A presentation by

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    SOLAR ENERGY FROM SPACESpace 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

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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
• Need for energy will grow exponentially in the
  future (A NEED TO BE MET)
• Access to and use of energy, as an
  internationally traded commodity, is a grave
  global concern
• Environmental degradation and adverse climate
  change are inherently global (A PROBLEM TO BE
  SOLVED)
• Space is an international environment, beyond the
  jurisdiction of any state
• 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.

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Existing international space treaties

• 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

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Other existing international treaties

• ITU Constitution and Radio Regulations Are
  applicable to radio frequencies for
  non-communication purposes (i.e. microwaves for
  transmission of energy from GEO)
• Radio frequencies and GEO positions must be
  coordinated through and registered with ITU.
• 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
• 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.
  
• 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.
• 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.
• Others existing treaties need to be expanded to
  address specific requirements of SSP system(s).
  
• 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.
  

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Construction use of a SSP system?

• Unilateral national approach might be taken
  because of
• - national prestige, national security, national
  economic and technological benefits and
• 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.
• However, a treaty creating an international
  organization for multinational participation
  might (should) be preferred because of
• 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
• 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.
• 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.

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Self-interest in international organization

• 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)
• 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)
• 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)
• Created as an interim body in 1964 at the
  initiative of the US and was made permanent in
  1971
• Had international legal personality (not subject
  to any national jurisdiction) and the role of
  participating states was limited to providing
  advice only
• Financial participation was by private or public
  national telecom operating entities
  (shareholders)
• Governing board represented the shareholders and
  managed the construction and operation of
  satellite system
• The Board was based on a corporate model in
  which the directors we entitled to weighted votes
  according to their respective financial
  contributions
• The level of financial contributions was
  determined on the basis of actual use of the
  system by each shareholder
• 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.
• 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)

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Next first steps

• INTELSAT was based on international policy
  adopted by the United Nations 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.
  

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Conclusions-Messages

• Construction of a SSP system will have
  international implications, involvement,
  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

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• Thank You For Your Attention !!!