As private enterprises become increasingly involved in outer space activities in the next century, global cooperation will become more vulnerable and there will be greater need for an international regime or institution to define the commercial use of space.  The current general space treaties do not provide mechanisms for the settlements of three major sources of dispute in this field, namely the special needs of developing countries to share space resources, the potential for military activity in outer space, and the regulation of commercial activity for wealthy nations.  Following the theory of the Concept of the Heritage of Mankind, which helped settle disputes over the High Seas in the 1970s, it is crucial for an international legal system to recognize the same rights of developing nations across the globe in terms of outer space exploitation.  This step would not only help coordination between North and South globes, an important challenge of our time, but allow technical progress for all mankind.

Origins of Space Activity

Space activity originated with the USSR’s first satellites, which were followed by those of the United States in the 1950s.  The first twenty years of space activity were almost exclusively dedicated to exploration and research, with milestones such as the USSR putting the first human in space and the United States putting the first human on the moon.  Recently, space activities have increasingly been developed and implemented to apply space technology to serving people’s needs and demands.  Such examples can be seen in daily world-wide communication and weather information from satellites. In order to expand, these types of services will eventually have to depend on commercialization.  This implies that they will have to depend on private enterprises that are willing to invest in such technically sophisticated fields in order to make profits.  Space technology is thus becoming more indicative of a country’s standing and potential in technical, scientific, and industrial progress. The major kinds of commercial space activities at present are telecommunication, remote sensing and direct broadcasting satellites, transport services both between earth and space and within space, and space activities to obtain solar energy and exploit resources and minerals from the moon and other celestial bodies.

Space law specifically deals with the most effective efforts towards, and successful realization of, these economic and technical demands.  Major international treaties that were formed to address the utilization of outer space are The Outer Space Treaty of 1967 and The Moon Treaty of 1979.  The Outer Space Treaty of 1967 outlines the principles of state activity in the exploration and use of outer space, the moon and other celestial bodies.  The Moon Treaty of 1979 governs state activities on the moon and other celestial bodies.  As of now, highly industrialized countries refuse to ratify this treaty due to its restriction on moon exploitation.  In addition to these global multilateral treaties, treaties for specific commercial fields, such as the INTELSAT, INMARSAT, EUTELSAT and ARABSAT agreements for specialized satellite services, have also been concluded.  In order to assess the adequacy of these treaties in terms of accommodating today’s endeavors in space commercialization, it is necessary to evaluate the extent to which they permit private enterprises to engage in such activities.  In terms of The Outer Space Treaty, it is important to note that none of its provisions use the word “commercial.”  Rather, it defines space activity using the terminology “exploration and the use of outer space.”

Certain law theorists like Van Traa-Engelman and Rosenfield argue that the word “use” can be extended to cover commercial use, so that space activity is not only restricted to only the “exploration” of outer space and celestial bodies.  Others refute this interpretation by pointing to Article I of the Treaty, which claims that space can only be used “for the benefit and in the interest of all countries…and shall be the province of all mankind.”  Authors of this opinion agree with the French delegate that “use” means exploitation, and therefore see this expression as a prohibition on the exploitation, thus commercial use, of outer space. Article VI addresses this issue by stating that activities of non-governmental entities “shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”  The idea that space is a province of mankind, protected from exploitation, traces back to the legal concept of the common heritage of mankind developed in the late 1960s, which revolutionized the domain of public international law.  This notion, which has brought about much intensive debate and controversy over the past decades, questions and reexamines many well-established principles of classical international law, such as acquisition of territory, consent-based sources of international law, sovereignty, equality, resource allocation and international personality.

In his famous manuscript “The Concept of the Common Heritage of Mankind in International Law”, Baslar explores the legal theory and implications of this doctrine by directing it to outer space law, the law of the sea, the law of Antarctica, international environmental law, human rights and general principles of public international law.  He tries to develop a normative framework through which the concept offers alternatives for the governance of the global commons.  So far, this approach has proven successful in several ways, such as at the UN Law of the Sea Convention (LOSC) in 1982. The convention eased the concerns of developing nations regarding wealthy countries’ control of the High Seas by marking the deep seabed, the ocean floor and its resources as common heritages of mankind.  The Moon Treaty parallels this development by providing in Article 11(1) that the moon and its resources are also common heritages of mankind.  Attempts have been made to declare the following other space resources as global commons: meteors, the geostationary orbit, the spectrum of radio-frequencies used for space communication, solar energy, low earth orbits, and Le Grange Spots.  As technology progresses by the minute and the first sign of commercial activity in space seems to get closer everyday, it is increasingly necessary for a legal system to enforce the rights and privileges of all countries regardless of their economic distinctions. This way, the entire international community can equally participate in and contribute to this extraordinary project.

Developing Worlds:  Why should they be involved?

There are several reasons why active efforts must be made to involve developing nations in space activities.  Firstly, since space technology requires the most sophisticated and expensive machinery, developing nations would obviously make little progress, if any at all, by themselves in this field.  Secondly, these nations would be excluded from certain practical space activities from which they would benefit tremendously, such as remote sensing and solar energy. More important than laying out the obvious gains developing countries would get from participating in space activity, is understanding why they are entitled to these rights.

Developing countries, wishing to be more involved in space activity and united in the “Group of 77,” seize upon Section 1 of The Outer Space Treaty to support their claim: “[Exploration and use of outer space must be carried out] for the benefit and in of all countries, irrespective of their degree of economic or scientific development.”  In addition to this Treaty, The Moon Agreement supports the further development of cooperation among states in the exploration and use of the moon and other celestial bodies.  Equal participation in space activity would benefit all nations by preventing the moon from becoming an area of international conflict.  One of the biggest challenges to space law is the growing militarization of outer space.  Political agreements such as these were made to limit and reduce the risks of such activities.  It is these kinds of agendas that wealthy nations, who hold the most influence in decision making processes, must follow when they finally lay out rules for space commercialization.

Aside from potential military and aggressive activity, another source of conflict that will likely emerge is the ability of highly industrialized nations to monopolize certain private sectors in outer space.  Developing nations have already accused them of dominating satellite services in the past.  At a Multilateral Planning Meeting to conduct and plan worldwide satellite services in 1983, developing nations complained that “if the existing practice of ‘first come, first served’ continued to apply to the distribution of radio frequencies and orbital position for space services, there would not be sufficient and appropriate radio frequencies/orbital positions left for them when they were ready to use them.”   These concerns were addressed in March of 1988 by the Legal Subcommittees, which found a compromise in the following rather complicated formula: “…the exploration and utilization of outer space should be carried out for the benefit and in the interest of all states, taking into particular account the need of developing countries.”  This consensus takes Section 1 of The Outer Space Treaty a step further by actually taking the Third World into account, rather than simply guarding them from discrimination. This kind of compromise, which actively involves underprivileged countries in a particular service sector, should be the model for future legal frameworks of private space activity.

Conclusion

Over the past fifty years, the purpose of space activity has moved from exploration to public services and will likely progress to privatization in the next century.  The advancement of space technology is a type of social change to which the law, a dependent variable in this case, must react. Since the legal implications of commercialization are extremely complex and different from those of research and government activities, there needs to be a clearer framework confronting the potential problems in this field.  In order to maintain cooperation in the international arena, nations must recognize outer space resources and celestial bodies as common heritages of mankind which may be privatized under limitation and only for peaceful purposes.  Space privatization should be carefully regulated in order to prevent monopolies, which can be sources of economic injustice and dispute among competing nations, from forming.  Allowing developing countries to utilize space’s valuable resources to counter their states of poverty would promote both cooperation and technological advancement across the entire globe.  Through open dialogue and respect, nations will gradually be able to foster a relationship as they engage in this remarkable human endeavor.

Bibliography

Baslar, Kemal. The Concept of the Common Heritage of Mankind in International Law. The Hague: Martinus Nijhoff Publishers, 1998.

Bockstiegel, Karl-Heinz. “Space law: changes and expectations at the turn to commercial space activities.” Forum International. No. 8, November 1986.

Diederiks-Verschoor, I.H. Ph. “An Introduction to Space Law.” 2nd rev. ed. The Hague. Boston : Kluwer Law International (1999).

Ram, Jakhu. “The Evolution of the ITU’s Regulatory Regime Governing Space Radio Communication Services and the Geostationary Satellite Orbit,” Annals of Air and Space Law, Vol. VIII. (1983): 381-407.

Sarkur, Rumu. “Development Law and International Finance.” (2002): 57-106.

Traa-Engelman, Hanneke Louise van. Commercial Utilization of Outer Space. Dordrech. Boston: M. Nijhoff ; Norwell, MA, U.S.A.: Kluwer Academic Publishers, 1993.

Danielle Vasilescu is an undergraduate student at the University of Pennsylvania majoring in Economics with a concentration in American Public Policy. She will be spending half a year in London at University College of London, where she will study British economic policy and European studies. During her spare time, she sings opera at school and volunteers in senior homes.

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