Space Law at the UN
I spent the past week in a windowless room in Vienna, and had a really interesting and enjoyable time. I went as part of the SGAC delegation to the UN Committee on the Peaceful Uses of Outer Space (COPUOS) Legal Subcommittee (LSC). This was my third LSC, although my first as co-lead of the SGAC Space Law and Policy Project Group, and my fourth to COPUOS itself (my first trip to the UN in Vienna was for the Scientific and Technical Subcommittee). I always enjoy LSC but this year was particularly interesting.
Reading SGAC’s Statement to COPUOS LSC
COPUOS is the UN body primarily responsible for space governance and has been active since 1959, the dawn of the space age. There are two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee which report to the full committee which itself reports to the Fourth Committee of the UN General Assembly. COPUOS has been the source of all five space law treaties, as well as a host of resolutions. UNOOSA (United Nations Office for Outer Space Affairs) serves as the Secretariat and has a plethora of information on its website.
The big ticket item this year was the new agenda item on space resources (ie space mining) although there was also a new agenda item on small satellites which was quite popular. I’m not going to delve into any great detail about what was discussed this week otherwise this post will drag on for ages but I’m simply going to outline a few thoughts about space resources, small satellites, the definition and delimitation of outer space and COPUOS in general. I only attended the first week of the Legal Subcommittee, therefore my attention is naturally focused on that which was discussed during that week.
As should probably be expected space mining was a popular and controversial topic at this year’s COPUOS. There was quite a bit of concern expressed by a number of states at the ‘unilateral’ nature of the US 2015 law, and Luxembourg’s proposed space mining law. These states state that space mining either can only or should only be authorised by a multilateral international legal regime. The US and Luxembourg contented that they were merely upholding their obligations under Article VI of the Outer Space Treaty to ‘authorise and supervise’ space activities conducted by their nationals and that the widely permissive nature of the Outer Space Treaty allows for space mining. There was also considerable discussion of what exactly constitutes national appropriation and whether you can separate a resource from the celestial body it is found in (legally speaking, of course you can physically separate them!) This discussion was aided by, and to some degree took place during, the excellent European Centre for Space Law/International Institute of Space Law (ECSL/IISL) symposium that took place on Monday afternoon, slides of which can be found here. IISL also presented their space mining study which can be accessed here.
Beyond the legal questions of space mining there were also concerns about the equity of it. Developing states in particular are concerned that once again they will miss out on a mineral ‘bonanza’ that will only exacerbate the divide between developed and developing states. Discussion of this topic centres on the notion that space, and its resources, is a global commons that belongs to all of humanity, or in the language of the outer space treaty, that space is the ‘province of all mankind.’ What exactly this means is not, and has never been clear, there are certainly those who want some kind of profit sharing mechanism or technology transfer between developed and developing states but, simply put, this isn’t going to happen. However there is, and has been for sometime, growing acceptance that the meaning of ‘for the benefit’ and ‘in the interests’ of all and the phrase ‘province of all mankind’ which are included in the Outer Space Treaty, can have broader, less concrete meanings. After all satellites provide a plethora of benefits to hundreds of millions of people all over the world, GPS, communications, and weather satellites, to name just a few, have transformed our world and daily lives.
Small satellites were also touched upon this year. There are several concerns regarding small satellites. These range form concerns that they’re not being registered properly, or even at all, to their potential to exacerbate the orbital debris problem. There is also concern, again particularly from developing states at the ‘oversaturation’ of spectrum that may occur. This ties in with two other ‘new topics’ that were briefly touched upon last week, mega constellations and on-orbit servicing. Given the fact that both of these issues are more immediate than the issue of space mining they really need to be given more attention than they are. I certainly understand the appeal of the space mining issue, it is my PhD topic after all but small satellites, mega constellations and on-orbit servicing is going to be of considerably more importance during the next thirty years than space mining. I have already touched on some of the issues related to mega constellations in my previous post but will certainly find time to revisit space mining, small satellites, mega constellations, and on-orbit servicing in future posts.
Finally, as there has been for the past fifty years, there was discussion of the definition and delimitation of outer space. There are essentially two schools of thought on this issue. The first is known as the spatial approach and would see space as being defined as starting at say 100km above sea level. The alternative approach is the ‘functional’ approach and would make the distinction based on the nature of the activities. So a spaceplane going to the ISS, for example, would be a space activity but the same type of vehicle configured for hypersonic passenger transport between say London and Sydney with an apogee of 120km in order to reduce transit time to four or so hours would be considered an air activity. This could potentially be important as the regulatory regimes, particularly with regards to liability, are rather different for air and space. For what it is worth, I favour the functional approach, although there are those, such as the US, who say this is essentially a non-issue and there is merit to that view at present. This is another topic worthy of greater detail than can be provided here.
Attending COPUOS is always an interesting experience and this year proved no different. And I’m grateful to Minoo Rathnasabapathy and SGAC for the opportunity and look forward to next year.
Further information on the Legal Subcommittee, COPUOS and UNOOSA can be found on the UN website, and indeed there are full audio recordings of the sessions available here. Furthermore, I would recommend checking out Secure World Foundation’s excellent Handbook for New Space Actors which can be downloaded here. And my powerpoint presentation on the work of SGAC’s Space Law and Policy Project Group can be found here.
US Commercial Space Launch Competitiveness Act, Public Law 114-90, 114th Congress, 25 November 2015, 51 U.S.C (Title IV): https://www.congress.gov/114/plaws/publ90/PLAW-114publ90.pdf
Luxembourg Ministry of the Economy (2016) Luxembourg’s New Space Law Guarantees Private Companies the Right to Resources Harvested in Outer Space in Accordance with International Law Available at: http://www.gouvernement.lu/6481433/11-presentation-spaceresources (Accessed 28 January 2017)