in, space has become a central feature of the space activities of many countries, and generations of space scientists have created a community that has grown to be one of the significant influences on the directions taken by government space activities. That a primary rationale for space activities should be the increase of scientific knowledge has become a widely accepted belief among both members of this community and the political leaders who provide the funding for their efforts.

If space missions were carried out only for scientific reasons, however, it is not clear that governments would be willing to support their costs, which are high compared to most other areas of scientific inquiry. Links between space science and the other original rationales for space – security and prestige – may account for the willingness of governments to bear the substantial costs of space science.

Some have suggested that many space science missions do not address fundamental scientific questions, but rather primarily reflect the desire of a specialized community to continue its work through a series of incremental advances over previous missions. It is unarguable, however, that results from increasingly complex missions have revolutionized humanity’s understanding of the cosmos. The Nobel Prize in physics was, for the first time in 2006, awarded for a space-based mission, the Cosmic Background Explorer, which provided convincing evidence of the validity of the Big Bang theory of the origins of the Universe and a clearer estimate of its age.

10.5.5 Space Policy and Enhanced Military Power

The use of space systems to enhance the effectiveness of land, sea, and air forces was initiated during the Cold War by the United States and the Soviet Union, and both the United States and Russia continue to have significant military space programs. More recently, developing military space capabilities has become a course of action of interest to other countries with substantial armed forces. The use of space for “force enhancement” is traditionally separated both conceptually and organizationally from the use of national security space systems for strategic intelligence, although there has been movement towards using some space systems for both intelligence and military purposes.

Space systems can serve a variety of traditional military purposes, such as providing early warning of attack, offering secure communications to forces deployed at distance from military headquarters, understanding current and future weather patterns in areas of potential or ongoing combat, locating targets on the battlefield, and providing precision navigation information for deployed forces and for weapons aimed at specific targets. While a few countries have developed space capabilities dedicated to military purposes, to date only the United States has made a significant commitment to such capabilities as a central element in its approach to the use of military force.

So far, outer space itself has been a “sanctuary,” free from armed conflict between opposing forces; there have been no “space wars.” The United States and the Soviet Union developed and tested anti-satellite (ASAT) weapons between 1960 and1985, but these weapons were never used. Although an attempt in the late 1970s to negotiate a bilateral treaty to ban the use of ASATs failed, the two countries reached a tacit agreement not to deploy ASAT capabilities against each other’s intelligence and military satellites.

As the United States has become increasingly dependent on space systems to confer military advantage, there has been a corresponding recognition that those systems can be vulnerable to attack, and a concern regarding how best to protect them from hostile threats. In 2007, China demonstrated its ASAT capability against one of its own satellites, calling attention to such vulnerability, and in 2008 the United States used a ship-based missile to destroy a reentering U.S. intelligence satellite.

These recent incidents and earlier perceptions that the United States, and perhaps other countries, intended to develop “space weapons” – a term very difficult to define – have led for more than two decades to calls for negotiating a treaty to prevent an arms race in outer space. To date, there has been very little progress towards such an agreement. How best to maintain outer space as a secure environment where all can operate for peaceful purposes free from threats of disruption is a major space policy issue.

10.5.6 Space Policy and Space Commerce

As discussed elsewhere, revenues from private sector uses of space have continued to grow in recent years. The use of space systems to obtain and transmit various forms of information is a well-established commercial industry.

Governments, first in Western democracies, but now even in India, China and Russia, have nurtured, and continue to foster, the commercial uses of space in a variety of ways. These include supporting research and development with commercial applications, paying the cost of needed infrastructure such as launch ranges and tracking and data relay systems which are used by both governments and the private sector, serving as a major customer for commercial space products and services, partnering with the private sector in specific space projects, and creating a policy and regulatory environment favorable to commercial activities. An explicit objective of European space policy has been to create and support a space industry that can compete with the industries of other countries in the global space marketplace. Other governments have a similar objective, although it may not be so explicitly stated. However, some actions, such as U.S. export control regulations, may act counter to commercial interests.

Space entrepreneurs continue to seek new commercial opportunities. Among them are providing cargo and perhaps even crew transportation services to the International Space Station. A particularly promising opportunity in the view of many is private space travel – “space tourism.” Further into the future, some suggest that using solar energy collected in space to power networks on Earth and using the resources of the Moon and near-Earth asteroids for revenue-producing purposes can be shown to be technologically and commercially feasible. Governments will be challenged regarding how best to assist the private sector in determining such feasibility. As new entrepreneurial “space mining” companies such as Deep Space Industries, Planetary Resources Incorporated, Moon Express and Shackle-ton Energy have been formed in the past few years the difference of opinion and dispute about what international space law allows or prohibits, especially in the context of the Outer Space Treaty of 1967 and the Moon Agreement of 1979, has increased within the international space law community.

10.5.7 Space Policy and Mission to Planet Earth

Space systems can produce services that have many of the characteristics of “public goods,” i.e., use by one person of such a good does not diminish its availability to others, and the good is available to all who choose to use it. Examples are observing meteorological conditions by orbiting satellites, providing navigation and timing services, disaster warning and mitigation, and monitoring environmental security and global change. Because it is difficult to provide these services on a commercial basis, but also because the services have high social value, it has fallen to governments to develop and operate the space systems providing such services. For example, the signals from the U.S. Global Positioning Satellite System are used on a global basis for many different purposes and by many different users; GPS thus approaches the status of a global utility, provided without charge by the U.S. government. Attempts in Europe to develop a similar system, called Galileo, were first made on the basis of a public-private partnership, with the objective of charging specific users for some of Galileo’s services. Private sector skepticism regarding the viability of this approach led European governments to decide to use public funds to pay for the development of the Galileo satellites. It is unclear whether the eventual operation of the Galileo system will also be publicly financed, or whether the original idea of charging users for some Galileo services can be put into practice. By contrast, there is no controversy over the public good character of environmental monitoring satellites planned by Europe in its Copernicus program, previously known as Global Monitoring for Environment and Security. Those satellites will be totally funded by European governments.

10.5.8 Space Policy and Social and Economic Development

Space capabilities can address important issues associated with national development, such as improving education of the population, providing more robust communication capabilities, delivering services such as health care and weather forecasting, and helping to locate and exploit in a sustainable manner a country’s resources. For countries with large territories, large populations, and limited infrastructure, developing their own space systems can have major payoffs. An example of this reality is India, which has made societal development the top priority of its space program. Other large countries such as China and Brazil have developed a variety of indigenous space capabilities for application to their development problems. China and India have tens of millions of its citizens participating in satellite-based educational and health care services.

Some smaller countries also have either developed or purchased space systems or leased capacity on other space networks, particularly communication satellites, as part of their development efforts. At the end of 2016, almost sixty countries operate at least one satellite and over 100 either have a space system or are leasing space segment capacity. Many of those countries are still classified as “developing.” The availability of simpler, relatively inexpensive space systems has helped poorer countries gain access to space capabilities that address their development problems. Even so, the full spectrum of space capabilities has not yet been applied to the world’s social and economic development problems; this has not been a top priority issue for leading space countries, although some countries such as Canada have been true leaders in the space education and health services area. The United Nations has for several decades promoted space applications for development, but limited funding has hampered its efforts.

10.5.9 Space Policy and Exploring the Solar System

As mentioned above, sending robotic spacecraft to various destinations in the solar system to carry out close up or in situ exploration has been taking place since the early years of space activity. In the 1960s spacecraft flew by Venus and Mars and explored the Earth’s Moon. In the years since increasingly complex spacecraft have journeyed to many des-tinations in the solar system. Twelve Americans walked on the Moon between July 1969 and December 1972, but their missions were driven by U.S.-USSR geopolitical rivalry, not as the initial steps in a long-range effort of human exploration. Since 1972, no human has traveled more than a few hundred miles away from Earth.

In January 2004, the United States Space Policy took a new turn with the proclamation of a new Presidential mandate to undertake a “sustained and affordable human and robotic program to explore the solar system and beyond.” This proposal came to be known as the “Vision for Space Exploration.” It called for a return of humans to the Moon by 2020 and eventual human missions to Mars and beyond.

The U.S. space agency NASA has been working since 2004 on implementing this vision. It has also joined with thirteen other space agencies – the European Space Agency, the French CNES, the Italian Space Agency, the German Space Center DLR, the British National Space Center, the Canadian Space Agency, the Australian Commonwealth Industrial and Scientific Organization, the Japanese Aerospace Exploration Agency, the Chinese National Space Agency, the Korean Aerospace Research Institute, the Indian Space Research Organization, the Russian Space Agency Roscosmos, and the Ukrainian Space Agency - to coordinate exploratory plans and to prepare a “Global Exploration Strategy” that spells out the rationales for carrying out a long-term program of human space exploration.

Whether the new U.S. Congress and President Donald Trump’s Administration that assumed office in January 2017 will maintain a commitment to human space exploration is not known. If it does, it will recognize the wisdom of this statement contained in the Global Exploration Strategy document: “Opportunities like this come rarely. The human migration into space is still in its infancy. For the most part, we have remained just a few kilometers above the Earth’s surface – not much more than camping out in the backyard.” It is possible that human exploration of the solar system could become the compelling rationale for 21st century space activities (see Figure 10.1).

Figure 10.1. The exploration of the solar system—21st Century Space Policy Challenge (Courtesy of NASA).

10.6 Basic Concepts of International Space Law and Key Space Treaties

Some rules are necessary for the smooth functioning of, or avoidance of chaos in, a society, be it a nation or the international community. Basic rules of behavior and laws are sometimes needed even to ensure a society’s very survival. For the most part, however, laws are adopted only when it is necessary, both at national and international levels. As in the field of economics laws are usually imposed only when problems, or even a crisis, indicate that action is necessary. In short, in market economies, political systems, and human society in general, there is a tendency toward what is sometimes called the “let it be” (in French the laissez faire ) approach.

Outer space is an international sphere; thus, it is a difficult arena for firm laws or regulations to be agreed and imposed through global consensus among nations. To the extent there are regulations that are observed, it is through what is called international space law, although the number of national laws related to space has recently started increasing. Human laws regulate human behavior and those under the jurisdiction of the states that make these laws. International treaties to regulate international behavior are more difficult to negotiate and agree, and even more difficult to enforce, since there is often no clear-cut enforcement mechanism. Since humans are not perfect, their laws are not perfect either. National self-interest plays a major role in the formulation and application of international law. During over sixty years of the space age, some general, but fundamental, principles of international space law have been elaborated mainly through the following international treaties that have been laboriously negotiated and finally agreed upon by many nations:

• The 1967 Outer Space Treaty.^[6]
• The 1968 the Rescue and Return Agreement.^[7]
• The 1972 Liability Convention.^[8]
• The 1975 Registration Convention.^[9]
• The 1979 Moon Agreement.^[10]

Currently the launching and operation of all types of space objects are space activities that are governed by the provisions of the 1967 Outer Space Treaty, which is a foundational and broad international agreement ratified/signed by over 125 states. These principles were intentionally drafted in general terms in order to regulate a field of activity that was still in its infancy and, for the most part, confined to research as of 1967. Specific rules to define, clarify, develop and elaborate the principles enunciated in the Outer Space Treaty have been formulated in various other agreements, and continue to be formulated by the UN and its specialized agencies.

10.7 Basic Principles of International Space Law

^[11]

10.7.1 Benefit and Interests of all Countries

The most basic provision of the Outer Space Treaty is that the exploration and use of outer space, including the Moon and other celestial bodies, must 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 (Article I, paragraph 1 of the Outer Space Treaty). The term “province of all mankind” implies that outer space is within the global domain and concerns all mankind as opposed to an individual or a group of states. This common interest principle is of a legally binding nature and thus operates in what lawyers would call a predominantly obligatory fashion. Other specific principles incorporated in the Outer Space Treaty come as natural derivations and extensions of this principle. The initial statement of principle implies that the exploration and use of outer space must be in some way beneficial to mankind. This does not, however, imply that all outer space activities must be undertaken only if they are exclusively beneficial to all mankind.

This statement of the basic principle of the Outer Space Treaty was included on the insistence of developing countries that believed that they should be the recipients of the benefits in the exploration and use of outer space along with the space faring nations.

10.7.2 Freedom of Exploration and Use

According to Article 1 (2) of the Outer Space Treaty, all states are entitled to launch and operate their space objects without discrimination of any kind. However, such freedom is not unlimited. States must carry out their space activities in accordance with international law and the United Nations Charter.^[12]They are prohibited from “appropriating” outer space by any means.^[13]States Parties to the Treaty are obliged to conduct all their space activities “with due regard to the corresponding interests of all other states Parties to the Treaty.”^[14]

10.7.3 Non-Appropriation

What exactly does non-appropriation mean in the Treaty? Specifically, it means 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. When a used car salesman from Australia began “selling” tiny plots of the Moon over the Internet many people participated as a lark, but such activity had absolutely no legal validity whatsoever.

This principle of non-appropriation of outer space, like the freedom principle, implements the common interest principle, i.e. if some states are allowed to appropriate outer space it cannot be used for the benefit and in the interests of all countries. A broad prohibition against appropriation applies to all states as well as to their private individual/natural persons or legal persons (companies). Private persons cannot do what their states are prohibited from doing. Moreover, the states are under obligation to ensure that the space activities of their private entities are in conformity with the 1967 Outer Space Treaty. These treaty provisions and the spirit of other principles found in the Treaty with regard to the exploration and “nonappropriation” of the continent are similar to those that govern Antarctica.

The U.S. Commercial Space Act approved in December 2015 that seemed to enable private space companies to engage in space mining and retain the property rights to sell extracted resources has raised again the question of claiming sovereignty over celestial bodies. Advocates of this activity assert that extraction of resources from celestial sources is equiva-lent to fishing in the ocean. One does not claim sovereignty over the oceans to fish in them. The Luxembourg legislation parallels the U.S. Legislation serves to give focus to legal entitlements and prohibitions associated with resource extraction from outer space. Since it seems that this type of commercial activity is still some decades away, it seems likely that this disputed area of international space law will be resolved before actual practical adjudication processes might arise.^[15]

10.7.4 Non-Weaponization and Non-Militarization of Outer Space

Under Article IV of the Outer Space Treaty, states are obliged 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. In addition, the Moon and other celestial bodies must be explored and used by all states 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 are forbidden. However, anti-satellites and anti-ballistic missiles, not being nuclear weapons or weapons of mass destruction, are presumably allowed. The use of outer space for military purposes is not explicitly prohibited.

10.7.5 Ownership, Jurisdiction and Control

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.^[16]Similarly, jurisdiction and control over a space object remain with the state in whose registry that object is registered.^[17]This provision of the 1967 Treaty was elaborated by the follow-on 1974 Registration Convention. Article II (1) of the Registration Convention obliges the launching state to register its launched space objects in an appropriate registry which must be maintained by that state. Furthermore, the launching state is required to provide information concerning each space object carried on its registry to the Secretary-General of the United Nations. Such information is incorporated in the International Register maintained by him.^[18]

National space registers are established under national policies and laws. International registration is carried out after the actual launch - often after substantial delays on the part of some nations and with very general information about objects launched. In short, military-related satellite launches are typically registered with a very minimum of description or even some misleading information.

10.7.6 International Responsibility for the Activities of Private entities

According to Article VI of the 1967 Outer Space Treaty, states are responsible for the space activities of their private entities. States are also obliged to ensure that all space activities of their non-governmental entities are carried out in compliance with the provisions of the Outer Space Treaty. ^[19]

The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, require authorization and continuing supervision by the appropriate state. The level and legal mechanism for “authorization and continuous supervision” is to be determined, under appropriate national licensing systems, by the relevant state through its national laws and policies.

When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with the Outer Space Treaty then becomes the responsibility of both the international organization and all the nations participating in such organization.

10.7.7 International Liability

Each state that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State from whose territory or facility an object is launched, is internationally liable for damage caused by its space object to another nation 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.^[20]

Under the 1972 Liability Convention, which expanded the 1967 Outer Space Treaty, the launching state assumes absolutely liability if damage is caused on the surface of the Earth or to an aircraft in flight (i.e. no need of proof of fault or negligence). However, if damage is caused elsewhere (i.e. outer space) then the launching state shall be liable only when its fault is proved. The term “damage” means loss of life, personal injury or other impairment of health, or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations.^[21]Thus “damage” covered under this Convention is limited to physical damage only.

The Treaty specifies that the “launching state(s)” includes the nation that either launches or procures the launching of a space object or from whose territory or facility a space object is launched.^[22]Whenever two or more states jointly launch a space object, they are jointly and severally liable for any damage caused.^[23]The principle of joint and several liability also applies to intergovernmental organizations and their member states when a space object belonging to such organizations causes the damage.^[24]

Under the Liability Convention, the victims of damage caused by a space object of another state cannot, on their own, get redress. All claims must be made to the concerned state on behalf of its nationals or permanent residents who have suffered any damage. The Liability Convention can be invoked only when the claimant state and the launching state are different and both are parties to the Convention. States to a dispute are required to settle their disputes though diplomatic negotiations. However, if they are unable to reach a satisfactory solution, the matter could be referred to a Claims Commission that “shall be composed of three members: one appointed by the claimant state, one appointed by the launching state and the third member, the Chairman, to be appointed by both parties jointly” (Art. XIV). “The decision of the Commission shall be final and binding if the parties have so agreed; otherwise the Commission shall render a final and recommendatory award, which the parties shall consider in good faith” (Art. XIX. 2). The Liability Convention has been used in a dispute settlement in the case of COSMOS 954 accident (i.e. the claim of Canada vs. the U.S.S.R.).

The Soviet space object, Cosmos 954, carried on board a nuclear reactor using radioactive uranium-235 as its fuel source. On January 24, 1978, the satellite entered the Earth’s atmosphere intruding into Canadian air space. On re-entry and disintegration, debris from the satellite fell on Canadian territory. This intrusion created immediate damage, including nuclear damage, to persons and property in Canada. In accordance with international space law, the U.S.S.R. was obliged to compensate Canada for the deposit on Canadian territory of hazardous radioactive debris. Canada claimed from the U.S.S.R. a sum of about CAN$6 million but, during negotiations, finally accepted CAN$3 million in a full and final settlement. (This amount would represent about US$30 million in today’s financial markets.)

10.7.8 International Cooperation and Respect for Interests of Other

States must conduct all their activities in outer space with due regard to the corresponding interests of all other states. According to Article IX of the Outer Space Treaty, in the exploration and use of outer space, including the Moon and other celestial bodies, states must be guided by the principle of co-operation and mutual assistance. If a state 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 in the peaceful exploration and use of outer space, it must undertake appropriate international consultations before proceeding with any such activity or experiment. A state that has reason to believe that an activity or experiment planned by another state in outer space would cause potentially harmful interference with activities in the peaceful exploration and use of outer space may request consultation concerning the activity or experiment.

10.7.9 Protection of the Earth-Space Environment

States are required to conduct exploration of outer space and celestial bodies 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, must adopt appropriate measures for this purpose.^[25]States must have due regard to the corresponding interests of all other states; therefore, they must not intentionally create hazards like space debris, which could adversely affect the safe conduct of space activities by other states.

Contamination of outer space could be caused inter alia by nuclear radiation, i.e. by (i) nuclear weapons tests and (ii) the use of nuclear reactors to provide electric power for satellites. As noted above, states are obliged 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.

Moreover, under the 1963 Partial Test Ban Treaty,^[26]states agreed to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control in the atmosphere, beyond its limits, including outer space, or under water, including territorial waters or high seas.

With respect to the use of nuclear reactors to provide electric power for satellites, the states have agreed to several principles,^[27]which recognize that for “some missions in outer space nuclear power sources are particularly suited or even essential owing to their compactness, long life and other attributes.” However, “the use of nuclear power sources in outer space should focus on those applications which take advantage of the particular properties of nuclear power sources.”^[28]

States launching space objects with nuclear power sources on board must endeavor to protect individuals, populations and the biosphere against radiological hazards. Any state launching a space object with nuclear power sources on board must, in a timely fashion, inform all states concerned, in the event such space object might malfunction with a risk of re-entry of radioactive materials to the Earth.

The launching state is responsible for such a spacecraft and its components after its re-entry into the Earth’s atmosphere. The launching state must promptly offer and, if requested by the affected state, provide promptly the necessary assistance to eliminate actual and possible harmful effects. All states with relevant technical capabilities must, to the extent possible, provide necessary assistance upon request by an affected state.

10.7.10 Astronauts as Envoys of Mankind

Under Article V of the Outer Space Treaty, states are required to regard astronauts of all nations as envoys of mankind in outer space and must render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another state or on the high seas.

These provisions of the Outer Space Treaty were further elaborated in the 1968 Rescue and Return Agreement. Prompted by sentiments of humanity, states are expected under this Agreement to render all possible assistance to astronauts of other states in the event of accident, distress or emergency landing, and the prompt and safe return of astronauts. If a space object or its component parts are found beyond the limits of the state on whose registry they are carried, they must be returned to that nation, on furnishing identifying data prior to their return.

10.7.11 Exploration and Use of Natural Resources

^[29]

It has been recognized that significant benefits could be derived from the exploitation of the natural resources of the Moon and other celestial bodies. In order to define and further develop the provisions of the 1967 Outer Space Treaty in relation to the Moon and other celestial bodies, the 1979 Moon Agreement was adopted. Article 4 (1) of this Agreement specifies 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, 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.” The Agreement specifies that states parties to the Moon Agreement have the right to collect on and remove from the Moon samples of its mineral and other substances. Such samples would remain at the disposal of those states that caused them to be collected and may be used by them for scientific purposes. States 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.

Article 11 (1) of the Moon Agreement specifies that the Moon and its natural resources are the common heritage of mankind (CHM), which finds its expression in the provisions of the Agreement and in particular in its Article 11 (5). Article 11 (5) in turn states that when exploitation of the natural resources of the Moon is about to become feasible, states parties to the Agreement must establish an international regime, including appropriate procedures, to govern such exploitation. The main purposes of the envisioned international regime must 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, and (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. Therefore, the principle of CHM would not apply to the exploitation of the natural resources of the Moon, unless implemented through the envisioned international regime.

10.7.12 Overview of Space Law Principle

The various legal principles as outlined above were drafted intentionally in general terms in order to regulate a field of activity, which was still in its infancy. Specific rules to define, clarify and elaborate these principles have been formulated in various other agreements.

The most fundamental international law principle is that all parties to agreements and contracts must respect their obligations. In international legal jargon, it is called the rule of pacta sunt servanda ; the provisions of the agreement must be observed and implemented. Implementing that legal doctrine, all applicable laws, both at national and international levels, require that the parties must observe their duties and perform their tasks in good faith. Those who do not do so are normally made to face some consequences. In other words, the law prescribes some kind of redress or penalty for the breach of one’s contractual obligations both in private contracts and intergovernmental agreements. The opinion of the international community is a very strong deterrent against non-performance by a state of its international obligations. The International Court of Justice may be asked to decide a dispute; its decisions are normally followed. They could be implemented through the U.N. Security Council, which could impose sanctions or also could initiate some sort of a joint military action.

The problem with the principles being indicated in very broad terms allows for various interpretations and for nations to observe the provisions in only a general way. Registrations of spacecraft, for instance, have contained very little practical or precise information. The interpretation of what is meant by a space weapon or provisions related to orbital debris is generally left to nations to define as they themselves wish.

10.8 A Review of the Most Important Actors in International Space Law

10.8.1 The U.N. Committee on the Peaceful Uses of Outer Space (COPUOS)

The United Nations is the major forum for the formulation of international space law. The U.N. General Assembly has assumed overall responsibility for all outer space matters, which it discharges primarily through its Committee on the Peaceful Uses of Outer Space (COPUOS).^[30]

The COPUOS was first established in 1958 as an ad hoc Committee with eighteen member states. A year later it was re-established as a permanent body and its membership has since been increased periodically to the present number of eighty-four. The COPUOS has two Sub-Committees: The Scientific and Technical Sub-Committee, and the Legal Sub-Committee. These Sub-Committees perform the function related to their respective fields of expertise. The Legal Sub-Committee drafts treaties and agreements regarding outer space and presents them to the General Assembly. The General Assembly, in turn, adopts them as resolutions and recommends them for adherence and ratification by its member states. This is how all above-mentioned space treaties and agreements have been formulated. In addition, the COPUOS has adopted five important declarations and resolutions,^[31]which are not strictly legally binding, but influence the international governance of several space activities.

The membership of COPUOS is based on the principle of equitable representation of developed and developing countries, space powers and non-space powers as well as all the regions of the world. The decisions in COPUOS (as well as in its Sub-Committees) are taken on the basis of consensus. Such a procedure ensures the participation of all member states. However, such a consensus process slows the decision-making process to such a degree that it may take over a decade to conclude any agreement of substance. The recently adopted guidelines with regard to orbital debris took many, many years to conclude. Further the guidelines now adopted are still marred by many “loopholes” and ambiguous provisions that undercut their effectiveness.

In addition to the COPUOS, there are several UN specialized agencies (international organizations) that have been involved in the international space law making process. These organizations have been established under inter-governmental agreements with a variety of responsibilities in the economic, social, cultural, scientific, educational, and other fields. In order to bring them within the U.N. family, an appropriate agreement is generally reached between the prospective candidate organization and the U.N. Thus, they enjoy a special relationship with the U.N. and co-ordinate their activities with the U.N. The following is a list of some of the specialized agencies that deal actively with outer space matters:

10.8.2 International Telecommunication Union (I.T.U.)

After COPUOS, the I.T.U. is the most important organization that is extensively involved in outer space affairs. The I.T.U., which is headquartered in Geneva, Switzerland, adopts treaties to regulate the use of the geostationary orbit and the radio frequency spectrum, registers frequencies and orbital locations, and adopts recommended technical standards for communications satellite operation and executes many other functions.

The I.T.U. is the oldest inter-governmental organization in the world, originally created in 1865. It was reorganized in 1932 and became a U.N. Specialized Agency in 1947. It was again restructured in 1989, and the current version of its organizational instruments were adopted in 1994 and then revised in 1998, 2002, 2006, and 2010. It has been created in order to (a) maintain and extend international co-operation for the improvement and rational use of telecommunications of all kinds, including satellite communications, (b) promote the development and most efficient operation of telecommunications technical facilities, and (c) harmonize the actions of nations in the attainment of these common goals.^[32]At present there are 193 states members of the ITU. In addition, over 600 private companies and telecommunication operating agencies participate, as Sector members, in the activities of ITU.

The ITU legal principles provide that (a) states must not assign to a radio station any frequency in derogation of the ITU regulations, (b) radio stations must not cause harmful interference to the radio services of others that are legally operating, (c) for international protection against harmful interference, co-ordination through, and registration with, ITU must be followed, and (d) states are obliged to require their private operating agencies to observe the ITU regulations; thus, they require them to obtain radio licenses under their respective domestic laws.

10.8.3 United Nations Educational, Scientific and Cultural Organization (U.N.E.S.C.O.)

U.N.E.S.C.O., which is headquartered in Paris, France, was created in 1946 in order to (a) broaden the base of education in the world, (b) bring the benefits of science to all countries, and (c) encourage cultural exchanges. The U.N.E.S.C.O. Constitution provides that “Since wars begin in the minds of men, it is in the minds of men that defenses of peace must be constructed.” In 1972, UNESCO adopted the Declaration of Guiding Principles on the Use of Satellite Broadcasting (DBS) for the Free Flow of Information, the Spread of Education and Greater Cultural Exchange. Article IX of the U.N.E.S.C.O. Constitution provides that “In order to further the objectives set out in the preceding Articles, it is necessary that States, taking into account the principle of freedom of information, reach or promote prior agreements concerning DBS to the population of countries other than the country of origin of the transmission... with respect to commercial advertising, its transmissions shall be subject to special agreement between the originating and the receiving States.”

10.8.4 World Intellectual Property Organization (W.I.P.O.)

The World Intellectual Property Organization (W.I.P.O.) which is headquartered in Geneva, Switzerland not far from the I.T.U. headquarters, was established in 1967, by restructuring the 1893 International Bureau for the Protection of Intellectual Property in order to (a) promote the protection of intellectual property throughout the world, and (b) ensure administrative co-operation in the enforcement of various international agreements on such matters as trademarks, industrial design, patents, the protection of literary and artistic works (copyright), the protection of performers, produces of phonographs and broadcasting organizations, etc.

W.I.P.O. encourages the conclusion of new international treaties and the harmonization of national intellectual property laws and policies. It has initiated the conclusion of the 1974 Brussels Convention relating to the Distribution of Program-Carrying Signal Transmitted by Satellite. Radio signals transmitted by a satellite are generally available over wide geo-graphical areas, and thus their unauthorized interception and distribution may occur easily in many countries, which are within the footprints of that satellite. This could give rise to a problem of piracy of satellite programs. In order to address this problem, the Convention in its Article 2 (1) specifies that “each Contracting State undertakes to take adequate measures to prevent the distribution on or from its territory of any program-carrying signal by any distributor for whom the signal emitted to or passing through the satellite is not intended. This obligation shall apply where the originating organization is a national of another Contracting State...”

The W.I.P.O. Convention does not apply to signals emitted by Direct Broadcast Satellites. However, distribution of pirated signals obtained from Direct Broadcast Satellite (DBS) is prohibited. Piracy of DBS signals not intended for a country is also prohibited. Less developed countries are allowed to intercept and distribute satellite signals for teaching (including adult education) and scientific research purposes.

10.8.5 World Trade Organization (W.T.O.)

The W.T.O., which is headquartered in Geneva, Switzerland, and supersedes the General Agreement on Trade and Tariffs (G.A.T.T.), came into effect in 1994. The W.T.O. (a) addresses world trade both in commodities (products) and services, (b) seeks to reduce barriers to international trade, (c) promotes competition, and (d) works for the protection of intellectual property and of foreign investment, etc.

The W.T.O. has become an important forum for the discussion of space-related products and services, e.g., the 1997 Agreement on Basic Telecommunications, including satellite telecommunications. The Agreement was concluded on 15 February 1997 and involves over 90 countries, which account for more than 90 percent of global telecommunications service revenues. The Agreement is based on a worldwide commitment to opening markets, promoting competition, and preventing anti-competitive conduct. The Agreement ensures that, as soon as the countries begin to open their markets (including satellite communications), they will be available to all W.T.O. Members on a non-discriminatory basis. Furthermore, the W.T.O. dispute settlement mechanism ensures that individual countries will effectively enforce the commitments they have undertaken. The W.T.O. is one of the few U.N. specialized agencies that has enforcement powers at its command and can impose sanctions on member nations for anti-competitive behavior and other trade infractions.

10.8.6 International Civil Aviation Organization (I.C.A.O.)

The I.C.A.O., which is headquartered in Montreal, Canada, was created in 1947 in order to (a) foster the planning and development of international air transportation, (b) ensure the safe and orderly growth of international civil aviation throughout the world, and (c) develop principles and techniques of international air navigation. ICAO is active in efforts to implement the communications, navigation and surveillance and the air traffic management (CNS/ATM) systems, which are today largely based on satellite technology. I.C.A.O., working in cooperation with the U.N. COPUOS and the U.N. Office of Outer Space Affairs (OOSA), in the future may also possibly be involved in the regulation of aerospace vehicles, particularly by setting up international safety standards and global procedures for their safe navigation and control in Earth orbit and also in the Protozone.

10.8.7 Non-Governmental Organizations (NGOs)

Non-Governmental Organizations (NGOs), like the International Institute of Space Law (IISL) and the International Association for the Advancement of Space Safety (IAASS) actively, but indirectly, contribute to the initiation and clarification of several aspects of international space law. The International Institute of Space Law (I.I.S.L.), founded by the International Astronautical Federation (I.A.F.) in 1960, carries out activities for fostering the development of space law.^[33] The I.I.S.L., as the prominent global professional body of space lawyers, comprises of about 500 individual and institutional elected members from all over the world. A large majority of them are those distinguished for their contributions to space law development. Both the I.I.S.L. and I.A.F. are officially recognized observers at the U.N. Committee on the Peaceful Uses of Outer Space and its two subcommittees. They are thus able to make contributions to the U.N. deliberations and space law related issues. The International Association for the Advancement of Space Safety^[34]was established in 2004 in the Netherlands and its membership is open to anyone having a professional interest in space safety. The main goals of the I.A.A.S.S., as its website states, inter alia include (a) to improve understanding and awareness of the space safety discipline, and (b) to advocate the establishment of safety laws, rules, and regulatory bodies at national and international levels for the civil use of space. The I.A.A.S.S., (a) holds every 18 months international conferences on important issues, including legal aspects, and aspects related to space safety, (b) publishes books for space safety professionals, and (c) organizes training sessions for all those who are interested in achieving and applying space safety standards and procedures (including regulatory procedures).

10.9 Key Issues of Space Law and Space Policy

Now that we know that nations and international organizations have created an increasing set of treaties, laws and regulations related to outer space and adopted space policies and guidelines for a number of reasons related to national security, image, economy opportunity and even international development the question remains: “So what?” What good does all these policies and regulations actually accomplish? The answer is a great deal.

There are serious concerns with the increasing amount of orbital debris and the possibility that the orbital debris itself could start a cascade, or avalanche, making lower Earth orbits almost unusable. The International Telecommunication Union (I.T.U.) has now established due diligence rules for each nation to police and to create de-orbit capabilities for satellites. The U.N. Committee on the Peaceful Uses of Outer Space (COPUOS) has now adopted a systematic set of guidelines to limit orbital debris. While these measures could be made more effective, this is a good start on this issue. And positive regulatory measures for the effective regulation of space go well beyond orbital debris.

In June 2018, the U.N. COPUOS will hold a two-day event called UNISPACE + 50 whose purpose will be, in part, to set a twelve-year future agenda of action through 2030 in terms of key space law and regulatory issues that it will seek to address. Some of the key issues that seem likely to become a part of this agenda for future action include items that were identified in an international study of global space governance issues conducted under the auspices of the Institute of Air and Space Law at McGill University between 2014 and 2017. (See, Ram S. Jakhu and Joseph N. Pelton, Global Space Governance: An International Study, (Springer, 2017)).

The issues of significant concern identified in that study and highlighted as priority issues for further study are:

Short Term

1. The Use of Space to Achieve the United Nations Sustainable Development Goals, particularly for the benefit of developing countries;
2. Space Traffic Management and Control for Earth Orbit and Near Space;
3. Space Security and Cyber Security;
4. Controls related to Orbital Space Debris, especially regarding Debris Mitigation and Remediation, and to the future Large Scale Deployment of Small Satellites;
5. Cosmic Hazards and Planetary Defense;
6. Increasing Capacity Building, Outreach, Education, Training and

Assistance in Space Systems, Technology and Applications, as well as other aspects of Space Governance;

1. The mandate of the International Telecommunication Union to address Radio Frequency interference and jamming;
2. Strengthen the Mission, and Increasing the Functioning Capability of the United Nations Office for Outer Space Affairs (UNOOSA).

Medium to Long Term

1. On-Orbit Servicing and Repurposing of Derelict Space Objects;
2. Organized and Sustainable Space Resource Exploitation and the Equitable Sharing of Space Benefits;
3. Regulatory Requirements Enhancing “New Space” Activities and Expanding Commercial Space Applications in Earth Orbit and Deep Space;
4. Long-Term Sustainability and the Environmental Protection of Outer Space as well as Improved Capability for International Space Situational Awareness.

Identifying issues to further study is only the first step. The process of finding the solution to these issues takes much longer.^[35]

There are now concerted efforts to use outer space to help protect the biosphere and combat global warming and climate catastrophe. There are efforts now emerging through international collaborative efforts to regulate the safety of space planes through NGOs like the I.A.A.S.S. and through systematic collaboration through national and regional organizations such as the F.A.A. in the U.S. and the E.A.S.A. in Europe. There are also efforts to coordinate the process of exploring outer space that are reflected in the efforts of nearly twenty space faring nations and expressed in the Global Exploration Strategy Document. and parallel supporting actions such as the European Commission’s latest space policy declaration as expressed in October 2016.^[36]

It is particularly useful to note that some of these coordinating efforts are carried out within the treaty-making and regulatory processes of the United Nations and its specialized agencies. Other efforts are achieved through the coordinating work of national and regional space agencies, while yet others are carried out through the efforts of NGOs, such as by the I.A.A.S.S., the I.I.S.L., the Secure World Foundation and other such groups around the world. At this time, these complementary efforts have produced generally positive results.

10.10 The Next Frontier

Space law and regulation, space policy and national security considerations interact today to create a process for the oversight of commercial, national, regional and international activities in space. These processes are still in their infancy, but they have evolved a good deal in the last half-century since the start of the Space Age. These processes will evolve further as new space commerce, such as space tourism and private space habitats, evolves in the coming decades. The high cost of space exploration and economic necessities may well provide important new incentives for close international cooperation in space, and new (and more precise) space law and regulations. The current regulatory environment in space is relatively weak, since there are no overriding enforcement processes or major penalties for not observing “the rules of the road”. The space law that exists is very broadly stated, with a great deal of possibility for different forms of interpretation. Nevertheless, current progress in such areas as orbital debris, coordinated space exploration, the operation of the International Space Station, and the use of space to combat global warming and to aid human development are all very hopeful and encouraging signs. The UNISPACE +50 event to be held in Vienna, Austria in June 2018 will establish an agenda for the next 12 years through 2030 and one of the key elements of this agenda will be to achieve an improved global space governance. One of the elements of this effort will be to review the international study of improved space governance that was conducted by the McGill Air and Space Law Institute with experts from around the world carried out between 2014 and 2017.^[37]