Last year the US passed a bill that purports to give exclusive rights to US companies to mine asteroids and reap the economic profits of their activities. While I am in full support of encouraging the development of this new industry, the law has divided the space community. There are those who believe it is fully in accordance with the Outer Space Treaty, and those who, like me, believe it is a breach of one of the core tenets of this treaty, that space may not be subject to national appropriation by any means. Earlier this year Luxembourg passed a similar law, stating that it wishes to become the commercial space centre of Europe – only it’s law went a step further, encouraging companies of any nationality to go through Luxembourg to get their property protection.
When the US bill was passed last year I wrote an op-ed that was published in the Ottawa Citizen. It received applause as well as scathing criticism, depending on which camp the respondents belonged to.
The original op-ed is reproduced here:
It might sound like science fiction, but there are companies just across the border in the United States that want to mine asteroids for resources such as gold, silver, iridium and even oxygen in the near future. On Nov. 25 President Barack Obama signed a law in order to enable them to do so, but there is one small problem. This legislation is in breach of international law, and ironically U.S. Congress seems to be fully aware of this.
The Commercial Space Launch Competitiveness Act is the result of some effective lobbying on the part of companies such as Planetary Resources and Deep Space Industries. They understand that they need a regulatory framework within which to operate their cutting edge technologies and start a new resources industry. These companies are investing at high stakes, with estimated costs of $100 billion U.S., and anticipated turnovers of $5 trillion.
The Act passed on Nov. 25 does some important things for the space business world, such as putting in place government and industry collaboration on safety regulations for space tourism, and extending U.S. involvement in the International Space Station through to at least 2024.
But there is one particularly controversial section, which states that any U.S. citizen, which includes U.S. registered companies, shall be entitled to “possess, own, transport, use, and sell (any) asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”
The problem is that the international obligations of the United States include the 1967 Outer Space Treaty, one of the core principles of which is that space, including the Moon and celestial bodies such as planets and asteroids, cannot be owned by anyone; not by states, not by companies, not by individuals. More than 100 other countries including Canada have signed the treaty, Article II of which determines that space shall not be “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” U.S. Congress is not ignorant of this, and the very next paragraph of the new Act says that “the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.”
If asteroids cannot be appropriated by any state, they can also never be owned by a company, and that includes parts of an asteroid that might be extracted. Any notion of property law which would allow a person to possess, use or sell an object, depend upon the existence of a sovereign jurisdiction. The U.S. cannot give away what it does not own.
There are many who argue this new legislation is unproblematic, since extraction of resources from an asteroid does not amount to claiming ownership of that asteroid, and liken this to fishing or extracting oil in the high seas. However, claiming rights to extract or sell part of an asteroid still requires the legal ability to do so. The extraction of resources in the high seas is regulated by the United Nations Convention on the Law of the Sea, and by the Deep Seabed Authority. If we want to support this new entrepreneurship in space, states need to agree on a new international law regime, rather than attempting to circumvent the existing one.
It was clear to everyone that when a U.S. flag was planted on the surface of the Moon in 1969, it was nothing more than symbolic. Perhaps this is another a symbolic move: perhaps U.S. Congress hopes other states will respond by finally coming to the table and negotiating a much needed treaty that would allow this new industry to flourish, while also protecting space the way we protect the high seas.
As of yet there are no Canadian companies entering this commercial space race, but they may well do in the future, and Canada has an interest in the right kind of international legal regime. Without it, we risk a commercial “race to the bottom”, with no environmental protection and no access for less developed nations; this threatens space and its resources the same way our oceans are threatened.
Cross-posted from Intlawgrrls
In the first part of this blog post yesterday, I described the extent to which we are dependent on space technologies for our daily activities, and the role of international law. But what about military activities? Right from the beginning of the space race between the USSR and the USA in the 1960s military technology has been at the forefront, and until recently it was what drove most innovation in space. Indeed, GPS was a US military invention, and they decided to share it’s benefits for civilian use. Intelligence gathering by remote satellite imaging, as well as communications, GPS for aviation and marine operations, and many drone and weapons technologies are highly dependent on high-tech satellite networks. How does international law apply to this 21st century environment?
The notion of “space warfare” may not be something that belongs to a long time ago in a galaxy far, far away; in fact many people refer to the Iraq war in the 1990s and the US-led “Operation Desert Storm” as the first space-led war. There was a significant reliance on satellite imaging and telecommunications as an integral part of that operation. These days most Western naval, air and army units rely on multiple forms of space technology, as do Russia and China. In the last year the US has increased it’s “big data” reliance , making such satellites very precious assets. Recently, North Korea has been launching objects which many worry are not just rockets, but rather anti-satellite weapons. Where space used to be considered the ultimate military “high ground”, it is now accessed by many more States, and if these space assets can be targeted by adversaries, dependence can lead to vulnerability during a conflict.
Worryingly, a recent report on 60 Minutes titled “The Battle Above” painted a fairly dire picture of outer space as a “wild west” when it comes to military activities, asserting that there is essentially no law regulating this new potential battlefield and that it is every country for itself. And even when speaking to people who specialise in “space security”, I have heard many express the concern that military activities in outer space take place in a legal vacuum.
I would beg to differ, and thankfully I am not alone.
Cross-posted from Intlawgrrls
Most of us don’t think about outer space when we think of international law, but the technologies that allow us to expand our exploration and use of our space environment also drive our modern global society, and international law is at the cross section. Our daily activities, from email, phone calls and Facebook to every automatic bank transaction you make, are dependent on satellite technologies. When you take a plane, the air traffic control is dependent on GPS. Even disaster management is dependent on satellite imaging.
In this two-part blog post, I want to introduce the key aspects of why international law matters in outer space, the first part focusing on civilian and commercial activities in space, and the second on military activities.
The space environment is often described as increasingly “congested, contested and competitive“, as was reported to the UN General Assembly’s First Committee (Disarmament and International Security) in 2013.
Congested because there are more and more States becoming “space faring nations”, and more and more satellites are launched each year. Currently there are about 1,200 operational satellites orbiting above us, as well as half a million pieces of “space junk”, including debris from various collisions and left-over rocket pieces, but also decommissioned satellites that have run out of fuel. The film “Gravity”, for all its shortcomings, painted the scenario for us of the risks involved with space debris. Our propensity to trash our natural environment has spread out into space.
Contested because although space is big, our near-Earth environment where satellites can fall into useful orbital paths, is limited. Every space object that is launched must be registered according to the 1974 Convention on Registration of Objects Launched into Outer Space, and in order to “claim” an orbital slot and a frequency band on which to send it’s signals back to earth, and claim a right to non-interference with that slot, satellites must be registered with the International Telecommunications Union (ITU). But the most interesting orbits for internet and communications are geostationary, meaning that a satellite orbits the Earth at the same rate as the spin of the Earth, so that it looks like it’s stationary above one point. These orbits are focused around the equator, but obviously it has not been the Equatorial States who have been launching satellites over the last few decades. Since 1976 these and other developing nations have been protesting that their potential access to space is extremely limited by the over-use of limited natural resources, namely the orbital slots and radio frequencies, by a small number of Western States.
Competitive because as you may have noticed it’s no longer just States launching things into space, and attempting to outdo each other with high value technologies, there are now lots of commercial entities entering the space market. Elon Musk’s visionary SpaceX company has already shuttled supplies to the International Space Station and hopes to shuttle astronauts as well; Richard Branson’s Virgin Galactic enterprise hopes to take tourists into zero-gravity; Google bought a start-up satellite company called Skybox which it intends to use to provide continuous global internet access everywhere on the planet, partly in response to the garnering success of a company called O3B (Other Three Billion), which aims to provide internet to remote and less affluent parts of the world. Telecommunications companies procure, launch and operate satellites at huge costs and with huge insurances to cover possible liability if something goes wrong. Moreover, there are entities showing interest in potential technologies like mining asteroids or the moon for precious resources, and we’re not too far off that becoming a reality.
With technologies developing so rapidly, and the so-called “democratization of space”, how does international law regulate this congested, contested and competitive environment?
While it does not take place in outer space, the 2015 film “Good Kill” is relevant for space law matters because of the satellite technology involved in drone warfare. And it also paints an interesting picture of the weird world in which a war can be fought in a foreign territory, in this case in Afghanistan and Yemen, from a remote control consol in the US.
Set in 2010 and “based on real events”, as it states in the opening sequence, “Good Kill” sets out to demonstrate via popular media something that international lawyers have known for years: the US has committed war crimes during it’s infamous war on terror, and drone technology is in the crossfire of debates surrounding asymmetrical warfare.
The hero, Tom Egan, used to be a fighter pilot but technology has superceded him and he has been relegated to lead a team of drone operators, “flying” the unmanned vehicles which are in Afghanistan from their air conditioned containers in the desert surrounding Las Vegas. There is a painful and no doubt realistic juxtapositon between the high optic images which Egan and his team have from their drones of the targeted kills they make each day, and the return to their suburbian homes each day, to spouse, kids and weekend BBQs. There is no separation between war and the “homefront”, and this leads to increased mental instability in Egan as he questions the point of what he’s doing.
Enter the arc in the story, when the team are given orders by the CIA to begin “signature killings” – something which is known to have taken place, and possibly still does. Where targeted killings are questionable under international law, signature killings are almost certainly illegal: based on patterns of behaviour rather than clear identity, individuals and groups are targeted and killed by drones they cannot even see. One review of classified materials has revealed that the CIA could not confirm the identity of about a quarter of the people killed by drone strikes in Pakistan in 2010 to 2011. In “Good Kill” the orders given also take absolutely no regard of non-combattants in the vicinity, such that neighbours, farmers, mothers holding babies, and children are all calculated collateral damage, and often the deliberate victims of “follow-up” strikes.
One of the weaker points of the film is the simplicity of the script and the characters. On the one hand there are the two protagonists, Egan and new recruit Eva Suarez, both of whom are on the side of the conscious liberal, questioning the legality and morality of orders they are given. On the other hand are their teammates who are depicted as having “kill boner”, and believeing that everything they do is to protect their country against the elements of terrorism, no matter how far away from their homes the targets are. There are many speeches made just in case the audience has missed the very obvious point being made, right down to the quip that the war on terror is as endless and hopeless as the war on drugs.
But besides the simplicity, the film has some important stories to tell. Just as in “The Hurt Locker“, which was made by the same producers, the impossibility of combining a normal life with the realities of combat are brought to the forefront, though now the combatants return to home after a 12 hour shift of looking into a computer-game set-up of the war. And this remote reality also demonstrates that while drones may mean fewer American lives are being lost, the inhumanity of such machine warfare may be just as great, if not greater.
That this is not the future of war, but the “here and now” of war is pointed out by the Colonel in charge of the operations. Often when I talk about the role of space in warfare people imagine lasers and Star Wars like images, but the reality is much more stark. Using drones as remote weapons relies on satellite technology, for the communications and images being relayed back to the US, and even for the signal when the joystick is triggered by an operator, for the missiles or bombs to be released. As well, the position of a drone is determined by GPS, which is entirely satellite dependent. Such technology is so prevalent now, as the Colonel himself points out: drones are everywhere, and they are here to stay.
This prevalence, and the dependence on satellite communications, means that warfare in the hands of the most affluent States is already war through the use of space and”space assets”, even if it’s not war in space. Star Wars is here and now, it just looks different from the sci-fi film version we know. It looks like a video game console.