Private Law, Public Law, Metalaw and Public Policy in Space

Table of Contents

1. Frontmatter

2. Small Is Beautiful? Legal Challenges of Small Satellites

   Irmgard Marboe

   Abstract

   The development and operation of small satellites for various purposes is a recent phenomenon that poses new challenges to the regulatory framework of outer space activities. On the one hand, the involvement of more actors, including private entities and universities, in the area of space technology is welcome as it helps more countries and people to benefit from outer space as the “province of all humankind”. On the other hand, small satellites are prone to aggravate the problem of space debris. This is not only due to the increased number of space objects, which is the inevitable consequence of the success of small satellites, but also because of their particular qualities. They often do not have maneuvering capability that would allow them to evade an obstacle or to de-orbit after the end of mission. Furthermore, their limited scale and scope of activity – sometimes even regarded as “amateur” activity – leads to a relatively high failure rate. The regulatory challenges include issues of authorization, registration, frequency allocation, risk, liability, and insurance, as well as space debris mitigation.

3. Legal Aspects of Solar Power Satellites

   Ram S. Jakhu, Diane Howard, Andrea J. Harrington

   Abstract

   It is an undisputed fact that the global need for energy will grow exponentially in the future and the search for alternative energy sources will intensify. One alternative source will be space- based solar power (SBSP), to be collected in space and transmitted to Earth by solar power satellite (SPS). As the appropriate technology becomes proven, the economic and operational viability for the launch of SPS system(s) will, to a large extent, depend upon favorable political and legal determinants. One such determinant relates to safety risks and the possible liability of the operator(s) of SPS system(s). This chapter identifies the safety risks of, and analyses liability for, damage caused by SPS. Issues, specifically analyzed under international law and the domestic law of the U.S., include licensing and damage caused (in outer space, in the air and on the Earth) by electronic transmission, and mechanisms to manage liability including inter alia insurance coverage, waivers of liability, and dispute settlement mechanisms. The chapter contains recommendations for taking regulatory precautions in order to avoid the risks of possible liability and thereby enhancing favorable circumstances for launch and successful operation of SPS system(s).

4. Prospects for the Arbitration of Disputes in Public – Private Space Projects

   Tare Brisibe

   Abstract

   International law exists for several purposes including the provision of principles and modalities governing peaceful settlement of disputes. Whilst utilization of outer space continues to have a transformational impact on humankind, the emergence of a global space industry can be attributed to increased involvement by private enterprise in outer space ventures, traditionally conducted by States through Public-Private Partnerships (PPP’s), amongst other business ventures. PPP’s raise a variety of interesting and important questions of a legal nature including the settlement of disputes if and when they do arise. Noting that arbitration is increasingly used for settling disputes, under privately financed infrastructure projects, alongside the fact that international arbitration has evolved as the preferred method for resolving disputes arising from cross-border investments, particularly those involving States, this chapter addresses prospects for arbitration of disputes relating to outer space activities, arising from PPP’s. This chapter examines particular characteristics of existing arrangements for dispute settlement in PPP’s, identifying gaps if any, and justifies a proposal for pragmatic solutions, relying on the Optional Rules for Arbitration of Disputes Relating to Outer Space, adopted in 2011 by the Permanent Court of Arbitration.

5. Legal Issues in China’s Future Participation in the Space Protocol to the Cape Town Convention

   Yun Zhao

   Abstract

   After more than 10 years of work, the UNIDROIT finally adopted the Space Protocol to the Cape Town Convention in 2012. This protocol is meaningful in dealing with the issue of international interests in financing space assets. It is expected to create a predictable legal regime for the space financing industry. China, an important space power in the world, has great stake in the success of the space financing industry. China has been actively involved in the negotiation process for the Space Protocol and has already acceded to the Air Protocol to the Cape Town Convention. It would thus be necessary to examine possible impact of this third protocol on space financing industry in China. This article will further investigate the possibility of China’s accession to the protocol.

6. Chinese Space Legislation: Current Situation and Possible Way Forward

   Fabio Tronchetti

   Abstract

   In the last decade China has achieved a remarkable level of success in the space sector and has rapidly become one of the most dynamic and innovative space players. Indeed, not only is China at the forefront of space exploration and utilization but it is also capable of providing a number of space services on a commercial basis, including launching and satellite navigation and positioning.

   While rapidly expanding the range and ambition of its space endeavors China appears to lack the same level of dynamism and flexibility in the legal organization and implementation of its national space activities. Opposite to a growing worldwide trend, which has seen emerging space actors enacting dedicated national space legislation, China does not have a comprehensive, fully fledged national space law. Instead, Chinese space activities are run through a number of internal management rules and departmental regulations issued by space authorities. This situation, which might be explained by taking into account historical factors and the nature of Chinese space activities and players, has the potential to negatively affect Chinese economic and organizational interests in the space field.

   The purpose of the present chapter is to analyze the current legal framework regulating Chinese space activities, to review its positive features and shortcomings, and to discuss a possible way forward.

7. Applying the Jus in Bello to Military Uses of Outer Space: A Square Peg in a Round Hole?

   Steven Freeland

   Abstract

   The development of satellite technology to enhance the exploration and use of outer space has continued at a rapid rate ever since the space age began in 1957. Satellites play a vital part of many aspects of daily life, and also with respect to the conduct of armed conflict. Most military leaders regard space-related technology as an integral element of their strategic battle platform. This reflects the changing technological nature of armed conflict, which challenges many aspects of international law, including the regulation of warfare. This is particularly the case with respect to the use of satellite technology. Moreover, the continuing development of this technology challenges the core of the ‘peaceful purposes’ doctrine that underpins the international regulation of outer space. This chapter discusses the application of the United Nations Space Treaties and the laws of war to the use of outer space during armed conflict, and offers some reflections as to what is required to properly address the issue.

8. Outer Space as Private Property and Theater of War?

   José Monserrat Filho

   Abstract

   This article discusses two contemporary trends strongly related pressing in growing scale the global space political game for the establishment in outer space and celestial bodies of the right to private property and for the installation of weapons in outer space. These trends are not only supported by space powers, but also and in particular by some large private corporations, involved in the high military industry, as well as in the exploitation of space natural resources, mainly precious minerals from the Moon and asteroids. The article tries to demonstrate that so far there is no international legal basis for the recognition of the right to private property in outer space and celestial bodies. Quite the contrary, the Article II of Outer Space Treaty is very clear in rejecting any kind of appropriation in outer space and also in celestial bodies. The author defends an international regime for the exploitation of space natural resources, beneficial for the development of all countries, and criticizes the installation of weapons in Earth orbits which can transform the outer space into theater of war and tease immeasurable dangers for our already so threatened planet and its inhabitants.

9. SETI and the IAA SETI Permanent Committee: Past, Present and Possible Future

   Claudio Maccone

   Abstract

   This chapter is a short history of SETI, the Search for ExtraTerrestrial Intelligence, and the role of the IAA SETI Permanent Committee. The origins and development of SETI are traced from a seminal paper published in 1959 by Giuseppe Cocconi and Philip Morrison showing mathematically that radio communications between nearby stars were indeed possible. The first radio SETI Search was conducted by Frank D. Drake in 1960 on two nearby stars that are now known to have planets. In the following half century, SETI unrolled through the brief period of formal support by NASA to the current era of privately funded SETI research, and the activities were conducted not only in the USA, but also, independently, in the then Soviet Union, in some European countries, and in Australia and Argentina. In the meantime, the International Academy of Astronautics (IAA, based in Paris) had created in 1966 what is now the “IAA SETI Permanent Committee” to promote scholarly studies in the SETI field. For most of its existence, the activities of the Committee have been almost exclusively conducted through the two SETI Sessions (SETI 1, about SETI Science and Technology, and SETI 2, about SETI and Society) during the annual International Astronautical Congress (IAC). In recent years the Committee has been reformulated with new leadership, and its activities have expanded as scientific advances, including the discovery of exoplanets (now known to be in the thousands, but estimated to be in the billions all over our galaxy, the Milky Way). These recent developments greatly enhanced the need for SETI to be taken seriously not only by scientists, but also by lay people and politicians. This trend will continue, as in 2015 a new $100 million SETI Program was announced to be sponsored by a private entrepreneur (Yuri Milner), so that the chances of Humanity being capable of discovering the first (nearby) ExtraTerrestrial Civilization are ever and ever increasing.

10. SETI, Metalaw, and Social Media

    Patricia Margaret Sterns, Leslie I. Tennen

    Abstract

    The discovery of intelligent extraterrestrial life will thrust Mankind into a new relationship, and the manner in which Mankind interacts in the engagement of that relationship will be governed by the rules of Metalaw. Whether to engage in communication, and if so, the content of the communication, have direct metalegal consequences. The SETI Committee of the International Academy of Astronautics (IAA) has formulated Protocols regarding activities following the detection of ETI, and the sending of communications to ETI. These Protocols, which have received widespread acceptance within international organizations and the SETI community, implicitly reflect metalegal principles. However, these documents were formulated more than 20 years ago, and although some revisions occurred in 2010, they predate and thus do not consider social media and its implications. Social media represents a revolution in communications, and this article examines the significant implications of social media for the Protocols and application of the metalegal principles expressed therein.

11. Backmatter