Renovating space: the future of international space law.

• Author: Blount, P.J.

Buildings are constructed by first erecting an interior frame or architecture and then, upon that architecture, the exterior is layered on giving the building its appearance. In a similar fashion law is often layered on underlying social and geopolitical structures forming a structure which then affects how we interpret the underlying social structure. (1) Law, to the extent that it is reactionary in this manner, can only be fully understood when the underlying architecture that it has been mapped onto is exposed. Often though, like in older buildings, we find that the underlying architecture has changed. In buildings termites and settling affect the structure without changing the exterior characteristics. Law is similar to the extent that the values it embodies can remain in place well past the demise of the social structures that it was built to regulate. Due to the dynamic nature of the social sphere, law can encounter application and interpretation problems later in its life. Rigid interpretations may be a bad fit for newer developments, whereas adaptive interpretations can become controversial. Striking a balance in this spectrum can be difficult.

Understanding the architecture that laws are built on is important in understanding if and how older regulations can be applied to modern times. This is especially important in laws dealing with technological areas which are prone to rapid change but that nonetheless need regulation. In this article, the term "architecture" is used to describe the underlying social, cultural, and political environment that inevitably influenced the development of law. The interests involved in these areas build a framework upon which the law is then mapped so as to best serve the goals sought. Obviously though, society and politics are not static, and when they change the law is often left as a rigid exostructure that no longer suits the architecture underneath. It becomes a historic building in need of restoration, and the law can often, in a sense, be renovated by evaluating the new architecture and remapping to suit that framework.

International space law (and indeed much of international law) is currently at a place wherein its underlying architecture has dramatically changed. This paper will discuss the future challenges for international space law as it is applied to new geopolitical situations and the trends that are developing as this process takes place. Part I will describe the architecture upon which international space law was built, Part II will discuss how that architecture has changed, and Part III will analyze the trends that are changing the structure of space law and shaping its future.

1. BUILDING A COLD WAR BUILDING

   It is no secret that international space law is a product of the Cold War. There is a great deal of literature on its development and the roles that the United States and the Soviet Union played in negotiating the original founding principles. (2) This article will, as much as possible, avoid revisiting this well documented past. However, it will seek to give an understanding of the regulatory goals that the architects were building for in this geopolitical climate.

   The primary goal of the architects when first negotiating space law principles was security. (3) The popular narrative that accompanies the Space Race at the beginning of the "space age," involves two superpowers vying for technological superiority over the other. The launch of Sputnik is often portrayed as a black eye to the United States in its quest for space superiority, from a country that should have been its technological inferior. (4) The oft forgotten part of that narrative is that the Soviet launch raised a serious strategic threat to the United States, in that it showed that the Soviet Union was much closer to the technology that would allow for the intercontinental delivery system for a nuclear warhead (an Intercontinental Ballistic Missile--ICBM). Tensions rose between the two states as they both got closer to developing not only the delivery capability for nuclear weapons but also the nuclear weapons themselves. The international community and specifically the two superpowers saw that there was great strategic risk, and that it warranted negotiating principles to reduce these tensions. This resulted in a UN General Assembly Declaration of Legal Principles followed by the Outer Space Treaty. (5) The legal principles found in these documents were specifically designed to ease tension in outer space activities. Some of these principles are outright prescriptions, such as the ban on the "national appropriation" of space. (6) Others are softer obligations that serve to build confidence by placing strong emphasis on principles such as transparency and international cooperation. (7) The principles as a whole though served to lay the foundation of a legal regime that promoted the peaceful exploration of space by reducing the opportunity for tensions in the new arena.

   These principles were later integrated into the Outer Space Treaty, which has been referred to as a "constitution for space." (8) This treaty, though, was designed to suit underlying societal and political realities that shaped the drafters goals. (9) Primary amongst these realities is that the treaty was built around a binary world; one dominated by two symmetric yet opposed powers. (10) As a result the law had to be seen by both of these nations as serving its own self interests, otherwise it would fail for lack of support from one or the other. This, predictably, had a dramatic effect on the final product, in that law reduced tensions, but at the same time left lacunae in which states could pursue their own security interests.

   A second underlying assumption that is critical to understanding the regulatory system adopted is that space activities were to be purely state undertakings. (11) While future commercial activities were to a small extent envisioned, international space law was built on the principle that space activities are uniquely state controlled activities. To this end the negotiators sought to control state actions as opposed to those of private actors. The idea of private actors was not completely ignored though, and Article VI of the Outer Space Treaty was drafted to deal with such situations. This article is quite exceptional in international law and makes states "internationally responsible for national activities in outer space" carried on by non-governmental actors. (12) At the end of the day though, the law was crafted around an architecture that did not include a full panoply of non-governmental actors, and has left numerous question about the obligations that states have to regulate these entities.

   This geopolitical situation formed the underlying architecture that international space law was mapped onto. The space treaties were built to serve regulatory goals that served the vision of the world held by the drafters at the time. In fact mapping the law onto this structure was critical in achieving the primary regulatory goal of increasing international peace and security. If the law had not been constructed in such a way as to conform with the geopolitical architecture it is arguable that the system could have collapsed like a house of cards.

2. THE NEED FOR RENOVATION

   In the past 20 years, the geopolitical climate in which space activities take place has changed dramatically. Most notably, the Cold War ended and commercial actors have begun to edge their way into the market. These events have changed underlying architecture that space law was built around.

   The End of a Binary Existence

   The end of the Cold War, predictably, has had a dramatic effect on geopolitics in the world. No longer did two diametrically opposed symmetric superpowers exist. Instead there remained a dominant superpower, and "Is]pace went from being a two-player game with both players starting from the same point and nearly equally matched, to a multiplayer game with one leading player and many other various points of a spectrum of capabilities." (13) Specifically, Asian states have begun to get very involved in space activities. China, Japan, and Korea have all started their own space programs with varying levels of success. Korea is developing its indigenous launch capability (14), Japan has become an important partner in the ISS (15), and China has become the third nation to embark on a human exploration program (16). In fact, some commentators have referred to this trend as a "new space race" that pits Asian nations against each other, but also--in another iteration--pits the United States against China. (17)

   Additionally, developing nations have begun to gain an increasing interest in access to the benefits of space technology. These states' interests come in a wide variety. Some partner to gain access to data, some contract to have satellites launched on their behalf, and others seek out indigenous technologies. Developing nations have embraced space technology as way to participate in the global community via access to better telecommunications technologies as well as access to the benefits of remote sensing technologies, and this has led to the adoption of a UN General Assembly resolution on space and developing countries. (18) States have traditionally seen space as a way improve the lives of their citizens, achieve security goals, and increase their international stature. (19) Space activities though have not been divorced from their early roots. Indicative of this is that some states have pursued space to achieve strategic goals by developing launch delivery systems. States such as Iran (20) and North Korea (21) have pursued indigenous launch capability in order to develop completely domestic space programs and possible ICBM capabilities. These states have used the terms of the Outer Space Treaty to justify their exploration of technology that can lead to the development of delivery systems for...