Some Legal Considerations Regarding the Future of Space Governance

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics

Some Legal Considerations Regarding the Future of Space Governance

Prof. Joanne Irene Gabrynowicz, Emerita^*

Introduction

I'd like to thank the Dean Rusk International Law Center at the University of Georgia School of Law for the honor of inviting me to be today's keynote speaker. I am in a room with a lot of colleagues who could just as well be the keynote speaker. So being invited to be the keynote speaker here today in the presence of my esteemed colleagues is a double honor.

Governance, Not Government

Today, we're going to talk about governance, and it is important to note that we are not going to talk about government. We are talking about governance. International governance systems have been developing and evolving since the end of World War II. There is nothing like a world war and almost total destruction of most of the planet to provide incentives to revise things. What we see at the end of World War II is the emergence of new kinds of institutions and practices to govern activities that occur across international borders, but which are still under the authority of sovereign nations. One example that is relevant to space activities is the International Civil Aviation Organization (ICAO),¹ which is an aviation organization, and which also provides a model for other international activities.

Another important example is the International Telecommunications Union (ITU).² It was founded in 1865 and predates World War II by many years. It was established to facilitate international connectivity in communications

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networks. After World War II, its work was expanded to allocate global radio spectrum and satellite orbits.

In later years, intergovernmental consortia were developed for various space activities and some of them were turned into commercial service providers. These include Eutelsat,³ a European-based communications provider; Intelsat,⁴ a global satellite communications provider; and, SES,⁵ a satellite-based video and network provider, for example.

All of these entities demonstrate that governance across international borders is an idea that's been around for a while. What's happening today is this idea is now being considered in many, many more ways. This presentation is broken down in terms of some things to consider now and some things to consider for the short, medium, and long term.

Cold War Roots

Space and space law have Cold War roots, and from that Cold War context there is a treaty regime that codifies important legal principles but allows national governments to regulate the details. Of course, there are exceptions to this governance structure, and these exceptions are what we are dealing with now at the beginning of the twenty-first century. A lot of what has developed since the Cold War has been driven by applications—that is, how space is used. These applications include telecommunications, launch capability, remote sensing, Earth observations, and navigation. Because all of these things are critical for both civil society and national security purposes, the policy and law needed to address them can present many challenges.

Further, because these activities are largely regulated at the national level, national laws and regulations are going to promote and embody national values. As the elements of international governance are being developed, the current focus is on identifying and bringing together those national values as international commitments. The first thing to look at is the International Space Station (ISS)⁶ and the agreement that governs it: the ISS International Governmental Agreement (IGA).⁷

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Considerations for Now

The IGA is the definition of a successful governance agreement. It is a multilateral agreement consisting of fifteen nations, has had three iterations, and has been in force for thirty-one years. Industry and Congress are looking at the IGA now as a practical precedent for some future governance attributes.⁸

The International Space Station and the ISS International Governmental Agreement (IGA)

A funny thing happened on the way to the space station: the Cold War ended. What had originally been announced by President Reagan in his 1984 State of the Union Address⁹ as a cooperative project that would be accomplished by the United States and its allies ultimately included the successor of its Cold War adversary. In 1984 the adversary was the Soviet Union. The Soviet Union voted itself out of existence in 1991¹⁰ and it became Russia.¹¹ They became Russians and for a variety of U.S. foreign policy reasons, they were brought into the IGA.

The IGA is arguably one of the most successful, underappreciated pieces of space law that there is. It governs the partners' cooperation regarding the space station and what happens on the space station. It addresses the design, development, operation, and use of a permanently inhabited civil international station for peaceful purposes.¹² It contains four important bodies of law: jurisdiction, intellectual property, torts, and criminal jurisdiction.

Another important part of the space station agreement—and a fundamental reason why it works—is the very broad cross waivers of liability it codifies.¹³ At the time, it was recognized that no one had ever attempted and accomplished an ISS before, and to a very large degree, a lot of it was experimental.

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If the partners were going to sue one another, it would just get in the way of learning how to use the ISS. Accordingly, it was agreed that the IGA would include broad cross waivers of liability.¹⁴

Short and Near-Term Considerations Where Does Space Begin?

One important consideration regarding space governance is the question of where does space begin? Does that question have to be answered in order to be able to define governance and governance systems? This question has been on the agenda of the U.N. Committee on the Peaceful Uses of Outer Space Legal Subcommittee for over thirty-five years.¹⁵ This provides some insight into how contentious this question can be. The contention arises from the fact that there is no sovereignty in space. Sovereignty is not the legal organizing principle in space as it is on Earth and in airspace.¹⁶

Regarding formally identifying where space begins, some nations say this question must be answered because it will facilitate more efficient space governance. Therefore, an upper limit to sovereignty is needed. Other nations say a formal delimitation between air and space is unnecessary because everything is working well now. Further, a formal upper limit to sovereignty is also unwarranted. There is also a third point of view that attempts to answer the delimitation question but only for scientific purposes. This view proposes using the Kármán line¹⁷ as the boundary between air and space. This third position relies on being able to separate science from politics. The Kármán line is at one hundred kilometers, or sixty-two miles, above sea level.¹⁸ It is based on a calculation by the late physicist Theodore von Kármán. The calculation demonstrates that at one hundred kilometers the atmosphere becomes too thin to support air flight.¹⁹

These arguments will continue to be made. However, there may be some possible movement on the Earth that might eventually be used to identify an emerging practice, if not a clear definition. At the national level, some nationstates are beginning at to at least "flirt" with the possibility of identifying

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where space begins but for different reasons. Australia defines a "space object" as something that goes to or from beyond one hundred kilometers above sea level.²⁰ Denmark defines "outer space" as above one hundred kilometers, or 62 miles, above sea level.²¹ The Colombian Constitution defines its "territory" as extending all the way up to the arc in the geosynchronous orbit²² that is at 35,786 kilometers, or 22,236 miles, above the Earth's equator.

The official national position of the United States is that "defining or delimiting outer space is not necessary . . . because [n]o legal or practical problems have arisen in the absence of such a definition."²³ However, it is interesting to note that under U.S. federal tax law and the tax law and policy of some states, accountants are figuring out where space is for tax purposes. Under U.S. federal law, space is any area not within U.S. jurisdiction.²⁴ In California, a bill was introduced to identify "space" as sixty-two miles or more above the Earth's surface.²⁵ New Mexico has a tax policy that defines "space" as any location beyond 6,000 feet above the sea level.²⁶

Very recently, the U.S. established space as "an independent region overseen by a new unified, geographic combatant command . . ." which begins at "100 kilometers above sea level to . . . infinity."²⁷

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