Res Communis

IAC 2010: E7.2. 30 Years of the Moon Agreement: Perspectives

by P.J. Blount with the blog faculty

E7.2. 30 Years of the Moon Agreement: Perspectives was the next session of the IISL. It was chaired by Mahulena Hofmann, University of Giessen, and Jose Monserrat-Filho, Brazilian Association of Air and Space Law. The Rappoorteur was MIchael Mineiro, McGill University.

The first presentation was by Yan Ling of China. She presented “Is Selling Land on the Moon Allowed in China?”. This presentation was based on a case about lunar land sales that happened in China. In the case the Beijing Administration for Industry and Commerce (Baic) found that a company had sold 48 acres of lunar land in Beijing. BAIC stated that this violated administrative laws. The company argued that it did not violate any laws. It argued that its action was not violative of the outer space treaty or of domestic laws. BAIC in turned argued that the acts did violate the Outer Space Treaty and Chinese contract law (because the company could not show clear title to the object it was trying to sell. The court upheld the decision of BAIC. It held that lunar land ownership does not exist and that lunar land cannot become a commodity. Ling then did an analysis of the case. She stated that BAIC was correct in asserting that Lunar land is not allowed under domestic law, because there was no clear ownership of the land. Furthermore, she asserted that international law precluded ownership of Lunar land.

“Some Considerations on Establishing an International Regime on Exploration and Use of the Natural Resources of the Moon and Other Celestial Bodies” was presented by Li Shouping of the Beijing Institute of Technology. He began by stating that the international community had failed to establish a consolidated system for exploitation of resource exploitation on the Moon and other celestial bodies. He then moved to discussing the concept of “the common heritage of mankind.” He said this term usually refers to exceptional areas such as Antartica and the deep sea bed. After discussing the term in light of other areas of international law, he turned to a discussion of its use in the Moon Treaty and its similarities to other sources for the term. He then argued that the principle constitutes customary international law. He also argued that it was necessary to establish an international regime under the framework of “the common heritage of mankind.”

Jonathan F. Galloway, Lake Forrest College, presented “Establishing a Natural Resources Regime on the Moon.” Galloway started by stating that the international regime for exploitation of the Lunar resources would be developed when such activity became feasible. He noted the number of signatories had grown to 13 in recent years. Next, he discussed exactly what resources are at stake including water, Helium-3, and uranium; but he said that the technology to exploit these resources was not yet put into place. He then argued that “the common heritage of mankind” could have numerous different political and legal interpretations that range from capitalist to socialist. He stated that he thinks any developed regime would most likely be a public-private partnership, similar to the Intelsat model (he noted that Eilene Galloway proposed this model in 1980).

Fuki Taniguchi, JAXA, the presented on “A Consideration on an International Regime of the Moon Agreement.” Taniguchi started by noting that a small number of States have ratified the treaty, and he asserted that “the common heritage of mankind” was a central reason for the small number of State parties to the treaty. He noted that Japan is not a party to the Moon treaty, because there was no urgency for the State to sign since the major space powers had not signed it. Next he examined Art. II of the Outer Space Treaty and its legal impact on the Moon regime. This article makes the Moon and other celestial bodies res communes. He said that this was different from the “common heritage of mankind” which seeks to establish a regime to manage such a res communes area rather than simply keeping it from being appropriated. Next he moved on to the exploitation of natural resources on the Moon. He then argued that the flaw in the common heritage of mankind language in the Moon Agreement was not clear enough, and that further clarification was essential. He stated that a good reference point for developing such a regime would be the regime that governs the deep sea bed.

Next, Mahulena Hofmann presented “Moon Agreement as a Tool of Planetary Protection.” She started by discussing how the idea of planetary protection (including both forward and backward contamination) emerged in the early days of space exploration. Then she moved to an IAA study on planetary production that has just been completed. This study is a interdisciplinary study. Next she moved to the Moon Agreement provisions that have bearing on planetary protection. She mention Art. 7 of the Moon Agreement, which she argues extends the Outer Space Treaty’s Article IX. She then moved back to the conclusions of the IAA study, which concluded that there was a consensus on planetary protection, that there should be deliberation in the United Nations and other international organizations, and that Art. IX of the Outer Space Treaty should serve a nucleus. She also noted that the study included a draft legal instrument to advance planetary protection. She concluded that the Moon Agreement can serve as an instrument for Planetary Protection, but only in a limited manner.

Finally, Edythe Weeks of the United States presented “Tidying Up the Moon Treaty Prior to Construction.” She started by stating that exploitation of the Moon will soon be feasible. She stated that the Google Lunar X-Prize as well as the new commercial space focus of United States Space Policy. She then moved to a discussion of the Moon Treaty, beginning with a brief history of the Moon Agreement. She stated that the issue with the Moon Agreement were the terms were “the common heritage of mankind” and “international regime.” She argued that a possible change in the terms might accomplish the same ends, yet not be as controversial. She then compared the concept of res communes to the U.S. domestic law concept of “heirs in common.” Weeks co-author Melissa Force then took over and discussed ways to move forward. She supported the Moon Agreement as the best statement on property rights in space available. She said that going forward, that the international community should start with what is already there, but with special attention paid to working with the controversial terms that currently exist in the Moon Agreement. She argued that the common heritage of mankind concept has evolved since the Moon Treaty opened for signature, and that this shift could be leveraged in order to get wider acceptance of the treaty.

IAC 2010: E7.1. Nandasiri Jasentuliyana Keynote Lecture on Space Law & Young Scholars

by P.J. Blount with the blog faculty

The 53rd International Colloquium on the Law of Outer Space began this morning at the IAC 2010 with E7.1. Nandasiri Jasentuliyana Keynote Lecture on Space Law & Young Scholars. The session was chaired by Vladimir Kopal, West Bohemian University, Czech Republic and Tanja Masson-Zwaan, International Institute of Space Law, the Netherlands. Mark Sundahl, Cleveland State University, United States served as Rapporteur.

The first presentation and keynote lecture was “A Concise History of Space Law” by Stephen Doyle of the United States. Doyle began by stating that space law developed in four principle periods on development 1) 1910-1957 development of concepts; 2)1957-1966 establishment of basic principles; 3) the development of rules and regulations at the national level since 1957; and 4) the development of rules and regulations for extraterrestrial human settlements and activities, which is still in the conceptual phase. His presentation began with the history of space law traced back to a law journal article by Emile Laude published in 1910. From this point Doyle covered the major pre-1957 works on space law. He asserted the launch of Sputnik was a gmae changer for space law. After that launch, he noted, the involvement of the U.N. and the formation of the ad hoc committee on space and how this led to the negotiations on the space treaties and the principles that followed the space treaties. He said that UNCOPUOS is still the most important actor in the development of space law. Next, he gave a brief overview of other international organizations that create and contribute to space law. Doyle then moved to a discussion on national space legislation and its development. In order to illustrate this he did a case study of the space law development in the United States beginning with the NAS Act of 1958 and tracing it through present day. He stated that this foundation has allowed the development of international cooperation and can lead to a very bright future for space activities.

The next presenter was Vladimir Kopal who presented “The Life and Work of Professor Vladimmir Mandl – A Pioneer of Space Law.” Kopal stated that Mandl was the author of the world’s first comprehensive monograph on space law. Mandl was born on 1899 in what is now the Czech Republic. He was trained as a lawyer and opened his own legal office in Pilsen. He turned his legal expertise to legal problems caused by industrial and technological developments, which led him to examine aviation law issues, and he wrote the first Czech language monograph on the subject. According to Kopal, Mandl later became a pilot. His aviation monograph was presented in order to him to become a docent at the University of Prague. He later became interested on space and began researching these matters, and made his first publications based on this subject matter. Kopal stated that Mandl emphasized that adopting other legal systems, such as the law of the sea, wholesale would be inadequate for the regulation of outer space and that a new system must be developed. Kopal also noted that Mandl put forth the idea of no claims of sovereignty in outer space in his works. Kopal noted that he teaching activities were terminated with the German occupation of Czechoslovakia in 1939. He died in 1941 at the age of 42. Kopal asserted that Mandl was the first person to approach the legal problems of spaceflight and work to develop a system to govern these issues.

Stephen Hobe, University of Cologne, gave a presentation titled “Vladimmir Mandl and Alex Meyer: Two Pioneers of Space Law.” Hobe said that his presentation was going to cover early German writings on space law. He reiterated the importance of Mandl’s German works to the field of space law, and how many of the principles that he put forth in his works are still being used today. Next, he covered Alex Meyer’s works on space law. He stated that Meyer was known as an aviation lawyer, but that he also did important research into space law. Meyer’s publications on space law began 5 years before the first spaceflight occurred. Meyer argued that the strict application of aviation law to space would be inadequate. Meyer also acknowledged the possibility of space to be used as an arena for armed conflict, and he endorsed a ba on the use of force in space.

Next, the student and young scholar presentations began. The first was from Phillip de Mann, Catholic University of Louvain, on “The Commercial Exploitation of Outer Space and Celestial Bodies – A Functional Solution to the Natural Resources Challenge.” He made a distinction between the legal regime in the exploitation of resources of celestial bodies and the exploitation of other resources in space (e.g. radio frequencies). He started with the celestial body concept, by stating that one must first grapple with what constitutes a celestial body, and that a functional approach to this definition is the most tenable in which the concept is defined by “virtue of of activities regulated.” Next, he moved to the non-appropriation provisions of the Outer Space Treaty. He argued that this provision should not be applicable to natural resources in space. He then argued that this is confirmed by the Moon Agreement which allows the appropriation of Celestial bodies. He then moved to definitions of natural resources and how the definition affects the legal regime, and how scarcity criteria should be applied in working on the management of resources.

The next presentation was by Mariam Yuzbashyan, excalibur Almaz Ltd, on “Potential Uniform International Legal Framework for Regulation of Private Space Activities.” She stated that current space activities are effected by globalization and commercialization. She argued that many aspects of private activities needed particularized regulations, but that a comprehensive regulation was still desirable. She suggested the development of International Space Private Law (ISPL). She said that ISPL had to be defined by its legal sources such as the Cape Town Convention, national space legislation, ISS IGA, and space law cases and arbitration practices.

“You Can Lead an Astronaut to Water . . . : Prospects for Legal Use and Water Rights on the Moon and Other Celestial Bodies” was presented by Joshua Easterson of the United States. Easterson set his presentation up in light of the recently discovered evidence of water on the Moon. He stated that terrestrially rights are usually apportioned via riparian rights or usage rights. He stated that unique characteristics of space water rights in space will be apportioned in a much different manner. He highlighted the importance on non-appropriation clauses and stated that this provision precluded usual appropriation of water rights as are done terrestrially. He then moved to analogies in international law such as the law of the sea, antarctic law, international commission on whales, and international water treaties. He stated that one of the best analogies is the ITU model used for radiocommunications. He then proposed the development of a new Moon treaty that sets forth a operational regime.

Next, the panel heard from Masatoshi Fukunaga, Keio University, on “Current Status and Recent Developments of Non-discriminatory Principle in the 1986 UN Principles on Remote Sensing.” Fukunaga focused on Principle 12 of the Principles on remote sensing. He presentation discussed how states have dealt with this principle. He stated that principle 12 governed access to data by sensed states. Next he moved to a case study of India to illustrate how the state has worked with this principle. He turned to the remote sensing policy of India that sets for non-discriminatory access for imagery up to 5.8 meters to all states. Next he spoke briefly on CEOS. He said the CEOS’ data policy and stated that it is similar to the Indian policy. He concluded by stating that the policy was still alive and viable, that it still has influence on relevant issues, and that its objective has changed from being sensed State oriented to being applied to more than just sensed States

Eduard van Asten, The Netherlands, presented “Legal Pluralism in Outer Space.” His presentation was on the regulation of pirate actors permanently located in Outer Space. He began by discussing the QUID, a space monetary system, put forth by Travelex in 2007. He used this as an example of how private actors might begin to regulate themselves. In a similar way he discussed the ISS IGA and national laws that apply to space actors, which illustrate the numerous sources for regulation of private actors.. He stated that there were numerous legal complications with these private actors that include the lack of sovereignty, inefficiency of jurisdiction, enforcement problems, variety of national laws, applicability of national laws, and private interests. He then began to discuss the theory of legal pluralism, which he summarized as the means by which a population observes more than one body of law. He said that these problems will lead to future normative development that will most likely develop in a legally pluralistic manner.

“Space and Lisbon – A New Type of Competence to Shape the Regulatory Framework for Commercial Space Activities” was presented by Matxalen Sanchez Aranzamendi, European Space Policy Institute. She began by noting that space activities are wider than just exploration activities. She stated that downstream services are very important to economic growth and that these areas should not be forgotten when space legislation is being developed. Next she discussed particular regulatory areas that affect these downstream services such as data regulation, telecommunications regulations, and export controls. She argued that in these regulatory areas there are converging competencies from different regulatory bodies. She then moved to the idea of space competence in the EU under the Lisbon Treaty and asserted that it was an effective way to organize the regulatory body in this area.

Michael Mineiro, McGill University, presented “Beyond the Looking Glass: The Application of Public Choice Theory to U.S. Commercial Communication Satellite Export Controls.” Mineiro presented a case study of public choice theory as applied to ITAR controls on communications satellites in in the United States. He then gave an overview of public choice theory as an economic modeling system that explains human behavior. He said under this theory behavior should be skewed in favor of exporters, but in reality that wasn’t happening. He, therefore, argued that the theory must be recalibrated in order to understand why the system was working the way that it does. He then stated that even after using a a recalibrated-cost theory the benefits are declining due to the development of technologies in other areas around the world. He then turned to other theories that can help to explain what is wrong with the system.

Next, Michael Chatzipanagiotis of Greece gave a presentation titled “Forum Selection Clauses in Suborbital Space Tourism Contracts and EC Law.” He started by stating that forum selection clauses are contract provisions in order allocate jurisdiction to particular courts. These are used by companies to stay out of unfavorable venues as well as to avoid multiple litigations in various jurisdictions. In order to be valid there must be consensus, a statement of objective factors, and reference to a particular legal relationship. He stated that the Brussels Convention and regulation set out what courts must do when presented with litigation wherein a forum selection clause is at issue. He stated that transportation contracts are not governed by the brussels convention. He stated that its unclear as to whether space tourism represents a transportation contract. It these contracts aren’t transportation contracts then they are governed as a commercial contract.

Finally, Guillermo Duberti, Universidad de Belgrano, presented “Re-thinking Responsibility in the Law of Outer Space.” Duberti stated that international law is dynamic and constantly changing and that law is following technological advances instead of preceding them. He stated that there was a conflict between general international law and space law. He says that this is because of the innovation of article VI. He stated that

IAC 2010: E3.1A. New Developments in National and International Space Policies and Programmes I

E3.1A. New Developments in National and International Space Policies and Programmes I was chaired by Kazuto Suzuki (Hokkaido University, Japan) .

The first presentation was given by John M. Logsdon, Space Policy Institute , George Washington University; it was titled “Understanding the New U.S. Approach to Human Spaceflight. His comments focused on the new American spaceflight plans and the new American space policy as put forth from the Obama administration. He stated that this policy represented a dramatic shift in human spaceflight strategy in the United States, and that these proposals have been extremely controversial, and have received negative comments from Congress as well as former astronauts. The origins of the new strategy was a result of the NASA transition team that was appointed after Obama took office as well as a ten person commission headed by Norm Augustine. He stated that NASA did not incorporate the findings of the Augustine Commission, and that as a result the White House took charge and worked on a new strategy on its own. Once the policy was made public, members of Congress immediately objected. As a result NASA is doing two different things. Logsdon stated that by law NASA is pursuing Constellation but that it is also planning what it will do if the proposed cancellation goes through. Additionally, he stated that Congress is torn as well and has as of yet been unable to adopt an authorization bill. He stated that the real question was whether American society could accept this “radical change.”

Next was Ariane Cornell, Space Generation Advisory Council, who presented “Five Key Turning Points in the American Space Industry in the Past 20 Years: Analyzing Moments That Molded Supply, Demand, and Regulation to Plan Ahead.” She began by stating that 1990’s and 2000’s have been marked by important changes. she said there were 5 key moments during this. The first was the Aerospace and Defense Consolidation following the Cold War, which caused a substantial reduction in the number of aerospace companies.. She said that this caused a reduction in R&D and a decrease in innovation. The next moment was the Itar Violations of the mid1-990s. The result was that space technology became subject to ITAR, which has kept American companies from taking part in the global space economy. The third moment was the creation of SpaceX. The result of this was new face for “new space” making space more appealing and beginning the reversal of the earlier consolidation. The fourth moment was the Iridium-Cosmos collision, which brought space debris issues to the forefront. Finally, she pointed to the Constellation cancellation, which she said creates more opportunities for industry. She suggested that this structural change should be embraced and that a greater involvement in international regulations was important.

The next presentation was “The Making of a Nation’s Space Policy: Australia’s Approach” by Noel Siemon, The PC Users group (ACT). His remarks focused on recent space policy activities in Australia. He stated that early space policies were not effective in fostering a long term development plan, which caused a lack of confidence from the space community. He pointed out that recently there was Senate report as well as a defense white paper, and that these have catalyzed new thinking on a central space policy for Australia. he noted that the Senate report specifically pointed to the lack of a central space agency as being shortcoming of Australia’s space activities. As a result of this report was the establishment of a Space Policy Unit and a Space Innovation Council. These entities were meant to give advise on the development of a space activities. he observed that the institutional structure is similar to the the structure that preceded the 1986 policy which was a=Australia’s first and short lived policy. He stated that specific challenges were determining a goal for the policy, avoiding reverse policy making, establishing a formal institutional structure, recognizing best practices globally, creating a purpose beyond political desires, and making sure that it creates a comprehensive structure. He said that meeting these challenges were crucial.

Next, Lulekwa Makapela of South Africa presented on “the National Space Policy : Movement Towards a More Co-ordinated Approach of Space Activities in South Africa.” She stated that South Africa has just recently finalized it’s national space policy and it was launched in 2009. As a result she said there has been and increase in space activities in South Africa. She said that activities are coordinated by different government stakeholders and one of the purposes of the policy was to create a guidance document for these various stakeholders. She stated that there were various things that influenced the policy including the Accelerated Shared growth Plan of South Africa. She said that there are six guiding principles but that the most important one was Cooperation and Government Coordination. This coordination ranges over the public sector, public institutions, the private sector, and academia. She also noted that there was a legal and regulatory framework that supports the national space policy.

“A Comprehensive Mapping of the European-African Cooperation Using Satellites and Policy Perspectives” was presented by Christina Giannopapa, European Space Policy Institute. Her presentation was on an ESPI study on European-African cooperation in space activities. She said the methodology for the study included desktop research, interviews with stakeholders, questionnaires to stakeholders, and a roundtable and worship with stakeholders. The roundtable and workshops occurred in February of 2010, June 2010, and July 2010. As a result she stated that goals and strategies included the meeting of the Millennium Development Goals. Also, she discussed the Joint Africa-EU strategy which defines the long-term policy orientation between the continents and includes space and space applications. After this work was done she stated that the report went on to map the actors and the activities engaged in these activities. She also gave an overview of bilateral agreements between EU countries and African countries as well as an overview of African space policy activities.

Next, Stephanie Wan, George Washington University, presented “Influence in Space Policies and Cooperation in the Asia Pacific.” Her focus was on Korean space activities, and gave a brief summary of Korea’s space activities. She then moved to discussing Korea-China cooperation. She said that this has been limited due to the Missile Technology Control Regime, but that there have been some cooperation. Next she discussed Korea-Japan space cooperation. She said that this cooperation has focused on the necessity to cooperate for socio-economic benefits, but that there have still been problems based on historical tensions. She next discussed international organizations. She started with APSCO, noting that it was an ESA-like legal framework. She said that Korea has not joined APSCO. She next discussed APRSAF, which is much less formalized than APSCO. She also covered UN ESCAP/RESAP and its goals and how these influence space cooperation. She briefly noted that there were other organizations such as ASEAN Space Organization and the Asian Space Agency. She concluded that Korea has a strong future but that they should pursue cooperation and leadership in the Asia Pacific region.

Joseph Fuller of Futron Corporation gave a presentation titled “Space Policy and Governance as Barriers to International Collaboration.” He started by noting that that we have the opportunity sustain and protect the planet if international collaboration is pursued. He noted that we have no global governance system, but that there are global problems which the world faces.He said that while market is driven by economic forces, but that governance is still required within the market. he said that there is a need to identify global priorities based on States mutual needs and interests. He noted that global goods and utilities have evolved such as GPS, weather satellites, the ISS, and the European Space Agency. He then noted that there were UN models for global governance such as International Atomic Energy Agency, Climate Committee, and COPUOS. Then he discussed example of national policy barriers like Foreign Diplomacy (e.g. human rights issues), National Security (e.g. ITAR), and transparency. He concluded by stating that requirements for success would be no military involvement in civil activities, transparency, continuity of support, cost and schedule performance, and extended political stability and suggested several structures that could help organize such governance.

“Contemporary Space Exploration in the United States and Europe: A Public Policy Comparison” was presented by Veronica Chkadua, University of Alabama in Huntsville. She started by noting that the United States and Europe’s space policy planning schemes were very different and noted that an understanding of these differences was very important in comparing the policy’s of the two. She said that in the United States policies are mad by political appointees, appropriated for in one year increments, and are executed by NASA with Congressional oversight. Next she turned to the EU model wherein policies are developed by ESA and the EU civil service and adopted by the EU Council and Parliament; funded in 7 year increments, and executed by ESA with joint EU/ESA Space Council oversight. She stated that there were key policy issues that the two were dealing with differently including exploration infrastructure, industrial base, and defining relevance of the programs.

Sandra Cabrera Alvarado, France, presented “The Analysis of Existing International Space Cooperation Initiatives for UNESCO’s World Heritage Sites.” Alvarado started with a discussion of UNESCO world heritage sites. She said that the 1972 Convention for the Protection of World Cultural and Natural Heritage Sites gave UNESCO this competency. She said that there are now 911 properties on the list and that the task of protecting these sites has gotten more difficult as the list grows. To this end, she said that UNESCO and ESA entered into an agreement to use space technologies to help protect these sites. She said that ESA has a policy of using space technologies to assess global problems and help overcome them. The framework is an open initiative that allows a diverse range of State and non-State partners (currently 53) to join and asset in using these technologies to these ends. The initiative supports the 1972 convention. She gave a brief case study on Mexico City. In this study DLR has monitored with its TerraSAR-X satellite the sinking of the city which has threatened the world heritage site in Mexico City. This information is then passed on to the national authorities that control the site, so that they can take proper measures. SHe said the agreement is not binding agreement instead it requires compliance on a good faith basis, but that States are still bound by the 1972 convention. The agreement does comply with the Remote Sensing Principles as well as the Outer Space Treaty. She proposed that the open initiative should be a step towards working towards a binding charter.

“Transparency and Confidence-building Measures (TCBM) for Space Security” was presented by Jana Robinson, European Space Policy Institute. She began with a definition of “transparency” as “is the degree of openness in conveying information and a device of strategic negotiations.” She said the level of transparency was a policy choice by individual States, but that modern technologies can increase transparency on their own. She also noted that information availability alone does not constitute transparency. Next she addressed the need for these measures. She identified incidents in space that have happened recently as well as issues such as debris, crowding orbits, and intentional interference. She next moved to leading examples and proposals such as the SALT I talks, INF and START I treaties and the 1990 CFE treaty. She noted that there are new proposals on the table such as the China-Russia PPWT, the European Draft Code of Conduct, and the Space Debris Mitigation Guidelines among numerous others. She stated that TCBMs will continue to to be an important part of space security. She did note that they have strengths as well as limitations, but that they will remain and important element in space governance. She gave a a brief overview of the EU Draft Code of Conduct for Space Activities.

The final paper was presented by Olufunke Ero-Phillips of Switzerland on “The Role of Space Technology and ICTS in Global Activities on Food Security.” Her presentation focused on the use of space technologies to increase food security around the world. She stated that space technologies can help through disaster risk management, climate adaptation, enhanced end user activities, improving food supply chains, resource management, early warning systems, communications, and food security analysis. She then went over the Nigerian space policy which covers food security specifically. Then she discussed problems associated with these sorts of activities such as liability for damage, contract issues, legal problems with remote sensing, intellectual property rights, cybersecurity, and the world’s digital divide. Finally, she recommended that space policies be broadened to address these issues.

International Astronautical Congress 2010

by P.J. Blount with the blog faculty

The 61st International Astronautical Congress (IAC) begins today in Prague, Czech Republic. res Communis is on the ground and will be live blogging the whole event. In particular we’ll be covering the 53rd Colloquium on the International Law of Outer Space hosted by the International Institute of Space Law (IISL).