By Anne Agi
Since space exploration began, the issue of its regulation has been up for discussion. With the recent commercialization of outer space, it is more imperative, now more than ever, to discuss the Constitution of outer space and to see if we can agree on the particular set of rules which we can refer to as the ‘Grundnorm’ of Outer space.
This is exactly what Professor John Hudson seeks to do in his podcast titled: “Talking Constitutions”. In this particular series: “Space, Law and Constitutions”, Professor Hudson, a Professor of Legal History at the Institute of Legal and Constitutional Research, University of St. Andrews along with discussants, Dr. Timiebi Aganaba, (Assistant Professor of Space and Society of the Arizona State University), Adam Bower (Senior Lecturer of International Relations at the University of St. Andrews) and Michael Byers (of the University of British Columbia) consider the law and institutions that shape a wide array of activities on outer space. They explore the constitutional arrangements that frame the day to day affairs of politics that affect our lives in a myriad of ways.
Their conversation is robust and enlightening!
Find below the Podcast as well as the Transcript.
I hope you enjoy this as much as I did.
Professor John Hudson (Moderator): Welcome to this episode of Talking Constitutions, a series of podcasts in which we explore the constitutional arrangements that frame the day to day affairs of politics and that affect our lives in a myriad of ways. Our subject stay is ‘Space Law and Constitutions’. My name is John Hudson. With me today are Timiebi Aganaba, Adam Bower, and Michael Byers. Timiebi is on the Science Advisory Board of the SETI Institute. She is also Assistant Professor of Space and Society in the School for the Future of Innovation in Society at Arizona State University and a member of the Advisory Board for the Space Generation Advisory Council, supporting the UN Program in Space Applications.
Adam is Senior Lecturer in the School of International Relations at the University of St. Andrews and is Co-Director at the center for Global Law and Governments.
Michael holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia. He is also presently a St. Andrews Senior Global Fellow for the 2021/2022 academic year.
So let’s start off by finding out a bit about the history of space law and its emergence as a category of law. Timiebi, would you start off this one for us?
Dr. Timiebi Aganaba: Yes, thank you so much. It’s my pleasure to be here. So at Arizona State University, I’m at the College of Global Futures, which is comprised of three schools, the School for the Future of Innovation in Society, the School of Sustainability, and the School of Complex Adaptive Systems, which basically frames the way I answer questions that are as simple as what you just said. Now, it’s interesting that you use the word ‘emergence’ because yesterday in my class on strategic thinking, we were talking about Indigenous thought and we were talking about this scholar called Tyson Yuka Porter, who basically talks about ‘emergence’ as the way to handle the increasing complexity of our world. And he says that when something happens and there’s a temporary disruption to institutions that we don’t trust, you don’t give it a name, but you foster the conditions of emergence. So emergence is defined as the process of coming into view or being exposed after being concealed. And the reason this is important is because people think the Outer Space Treaty, which is the Constitution of space, is when it all started. But that was just a symbol of the emergence. So essentially, before the mid 50s, the space Commons discourse lived largely within Northern academia, and then the debates moved to the international fora in the late 1950s. So we had the International Civil Aviation Organization in 1956 talked about space and then the ILA (International Law Association) in 1958. And it then came to the United Nations in a specialized committee in 1959. So this is the United Nations Committee on the Peaceful Uses of Outer Space. And here in 1963, there was a declaration which is kind of like the consensus building of legal principles governing activities of States, which then led to the Outer Space Treaty that everyone hears about in 1969. So there was this whole period of emergence of these ideas basically coming about that then crystallized when we did have the Sputnik, the first satellite going into space, and we then had the Cold War with these two actors, the USSR and the US, that then led to the discussion that led to the Outer Space Treaty. So that’s like the history of getting to what we’ve all heard of. But I think thinking about it as something that evolved and didn’t just appear with Sputnik is actually something that most people are not really aware of.
Professor John Hudson (Moderator): Michael, would you like to add anything to that?
Professor Michael Byers: Yeah. I’ll start off by disagreeing with Timiebi. I don’t think the Outer Space Treaty is a Constitution. I think there are a couple of constitutions that do extend to space. One is obviously the United Nations Charter, which applies in space and has 193 States parties. The other is the Constitution of the International Telecommunications Union (ITU). It’s actually called a Constitution, and it, too, has 193 members. And these are instruments that actually give the organization and its membership the capacity to make law and to impose decisions on individual nation States. The Outer Space Treaty doesn’t have that. It’s a multilateral treaty. It’s been ratified by, I think, 111 countries so far, but it’s part of a series of multilateral treaties, and it’s embedded within customary international law. And to me, we mentioned the Sputnik satellite. One can say that this body of international law concerning space did start there, because when the Soviet Union launched Sputnik, it wasn’t clear until after that launch whether there was a right for a satellite to overfly the territory of sovereign nation States. And yet no country protested. And that acquiescence, including on the part of the Soviet Union’s Cold War rival the United States, led to the development of what became known because of a scholar named Bing Chen as ‘instant customer international law’. And the developments were very rapid. The Committee on the Peaceful Uses of Outer Space was established at the United Nations just one year after Sputnik in 1963. You had the adoption of the limited test ban Treaty that banned nuclear explosions in space and to maybe mentioned also the very important United Nations General Assembly resolution. But it’s not a Constitution. It’s a multilateral treaty embedded within a larger body of international law, and it sits alongside true constitutions like the UN Charter.
Professor John Hudson (Moderator): Adam, we have disagreement there between Michael and what’s your take.
Dr. Adam Bower: Well, as the non-lawyer of the group, I suppose I have to be careful here and sort of defer to my esteemed colleagues. I would say what’s very interesting about that specific debate is the way in which, if you look at some of the major handbooks on international space law, there’s often reference to this idea that the Outer Space Treaty is a Constitution or a quasi Constitution. Some of the authors of one of the major handbooks refer to it as the ‘Magna Carta‘ for outer space. And so I’m actually really interested in the way that debate between Timiebi and Michael plays out, and I think we’ll be coming back to that. I mean, just on the first question that you posed, John, I suppose maybe one thing I would just add is this context of the space race, because what’s interesting to me about that from a sort of global politics perspective, is we do tend to think of this in terms of the superpower competition and the space race being part of, obviously, a much wider Cold War confrontation; and yet what’s also really interesting is the extent of international cooperation that exists during the Cold War, during the space race, and that continues up until the present day. And you can think, for example, of the International Space Station and cooperation in that context, despite the fact that there’s actually often some maybe a little bit of bad blood or at least language and confrontation surrounding the particular ways that that will be continued to be implemented and operationalized. And even in the midst of Russian US tensions, for example, in the intervention, the annexation of Crimea in 2014, the International Space Station continues. And so there’s interesting ways in which cooperation continues throughout periods of geopolitical competition. And I think that that’s something that’s kind of quite interesting. At the same time, though, I think there are maybe and this is something we’ll come back to through the conversation, well founded concerns that we’re in a moment in time in which increasing competition among the major space powers, particularly China and the United States, but also Russia and the rise of others as well, is increasing both economic incentives, but also perhaps there’s an increasing range of military confrontations that are developing in orbital space and beyond as well, so that we’re in this moment of experience with cooperation and yet also perhaps growing tensions and growing concern over the rise of, for example, military technologies, but not just the rise of commercial actors that are engaging with space law in different ways, in ways that were perhaps not fully anticipated in the negotiation of early instruments in the Cold War period.
Professor John Hudson (Moderator): So as far, tensions are leading to specific disputes. What courts deal with matters relating to space law. Michael, can you start us off on this?
Professor Michael Byers: I’d like to start by reinforcing what Adam said about the ongoing, extensive cooperation in space, including between the Soviet Union and the United States, now Russia and the United States. The few disputes that have arisen are resolved through negotiations. So in 1978, height of the Cold War, a Soviet reconnaissance satellite crashed into Northern Canada with 50 kg of Uranium 235 on board. And the Canadian government spent a large amount of money engaging in a clean-up operation and sent the bill to the Soviet Union. There were three rounds of negotiations and ultimately the Soviet Union paid half of what Canada was requesting and the dispute was resolved. That’s the way it’s done, because we’re partners in the International Space Station. We’re partners in the Charter on major disasters, which uses satellites from all countries to aid in emergency relief. We’re partners in the Kosovo SARSAT program that provides search and rescue coverage around the world. We work together at the level of nation States. So there are no courts needed. I mean, there are courts like the International Court of justice that parties could go to if they weren’t able to resolve a dispute through negotiation, but that hasn’t been needed so far.
What is interesting and I’m following up again on what Adam said is we’re seeing an incredible growth in commercial activities in space. So roughly a third of all operational satellites at the moment are owned by SpaceX, by Elon Musk’s Company, and this dramatic increase in commercial activity is going to result in disputes between commercial actors and between commercial actors in nation States. Now, at the level of commercial actor disputes, there are national legal systems. And so there’s been a case working through the US courts between SpaceX and one of its main commercial rivals, ViaSat. But this is all normal, right? In any field like international shipping, we have this mix of private law and public law. We have international conventions, we have international organizations. Space is not different in any qualitative sense from international law and international affairs more generally. And that’s a really good thing because we actually have a lot of history, a lot of instruments, a lot of practice behind us as we move forward off of the planet.
Professor John Hudson (Moderator): So, Adam, is it then that the institutional framework so far, it’s an existing institutional framework, rather than one specially created for matters to do with space,
Dr. Adam Bower: At least as far as the public international law side goes? I mean, I think that’s correct. One of the things that’s interesting, right, is that this outer space Treaty, which is referenced so regularly by practitioners, by scholars as well, makes no real mention of judicial remedies, and it doesn’t create any new mechanisms for dispute resolution or verification enforcement itself. And so Michael suggested that that actually seems to have worked reasonably well up until this point. What I find interesting is that when you read commentary, there seems to be a growing concern that these existing institutions, precisely because of these lack of judicial and enforcement mechanisms, really aren’t well suited to the exact kind of proliferation of activities that Michael was mentioning. And I don’t really know exactly whether and how that requires the creation of further courts, for example. But I do think it’s very interesting that there are ways in which, for example, as Michael mentioned, the International Court of justice could certainly be brought to bear on interstate disputes. But even to the extent that other aspects of international humanitarian law, for example, or environmental law are incorporated or relevant to the space regime. You could also imagine that more specialized courts might also have a role. But the interesting thing is, of course, that none of these have been brought to bear to this point at least. And Michael mentioned this really interesting example of the Canadian Soviet dispute, which could have been resolved, if I understand correctly, through a formal judicial process via the liability convention, but it was ultimately resolved bilaterally instead. So there are institutions that exist that are sometimes more specialized, for example, in the case of the Liability Convention, specific to space law, but others that are more global in nature, and they haven’t been used up until this point. Now, the question would be then whether or not that is sustainable in an era in which we have a rapidly expanding number of state space-faring actors, but especially a huge array of commercial operators and a huge array of new activities that are qualitatively quantitatively, perhaps different than in the past.
That’s not something I think I can answer in great detail. I know that, Timiebi has thought about this probably much more than I have, so I’ll pass the floor now to her.
Dr. Timiebi Aganaba: Excellent. In recent times, people have really been focusing on mechanisms for arbitration. So over the past ten years, the Permanent Court of Arbitration set up specialized rules to be able to deal with disputes for space related activity. I don’t think anyone has ever used that, interestingly. But then secondly, in 2021, Dubai came up with their courts of space. So they launched an initiative. They set up an international working group in April 2021 that seeks to make the UAE to play a leading role, advancing its judicial systems to direct capacity and capability for commercial space disputes and they’re creating like a space dispute guide. So that’s what’s going on in the UAE. And then last year, the Space Arbitration Association was established to basically coordinate the space sector and the arbitration world. And I think just this week, they were nominated by the Global Arbitration Review for the award in the best development category in arbitration. So over the past ten years, people have been saying, well, maybe something like the ICJ isn’t going to be relevant, but arbitration is probably more likely. And so could there be specialized mechanisms to arbitrate space disputes?
Professor John Hudson (Moderator): You’ve just been talking about the in a sense, the emergence of rules are within the context of arbitration. How far are there a bunch of underlying principles that currently exist in space for not necessarily hard rules, but just underlying principles possibly drawn from other areas of law.
Dr. Adam Bower: Adam, would you start us off on that one? Sure. Thanks, John. I’m going to skirt the question a little bit then of whether or not the Outer Space Treaty should be properly regarded as a Constitution. But I’m going to go there in terms of the principles I’d like to identify. But just before I do that, I think we’ve been speaking already a bit in various ways about the idea that we’re sort of in a moment of really fundamental change in human and robotic space activity. And one of the dimensions of that that I find really interesting is a sense among, there seems to be a number of actors that there aren’t sufficient rules. For example, in the US context, General John Raymond, who is the chief of space operations in the United States Space Force, has over the last few years been referring to space as a wild, wild west. With this presumption rate that particularly on the military side, there just aren’t rules to guide behavior. And I think that’s surprising and really fundamentally misguided because there really are principles that exist. And let’s just in the context of the Outer Space Treaty, I would highlight at least, I think, four that are really most important. The first of those is a principle of inclusivity. So this is in article 1 of the Outer Space Treaty, the idea that the exploration and the use of outer space, “shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic and scientific development, and shall be the province of all mankind”. And I think today we would hopefully instead use the word humankind instead of mankind. But I suppose we can bracket that maybe just for the moment. Within that, we can sort of see four core freedoms for exploration, use, access, and scientific investigation without discrimination. And this is something Timmy has written about before, I think, really nicely. And so I’m going to not say much more about that just yet, because I’d like to leave time for her to speak on that one. But the second principle is one of non-appropriation, the idea that the Outer Space Treaty prohibits ownership, occupation, annexation, and or conquest of celestial objects or outer space more generally, a third being peaceful purposes or peaceful uses, the idea that space is supposed to be human, robotic space activities are supposed to be conducted with this peaceful intent, but that’s not an absolute principle. Interestingly, because if you look to article four of the Outer Space Treaty, the treaty prohibits the placement of weapons of mass destruction in outer space and prohibits military installations or weapons placed on celestial objects. But it doesn’t ban military uses altogether. And in fact, one interesting development that occurs over the last 40, 50 years is something the United States promoted. And I think it’s now widely, if sometimes grudgingly accepted idea that space assets can support military activities, provided that those military activities are not directly hostile to another nation’s space assets. So it’s not an absolute peaceful purposes condition, but it’s one that is supposedly kind of central to the operational environment, sort of a really foundational operating value or principle of space exploration generally. And then the last one I would point to would be a sense that fundamentally space-faring States actors are supposed to participate and engage in a spirit of cooperation. And this is from article 9 of the Outer Space Treaty, with, “due regard to the corresponding interests of all other States parties to the treaty”. And while we have suggested that oftentimes space bearing actors haven’t really been invoking, a lot of these principles haven’t been utilizing judicial mechanisms. For example, very often. I do think it’s interesting that this idea of due regard is popping up occasionally. Even very recently, for example, the Chinese government has raised complaints that SpaceX’s Starlink satellites have come unduly close to their space station. And in one of the statements to the UN Committee on the Peaceful Uses of Outer Space just recently, or I believe actually it might have been in the Ministry of Foreign Affairs statement just the other day, there was a reference to the idea that the United States would be responsible for the activities of SpaceX, but also that there should be due regard to Chinese interests and operations in space. And so that might be a principle that we actually see perhaps being invoked more regularly in future. And I just conclude by suggesting that these principles are important. They’re necessarily vague. They were intentionally vague in the way that the treaty was written, but they do provide a framework for further institutional development. They’re important in the negotiation of the subsequent core space treaties, of which there are four and the other negotiated principles. The challenge from my perspective, though, is that it isn’t that there’s a complete absence of law, it’s that by and large, States have not really invoked these principles in a systematic or sustained way to resolve disputes. And Michael suggested, I think correctly, that there haven’t been perhaps as many disputes as we might have anticipated, given the growing importance of space. But I would suggest that that is probably going to change. And so one big question is to what extent these principles can be a foundation for peaceful cooperation, coexistence in space going forward, or whether actors determine that they’re simply not sufficient and therefore require further institutional elaboration.
Professor John Hudson (Moderator): Michael, are there any further principles you would suggest underlying space law?
Professor Michael Byers: I’d like to suggest that Adam made it too complicated that there are two core principles. One is the freedom of exploration and use, and the other is the principle of non appropriation, the obligation of due regard as a protection for the freedom of exploration and use. It’s not the primary obligation. So I would say that those are the two primary obligations freedom of exploration and use and non appropriation. And yes, we are seeing situations now where those principles are being challenged. So let me give you an example. Spacex puts thousands of communication satellites in single orbital shells, and there’s such a density of SpaceX satellites that it’s not safe for any other company or any country to put an additional satellite. There is that appropriation of that orbital shell. And if it’s not by SpaceX, then is it by the United States which is legally responsible for SpaceX activities in space? Or to give you another example, is the light pollution from all these satellites, which is interfering with astronomy, is that interfering with the principle of freedom of exploration and use, or to come back to national appropriation? Is a private company going and extracting ice from the Moon or Mars to make fuel for use in space? Is that appropriate national appropriation of a celestial body, or is the mere fact that they’re not claiming sovereignty sufficient to protect them from the prohibition? These are the kinds of problems that are arising, but they’re arising with regards fundamentally to these two principles. And that’s okay because we always take old laws and apply them to new circumstances. So no one questions whether the United Nations Charter and its rules governing the use of force applied to cyberspace. Yeah, they obviously apply to cyberspace. We just need to figure out how. So none of this is unique to space; it’s just simply law adapting to new circumstances.
Professor John Hudson (Moderator): Timiebi,Adam gave us four principles. Michael gave us two principles. I’m tempted to ask whether you can reduce it to one, but how would you add.
Dr. Timiebi Aganaba: I reduce it to one by saying article six, state responsibility. Essentially, as we’re moving on to these new activities where there are diversification of actors, we need to know who is actually responsible for making the rules that people have to actually live by. And so space law is unique in that it basically sets out that the state is responsible for its nationals and national activities in outer space. And so when people say that space is the Wild, Wild West, they forget that you have to launch from somewhere and you have to have a license from someone; and so the fact that you’re always going to have to launch from somewhere means you’re always going to be bound by some kind of law. The question is going to be when we come back to this issue of Constitution like Elon Musk wants to have a base on Mars, and people are talking about, well, what happens when people actually live in space and they’re not connected with Earth anymore? Are they still going to be bound by Earth rules? I mean, this is getting a little bit futuristic and into science fiction, and so we’re going to have to revisit that conversation. But as of today, the state is responsible for any activities under its umbrella. And so it doesn’t matter what all the other things are, as long as the state….I mean, look at this article 2 matter that Michael is talking about, international law says non appropriation. But the States in US, in Luxembourg and Japan have said, well, we will protect our citizens if they want to exploit resources, and it can belong to them. So the trend in international law right now is interpretation at the domestic level.
Professor John Hudson (Moderator): So how far is space law developed by analogy from existing law, something we touched on already. But maybe, Adam, you will start us.
Dr. Adam Bowers: Just a really quick point here, which is that I think it’s undoubtedly the case that you see space law developing by analogy. We’ve spoken about it already. But I think what’s also interesting is the extent to which those analogies, to the extent that they rely on physical assumptions about the Earth or space or other things, are imperfect, fundamentally imperfect, because outer space is just different. It’s very extreme distances. I mean, we’re speaking primarily now about human and robotic space activities occurring around Earth in Earth orbit, but increasingly, we will be speaking about things happening on the Moon, perhaps out, as Timiebi mentioned to Mars and beyond, the distances are extreme. It’s extremely cold. It’s a vacuum. There’s huge amounts of radiation in certain zones, and so more fundamentally than that, objects move very differently in the vacuum of space and in relation to celestial objects; and it’s not a perfect analogy. Orbital mechanics doesn’t map on very easily to the way in which vehicles operate in the air, in the sea or on land. And that might seem esoteric, and it takes us off into places we won’t discuss in this particular recording, except to say that I think there is a limit to which some of these analogies can work. And whether or not that matters in terms of the precise interpretation of law, I think is a question for experts. But I do think that there’s a temptation to see outer space as yet another domain that’s quite a bit like things that we know already. And I think that there are ways in which that analogy breaks down, and that does, I think, have implications for how we think through what’s going on in orbit and beyond, but also the ways in which we would be governing it in the future.
Professor John Hudson (Moderator): Michael, to me, I think by experts, Adam means the two of you. So, Michael, would you like to add there.
Professor Michael Byers: Yeah, just on the point of analogies, I think that one can usefully look to other so called areas beyond national jurisdiction to find the closest parallels. And obviously, the world’s oceans are one place to look, especially once you get beyond coastal state jurisdiction and you get to the high seas. And then with regards to the deep seabed, the international regime established under the UN Convention on the Law of the Sea, which is directly engaged with the issue of deep seabed mining presently. But there’s also the Antarctic, where we do have a multilateral treaty that has operated for well over half a century and has kept that place relatively free of activities of concern. So there are analogies. But the thing I want to do is I want to come back on something Timiebi said and this was that developments are being driven with regards to at least space money by nation States. And she named the United States, Luxembourg, and Japan. And I can’t resist the opportunity to speak up for the Global South here and point out that a year ago at the United Nations Committee on the Peaceful Uses of Outer Space, there was a proposal to create a working group on the issue of space mining. And it wasn’t clear whether that group would be established until the G 77 plus China weighed in with a joint statement. And the G 77 has grown and now represents countries from the Global South that make up more than half of the world’s nation States. And they often cooperate with China, which thinks of itself as a member of the Global South, although it is also now a superpower. And that was decisive. Right. And it’s not clear that the United States, Japan, Luxembourg, the United Arab Emirates will win this lawmaking contest at the international level now that the majority of States from the Global South are engaged on this issue and probably want to have at a minimum, some kind of distribution of revenues or some kind of equity system built into this similar to what we have with regards to the deep sea bed. So there’s a tendency and I’m not critiquing my colleague from Arizona State here, but there’s a tendency if you just listen to the Anglosphere and you just read the English language academic publications from the Global North, to think that this issue is somehow being moving quickly in the direction of corporate rights. No, I think the debate has just started, and I think the Global South is just beginning to get engaged, and the outcome might be very different from what the United States and Luxembourg and Japan would like it to be.
Dr. Timiebi Aganaba: We have to remember, of course, that the Artemis Accords is also another governance instrument that gives that right. And that has 14 member States. Right. And people are still looking to join. Mexico is a part of that. Now, I don’t stand on this any way or the other, except usually I don’t like to say that, you know, cos I get annoyed when people especially because I’m in the US. So they come and attack the developing country perspective because they say they want money, they want money. From the work that I’ve done with African youth, their discussions around what that kind of distribution should be for, is not about someone getting something for nothing. It’s things like space debris removal and like, things that would basically benefit everyone. So they’re not saying give us money for doing nothing. I think that’s an anomaly that people are saying, why should you get something for nothing? So I think that that’s a really significant point that we have to consider. The longer you stay in America, the more Amerocentric you get. So I have to be very careful of this. But I do see that the trend is going towards people saying yes, we can exploit resources and we’re going to figure out what ownership will look like. It doesn’t have to look like the classic way that ownership has looked like because, for instance, there are communal ownership. So it’s understandable that you need some of these private law norms and institutions to encourage the industry to happen. But can we innovate around what they mean so that everyone still benefits? I think that’s where the conversation needs to move, rather than this binary it’s illegal or it’s not legal.
The other thing that we have to remember is article 3 of the Outer Space Treaty says that international law applies in space. Now, we don’t know how international law applies in space or which international law applies in space, but the mechanism is there for general international law to apply. So again, I’ll agree with Michael in that it’s not a real Constitution because it doesn’t tell you how to do things, but it is still the ground norm because it gives the road or the map to be able to figure out, okay, where do we go from here?
Professor John Hudson (Moderator): Interesting leads on to the next thing I was thinking about, which is how far is space law necessary part of international law, or in a sense, of a form of international law, or is it also quite largely made up of national elements? Adam, I think you touched on this earlier, so will you take us forward on that?
Dr. Adam Bower: Thanks, John. Yeah, I think I just take a step back just to sort of reemphasize something that we’ve spoken about in a variety of ways already, which is really just that outer space is increasingly central to modern life on Earth. Right. That space missions begin on Earth. As to be pointed out, I mean, you have to launch from somewhere down the road. We may talk about space missions beginning from the Moon, beginning from Mars, but for now, everything is beginning on Earth, and space missions are providing vital services for our societies. I mean, we could go through a huge list, but just a couple of the most important precision navigation and timing supports transport just in time, logistics, banking, and so forth, telecommunications, environmental monitoring and weather forecasting, Earth observation, and, of course, a range of military and intelligence applications; and so outer space is necessarily intimately connected to terrestrial, political, economic, social, and cultural processes. So inherently it has to be part of international law in that way. We’ve spoken a bit already about the Outer Space Treaty in particular. There are other treaties, I think, as has been pointed out already as well, through article 3 of the Outer Space Treaty, the rest of general international law is brought to bear in the space context. But as Cindy, as he points out, we don’t know exactly how until we start to go into the process of trying to apply it in particular contexts. The second part of your question about the national law we’ve also touched on and I would just highlight that again, as been pointed out already, much of the recent development in space law and institution building is occurring at the national level, right, both through domestic laws that we’ve mentioned already, Luxembourg, United Arab Emirates, the United States, but also through national regulatory agencies. And just to give one quick example, it seems to me this is where a lot of the most interesting action is taking place. So in the US context, and again, with apologies for kind of going back to the US as a chief example. But major companies like Amazon, Viasat and NASA, as the US Civil Space Agency are all challenging the deployment of the next generation of SpaceX’s Starlink, which needs to be approved through the Federal Communications Commission regulatory agency in the United States. And all of these different companies and NASA have raised really profound concerns about the way in which that approval process has been conducted, but more specifically, the way in which SpaceX intends to deploy that constellation of satellites and have raised concerns about implications for the operational environment in low Earth orbit, the environment itself in terms of creation of debris, but also the ways in which space science may be negatively impacted. And so I think while we’ve mentioned a number of times that there may not be an awful lot of action at the international level right now, there really is a lot going on in domestic contexts which are providing really useful ways of examining the operational, the environmental, the scientific implications of some of these major developments that have been mentioned.
Professor John Hudson (Moderator): Michael, would you like to carry on from what Adam has just said?
Professor Michael Byers: Ah yes, it’s clear that some national regulators, like the Federal Communications Commission, are playing a very important role, but it’s also true that people tend to focus on those national regulators and not realize that there’s also an international level to this. And I mentioned the International Telecommunications Union, which is the oldest international organization in existence. It started as the International Telegraph Union back in the 1860s. And it has a Constitution and it has a regular process of rule making that brings together all of its member States on a regular basis. And it is the one that receives the applications for radio spectrum and approves them in orbit specifically. Now with regards to low Earth orbit. So the FCC is the one that goes to the International Telecommunications Union and says, look, SpaceX wants to have these satellites using this frequency. Now, up to now, the International Telecommunications Union has just coordinated all of these just different requests, but it is now being flooded with such requests. There were applications for spectrum for over a million satellites filed in 2021. Now, most of these satellites will never be launched, but there were applications for spectrum, radio spectrum for a million satellites. We can’t have a million satellites in low Earth orbit, despite what Elon Musk says because we already have a lot of debris, and most of it is untrackable. And with those numbers of satellites, you’d have collisions and a collapse of the system, essentially the Kessler syndrome of runaway space debris. So the International Telecommunications Union is going to have to deal with this. It’s going to have to say, okay, we’re not just going to coordinate, we’re going to start limiting. And the next time that the member States meet, they will have to give direction to the International Telecommunication Union to do just this. But it has that power. They have that power. They have a Constitution, they have 193 member States. That’s everyone. Right. So it’s not just the FCC. The FCC is a subordinate actor here. The dominant actor that has the power that now has to decide to act is the international organization.
Dr. Timiebi Aganaba: The interesting thing is what is going to help you limit? And so from a scientific standpoint, we’re starting to talk about this concept of carrying capacity. So if we talk about sustainability in terms of, say, having ecological roots, then you talk about what is the carrying capacity of a given system. Right. Because right now we believe that space is infinite, but we know that it’s not infinite in terms of the economic potential and the usable spots and the spots that everyone wants. But right now, no one has a way of saying how do you limit? So maybe if scientists could figure out how do we measure the carrying capacity? I think this is what they tried to do with Kyoto, the Kyoto Protocol and climate change. Right. And saying let’s give limits on how much greenhouse gas emissions ever pollute. Now, obviously that failed because we now have the Paris Agreement, which doesn’t set limits, but it sets a goal of people increasing their ambition towards climate action. So maybe we’re going to be somewhere in between with space. We kind of figure out the carrying capacity, and then some people have initiatives like the space sustainability rating, which will now measure what people are doing and then reward people for good behavior. So I think to get to that place where the ITU are going to say we’re going to do a limit, it’s going to be some kind of discussion around limitations versus rewarding good behavior.
Professor John Hudson (Moderator): I’m interested in this way that we’re trying to situate space law within legal categories, within categorizations of law. And one is international law, national law, another is private and public. And quite a lot of actually what we’ve been talking about, for example, about national responsibility for private actions raises this topic. Timiebi, how far is the separation between public and private or put differently, how far does face or challenge some of the divisions between public and private law?
Dr. Timiebi Aganaba: When we talk about academics and when we talk about most of the discourse that you see in space, we’re talking about public law, we’re talking about public international law. But you’ve got to remember that since the 1960s, space has actually been commercialized. So it’s also a business. This is where private law comes in, right? The satellite manufacturing contract, the launch contract, all these things, trade agreements, trading and contracting between different actors is something that’s been happening the whole time in space, and these people are not going to call themselves space lawyers. The people that call themselves space lawyers are looking at the public sphere; so that’s why there’s been this big limitation. But people who are actually in the business of making space business happen are definitely straddling the two things. You need people to be able to get a license, which is the public international law part, but then you need to get a launch provider, which is the contract side. Now, where I’m watching, which is really interesting in this kind of hybrid, is what’s going to happen in space when we have an in space economy, because that’s where we’re going towards now. Brian Israel, who is the general international lawyer at NASA, he wrote a paper about ‘Space Law 3.0’, and he argues that there will be a private law system of contracts between operators and the smart contract functionality of blockchain networks. Right, Buzzword here, introduces new possibilities of private ordering in space. So smart contract enforcement is kind of automatic. So if there’s like a critical mass of value that is stored on interoperable block chain networks, this is all getting pretty techy, then it’s theoretically possible to have private contractual regimes for allocating and enforcing quasi property interests and space resources, which infringement could then trigger automatic transfers of value. So we’re seeing, like in this kind of futuristic realm, this whole blend of when we actually get to space, some of these boundaries are going to get crossed.
Professor John Hudson (Moderator): So that breaks down boundaries between public and private, but also between national and international, because presumably these issues, they’re neither national nor international in current legal thinking.
Dr. Timiebi Aganaba: Exactly. At the end of the day, Brian Israel wrote this paper when he was working for a blockchain space company. So who knows how serious this is? But it definitely gives us thought experiments about when we get to space. All these boundaries and the way things are broken down may not work in the same way.
Professor John Hudson (Moderator): Adam, what are your thought experiments here or just your thoughts?
Dr. Adam Bower: Thanks. I would say, I just take a slightly different direction on this, but I really agree with what Timiebi has said. I would just reemphasize something that we’ve mentioned a few times already, which is that commercial operators are rapidly taking over in terms of the sheer volume of space launch and the applications in space. And one of the really important elements of that is that they are providing a range of services that governments often draw upon through forms of contracts and so forth. But that in so doing, commercial operators are going to have an increasingly important role in for example, the way in which even major space powers like the United States conduct intelligence operations. Maybe they’re buying access to commercial Earth observation satellites, for example. And so this entwinement between the public and the private, I think, does present really substantial challenges to international law and perhaps to private law as well. Just to take one example, David Kaplow has just an article recently which I thought was really interesting, where he discusses the ways in which, through the conventional law of armed conflict, international humanitarian law insists on a distinction between military and civilian actors. And the argument that’s developed in the paper is that that’s going to be difficult to untangle in a context in which a commercial telecommunications provider or a commercial Earth observation provider is providing at least part of its service to a government that’s using those assets for a military or intelligence role. And how that gets entangled is obviously a technical question on one hand, but it’s also a legal question. I wouldn’t claim to have the answer to that right now. Michael may have some thoughts on that, but I do think that these kind of dilemmas are going to become only increasingly important in this period of time in which we are seeing this rapid expansion in space activities, a lot of which are being driven by commercial providers who want to insist upon the fact that they are commercial actors, private actors, and not just tools of the state, and that distinction sometimes gets blurred. Right. But there are, as I say, I think, real policy challenges there, and there are also legal challenges that will need to be untangled in the context of specific situations.
Professor John Hudson (Moderator): Michael, Adam just invited your thoughts on this.
Professor Michael Byers: I’m old enough that I had already started my academic career before the terrorist attacks of September 11, 2001, and I remember as a young scholar being immersed in these academic discussions about the end of the state and that we had moved into an era of transnational corporations and international civil society. And then the twin towers came down and the state came back in a really big way; and we had the global war on terrorism, we had the United Nations Security Council adopting deep reaching chapter seven resolutions on things like banking controls and terrorist financing. The state came back, the United Nations came back. And now I see in space that the same kind of discussion that we saw globally in the 1990s, which as well, the state is so ‘passe’, it’s all corporate actors. And yet let us not forget the incredible dependence on space based assets of all major militaries. Let’s not forget the literally trillions of dollars of investments in military satellites. You can’t fly a Reaper drone without space based broadband, right? You cannot engage in precision targeting of missiles and bombs without satellites in space. You can’t have all the communications necessary to Mount an operation in Ukraine or to defend against one the military involvement in space means that when something does go wrong in a big way, the corporate actors will be pushed aside, they will be told what to do, and the state will be back. That’s why I just want to remind people that there are these major actors, powerful actors, that operate by different rules. There are rules. There’s the United Nations Charter. There’s Article 24, there’s Article 51 on self defense. There’s the international humanitarian law governing the conduct of military operations and there are some really interesting questions concerning dual use assets and proportionality and the protection of civilians and civilians on Earth can be affected by developments in space; if we lose search and rescue satellites and disaster coordination satellites, then people on Earth will die. The state is there in a really big way. And that doesn’t mean we shouldn’t be talking about the commercial actors, but we can’t lose sight of the fact that in November of 2021, the Russian military used a ground based missile to destroy a defunct Soviet era satellite and created more than 10 trackable pieces of debris and potentially hundreds of thousands of untrackable but still lethal pieces. And this in the context of international negotiations working towards some kind of limitation or ban on precisely this kind of test. There’s action in this domain also between Russia, between the United States, between China, between India and other countries that have space capabilities and regardless as essential to their national security. So it’s a really complex field that goes all the way from blockchain and corporate transactions on the one side to whether or not you can blow up a satellite with a missile. It’s fascinating. It’s broad. It touches on almost every national legal system and the entire international legal system from top to bottom. That’s what makes it fun.
Professor John Hudson (Moderator): I want to return with two final questions, really, to where we started off about courts and about constitutions. So do you think that separate courts dedicated specifically to space law will develop something you pointed out didn’t exist so far? Adam, what are your thoughts on that?
Dr. Adam Bowers: My take on this would be that at present I find it hard to envision an appetite among States for much major binding, treaty type institutional creation, at the international level, at least concerning public space law. Michael has already mentioned this, I think already. But we’re in the midst of a process right now that was a UK led initiative, which is culminated in the creation via a UN General Assembly resolution, creation of an open ended working group to discuss responsible behaviors and irresponsible behaviors in the context of security, to try to get a better sense of what States regard as harmful or threatening behavior and how we might characterize responsible and irresponsible behavior. That was meant to begin actually this week in Geneva, but unfortunately has been delayed until May or thereabouts through a set of procedural objections led by the Russian Federation, among a couple of others, but the point I would just make here then is that as I see it, there’s little appetite for long term treaty building at the moment, the creation of big institutions like courts, but rather an attempt to find first common ground on principles, perhaps finding common ground on specific initiatives of which Michael and the Outer Space Institute have been key players in promoting an idea amongst academics and others for a treaty banning the tests of destructive anti-satellite technologies, kinetic kill anti-satellite missiles in particular due to the creation of debris. But I don’t see much scope right now for creating something like a court. I think actors need to first degree more on where they want to go before they the particular behaviors that they regard as safe and unsafe, acceptable and unacceptable before they go down the road of creating something like a court to adjudicate those kinds of disputes. As has been pointed out already, there are institutions in existence that can actually step in to manage disputes if and when they arise. I think the question is more will actors, will States seek out those institutions and utilize them more than they have in the past?
Professor John Hudson (Moderator): Michael, would you agree continuation of existing institutions or utilization of existing institutions rather than creation of new ones?
Professor Michael Byers: Well, I’m not sure we need new institutions. And on the question of courts, I would suggest that good lawyers keep their clients out of court, because you have much more control over a negotiated resolution than sending a dispute to a third party. But we will need to clarify existing rules and to develop new rules. And I think that the widespread assumption that now is not a good time for multilateral lawmaking in space can be challenged. The biggest year in international lawmaking in space was 1963. We already mentioned the Limited Test Ban Treaty, the United Nations General Assembly Declaration on Principles that became the Outer Space Treaty. That all happened in 1963. What happened in 1962? The Cuban Missile Crisis, the closest that we have come to nuclear Holocaust preceded by one year, this wave of international lawmaking in space. We can have an international crisis like the Cuban Missile Crisis and have a wave of international law making following shortly afterwards. Right now, we’re in a major crisis with Russia concerning Ukraine and pessimists would say that our relationships have fractured with Russia and to some degree with China as a result of that. But crisis can create opportunity; so maybe 2023 will be the next great year in international lawmaking and space. We cannot assume otherwise; we have to be ready to seize the moment when it arises.
Professor John Hudson (Moderator): Timiebi, any optimism from you?
Dr. Timiebi Aganaba: Yes. I will be the one to say if we truly believe, as we do in the US, that we’re going to become a multi planetary species, then I think two things are going to have to happen. I think an international institution is going to be needed for two things. The first is some kind of benefit sharing mechanism, because we’re going to have to figure out how do we ensure that everyone benefits from space and the United Nations Committee on the Peaceful Uses of Outer Space is not a practical place to do that; and then the second place is thinking about human rights, because if people from all over the world are going to be living and working in space, there’s got to be someone outside of the state that can protect their interests. So I think benefits and human rights is going to propel us to have another institution.
Professor John Hudson (Moderator): That leads on to my final question and we’ll always have a rather speculative question at the end. Michael was talking about at the beginning about the not being a Constitution for space. Can one envisage the creation of some sort of constitutional document to underlying space law and relations in space? Michael, you said we didn’t have one or anything like it at the moment. Could you envisage that?
Professor Michael Byers: Well, let me augment my initial argument by saying that we could be seeing the development of a Constitution that is somewhat similar to the Constitution of the United Kingdom that isn’t written down in a single instrument but is actually a collection of documents and precedents. And I would suggest customary law that provides a collection of principles of guiding rules as society moves forward. We’re getting pretty close to that. There are a lot of treaties that apply to specific issues in space. For instance, the International Space Station Agreement, which governs the operation of that satellite among all of the involved nation States. We have customer international law, we have nonbinding guidelines produced by various bodies. If you look at it as a whole, there’s a lot of law, both hard law and soft law and some fundamental principles. So I think this is a good time to think about constitutions in a more flexible way, which, of course, is easy for British scholars and more difficult for some people from other countries like the United States.
Professor John Hudson (Moderator): Adam, would you agree that the possibility is for some sort of noncodified Constitution?
Dr. Adam Bower: I think that’s certainly more likely than the negotiation of a new consciously constitutional document, if that makes sense. I’m sort of for the reasons I mentioned in my last answer, which was more specifically about courts. I would say here that I think to the extent that the Outer Space Treaty has anything like constitutional properties, quasi constitutional properties, the initial conversation and this is notwithstanding it’s in those core principles that we discussed earlier, whether we count them as two or three or four, whatever it might be, that that’s the foundation for the kind of the thinking, the application of a set of core principles and values going forward. Now they can emerge and develop in other ways. I would suggest that actors are going to keep coming back to the Outer Space Treaty will be well advised to keep coming back to the outer Space treaty and associated documents to look for those sources rather than trying to sort of negotiate them anew. And we’re in a very interesting time because of things are changing very rapidly. My sense is that that is a more productive way forward though, to look to what exists and augment it specifically and in targeted ways, rather than seeking to go back to the drawing board for fundamental principles and values. I see a lot of them as being there even if they’ve not been implemented or developed as much as we might like.
Professor John Hudson (Moderator): And Timiebi, you get the last word.
Dr. Timiebi Aganaba: Okay, so from a sustainability and complex adaptive system lens, we talk about polycentric and adaptive governance and we talk about the fact that maybe there’s not going to be one overarching rule or governance system, there’s going to be a variety of them. And so for instance, Oban Foundation, which is a nonprofit organization in the US, have this trust, perpetual trust that they’ve set up whereby they will purchase lunar regolith from companies and then hold that in trust for the benefit of mankind. So there’s going to be contracts about how that material is going to be utilized. Elon Musk in his Starlink contract actually put in the terms of service things about how they would govern Mars. And so you’re going to find all these commercial actors; there’s going to be terms of service. There’s going to be contracts which are going to guide the relationship. Arizona State University, for instance, is the University partner for the Blue Origins Orbital Reef which is the first commercial space station that is going to be launched in the next five years. A University is actually responsible for the ethics, rules and guidelines for all the activity that’s going to be happening on the orbital Reef. So this is what I mean by polycentric governance, so different factors have their own governing regimes and the trick is how do they all talk to each other? And they probably need to do that by having the foundational principles that we already have, like the outer space treaty.
Professor John Hudson (Moderator): Thank you. So having started off with some disagreement, we seem to have ended up with a fair amount of unity. As that’s been a fascinating discussion, it remains for me to thank Adam and Michael and Timiebi and thank you for listening.