TREATIES ON OUTER SPACE AND THEIR EFFECT ON SPACE BUSINESS_.docx

16-SPG Air & Space Law. 8Air and Space LawyerSpring, 2002*8 THE U.N. TREATIES ON OUTER SPACE AND THEIR EFFECT ON SPACE BUSINESSFranceska O. Schroeder FNa1Copyright (c) 2002 by American Bar Association; Franceska O. SchroederMore than 40 years ago, space-faring nations recognized that dreams regarding space science, exploration, and exploitation were becoming realities. Revolutionary advances in technology, an unquenchable thirst for discovery, and, to a large extent, political interests spurred unprecedented contemplation of and preparations for activities in outer space. These activities included not only traveling to the moon and exploring its surface and resources but also populating Earth orbits with satellites that could provide a wide range of civil and military applications. The feasibility and ultimate success of these activities required a safe and reliable means of delivering manned and unmanned spacecraft into space and ensuring that, once there, they could survive in the inhospitable environment of outer space.The task of carrying out these activities from scientific and technological perspectives was daunting. Their management from legal and policy perspectives also was challenging. In response to these legal and policy challenges, space-faring nations carefully crafted multilateral agreements that would set forth the fundamental principles governing space activities. Instrumental in this effort was the United Nations Committee on the Peaceful Uses of Outer Space and its legal and technical subcommittees, which, to this day, are the principal fora for multilateral, multinational discussions on issues affecting activities in outer space. Over the course of 17 years, space-faring and other interested nations concluded the five principal multilateral treaties governing space activities. These treaties provide the foundation of international space law and the framework for the implementation by individual nations of their domestic space laws. It is through their domestic space laws that State parties to the treaties fulfill their obligations under international space law.The five treaties are commonly known as the Outer Space Treaty, FN1 the Liability Convention, FN2 the Registration Convention, FN3 the Rescue and Return Agreement, FN4 and the Moon Agreement. FN5 They often are referred to collectively as the “U.N. Space Treaties.” All of the U.N. Space Treaties have gained wide acceptance and compliance except the Moon Agreement, which has been ratified by only nine States (i.e., Australia, Austria, Chile, Mexico, Morocco, the Netherlands, Pakistan, the Philippines, and Uruguay).In short, the Outer Space Treaty sets forth the most fundamental principles of space law, including that the exploration and use of outer space shall be for the benefit of all mankind, FN6 that outer space is not subject to national appropriation by claim of sovereignty, FN7 and that each State party shall authorize, supervise, and be responsible for the space activities of its nationals. FN8 The Liability Convention explains that a “launching State” (defined below) shall be absolutely liable for damage to or loss suffered by third parties caused by the launching States space object. FN9 The Registration Convention requires a launching State to notify the U.N. of space objects that it launches into space so that such objects can be cataloged on the U.N.s Space Registry. FN10 The Rescue and Return Agreement requires a signatory in whose jurisdiction an astronaut or space object lands to return that astronaut or space object to the country that was responsible for the launch. FN11 The Moon Treaty addresses issues regarding exploration and exploitation of the moon, but, as stated earlier, it is not widely recognized.Although the drafters of the U.N. Space Treaties could not have envisioned all of the types of space activities and civil, military, and commercial space-based applications in which we engage and from which we benefit today, they had the foresight to establish an extremely flexible and adaptable regime. For example, the range of commercial space applications has grown considerably over the past several decades, and it continues to expand. The nature of entities that promote and engage in space activities also has changed. International space law, as implemented through domestic space law, has not impeded this growth or inhibited this change. To illustrate this point, consider the unique, multinational structure of the relatively new launch services provider known as Sea Launch, in the context of the Liability Convention.The Sea Launch venture, which was formed in 1995, is an international partnership that involves nationals of the United States, Russia, Ukraine, and Norway. Sea Launch is a limited liability corporation with headquarters and homeport facilities in Long Beach, California. The company is owned by Boeing of Seattle, Washington (40 percent); RSC-Energia of Moscow, Russia (25 percent); the Anglo-Norwegian Kvaerner Group of Oslo, Norway (20 percent); and SDO Yuzhnoye/PO Yuzhmash of Dnepropetrovsk, Ukraine (15 percent). FN12 Sea Launchs customer (i.e., the satellite owner) might be from yet another country. Moreover, the launch is provided from a launch platform located on the high seas. Sea Launchs launch operations are licensed by the U.S. Federal Aviation Administration, Office of the Associate Administrator for Commercial Space Transportation. FN13*9 The term “launching State” is defined in Article I of the Liability Convention as “(i) a State which launches or procures the launching of a space object; or (ii) a State from whose territory or facility a space object” FN14 is launched. It is a broadly defined term subject to multiple interpretations. The breadth of interpretations only increases as new space ventures (e.g., Sea Launch) challenge the limits of the definition. Considering that when the Liability Convention was drafted, exploration and use of outer space were within the capabilities of a few national governments and intergovernmental organizations, it is easy to understand that the advent of commercial consortia such as Sea Launch has inspired discussion and debate over the question: Which State is the launching State?Luckily, to date, the debate has been largely theoretical as the definition of launching State has not been tested. Absence of a definitive answer to the question has not impeded the activities of Sea Launch or the formation of other multinational, commercial space ventures. Still, many States are wrestling with and continually trying to refine the scope of the definition.The scope of the definition of launching State is only one issue arising under the U.N. Space Treaties that is being evaluated by space law and policy experts in the context of new and innovative commercial space activities. In fact, this and other issues provide significant grounds for a robust and continuing dialogue regarding the application of international space law to space-based or related business activities. Recently, the American Astronautical Society (AAS), FN15 together with other co-sponsors, organized a four-day workshop focusing on the international legal regime governing space activities (the AAS Workshop). The AAS Workshop was the first such effort sponsored by the AAS that focused on international space law. FN16 Interestingly, although the AAS Workshop participants examined legal and policy issues as they apply to civil, military, and commercial space activities, much of the discussion focused on commercial space activities.The motivation for the AAS Workshopas well as the increasing number and frequency of conferences and seminars focusing on space exploration, use, and exploitation issuescame from the recognition that activities such as space tourism, mining of asteroids and other celestial bodies, and waste disposal in space are no longer matters of idle speculation. The growing diversity of space-related activities is likely to require extensive intergovernmental cooperation on certain oversight activities. The existing international legal regime, implemented by countries through their domestic laws, sufficiently has met the demands of current activities. The accessibility to and integration into our daily lives of numerous commercial applications in space, including satellite telephony, direct-to-home television, digital radio services, highspeed Internet connectivity, telemedicine, distance learning, remote sensing of the Earth, global positioning and navigation, and materials processing, are a testament to that fact. Yet for private entities and investors to expand their business models and to reach for the next new application, they will need to see predictable, transparent, and flexible international and domestic legal frameworks within which they may operate their businesses and protect their investments.Space law and policy professionals have found that the existing U.N. Space Treaties are adequate and appropriate, at least for the time being, because their language affords significant flexibility relative to domestic implementation. As advancements and innovations in space technology continue, however, it might be appropriate to expand or otherwise modify common legal rules or standards. As was done at the dawn of the Space Age, space-faring nations must be proactive in establishing an international consensus supporting the range of new, innovative space ventures. The existing space treaties have met the test of time, but they were negotiated when governments dominated space exploration. Today, private investment is significant and, as such, is having a profound influence on the nature of space activities and space-based applications. This trend promises to continue. Examination of the means of implementation of the principles set forth in the U.N. Space Treaties, therefore, should be undertaken to optimize the impact of those principles upon space-related business activity.As an example, domestic licensing is a (necessarily) evolving means of implementation that exerts significant influence on the evolution of commercial space activity. Domestic laws of established space-faring countries already incorporate significant regulatory and licensing requirements that seek to assure national compliance with the U.N. Space Treaties, as well as the advancement of national interests. Where a countrys non-governmental entities conduct significant activities in space, the national space legislation should be crafted in a manner to ensure that such entities have a well-articulated framework within which to operate. Moreover, laws and regulations should evolve at a pace that responds to or anticipates the development of space activities. Whether licensing or other authorization and oversight procedures are used, it is critical to have a clear set of procedures for nongovernmental entities. Such procedures should be predictable, transparent, and consistently applied, with established time limits and appeals processes. When multiple authorizations from the government having jurisdiction over a project are required for that project, internal government coordination should be employed to avoid duplication of effort and the issuance of conflicting directives and guidance. When multiple countries have an interest in a project, intergovernmental agreements that recognize the rights and responsibilities of each interested country may be appropriate.In developing a manageable and beneficial legal regime that achieves international and national objectives with regard to the use of outer space, it is critical to involve the private sector, as well as other interested parties, in the decision-making process. Both the international legal framework and domestic legal regimes have an impact on how (and whether) private entities will invest in and carry out commercial space projects. Private sector parties, therefore, have an understandable need to *23 participate in the development, implementation, review, and modification of these regimes. This participation may include informing and educating governments about privately funded technology developments and the status of the domestic and international commercial space marketplace. These inputs, which hopefully would inspire a productive and ongoing dialogue between industry and government, can only help to refine, as needed, interpretations of international legal obligations and the means for their implementation through domestic law.The AAS Workshop working group that was tasked with examining the role of the private sector in developing international and implementing domestic legal principles and regimes governing space activities suggested that governments should seek to establish and employ formal mechanisms to facilitate this space industry-to-government dialogue. A number of best practices were recommended by this working group that focused on identification of such mechanisms. These included (1) recognizing that there is a clear role for the private sector in contributing to the development of domestic and international space law regimes; (2) soliciting input from members of the private sector on matters of concern and that affect their space businesses; (3) ensuring that the international legal framework does not compromise the competitiveness of the international marketplace by being prescriptive about matters to be included in domestic legal regimes; and (4) ensuring that domestic legal regimes are open and transparent and that the private sector plays a role in the decision-making process. The working group also found that the governments of many space-faring nations already employ these practices in some form and to some extent.It seems critical to the success of the commercial space industry, and to the ability of governments to constructively fulfill their obligations under international space law, that these mechanisms be employed to the broadest extent possible and that the dialogue among all interested parties remains open, candid, and dynamic.FNa1. Franceska O. Schroeder is Of Counsel resident in the Washington, D.C., office of Milbank, Tweed, Hadley & McCloy LLP. Her practice focuses on the commercial, regulatory, and finance aspects of commercial space and telecommunications projects. Ms. Schroeder serves as Legal Counsel to the American Astronautical Society and was General Chair of the AAS Workshop on International Legal Regimes Governing Space Activities.FN1. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 18 UST 2410, TIAS 6347 (1967).FN2. Convention on International Liability for Damage Caused by Space Objects, 24 UST 2389, TIAS 7762 (1972).FN3. The Convention on Registration of Objects Launched into Outer Space, TIAS 8467 (1976).FN4. The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer S