SPECIALIST ARE AS OF L AW
The common heritage of mankind By Hannah Grant For those of us who wanted to be astronauts when we were young (I know I’m not alone), we now have the option to explore space without undertaking a decade of training. For a mere gazillion dollars (or some other unfathomable number), we can now lift off out of earth’s atmosphere courtesy of commercial space travel. If you have enough money, you have the right to use space for freedom of exploration because space belongs to no one (a foreign concept for us human beings). But how much are we utilising this unfamiliar resource? And do we have sufficient international legislation in place to regulate this use and the emerging commercial space players? Many people would be surprised to learn how much we already use space for such things as scientific exploration, global security and commercial advantage. Whether it is satellite television, phone satellites, Wi-Fi or military reconnaissance and surveillance, numerous states and commercial enterprises have stakes in space. It’s very difficult to regulate what’s going on in space but as we are directly using space assets, there are international policies and laws put in place to offer both protection of resource and regulation of utilisation of the great unknown. Space law encompasses international law governing activities in outer space. In 1957, the Russians launched Sputnik 1, the world’s first artificial satellite. This was the inception of the field of space law and since then it has evolved and assumed greater prominence as mankind has increasingly come to rely on space-based resources. Maria Pozza, international space law and policy expert, is nearing the end of her PhD in space law. She says that the development of any international law is a long process. “It takes a long time for international law to develop as you need states to negotiate with each other. Drafting, signing and ratifying treaties is a complex process, especially once questions of definition and interpretation arise. In this respect, international space law will always struggle to keep up with advances in
technology,” she says. Ms Pozza’s PhD research looks at the lack of definitions in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (or the “Outer Space Treaty” for short). For example, the Outer Space Treaty states that space exploration must be for peaceful purposes, yet Ms Pozza says there is no definition of what constitutes peaceful.
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international space law will always struggle to keep up with advances in technology.
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Maria Pozza “International law says that space exploration must be for peaceful purposes. Yet there are many military satellites and other assets which function or relay information that can be used for aggressive purposes. “I look at the Outer Space treaty 1967 from an arms control perspective. This treaty represents a sound foundation but subsequent development of the treaty has not eventuated. Its major shortcomings relate to a lack of definitions and inconsistency in interpretation by various states. As a result it does not provide the guidance that is necessary for new and emerging space-faring states.” “We have things like the 2008 European Code of Conduct, which is essentially rules of the road for how we should be using space. It’s a soft piece of international law but this is probably how international law governing space will develop as the treaty process takes far too long,” she says.
Basically, to use space for any purpose, you are going to need enough money to develop the technology, hire a space lawyer and comply with United Nations instruments and registrations. But how we use space has changed dramatically over the last 50 years. Increasing satellite technology and the birth of commercial space travel are leaving current space law in their wake. “One of my big interests that stems from my research is the emergence and dominance of international commercial space law. Space X, for example, has been enormously successful. Suddenly we have a commercial non-state player who’s taking on the role of the state in delivering supplies to the international space station.” Ms Pozza has an area of special interest in international space law investment. “International space law concerning financial interests of third parties involved in space assets is an area which is undergoing rapid development,” she says. Arguably the resources of space are infinite, but in terms of the geostationary orbit, this is not the case. The geostationary orbit follows the direction of the Earth’s rotation and is the most sought after orbit for satellites. So high is demand that there is now not much room left and it’s viewed as a scarce resource. “The question of resource utilisation as it pertains to orbits geostationary or otherwise, is a point of contention. As space becomes more crowded, conflicts between states over such resource ownership will tend to increase. Such considerations regarding space assets present an obvious conflict with the notion of non-ownership of space.” In order to keep up with technology, the laws regulating space exploration and utilisation will need to keep on their toes. This is an era of rapid change and development and there is much debate about commercial development and human settlement of outer space. There is also talk about whether space should continue to be legally defined as part of the “common heritage of man,” and therefore unavailable for national claims, or whether its legal definition should be changed to allow private commercial property in space. LT
LAWTALK 801 / 3 AUGUST 2012
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