HAS INTERNATIONAL SPACE LAW A FUTURE ?
ESPI Space Breakfast
9.Mai 2006
Among the various branches of international law, that is public international law ,Völkerrecht in German or droit international public in French ,international space law is one of the youngest of ist off-springs, as it is a mere 4o years since the adoption of the TREATY ON PRINCIPLES GOVERNENING THE ACTIVITY OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE INCLUDING THE MOON AND OTHER CELESTIAL BODIES on 10 October 1967 , an event, that is usually taken as the birth of this new branch of international law.
At the same time international space law could for a long time be considered as one of the most dynamic and productive branches of international law as in the relatively short span of a single decade
Four more international space treaties were designed and adopted, concerning such issues as the rescue of astronauts, international liability ,the registration of space objects and finally a Treaty on the Moon.
This burst of activity that allowed the body, designated by the United Nations as the supreme law making body for space, the Committee for the Peaceful Uses of Outer Space to complete this work in such a short time ,was due to , in the first place, to an understanding by the major space powers of this period, the United States and the Soviet Union who wished to put limits to their competition in space .This competition had been triggered by the launch, in October of 1957 of the first man made object into Outer Space ,SPUTNIK and culminated, only 12 years later by landing the first astronauts on the Moon.
A major part of this understanding was the decision to avoid a long and costly arms race in space and subject it to some elementary elements of arms control by banning nuclear weapons or any other kind of weapons of mass destruction .
After a Treaty banning nuclear weapons tests in the atmosphere, in Outer Space and under water had been already adopted in 1963 the Outer Space Treaty of 1967 in ist article IV committed states parties „not to place in orbit around the earth any objects carrying nuclear weapons or any kind of weapon of mass destruction ,install such weapons on celestial bodies or station such weapons in outer space in any other manner“.
This understanding and this interest of the first major space powers was also demonstrated by the fact that most initiatives for new space treaties came from either of them ,Europe at that time still being largely absent from the space arena ,the founding years of ESA still laying ahead.The same was true of most developing countries which had not yet discovered the importance of these new technologies for their own advancement,India being perhaps the exception.
China, on the other hand, even refused to join the Outer Space Committee of the UN that, initiallly ,it considered as the exclusive playing ground of the US and the USSR.
In the years following the adoption of this first body of international space law the pace of space legislation slowed down considerably.
A first sign of this new reluctance to enter into new commitments and extend the rule of law in Outer Space by new treaties was the lack of enthusiam that greeted the latest of the space treaties, he moon agreement of 1979.While most other treaties were not only adopted but also ratified by a great number of states the Moon Treaty found only a handful of countries ready to ratifiy it ,although still enough of them to enter into force.It was Austria, incidentally ,that helped to bring this about as it was, in 1984, the fifth country to ratifiy the Moon Treaty.
Second and even more importantly agreements reached in the eighties and early nineties in the Legal Subcommitee of COPUOS no longer took the shape of treaties with full legal obligations for states parties but were downgraded to mere „principles“with no more binding force than the resolutions of the General Assembly of the United Nations as which they were indeed adopted.Four such sets of principles were thus adopted,the first three relating to direct TV broadcasting,remote sensing of the earth from Outer Space and the use of nuclear power sources in Outer Space and can be considered as a first international effort to regulate the new technologies used in space.A fourth set of principles is ocf a more political nature as it relates to international cooperation in space with special reference to the needs of developing countries.
It is not my intention here to discuss in detail the contents of these principles, some of which appear evven somewhat outdated as they reflect, as their birth dates in 1982 and 1986 suggest suceptibilties and concerns related to the cold war era, particukarly the principles on direct broadcast satellites.Others, particularly the principles on the use of nuclear power sources in Outer Space retain much relevance and are therefore also the subject of renewed consideration by the Legal Subcommitee.
What I want to discuss however what they signal in relation to the willingess of the international space community to enter into new legal commitments and what this particular avenue bodes for the future.
It is certainly true, in this regard, that these principles, although not legally binding once adopted formulate a code of conduct and reflect a legal conviction of the international space community on these categories of space activities .These GA Resolutions, particularly the majority of them which were adopted by consensus – the TV broadcast principles being the exception – may play, if followed by a constant practice of states and international organisations , a significant role in establishing either costumary rules of international space law or serve as as basis for future negotations on international treaties to regulate the same subjects in a legally binding manner.
While it is certainly true, therefore , that even these „principles“ are not without some legal significance and that , in this sense, they form part of the body of law created by the United Nations they give to understand that the process of international law making in matters of Outer Space has entered a new envinronment radically different from ist beginnings.
This environment is no longer caracterized, as orginally by the geopolitical and security concerns of the major space powers who thus became the main promoters of early space law, particularly as far as arms control in space was concerned.While security concerns will never be absent from space policies new actors and new isues have now appeared that strongly influence this environment.
Today, states, although still present through their space agencies which often retain a primary and predominant role in the exploration and uses of Outer Space as well as international organisations , are no longer the only actors in space.Next to them many new players from the privater sector have begun to appear and commercial industries have picked up activities in areas such as space transportation ,satellite communications or remote sensing which at an earlier stage were under state control.
The private sector also plays a major role due to the privatisation of major international satellite organisations such as INTELSAT,INMARSAT or EUTELSAT:
The Sea Lauch consortium is another example of private sector initiative and activity in this sector,next to other private sector initiatives in the small launcher segment and others.
The emergence of these new actors was accompanied by a shift ,first in the developped world but later, particularly after the end of the cold,also on the global scale towards a stronger ,sometimes even the exclusive reliance on market forces , the liberalisation and deregulation of national economies as well as international economic relations:the age of globalisation, or rather a new age of globalisation had arrived.
Such a public mood ,such a new philosophy, sometimes agressively promoted by governments and business was certainly not conducive to the acceptance of new regulations in space , which, at the same time,as I such noticed, saw the massive and often enthusiastic entry of particulartly agresswive private sector players motivated by the expectation of rapid growth and major economic opportunities.These new players resisted, as elsewhere, the introduction of a legal framework that they considered to be an artifical barrier to their activties.
Next to economic considerations national interests also played their part as national space agencies , whose growth and influence far exceeded the space activities of international organisations,particularly those of UN agencies ,not least those operating in some of the technlogically most advanced countries,apparently saw little merit in accepting new legal obligations of an international caracter that might commit them to an advanced degree of international assistance and preferred to cast their international relations in bilateral form.While certainly accepting a responsibility to support efforts by developping countries to become users of space technology most developped countries obviously came to prefer the bilateral approach in their space assistance programs.
In Europe ESA certainly created a new type of international cooperation in space on the regional level , thus elevating Europe to one of the major players on the international space scene:this however did not result in any significant efforts towards the further development of space law although ESAcertainly displayed a high degree of loyality and respect towards the existing body of space treaties and principles.
The new environment was at the same time also caracterized by a much stronger role of devloping countries who, to an increasing degree, relied on space technologies for their economic and social development.While certainly interested in a strenghtening of space law and regulations favoring their uses in developing countries their efforts, with the exception of the Principles on Cooperation bore little fruit .
All of this might explain why it is that international law making in Outer Space has griound to a literal halt over the past years and that ,at the present time and at least according to my present knowledge not much is on the drawing board.
At the same time however, technological progress as well as new and multiple uses of Outer space continued unabated, creating new problems and challenges for which legal rules arer just as important a<s technical ones.
I am not proposing to list all these developments in detail and discuss the type of legal regulations that they might require. Let me just say that many of the challenges that will be faced by the international legal space communkty are not only th consequence of these new technological developments but also ,as i mentioned earlier, of the increasing commercialisation and privatisation of space.
Let me say in this context that the presence of these actors in space , motivated primarily by other concerns than serving the general benefits of humanity will require,in principle, to strike a careful balance between essential elements of public service and other more commercial considerations.This will require a legal and regulatory framework that, while offering incentives for creative and responsible business activities will also provide the necessary amount of public surveyance, control and monitoring.
In any case the application oif the concept of „public service“to certain space activties will gain increased importance with the ever stronger and indispensable presence of private actors and competition bases activitiesd ,also in the area of public private partnerships.
It is of course a matter of choice and certainly also political feasibilty whether these challenges will be adressed in the framwork of public international space law or national space law.
Let me also mention some of the newer issues that constitute major challanges to any new developments of space law.
Such isssues concern space traffic as well as space debris,which have found much attention in literature and academic discussion but so far only limited responses from the appropriate law making bodies.
Such issues concern liability, financing and insurance and any discussion of the problems and challenges linked to therse matters would of require more than one space brakfast.Let me just say, in this contecxt, tthat tackling thse issues will require, both from thre business and the space law community a great deal of imagination and innovation as shown, ,as one excfellent example, by the UNIDROIT project of future asset-.based finance of space objects.
The same will be true of intellectual property rights in space , not least as the interests of intellectual property and space activties have recently converged through the construction of the International Space Station..Here the discussion focuses usually on industrial property rights as pentents and patent laws, but intellectual property rights also include trademartks, copyrights and authors rights .The development of a legal framework might therefore soon become imperatrive, especially in the fast growing market of satellite communications and earth observation,as the present national frameworks for thje use of intzellectual püroperty löaw show many inadequacies in the field of space activties.
Let me also not forget to mention the issue of the space environment as such.Space technology has certianly become an indispensable tool for environmental monitoring and control and Europe will pursue this avenue through one of the flagship projects of ist new European Space Policy, namely GMES.But it is possible at the same time that the use of technology in space could cause undesirablke effetcs.The UN Principles on the Use of Nucelar Power sources in Outer Space are trying to address this very problem.But hazardous perspectives of space debris and the future exploration and exploitation of planetary bodies – beginning perhaps with man’s reurn to the Moon – should be combinmed with an in-depth discussion yabout environmental protection and sustainable development not only on earth.Thus the protection of the environment of süpace may quite soon require legal frameworks as extensive as those related to the
Earth’s environment.
National space law
Contrary to international space law a more domestic branch pof the law has shown healthy growth over the past years, namely national space law .
While at the outset only few countries ventured into national space legislation the present time shows an impressive growth of such laws , the oldest of course being the<National Aeronautics and Space Act of the United States, already enacted in 1958 ,creating NASA and oulining the principles according to which the US would conduct ist space activities.This Act, incidentally still shows strong allegiance to UN principles as ist opening paragraph, section 102 reads as follows:
„The Congress hereby declares that it is the policy of the United States
that activities in space should be devoted to peaceful purposes for the benefit of all mankind.“
Although international space law does not require states to enact national legislation in this field most states apparently consider that the establishment of national legislation is necessary to deal specifically with space activities in the framework of international law ,that is to comply with it.
The issues mostly adressed in national space legislation concern questions of liability, registration and others contained in the basic space treaties.
Next to national space law another branch of space law is constituted by the numerous bilateral and multilateral agreements concluded between states or between states and international organisation so as to conduct joint space activities.
Not surprisingly NASA is ahead of all these ,largely technical agreements which, by some of the latest counts number more than 2500, 9oo of which have been concluded with developing country partner organisations.
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