Assuring the sustainability of space activities

The growth of new space systems and the continued creation of orbital debris could in a few years make activities in Earth orbit unsustainable, so finding cost-effective ways to sustain space activities in Earth orbit is essential. Because outer space activities serve the needs of the military–intelligence, civil, and commercial communities, each with their own requirements, creating the necessary international agreements for reaching and maintaining a condition of sustainability will not be easy. This paper summarizes the primary issues for the international space community regarding our future ability to reap the benefit of space systems in Earth orbit. It explores several of the efforts to develop international agreements that would lead to or support the sustainability of space activities and examines the benefits and drawbacks of each approach. In particular, it reviews progress within the UN COPUOS, and examines the EU's proposal for an international Code of Conduct for Outer Space Activities. It also notes the need for states to establish or expand their own space legal infrastructure to conform to the UN treaties and guidelines for space activities.     

The origins of the “Long-term Sustainability of Outer Space Activities” initiative at UN COPUOS

The success of space-based systems worldwide, providing services to society and satisfying defence and security needs, has led to a situation where outer space is increasingly crowded. In addition, the rapid proliferation of space debris threatens the safe utilization of outer space on the most commonly used orbits. Beyond the mitigation of the orbital debris threat, additional measures will be needed to ensure the safety and security of activities in outer space for the long-term. This article describes the initiative to introduce a new agenda item in the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), first presented to COPUOS delegations in 2007, which led to a formal decision in 2009. This in turn led to the establishment of a dedicated Working Group of the Scientific and Technical Sub-Committee in 2010, with a work plan leading to a report and associated recommendations in 2014. Some references are made to other initiatives affecting space security, such as the Russia–China draft treaty (PPWT) tabled at the Conference on Disarmament and the EU-proposed Code of Conduct.     

Preventing the weaponization of outer space: Is a Chinese-Russian-European common approach possible?

Preventing the weaponization of outer space is one of the most relevant issues of the current space law debate. In recent years discussions on this issue have significantly increased in international fora, such as the UN Conference on Disarmament and the COPUOS. While it has not been possible to arrive at an agreed solution on how to efficiently deal with the problem of possible weaponization of outer space so far, several valuable proposals have been put forward. China and Russia, on the one side, and the European Union, on the other, have taken the lead in this respect. While the former have submitted a proposal for a draft treaty on the demilitarization of outer space, known as the PPWT, the latter has issued a Draft Code of Conduct for Outer Space Activities. Despite the differences between the two proposals, this paper proposes the development of a Chinese, Russian and European common approach aimed at preventing the weaponization of outer space. Although such a goal is undoubtedly challenging, some political and legal factors may enable such cooperation in the not-too-distant future.     

The European Union as an emerging actor in space security?

With its draft Code of Conduct for Outer Space Activities, the European Union has become visible in the debate on space security. In this paper we analyze this development, drawing on theoretical concepts in the scholarly debate about the ‘actorness’ of the EU. We find that the EU can be considered as an emerging actor in space security. However, the Code of Conduct initiative should be considered only a first step in this regard because it does not answer the question of whether the EU should pursue a policy of deterrence or arms control in space. We argue that the latter option would be better, because it is in line with the interests and values of the EU.     

Transparency and confidence-building measures for space security

Transparency and confidence-building measures (TCBMs) are a set of tools designed to display, predict and discipline states’ behaviour with respect to maintaining the security of space. With intentional and unintentional threats to the peaceful use of space on the rise, there is a growing international consensus on the need for greater transparency in space-related activities as well as confidence-building measures to reduce the prospects of disruption to the ever-expanding role of space in our day-to-day lives. Terrestrial TCBMs can serve as a guide to understanding what political arrangements are possible in space, including certain precedents in the areas of arms control, non-proliferation and disarmament. At the same time, current and emerging challenges in space - including orbital space debris, risk of collisions, growing saturation of the radiofrequency spectrum, the crowding of satellites in geostationary (GEO) orbit and threat of purposeful disruption - need to be evaluated in the context of unilateral, bilateral, multilateral and private initiatives to increase space situational awareness and security. This paper describes and evaluates various prospective TCBMs alongside current proposals to advance safety and security in space, including the EU Draft Code of Conduct for Outer Space Activities. It offers specific recommendations, arguing that Europe is uniquely qualified to negotiate a 21st century TCBM architecture thanks to its history of diplomacy and ability to identify common ground among disparate parties. This will only happen, however, with a more defined institutional design and the EU’s emergence as a global civilian leader.     

International space launch notification and data exchange

As missile and space launch technology continue to proliferate around the world, nations will benefit from increased transparency to mitigate the potentially strategic consequences of early warning false alarms or misinterpretations. Previous false alarms and risk mitigation steps taken by the United States and the former Soviet Union and Russia are examined. Two pre-launch notification initiatives, the bilateral US/Russia Joint Data Exchange Center and the multilateral Hague Code of Conduct, offer means to further build confidence among spacefaring nations and enhance strategic stability. Pragmatic recommendations are offered to strengthen the emerging pre-launch notification regime.     

Cutting the bread

Why the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT) will not work - whereas the Code of Conduct for Outer Space Activities may.     

The PCA Rules for dispute settlement in outer space: A significant step forward

Outer space activities have evolved significantly. While they were previously the exclusive domain of a restricted number of states, now thanks to technological advances and the easing of governmental restrictions, space activities are carried out on a much larger scale and involve subjects of both a governmental and non-governmental nature. Furthermore, the commercial uses of outer space are making space business increasingly profitable and attractive to potential investors. As the economic value of outer space activities, as well as the number of space actors grows, it is nearly inevitable that international disputes related to the use of outer space will occur. Until recently, international space law contained little dedicated machinery to settle international outer space-related disputes. This absence significantly weakened the applicability and enforceability of space law and contributed to a climate of uncertainty. In order to address these issues, the Permanent Court of Arbitration (PCA) adopted the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities on 6 December 2011. The PCA Space Rules represent a significant development in the field of space law because they provide a voluntary and binding dispute settlement method accessible to all space actors and modeled on the specific legal and economic characteristics of space activities. This paper describes the genesis of the PCA Space Rules, assesses their content and innovative character, evaluates their possible implications for the settlement of outer space disputes, and argues that they should be positively received by the outer space community.     

Space debris mitigation measures applied to European launchers

In November 1986, more than 20 years ago, an H8 upper stage of Ariane 1 exploded in orbit nine months after the end of its mission. So as to avoid the generation of debris in low Earth orbit, a dedicated complementary development modified the design, introducing systematic passivation of the stage. Ever since this event, space debris mitigation has been a major concern for all launcher activities in Europe.After a short recall of the launchers currently operated by Arianespace as well as those currently developed by ESA with CNES, particularly for the safeguard authority, including the most promising future evolutions, the set of applicable regulations is described. These rules are fundamentally derived from the IADC Guidelines (hence the UNCOPUOS ones), translated into European Code of Conduct and in some more applicable Standards, such as the one prepared by ESA. The process of preparing ISO standards, mainly through the ECSS Working Group, is also described.Three major families can be identified: minimization of Mission Related Objects, Passivation of stages at the end of mission, and orbital protected zones including the so-called 25-year rule.The paper describes how European launchers do or will fulfill these applicable standards, quantifying the efficiency of the mitigation rules, and describing improvement actions currently under study.     

Criteria for developing and testing Transparency and Confidence-Building Measures (TCBMs) for outer space activities

Space systems play an important role in sustaining the development, prosperity and security of many nations. As more nations become critically reliant on space systems, questions of maintaining safety and strategic stability in outer space have come to the fore. Transparency and Confidence-Building Measures (TCBMs) for outer space activities have an important role to play in providing clarity about the intentions of States and in articulating norms of behaviour in outer space. TCBMs take several forms. They may be the elaboration of basic principles related to the exploration and use of outer space, political measures related to establishing norms of conduct, information-sharing activities to improve the transparency of outer space activities, operational practices which demonstrate a commitment to mutual cooperation in outer space, or consultative mechanisms. We present an analytical framework for evaluating potential TCBMs and illustrate the application of this framework to examples of potential operational, regulatory, treaty-based and declaratory TCBMs.     

Regulating ISS— An interdisciplinary essay

The International Space Station (ISS) is a multifaceted international project. Several space agencies from different countries work together in the Outer Space. This paper will illustrate the exciting questions arising from such a venture and therefore the challenge to incorporate a variety of issues into a legal order. The Paper is addressed to lawyers who need not necessarily be experts in space law, and also to space experts who have no legal background. It demonstrates the three layers of the ISS regime—from the “Intergovernmental Agreement” (IGA) as a “frame” with pillars and boundaries, over the “Memoranda of Understanding” (MOU) which rules in a more specific way, to the so-called “Implementing Arrangements” regulating the overall and single aspects of ISS in detail.The paper underlines questions of applicable jurisdiction, utilization rights and the rights on intellectual property onboard of the ISS. Furthermore the problem of liability in space flight is highlighted, also with a view to the different aspects of the liability issue, for example (internal) liability caused by programme delays (e.g. US Space Shuttle delays).In conclusion, the paper illustrates the situation of astronauts by the “Code of Conduct for the International Space Station Crew” and provides an example for the actual ISS Programme—an international cooperation in a highly demanding environment which will be a basis for future space ventures in many ways.     

The role of the united nations in promoting international cooperation in peaceful uses of outer space

The Committee on the Peaceful Uses of Outer Space (COPUOS) was established in 1959 by the United Nations General Assembly in order to review and foster international cooperation in the peaceful uses of outer space and to consider legal issues arising from the exploration of outer space. Since its establishment, the Committee has addressed such issues as benefits from space activities, the definition and delimitation of outer space and the use of the geostationary orbit, implications of remote sensing, space sciences, space-based communications, navigation and meteorological systems, as well as use of nuclear power sources in outer space, space debris and spin-off benefits of space technology. At its session in 1996, a symposium on the ‘Utilization of micro- and small satellites for the expansion of low-cost space activities, taking into particular account the needs of developing countries’ was organized by COSPAR and IAF to complement discussions on this theme. It was noted at the symposium that the increasing number of small satellites, in particular the proposed introduction of multi-satellite ‘constellations’ at low orbits, would result in concentrations of satellite mass at certain regions of space around the Earth. Special provisions would be needed to minimize the probability of satellite breakups and collisions which might create more space debris and compromise the future of spaceflight.     

The legal regime for private space tourism activities—An overview

“Space tourism” denotes any commercial activity that offers customers direct or indirect experience with space travel. Various models for space tourism activities exist including the use of an aircraft and/or spacecraft. The paper surveys some of the most important legal aspects relevant to space tourism activities, such as, the delimitation of airspace and outer space, the applicable legal regime and the definition of aircraft and space object, authorization, registration, liability, as well as the legal status of space tourists.     

The need for a United Nations space policy

The international community is entering an era of shared global utilities from space and is increasingly reliant on space systems and activities that support a myriad of applications and utilities on Earth. A growing number of states are seeking to develop or extend their space capabilities. At the same time, a variety of non-state actors are also extending their involvement in space activities. The United Nations is the principal inter-governmental forum to deal with various space issues of global importance. Moreover, the United Nations system itself has become increasingly reliant on space systems for its day-to-day operations. In order for the United Nations to play its necessary role in the space arena, it will need to be supported by a space policy. A United Nations space policy would provide over-arching guidance on space activities for UN stakeholders in the space arena; it would inform UN participation in space activities and would promote improved coordination and cooperative governance of outer space activities. A world without a common UN space policy will not be able to respond to the challenges of the rapidly evolving space arena in the 21st century.     

Near space as a sui generis zone: A tri-layer approach of delimitation

The lack of a legal boundary between air space and outer space has not given rise to significant difficulties in the determination of applicable law with respect to traditional flight craft – aircraft and space objects, due to their separated sphere of activities. But the advent of new flight craft that are capable of operating in the intermediate “near space”, i.e. Near Space Vehicles, would render a clarification of their applicable law and the legal status of the zone requisite. For the purpose of balancing the right of exploration and use of near space and the security interest of subjacent States, this short note proposes a tri-layer approach of delimitation by which near space is established as a sui generis zone reserved exclusively for peaceful purposes, while the space below the upper operative limit of aircraft and that above the lower operative limit of space craft are air space and outer space respectively.     

Overcoming barriers to space travel

This viewpoint argues that the barriers preventing human expansion into space are not scientific but political and legal - an inability to secure funding; artificially high costs created by punitive insurance premiums and excessive bureaucracy; and uncertainty and disagreement about the extent and implications of legal regulation of space activities. Construction on Earth of a ‘metanation’ to oversee the governance of outer space is advocated as a possible solution.     

Between heaven and earth: The legal challenges of human space travel

Since the first space object was launched into orbit in 1957, humankind has been engaged in a constant effort to realise ever more ambitious plans for space travel. Probably the single most important element in this ongoing evolution is the development of technology capable of transporting large numbers of passengers into outer space on a commercial basis. Within the foreseeable future, space will no longer be the sole domain of professionally trained astronauts or the exceptionally wealthy.The prospects for both suborbital and orbital private human access to space give rise to some interesting and difficult legal questions. It also opens up an exciting opportunity to develop an adequate system of legal regulation to deal with these activities. The existing international legal regimes covering air and space activities are not well suited to large-scale commercial access to space, largely because they were developed at a time when such activities were not a principal consideration in the mind of the drafters. The lack of legal clarity represents a major challenge and must be addressed as soon as possible, to provide for appropriate standards and further encourage (not discourage) such activities.This article will examine some of the more pressing legal issues associated with the regulation of space transportation of passengers on a commercial basis, seen in the light of Article 1 of the Outer Space Treaty of 1967, which states that the ‘exploration and use of outer space […] shall be carried out for the benefit and in the interests of all countries […] and shall be the province of all mankind’. An appropriate balance must be found between the commercial and technological opportunities that will arise and the principles upon which the development of international space law have thus far been based.     

Legal regulation of space activities in Russia

Space activities in the former USSR were regulated by numerous decisions and regulations, most of them inaccessible to the public. But despite its important space programme the state had no specific space legislation. The country's lawyers for years argued the necessity for a unified space act and the creation of a space agency. The authors of this article discuss the regulation of space activities since the break-up of the USSR. The situation is considered in two aspects: the legal regulation of cooperation within the Commonwealth of Independent States (CIS) in the exploration and use of outer space, and the legal and organizational bases of space activities in Russia after the creation of the Russian Space Agency in 1992. Appropriate agreements and other legal documents are considered.     

The environmental dimension of space arms control

Current debates on the prevention of an arms race in outer space are dominated by the traditional perspective of international strategic balance. This article addresses the issue through the often-neglected lens of environmental protection, reviewing a number of environmental instruments as they relate to outer space. It argues that environmental protection, as a non-traditional element, is an instrumental impetus for arms control. The current regime leaves the door open for states to develop conventional orbital weapons and ground-based anti-satellite weapons (ASATs), which would have a significant adverse impact on the space environment. Thus the law of environmental protection is deficient in effectively protecting the space environment from pollution resulting from military activities. It is further argued that the space arms control regime should be strengthened for humanity's common interest in a sustainable space environment. Preferably an international treaty should be concluded to prohibit testing, deployment and use of space-based weapons and ASATs. These substantive obligations also conform to the requirements of safeguarding international peace and security, and the security interests of spacefaring countries.     

Space debris and the world community

In the early years of space flight the United Nations rapidly developed the principles which now govern outer space activities. In contrast, international agencies have during the 1980s proved reluctant to confront the escalating problem of space debris, presumbly for fear of the likely expense of remedial action. The author of this Viewpoint argues that not all the necessary measures need be expensive, and even the most unpalatable would be cost effective in the long run. But concerted action is urgently needed before the problem becomes unmanageable. International discussions must be initiated through the Committee on the peaceful Uses of Outer Space without delay.