Transcript Current Status of the UN Space Treaties and the Vienna

SOLAR ENERGY FROM SPACE
“Space Law and Possibilities for an
International Space Treaty”
A presentation by
Prof. Ram Jakhu
Institute of Air and Space Law
McGill University, Montreal, Canada
at
International Symposium on Solar Energy from Space
Ontario Science Centre, Toronto, Canada
Tuesday, September 8, 2009
INTRODUCTION
 One of the objectives of this Symposium is: “To frame a notional international roadmap that
will lead the realization of the (space-based solar power (SSP)) concept”
 My presentation is in that context: i.e. the role of International Space Law and Possibilities for
another International Space Treaty in the realization of SSP concept.
 Donald Rapp correctly points out that: “It is perhaps not an exaggeration to suppose that the
political and legal aspects (of SSP) may be as challenging as technical and economic aspects.”
 Fundamental and undeniable facts:
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Need for energy will grow exponentially in the future (A NEED TO BE MET)
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Access to and use of energy, as an internationally traded commodity, is a grave global concern
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Environmental degradation and adverse climate change are inherently global (A PROBLEM
TO BE SOLVED)
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Space is an international environment, beyond the jurisdiction of any state
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It is believed that the next major international conflict (world war) will be over access to
energy sources and fresh water; i.e. possibility of threat to international peace and security (A
TRAGEDY TO BE AVOIDED)
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Therefore, orderly, economic and efficient construction of a SSP system will have international
implications, involvement, cooperation, coordination, regulation and/or most probably operation.
This can be achieved only through an appropriate international regulatory regime.
“Regime” generally means “a set of mutual expectations, rules and regulations, plans, organizational
energies and financial commitments, which have been accepted by a group of states.” International
regimes are generally created through international treaties under which the participating states
agree to regulate their relationships and to abide by the agreed upon rules.
Space-related matters have been subjected to international space regime created primarily through
the UN sponsored international space treaties and some other agreements. All SSP systems must
comply with this existing regime.
I will briefly list the most important elements of the existing regime (international treaties ) that
are directly applicable and relevant to a SSP system
Sometime, states believe that their interests are well-served if they participate in an international
organization that is created for commercial exploitation of a technological discovery & technical
systems. Such organization is established through a mutually negotiated international treaty.
I will briefly address the issue of the need and possibility of an international space treaty in order to
jointly develop, construct and commercially operate a SSP system.
Existing international space treaties
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space activities must be carried out for the benefit and in the interests of all countries and shall be
the province of all mankind (a SSP system must somehow benefit all countries)
space is free for exploration and use by all states, without discrimination of any kind
a state (including its private companies) must not appropriate space by any means (capturing of
solar energy is not appropriation; but use of a GEO position for a long time might be defacto
appropriation)
a state (including its private companies) must carry out space activities in the interest of maintaining
international peace and security and promoting international co-operation and understanding.
(conflicts must be avoided)
states are prohibited from placing in space nuclear weapons or other weapons of mass destruction.
states bear international responsibility for space activities of their public entities and private
companies. (private space companies must procure appropriate licenses from their governments)
states are internationally liable for damage caused by a space object of its public entity or private
company to a foreign state or to its persons (absolute liability, if damage is caused on the Earth or
to an aircraft in the air; faulty liability if damage is caused in outer space)
a state (including its private companies) must (a) carry out its space activities with due regard to
the corresponding interests of all other states, and (b) avoid harmful contamination of outer space
and celestial bodies and also adverse changes in the environment of the Earth
Other existing international treaties
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ITU Constitution and Radio Regulations: Are applicable to radio frequencies for noncommunication purposes (i.e. microwaves for transmission of energy from GEO)
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Radio frequencies and GEO positions must be coordinated through and registered with ITU.
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Access to & use of RF and GEO are available on a ‘first-come, first-served’ basis; late comers must
coordinate with earlier users; first comers are under no obligation to accommodate late comers
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2.45 GHz frequencies for SSP system, but this use should be made exclusive; need for technical
standards for avoidance of harmful interference and adverse impact on environment and humans.
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ICAO Convention and Regulations: There will be an exponential increase in traffic to and from
space for the construction of SSP system(s). It is important to carry out orderly and safe space and
air traffic; thus ICAO should be mandated for aerospace traffic management rules & safety standards.
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There is no need to change the existing space treaties and perhaps they will not be modified for a few
decades. They must be complied with for the construction of any SSP system.
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Others existing treaties need to be expanded to address specific requirements of SSP system(s).
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Challenge will be posed by requirement of compliance with non-binding international Space Debris
Mitigation Guidelines (2007). Space debris problem is being recognized as a very serious
impediment for safe and successful space operations. Construction of an extremely large facility
like SSP system undoubtedly holds great potential for creation of significant amount of space debris
in GEO, where junk will stay for hundreds of thousands, if not millions, of years.
Construction & use of a SSP system?
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Unilateral national approach might be taken because of:
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national prestige, national security, national economic and technological benefits; and
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multinational cooperation is perceived to be complex, time consuming, reduces flexibility, involve
multiple political constraints; there might be a possibility of leakage of advanced technology
especially to adversaries, (ITARs) etc.
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However, a treaty creating an international organization for multinational participation might
(should) be preferred because of:
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necessity for sharing the prohibitive cost (estimated from $100 billion to $1 trillion). The major
segment of such cost is the launch of materials and robots (and possible humans) to GEO. This
expense could be shared with low cost space transport service providers, like China, India
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expansion of market for energy. Growth of demand in developing countries, like Brazil, China,
India etc. If a SSP system is only owned-operated by the US, others will not let the American
monopoly go unchallenged.
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it is unclear as to how many SSP systems can be constructed, but more systems will place serious
demands on the availability of highly scarce resources of radio frequencies and GEO positions; also
might create more space debris.
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use of fossil fuels causes environmental degradation and adverse climate change which negatively
affects both the polluter and non-polluter nations alike; thus all should be allowed and encouraged
to use clean and green energy sources, like SSP
there is a perception that a national SSP system could be used for military purposes; such
perception could be cleared or mitigated by allowing all countries to participate in the
construction, ownership and use of the system
liability for damage caused by a space object (including debris) could be shared with other partners
and avoided among participants by making a provision in the application treaty for ‘cross-waiver of
liability’ (e.g. ISS). Under this provision, all partners agree not to make a claim for any damage.
This is a major tool for risk management and for reducing cost for construction and operation of a
SSP system
constituting treaty might have a quick dispute settlement mechanism; thus avoid lengthy and
expensive litigations
international antagonism might be avoided and international cooperation could be enhanced by
multinational participation; such cooperation would be necessary for adopting new rules for SSP
systems in ITU, ICAO and others
multinational participation through international organization would be considered effective
implementation of the cardinal principle of space law that space activities must be carried out for
the benefit and in the interests of all countries.
Self-interest in international organization
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International organization for the construction and operation of a SSP system will be in the self-interest of the US
(or of any other nation that might think of having national system)
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This will show US leadership (not dominance); create friendly relations with all participating countries; avoid
conflict; and help develop national technological capability (as was achieved through INTELSAT)
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Model For An International Organization: Various models are proposed; however I prefer an international body
like the International Satellite Telecommunications Organization (INTELSAT) (also is INMARSAT)
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Created as an interim body in 1964 at the initiative of the US and was made permanent in 1971
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Had international legal personality (not subject to any national jurisdiction) and the role of participating states was
limited to providing advice only
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Financial participation was by private or public national telecom operating entities (shareholders)
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Governing board represented the shareholders and managed the construction and operation of satellite system
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The Board was based on a corporate model in which the directors we entitled to weighted votes according to
their respective financial contributions
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The level of financial contributions was determined on the basis of actual use of the system by each shareholder
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“INTELSAT's aim was to achieve a single global commercial system as part of an improved global
telecommunications network which will provide expanded services to all areas of the world and contribute to
world peace and understanding.”
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The organization became highly commercially successful consortium of over 100 states operating a fleet of over 50
GEO satellites. In 2002, it was ‘privatized’ (actually de-internationalized & placed under the US jurisdiction)
Next first steps
 INTELSAT was based on international policy adopted by the United Nations
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General Assembly under its Resolution 1721 D unanimously adopted on of 20
December 1961:
‘that communications by means of satellites should be available to the nations of the
world as soon as practicable on a global and non-discriminatory basis”
For SSP purposes, a similar resolution should be adopted perhaps stating that :
‘that space-based solar power should be available to the nations of the world as soon
as practicable on a global and non-discriminatory basis” (Canada should take a lead
in presenting a draft of such resolution to the UN COPUOS)
The US initiated the formulation of the international treaty that created INTELSAT
with a statement by President J.F. Kennedy made on July 24, 1961:
“I again invite all nations to participate in a communication satellite system, in the
interest of world peace and closer brotherhood among peoples throughout the
world.”
It will be good if President B. Obama is persuaded to make a similar policy initiative
with respect to space-based solar power system.
Conclusions-Messages
 Construction of a SSP system will have international implications, involvement,
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cooperation, coordination, regulation and/or most probably operation.
Current international regime, in the form of five UN space treaties, that will continue
apply to SSP systems, seems for the time being to be appropriate & sufficient; it needs no
immediate change and perhaps will not be modified for few decades.
However, others treaties, like the ITU and ICAO, need to be adapted and expanded to
meet specific requirements of SSP systems.
For commercial operation of SSP system(s), an international organization, preferably like
the INTELSAT (before its privatization), should be established through an international
treaty open to participation by all nations. Rationale for such action is that in the future:
There will be a clear global need for extensive energy resources that must be met
There will be a serious global problem of environmental degradation and adverse climate
change that must be resolved
There will be a strong possibility of occurrence of a serious tragedy of a major
international conflict that must be avoided
Thank You For Your Attention !!!