Boldly Going Together? How Developing States Are Left Out of Space Activities

 

Dan St. John[1]

On October 4, 1957, a beach ball-sized metal sphere named Sputnik blasted into orbit and opened the eyes of the world to a new frontier of scientific and technological exploration.[2] The 1960s was a decade of rapid advances in space technology as countries launched larger, manned rockets and attempted more ambitious space missions.[3] Events of 1960s also changed international law as jurists scrambled to create a legal regime addressing the unique properties of outer space. Because of rapid scientific and technological strides, the law of outer space developed quickly and was influenced by the contemporary activities.[4]

Jurists quickly cobbled together a legal framework for space based on general principles of international law.[5] However, “an automatic extension to outer space and celestial bodies of international law” would not work because general international law issues do not address all of outer space’s unique needs.[6] Jurists, therefore, analogized from other international law principles when possible[7] and crafted new rules when not.[8] In 1967, after several years of debate,[9] the Outer Space Treaty was opened for signature.[10] It provided a basic framework around which space law is structured. That framework was clarified with four treaties governing specific issues in outer space[11] and six General Assembly non-binding resolutions[12] outlining principles of international law in outer space (collectively, “documents”).[13]

Developing States and Space Law

Developing states were largely left out of the creation of space law.[14] As a result, there are few accommodations in space law documents providing meaningful guarantees of inclusion.[15] Although ideas of international cooperation are in all space treaties and principles, this has little practical effect.[16] In 1996, the General Assembly directly addressed this concern by adopting the Declaration on International Cooperation for space activities.[17] This declaration reiterated ideals of international cooperation for the benefit of mankind while emphasizing “[p]articular account should be taken of the needs of developing counties”[18] and that space activities should “consider the appropriate use of space applications and the potential of international cooperation for reaching [developing states’] development goals.”[19]

Space technologies must be a part of developing states’ economic development schemes. Coupled with traditional economic development programs, space technology can bolster development goals with advances, for example, in pharmaceuticals, building materials, and food management.[20] However, despite the recommitment to developing states’ needs and interests, there has been little in the way of meaningful extra-terra cooperation. The main barrier is the staggering cost of becoming a space-faring state; if not addressed, developing states will be unable to share the benefits derived from space activity.[21] Addressing this barrier requires developed states to abide by space law principles by including developing states in meaningful space activities.[22]

Solutions for Inclusion: Going Boldly Together

Reading the space law documents, one imagines a unified global effort to explore the stars. An international organization would coordinate space missions and distribute the benefits derived from technologic and scientific advances equitably among developed and developing states.[23] However, the earthly pressures of international relations and economics weigh heavily on the wings of a truly global space effort.

1. World Space Organization

Early space law developed in an era of cooperation.[24] Scientists and other academics, fearful of the militarization of space due to the Cold War, met at conferences to collaborate and build cross-border relationships.[25] Other field-specific international organizations, such as the World Meteorological Organization, International Telecommunications Union, and International Civil Aviation Organization, provided blueprints off which space law jurists could design a World Space Organization.[26] In fact, the United Nations established the Committee for the Peaceful Uses of Outer Space (COPUOS) in 1959 as a platform for scientific, technical, and legal deliberation.[27] But COPUOS is not a space agency and, despite an early framework and successful models, a World Space Organization is unlikely to form in the near future.[28]

Today outer space cooperation with developing states is based on bilateral agreements and a few regional organizations.[29] In developed states, national pride and security stymie cooperation while economics hinder developing states’ efforts.[30] Bilateral agreements with developing states general involve launching a satellite[31] or leasing and operating satellite tracking facilities.[32] From these activities, developing states can negotiate scientific and technological exchanges and play a role in operating the equipment.[33]

Regional space organizations have a role in supporting developing states because they are politically easier to form and still allow states to capture the benefits of cooperation.[34] Arabsat, founded in 1976 as the Arab League’s telecommunications network, is a successful regional organization created by developing states.[35] The Association of Southeast Asian Nations (ASEAN) seems a prime candidate for the next regional space organization in the developing world.[36] However, despite regional cooperation and the myriad bilateral agreements, the technological gap between space-faring states and aspiring developing states continues to grow.[37]  

2. Favorable Market Conditions

Because outer space is not easily accessible to all, special considerations must be made to include developing states. Even a minor space mission is a significant portion of a developing state’s annual budget.[38] Professor Ghidini argues that space research does not conform to traditional notions of “free competition” because international programs are available only to the “happy few” sponsors.[39] Space-faring states must be compelled to include developing states.[40] Cooperation on terms beneficial to developing states, therefore, is essential for their meaningful inclusion.[41]

Space-faring states, however, cannot be forced to cooperate with developing states. Outer space activities cannot be mandated by an international regime and must operate according to market forces.[42] Not only will forced cooperation create a disincentive for expensive space missions, it could also stifle competition and weaken intellectual property protections.[43] An incentive structure that protects space research’s return on investment while keeping developing states’ economic development goals in mind is the most efficient model.[44] Current bilateral agreements can operate on this market-based model. Satellite tracking facility agreements, for example, often provide information and research from the space activity in exchange for the facility’s presence.[45]  

3. Remote Sensing: Outside Looking In

Remote sensing, simply put, is observation. In space law, it involves instrument-based data collection of the properties of Earth’s surface through the use of satellites.[46] These satellites orbit Earth and, with an array of sensors from simple cameras to complex microwave radiometers, collect information for use on Earth.[47] This section will first address the General Assembly resolution on the principles of remote sensing[48] and resulting challenges. Then, it will discuss the myriad uses of remote sensing data for economic development.[49]

The Remote Sensing Resolution is one of the UN’s non-binding “soft law” documents focusing on sustainable development through the lens of space technology.[50] In addition to the standard “cooperation” and “benefit of mankind” language,[51] the Resolution promotes protection of natural resources[52] and cooperation in response to natural disasters.[53] Although touching on other issues, the Remote Sensing Resolution, by “incorporat[ing] within its scope . . . the sustainable development objectives,” is predominantly an economic development instrument.[54] Problems, however, arise when the principle is applied to developing states. Remote sensing data is generally gathered by commercial ventures and sold at market prices.[55] Notable exceptions are NASA-USAID[56] and ESA-World Bank[57] partnerships that provide data to inform economic development programs. Otherwise, developing states, acutely sensitive to cost, must acquire remote sensing data from commercial sources.[58]

Remote sensing data has applications in natural resource development, planning, and human rights monitoring. This information is “of tremendous value to national economic planning” because it facilitates efficient use.[59] For natural resource management, remote sensing data tracks changes in a state’s environment.[60] Satellites can map a state’s topography and mineral deposits, which can be used in efficient resource exploitation and urban planning.[61] Satellite images help planners manage explosive urban growth.[62] Landsat, the US Geological Society’s satellite network, provides census, growth, and landscape management data.[63] A new, exciting use of remote sensing is to enforce human rights laws.[64] Organizations, like the Satellite Sentinel Project, buy satellite time to monitor areas where human rights violations are suspected and report any violations.[65] These uses of remote sensing data provide the information necessary to make informed decisions about sustainable development plans.[66]

Conclusion

Although a globally united space exploration program has yet to materialize, cooperation is far from dead. Bilateralism is the cooperative mode of choice for today’s day-to-day space activities—launching,[67] satellite development,[68] and remote sensing.[69] Developing states, building off past successes with concrete benefits, should focus on remote sensing to get the most value from space technology. In addition to the direct development benefits, remote sensing is less expensive than other space activities[70] and there is already significant international cooperation.[71]

Cooperation in space is bound to grow. The retirement of the US Space Shuttle program leaves one of the most active space-faring states without an orbital vehicle.[72] This forces the US to buy space on Russian rockets in the short run and will likely spur commercial space projects in the long run.[73] A new set of international principles must be formed to address commercial space activities and space tourism.[74] Although jurists will be unable to anticipate all technological changes, space law and policy should shift away from its aspirationalist beginnings[75] and mold into a legal regime creating a framework for 21st century space exploration that includes and addresses developing states’ needs.

 


 

[1] J.D. Candidate, 2013, University of Denver Sturm College of Law, Founding President of the Space Law Society.

[2] Steve Garber, Sputnik and the Dawn of the Space Age, NASA (Oct. 10, 2007), http://history.nasa.gov/sputnik/ (last visited Nov. 21, 2011).

[3] Manfred Lachs, The Law of Outer Space 1-3 (1972).

[4] See Bin Cheng, The 1967 Space Treaty, in Studies in International Space Law 215, 216-17 (1997).

[5] Lachs, supra note 3, at 15.

[6] Id. (internal quotation marks omitted).

[7] Henry Hertzfeld, The “Law of Outer Space” is at a Crossroads: Current and Future Issues in International Space Law, 15 ILSA J. Int’l & Comp. L. 325, 327 (2009) (listing sources and inspirations for space law principles).

[8] See Lachs, supra note 3, at 15 n.9.

[9] For a detailed account of the drafting of the Outer Space Treaty, see generally Cheng, supra note 4, at 215-85.

[10] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].

[11] Treaties cover the following topics: astronauts, liability, registration of space objects, and use of the Moon. Hertzfeld, supra note 7, at 328-29.

[12] Id. at 329-30.

[13] For a thorough account of the development of space law from 1961 to the present, see generally Bin Cheng, The United Nations and the Development of International Law Relating to Outer Space, in Studies in International Space Law 150, 150-62 (1997) and Stacey L. Lowder, Comment, A State’s International Legal Role: From the Earth to the Moon, 7 Tulsa J. Comp. & Int’l L. 253, 254-57 (1999).

[14] Developing states sometimes play the role of intermediary and consensus-builder, for example when Brazil successfully proposed an alternate draft resolution to overcome a deadlock. See, e.g., Cheng, supra note 13, at 155.

[15] Paul Henry Tuinder & Tanja Masson-Zwaan, Space Law Training and Education, in Outlook on Space Law over the Next 30 Years 285, 290 (Gabriel Lafferranderie & Daphne Crowther eds., 1997) [hereinafter Space Outlook].

[16] See Chukeat Noichim, International Cooperation for Sustainable Space Development, 31 J. Space L. 315, 324 (2005).

[17] Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, G.A. Res. 51/122, U.N. Doc. A/RES/51/122 (Dec. 13, 1996).

[18] Id. at para. 1.

[19] Id. at para. 6.

[20] See Gustavo Ghidini, Transfer of Technology Developed in Outer Space to Third World Countries, in Space Outlook, supra note 15, 285, 296.

[21] See id.

[22] See, e.g., Outer Space Treaty, supra note 10, at art. 1, ¶ 1 (“The exploration and use of outer space . . . shall be carried out for the benefit . . . of all countries, irrespective of their degree of economic . . . development”) (emphasis added).

[23] See Simone Courteix, Towards a World Space Organization?, in Space Outlook, supra note 15, at 423, 425-27.

[24] See Lachs, supra note 3, at 27-28.

[25] See id.

[26] See id. at 29.

[27] Id. at 30-31.

[28] But see Courteix, supra note 23, at 423-27 (arguing a World Space Organization could form and laying out a basic framework for the organization).

[29] See Noichim, supra note 16, at 336.

[30] Cf. id. at 330 (listing benefits of cooperation in space juxtaposed with national interests).

[31] See Jeff Foust, Space Technology and the Developing World, The Space Review (Oct. 27, 2003), http://www.thespacereview.com/article/54/1 (last visited Nov. 21, 2011) (describing the Russian launch of a Nigerian satellite).

[32] Ornella Ferrajolo, Launch and Tracking Stations: The “San Marco-Malindi” Case, in Space Outlook, supra note 15, at 273, 280.

[33] Id. at 281.

[34] See Noichim, supra note 16, at 335-36.

[35] About Us, Arab Satellite Communications Organization, http://www.arabsat.com/pages/AboutUs.aspx (last visited Nov. 21, 2011).

[36] See Doo Hwan Kim, The Possibility of Establishing an Asian Space Agency, 5 Sing. J. Int’l & Comp. L. 214 (2001).

[37] See Noichim, supra note 16, at 338.

[38] See, e.g., Foust, supra note 31. Nigeria’s micro-satellite, a $13 million investment, is a significant portion of Nigeria’s $3 billion annual budget.

[39] See Ghidini, supra note 20, at 270 (arguing against a “free market” approach to cooperation in outer space).

[40] See id. at 271-72 (arguing for a compulsory licensing scheme allowing developing states to share the benefits of research done in outer space).

[41] See id. at 270.

[42] See Yun Zhao, An International Space Authority: A Governance Model for a Space Commercialization Regime, 30 J. Space L. 277, 290 (2004).

[43] See id. at 289.

[44] See id. at 291.

[45] See, e.g., Ferrajolo, supra note 32, at 281.

[46] See generally Nicholas Short, Remote Sensing Tutorial, http://rst.gsfc.nasa.gov/ (last visited July 17, 2011).

[47] For a thorough introduction to sensor equipment, see Nicholas Short, Sensor Technology, Remote Sensing Tutorial, http://rst.gsfc.nasa.gov/Intro/Part2_5a.html (last visited July 17, 2011).

[48] Principles Relating to Remote Sensing of the Earth from Space, G.A. Res. 41/65, U.N. Doc. A/RES/41/65 (Dec. 3, 1986) [hereinafter Remote Sensing Resolution].

[49] See Sergio Marchisio, Remote Sensing for Sustainable Development in International Law, in Space Outlook, supra note 15, at 335.

[50] See id. at 336.

[51] Remote Sensing Resolution, supra note 47, at principle II (“. . . activities shall be carried out for the benefit and in the interests of all countries . . . taking into particular consideration the needs of the developing countries”).

[52] Id. at principle X.

[53] Id. at principle XI.

[54] See Marchisio, supra note 49, at 339 (internal quotation marks omitted).

[55] For an explanation of the remote sensing data pricing schemes, see Cheng, Legal and Commercial Aspects of Data Gathering by Remote Sensing, in Studies in International Space Law, supra note 4, at 572, 588-89.

[56] NASA and USAID will use remote sensing data to address development challenges in developing states. See Press Release, NASA, NASA and USAID Pledge to Advance International Development with Science and Technology (Apr. 25, 2011), available at http://www.nasa.gov/home/hqnews/2011/apr/HQ_11-123_NASA_USAID.html.

[57] ESA and the World Bank will use remote sensing technology to monitor the effects of climate change in developing states. See ESA and World Bank Move Towards Closer Collaboration, European Space Agency (Dec. 15, 2009), http://www.esa.int/esaCP/SEMOJK9K73G_index_2.html.

[58] See I.H.Ph. Diederiks-Verschoor, Implications of Commercial Activities in Outer Space, Especially for the Developing Countries, 17 J. Space L. 115, 123 (1989).

[59] See Cheng, supra note 55, at 587.

[60] See Diederiks-Verschoor, supra note 58, at 120. For example, Malaysia uses satellite data to better manage its forests. See Satellites Keep Forest Management in Check, RedOrbit (July 13, 2011, 2:31 PM), http://www.redorbit.com/news/space/2078595/satellites_keep_forest_management_in_check/index.html?source=r_space.

[61] See Cheng, supra note 55, at 586-87.

[62] See, e.g., Gerardo Bocco et al., Remote Sensing and GIS-Based Regional Geomorphological Mapping – A Tool for Land Use Planning in Developing Countries, 39 Geomorphology 211 (2001) (on file with author).

[63] See Applications, Landsat, http://landsat.gsfc.nasa.gov/about/appl.html (last visited July 17, 2011).

[64] See Peter N. Spotts, Monitoring Human Rights? Get a Satellite, Christian Science Monitor (June 22, 2006), http://www.csmonitor.com/2006/0622/p03s03-usfp.html.

[65] See Satellite Sentinel Project, http://www.satsentinel.org/ (last visited Nov. 21, 2011).

[66] See Diederiks-Verschoor, supra note 58, at 122.

[67] See, e.g., Foust, supra note 31.

[68] See, e.g., Press Release, Roscosmos, Russia and Kazakhstan Sign Agreement on KAZSAT-2 Development and Launch (July 16, 2011), available at http://www.federalspace.ru/main.php?id=2&nid=12001.

[69] See, e.g., Diederiks-Verschoor, supra note 58, at 122 n.28 (listing memoranda of understanding between the United States and other states for remote sensing data sharing).

[70] See Foust, supra note 31 (arguing developing states should focus on space technologies that more directly impact their economic development).

[71] See Diederiks-Verschoor, supra note 58, at 126.

[72] Robert Lee Hotz, Shuttle’s Last Flight Leaves Russia with Space Monopoly, Wall St. J., July 7, 2011, at A1.

[73] See id.

[74] See generally Zhao Yun, A Legal Regime for Space Tourism: Creating Legal Certainty in Outer Space, 74 J. Air L. & Com. 959 (2009).

[75] See Gerardine Meishan Goh, Softly, Softly Catchee Monkey: Informalism and the Quiet Development of International Space Law, 87 Neb. L. Rev. 725, 731-32 (2009).