Legal Challenges Posed by Non-State Actors in Outer Space

LEGAL CHALLENGES POSED BY THE ACTION OF NON- STATE ACTORS IN OUTER SPACE George D. Kyriakopoulos Lecturer in international Law, School of Law, National and Kapodistrian University of Athens

THE PROGRESSIVELY INCREASING INVOLVEMENT OF NON-STATE ENTITIES IN INTERNATIONAL RELATIONS HAS LED, IN RECENT YEARS, AN INTENSE DEBATE ABOUT THE ROLE OF THE SO-CALLED NON- STATE ACTORS (NSAS) IN SHAPING MODERN INTERNATIONAL LAW A NON-STATE ACTOR IS AN ENTITY THAT IS NOT A STATE UNDER INTERNATIONAL LAW IGOS, NGOS, MULTINATIONAL CORPORATIONS, REBEL GROUPS, TERRORIST ORGANIZATIONS, CIVIL SOCIETY ORGANIZATIONS, CORPORATIONS, INDIVIDUALS

NSAS INEVITABLY AFFECT SPACE LAW, WHICH WAS INITIALLY MODELED BY STATE ACTION THIS STATE DOMINANCE WAS, INTER ALIA, REFLECTED IN ARTICLE VI OST ARTICLES VII OST, 2-3 LIAB, WHICH ESTABLISH STATE RESPONSIBILITY AND LIABILITY FOR OS ACTIVITIES

NSAS IN OUTER SPACE: - UNIVERSITIES (CAPACITY TO BUILD SATELLITES); -INDIVIDUALS (TOURISM); -SATELLITE COMMUNICATIONS ORGANISATIONS (ITSO, IMSO, EUTELSAT IGO); - IGOS (ESA); - PRIVATE COMPANIES (COMMERCIAL ACTIVITIES); - POTENTIAL TERRORISTS

FOCUS ON NSAS IN OS: A) NOTE THEIR INCREASINGLY IMPORTANT ROLE IN SPACE ACTIVITIES B) REFLECT ON EMERGING CHALLENGES THAT NSAS IMPLY FOR THE LAW OF OS

I. ORGANISATIONS (IGOS, NGOS) ENGAGED IN OUTER SPACE ACTIVITIES - UNGA, UNCOPUOS FUNDAMENTAL PRINCIPLES OF SPACE LAW, FIVE OS TREATIES - INTELSAT, INMARSAT, EUTELSAT SATELLITE TELECOMMUNICATIONS - ESA SPACE RESEARCH, TECHNOLOGY, APPLICATIONS

I. ORGANISATIONS (IGOS, NGOS) ENGAGED IN OUTER SPACE ACTIVITIES DESPITE THEIR CONTRIBUTION TO SPACE ACTIVITIES - SPACE LAW, SPACE ORGANIZATIONS ARE NOT CONSIDERED PER SE AS LAWMAKERS, SINCE THEIR PRACTICE ESSENTIALLY CORRESPONDS TO A COLLECTIVE PRACTICE OF THEIR MEMBER STATES LITTLE IGO ACTIVITY CAN BE DEPLOYED WITHOUT STATES CONSENT. IGO S PRACTICE[S] MUST BE VIEWED AS JOINT STATE PRACTICE OF ITS MEMBER STATES

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY COMMERCIAL LAUNCH REVENUES WORLDWIDE AMOUNTED TO AN ESTIMATED $2.45 BILLION. THE U.S. COMMERCIAL SPACE TRANSPORTATION INDUSTRY AND THE INDUSTRIES IT ENABLED, INCLUDING SATELLITE MANUFACTURING AND SERVICES, WAS RESPONSIBLE FOR GENERATING NEARLY $208.3 BILLION IN ECONOMIC ACTIVITY IN THE UNITED STATES. THAT LEVEL WAS EXPECTED TO GROW IN THE FUTURE

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY U.S. COMMERCIAL SPACE LAUNCH ACT OF 1984 THE GENERAL WELFARE OF THE UNITED STATES REQUIRES THAT THE ADMINISTRATION SEEK AND ENCOURAGE, TO THE MAXIMUM EXTENT POSSIBLE, THE FULLEST COMMERCIAL USE OF SPACE AT THAT TIME, THE ACT FACED ONLY UNMANNED LAUNCH ACTIVITIES, AS THERE WAS STILL NO QUESTION ABOUT ABOUT HUMAN SPACE FLIGHT. FURTHER, THE ACT ALSO DIRECTS THE FAA (THROUGH DELEGATIONS) TO ENCOURAGE, FACILITATE, AND PROMOTE COMMERCIAL SPACE LAUNCHES AND REENTRIES BY THE PRIVATE SECTOR, INCLUDING THOSE INVOLVING SPACE FLIGHT PARTICIPANTS (51 U.S.C. 50903)

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY COMMERCIAL SPACE LAUNCH AMENDMENTS ACT OF 2004 SPACE TRANSPORTATION IS INHERENTLY RISKY, AND THE FUTURE OF THE COMMERCIAL HUMAN SPACE FLIGHT INDUSTRY WILL DEPEND ON ITS ABILITY TO CONTINUALLY IMPROVE ITS SAFETY PERFORMANCE 51 USC CH. 509 (FORMERLY THE COMMERCIAL SPACE LAUNCH ACT OF 1984, AS AMENDED) TITLE 51 NATIONAL AND COMMERCIAL SPACE PROGRAMS CHAPTER 509 COMMERCIAL SPACE LAUNCH ACTIVITIES THE SECRETARY OF TRANSPORTATION S LICENSING AUTHORITY HAS BEEN DELEGATED TO THE ADMINISTRATOR OF THE FAA AND FURTHER ASSIGNED TO THE ASSOCIATE ADMINISTRATOR FOR COMMERCIAL SPACE TRANSPORTATION (AST)

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY 51 U.S.C. 50901 50923: FAA/AST TO OVERSEE, AUTHORIZE, AND REGULATE BOTH LAUNCHES AND REENTRIES OF LAUNCH AND REENTRY VEHICLES, AND THE OPERATION OF LAUNCH AND REENTRY SITES WHEN CARRIED OUT BY U.S. CITIZENS OR WITHIN THE UNITED STATES 50909: SECRETARY OF TRANSPORTATION TO PROHIBIT, SUSPEND, OR END THE LAUNCH OR REENTRY OF A VEHICLE LICENSED IF THE OPERATION IS DETRIMENTAL TO THE PUBLIC HEALTH AND SAFETY OR A NATIONAL SECURITY OR FOREIGN POLICY INTEREST OF THE UNITED STATES

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY 51 U.S.C. 50905 THE HOLDER OF A LICENSE OR A PERMIT MAY LAUNCH OR REENTER A SPACE FLIGHT PARTICIPANT ONLY IF THE SPACE FLIGHT PARTICIPANT HAS PROVIDED WRITTEN INFORMED CONSENT TO PARTICIPATE IN THE LAUNCH AND REENTRY AND WRITTEN CERTIFICATION OF COMPLIANCE WITH ANY REGULATIONS PROMULGATED 51 U.S.C. 50914 LICENSEE MUST OBTAIN LIABILITY INSURANCE TO COMPENSATE FOR THE MAXIMUM PROBABLE LOSS FROM CLAIMS BY A THIRD PARTY OR THE US GOVERNMENT AGAINST A PERSON FOR DAMAGE OR LOSS TO GOVERNMENT PROPERTY RESULTING FROM AN ACTIVITY CARRIED OUT UNDER THE LICENSE

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY 50914(B) PROVIDES FOR AN OBLIGATORY CROSS-WAIVER OF LIABILITY INTER PARTES: (B) RECIPROCAL WAIVER OF CLAIMS. (1)(A) A LAUNCH OR REENTRY LICENSE ISSUED OR TRANSFERRED UNDER THIS CHAPTER SHALL CONTAIN A PROVISI ON REQUIRING THE LICENSEE OR TRANSFEREE TO MAKE A RECIPROCAL WAIVER OF CLAIMS WITH APPLICABLE PARTIES INVOLVED IN LAUNCH SERVICES OR RE ENTRY SERVICES UNDER WHICH EACH PARTY TO THE WAIVER AGREES TO BE RESPONSIBLE FOR PERSONAL INJURY TO, DEATH OF, OR PROPERTY DAMAGE OR LOSS SUS TAINED BY IT OR ITS OWN EMPLOYEES RESULTING FROM AN ACTIVITY CARRIED OU T UNDER THE APPLICABLE LICENSE. (B) IN THIS PARAGRAPH, THE TERM "APPLICABLE PARTIES" MEANS (I) CONTRACTORS, SUBCONTRACTORS, AND CUSTOMERS OF THE LICENSEE OR TRANSFEREE; (II) CONTRACTORS AND SUBCONTRACTORS OF THE CUSTOMERS; AND (III) SPACE FLIGHT PARTICIPANTS (CEASES TO BE EFFECTIVE SEPTEMBER 30, 2025).

II. COMMERCIAL HUMAN SPACEFLIGHT COMMERCIAL SPACE LAUNCH INDUSTRY US DOMESTIC LEGISLATION FACE THE ABSENCE OF PERTINENT INTERNATIONAL REGULATIONS INTERNATIONAL SPACE LAW DOES NOT PROVIDE FOR A DETAILED AND COMPREHENSIVE REGULATION OF SAFETY IN OUTER SPACE, AS AIR LAW DOES, IN THE CONTEXT OF WHICH SAFETY OF AIRCRAFT AS WELL AS AIR TRAFFIC MANAGEMENT ARE REGULATED IN DETAIL BY THE RESPECTIVE PROVISIONS OF THE ICAO (ANNEXES 2,6, 8, 11, 13, 18) OBLIGATION FOR LIABILITY INSURANCE CLEARLY OPERATES TO THE DISCHARGE OF THE STATE FROM ANY LIABILITY, WHEREAS IN AVIATION LAW THE LIABILITY OF THE OPERATOR/CARRIER IS ESTABLISHED (1952 ROME CONVENTION, 1929 WARSAW CONVENTION, 1999 MONTREAL CONVENTION)

III. SPACE TERRORISM A SCENARIO FOR THE FUTURE. AFTER 9/11, FEARS THAT THE SPACE SHUTTLE COULD BE THE TARGET OF A TERRORIST ATTACK ESPI REPORT: NEW THREATS ARE NO LONGER COMING FROM OTHER STATES BUT FROM NON-STATE ACTORS AS WELL TERRORIST OPTIONS: SATELLITE JAMMING; LASER OR DIRECT ENERGY ATTACKS ON SATELLITE SENSORS; USE OF DIRECT ASCENT AND ORBITAL WEAPONS AS WELL AS DIRECT ENERGY BEAMS; USE OF A NUCLEAR EXPLOSION AT AN ALTITUDE OF 250 KILOMETRES IN LEO, CREATING EMP

III. SPACE TERRORISM POSSIBLE LEGAL RESPONSES AGAINST SPACE TERRORISM: A) ESTABLISHMENT OF A PREVENTIVE INTERNATIONAL LEGAL FRAMEWORK, WHICH WOULD INVOLVE THE PREPARATION OF SPACE MISSIONS AS WELL AS THE MANUFACTURING OF SPACE OBJECTS B) THE ADOPTION OF AN INTERNATIONAL CRIMINAL LAW CONVENTION ON THE SECURITY OF SPACE ACTIVITIES, MODELED ON THE 1970 HAGUE CONVENTION AND/OR THE 1971 MONTREAL CONVENTION STRONG LEGAL TRADITION OF COMBATTING INTERNATIONAL TERRORISM THROUGH AD HOC INTERNATIONAL CRIMINAL CONVENTIONS

III. SPACE TERRORISM RECOURSE TO MILITARY ACTION CANNOT BE REGARDED AS A LEGITIMATE MEANS TO ADDRESS A TERRORIST ATTACK IN OUTER SPACE AS THE CONCEPT OF SELF-DEFENSE, PURSUANT THE UN CHARTER (ARTICLE 51), PRESUPPOSES AN ARMED ATTACK AGAINST A STATE FROM ANOTHER STATE USE OF FORCE LAWFUL IF EXPLICITLY AUTHORIZED BY THE UN SECURITY COUNCIL (CHAPTER VII)

IV. SPACE MINING WHERE DO WE STAND WITH ASTEROID EXPLORATION? ON 6 AUGUST 2014, ESA S ORBITER ROSETTA ARRIVED AT COMET 67P/CHURYUMOV-GERASIMENKO - LANDER PHILAE LANDED ON THE COMET ON 12 NOVEMBER 2014 NASA PLANS TO LAND OSIRIS-REX ON THE ASTEROID BENNU IN SEPTEMBER 2016 NASA CLAIMS THAT THERE ARE APPROXIMATELY 100,000 NEOS, AND A GREAT NUMBER OF THEM POTENTIALLY CONTAIN WATER AND IMPORTANT MINERALS, SUCH AS NICKEL, COBALT, AND IRON

IV. SPACE MINING U.S. COMMERCIAL SPACE LAUNCH COMPETITIVENESS ACT (H.R. 2262) TITLE IV SEC. 402 FACILITATE THE COMMERCIAL EXPLORATION FOR AND COMMERCIAL RECOVERY OF SPACE RESOURCES BY U.S. CITIZENS A U.S. CITIZEN ENGAGED IN COMMERCIAL RECOVERY OF AN ASTEROID RESOURCE OR A SPACE RESOURCE SHALL BE ENTITLED TO ANY ASTEROID RESOURCE OR SPACE RESOURCE OBTAINED, INCLUDING TO POSSESS, OWN, TRANSPORT, USE, AND SELL IT ACCORDING TO APPLICABLE LAW, INCLUDING U.S. INTERNATIONAL OBLIGATIONS (SEC. 403) IT IS THE SENSE OF CONGRESS THAT THE UNITED STATES DOES NOT, BY ENACTMENT OF THIS ACT, ASSERT SOVEREIGNTY OR SOVEREIGN OR EXCLUSIVE RIGHTS OR JURISDICTION OVER, OR OWNERSHIP OF, ANY CELESTIAL BODY

IV. SPACE MINING A) COMMERCIAL EXPLORATION AND RECOVERY OF SPACE RESOURCES IS ENCOURAGED AND PROMOTED. WE ALL KNOW OF COURSE THAT COMMERCIAL IS A TERM RELATED TO OR USED IN THE BUYING AND SELLING OF GOODS AND SERVICES. IN ORDER FOR A COMMERCIAL GOOD TO BE SOLD, THE MERCHANT SHOULD BE THE PROPRIETOR OF IT. B) THE ACT EXPLICITLY CONFERS TO U.S. CITIZENS PROPERTY RIGHTS TO RESOURCES IN OUTER SPACE. IISL IN VIEW OF THE ABSENCE OF A CLEAR PROHIBITION OF THE TAKING OF RESOURCES IN THE OUTER SPACE TREATY ONE CAN CONCLUDE THAT THE USE OF SPACE RESOURCES IS PERMITTED. VIEWED FROM THIS PERSPECTIVE, THE NEW UNITED STATES ACT IS A POSSIBLE INTERPRETATION OF THE OUTER SPACE TREATY. PROF. RAM JAKHU THE IISL HAD RECOURSE TO THE LOTUS PRINCIPLE EVERYTHING WHICH IS NOT FORBIDDEN IS ALLOWED . THE U.S. SPACE ACT DIRECTLY VIOLATES THE OUTER SPACE TREATY, AS IT ALLOWS STATES, PRIVATE FIRMS OR INTERNATIONAL ORGANIZATIONS TO APPROPRIATE NATURAL SPACE RESOURCES

IV. SPACE MINING ADOPTION OF H.R. 2262 DECISIVELY INFLUENCED BY NON- STATE ACTORS WITH SUBSTANTIAL INTERESTS IN THE UPCOMING RESOURCE EXPLOITATION INDUSTRY IN SPACE (PRIVATE COMPANIES). IN 2013, PLANETARY RESOURCES HIRED A LOBBYING FIRM IN ORDER TO ADVANCE ITS CAUSE. OTHER PRIVATE ENTITIES, SUCH AS DEEP SPACE INDUSTRIES (DSI), BIGELOW RESOURCES AND MOON EXPRESS HAD ANALOGOUS CONTACTS ON CAPITOL HILL ON NOVEMBER 2014, NASA CONTRACTED WITH DEEP SPACE INDUSTRIES AND PLANETARY RESOURCES, REVEALING A PERSPECTIVE OF USING EXTRACTED RESOURCES FOR OTHER SPACE MISSIONS

IV. SPACE MINING WHAT WILL HAPPEN IF OTHER COUNTRIES FOLLOW THE U.S. PARADIGM? LUXEMBOURG ANNOUNCED INTENTIONS TO JUMP-START AN INDUSTRIAL SECTOR TO MINE ASTEROIDS THROUGH THE CREATION OF REGULATORY AND FINANCIAL INCENTIVES, SUCH AS CO- INVESTMENT IN RESEARCH AND DEVELOPMENT OR DIRECT INVESTMENT IN CASE THAT SPACE MINING ENTITIES WOULD DECIDE TO CREATE SUBSIDIARIES IN LUXEMBOURG. DEEP SPACE INDUSTRIES HAS ALREADY SIGNED A MEMORANDUM OF UNDERSTANDING WITH THE LUXEMBOURG GOVERNMENT TO CO-FUND THE DEVELOPMENT AND LAUNCH OF ITS FIRST SPACECRAFT, PROSPECTOR-X

IV. SPACE MINING IF OTHER COUNTRIES FOLLOW THE U.S. PRACTICE BY INTRODUCING DOMESTIC LEGISLATION ON COMMERCIAL EXTRACTION OF SPACE RESOURCES BY PRIVATE ENTITIES, A NEW PRACTICE WILL BEGIN TO TAKE SHAPE TO THE EXTENT THAT SAID PRACTICE WILL BE FOLLOWED BY MAJOR SPACE-FARING STATES, A NEW INTERPRETATION OF ARTICLE II OF THE OST AND THE NON-APPROPRIATION PRINCIPLE WILL POSSIBLY EMERGE, WHICH WILL CONSTITUTE A NEW CUSTOMARY RULE AND WOULD THUS AMOUNT TO AN AMENDMENT OF SAID ARTICLE AT LEAST AMONG THE STATES THAT WOULD SHARE, THROUGH COMMON PRACTICE, THIS FRESH CUSTOM

IV. SPACE MINING SUCH A PROCESS IS COMPLETELY CONCEIVABLE IN INTERNATIONAL LAW, GIVEN THAT THERE IS NO ESTABLISHED HIERARCHY BETWEEN ITS PRIMARY SOURCES (TREATY CUSTOM) AND, THUS, A NEW CUSTOMARY RULE IS CAPABLE TO AMEND, EVEN TO ABOLISH, A CONVENTIONAL PROVISION SO, A NEW BUT LEGALLY ACCEPTABLE REGIME OF EXPLOITATION OF SPACE ASSETS WILL EMERGE. IN SUCH A CASE, ONE THING IS FOR SURE: THE INTERACTIONS OF STATES THAT WILL BE BOUND BY THE NEW CUSTOMARY RULE AND THOSE WHO HAVE SO FAR RATIFIED THE MOON AGREEMENT OF 1979, WILL CONSTITUTE UNCHARTED WATERS FOR BOTH INTERNATIONAL AND SPACE LAW