International Legal Regime Governing Space Use and Managing Space-Related Risks

The legal regime governing the use of outer space has been established through international discussions since the early phases of space exploration. One of the most fundamental treaties is the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, commonly known as the Outer Space Treaty or Space Charter. This treaty enshrines principles such as the freedom of outer space, the non-appropriation of space in any form, including the claim of sovereignty, the peaceful use of outer space imposing the partial demilitarization of the Earth’s orbit, the common interest, and international space cooperation.

The Outer Space Treaty has been ratified even by the United States and the then Soviet Union, which were the main contenders in the intense space race. This highlights the advances in international governance of space development when compared with those in other fields of science and technology.

The establishment of international treaties related to space has been challenging owing to the increasing complexity of international relations. The last United Nations Space Treaty is the 1984 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Agreement), which provides for the demilitarization of the Moon and other celestial bodies, except the Earth, and the prohibition of the appropriation of Moon and its natural resources. Additionally, the Moon Agreement ensures the principle of freedom of space for the Moon and other celestial bodies. However, most countries, including the United States, Russia, and Japan, have not ratified the Moon Agreement due to political opposition related to the regime of exploration and exploitation.

Various issues, such as space debris management, arise with rapid space development. Additionally, rules must be established to address situations not anticipated in the earlier phases of space exploration and exploitation. For example, the emergence of numerous private space-related companies and their participation in R&D in various capacities, including public-private partnership.

Kawamura examines the type of governance needed to balance the promotion of space R&D with risk management under these circumstances. According to her, space R&D is still in a nascent stage and is continually evolving. Thus, rigid policies and legal norms can hinder free development in this domain. Additionally, she suggests that the norms and institutions also serve to protect the rights and interests of developers and non-spacefaring developing countries, ensuring fair risk distribution.

The Origin of Space Law Lies in the Idea of Ancient Legal Principles

The relationship between political thought and international relations captured the imagination of Kawamura. In particular, she recalls “The origin of the idea of cooperation among people across national boundaries fascinated me. This has been considered by many thinkers since ancient times. I initially focused on Zum Ewigen Frieden (Perpetual Peace), which was written by the German philosopher Immanuel Kant in the 18^th century. According to Kant, whose ideas led to the modern concept of the United Nations, the principle for peace was that the civil constitution of each state should be republican.”

Kawamura admits that republicanism may not be a familiar concept in Japan. According to her, some people may mistakenly identify republicanism only with democracy or presidential systems. However, republicanism is about res publica (the public thing), encompassing the theory of a political system that governs a community of diverse people and the idea of citizenship upholding that system. Republicanism seeks to prevent the arbitrary exercise of power through laws and institutions and emphasizes the importance of citizens actively participating according to their abilities in the pursuit of the common good. One of the origins of republicanism can be found in the Roman Republic, where the consuls and the Senate were at the center of politics but votes on bills and other important issues were in the domain of the assembly, which comprised representatives of all citizens. “Studying the relationship between republicanism and the idea of an international community from ancient times to the present piqued my interest in global citizenship and cosmopolitanism. I specifically was fascinated by the idea of a transnational governance comprising states, intergovernmental organizations, and global civil society working together to address challenges that transcend national borders.”

It was around this time that Kawamura met Kunihiko Tatsuzawa, who is a Professor Emeritus at Ritsumeikan University. “Tatsuzawa is an expert in international laws, especially space law. He is also well-versed in history and politics and can analyze international order from a broad perspective. I learned from him that the principles of space law are based on ancient Roman law and other European philosophy even though space law is based on a modern and advanced set of rules.” According to Kawamura, republicanism is a political philosophy that has served as an underlying theme in Western political thought from ancient times to the present. In the field of advanced science and technology, republicanism encourages entities other than the state, such as corporations, research institutions, and academia, to independently establish their norms and institutions without relying on any particular authority.

The Need for Rules in Advanced Science and Technology

“Advanced science and technology can be both a boon and bane for humanity. This also applies to the research that Earth and Space Exploration Center (ESEC), Ritsumeikan University,” explains Kawamura. “The distinct separation of civilian and military research is impossible as evidenced by research on rockets. In the early stages of the Internet’s development, one of the main goals was to secure a military communications network. Conversely, technology developed for civilian use has been diverted for military use. However, we cannot stall development on account of the risk of misuse. Rules for harnessing science and technology must be established based on deliberation.”

Although establishing rules is important, why can’t individual states be allowed to formulate their own rules? Kawamura answers, “Because the practical application of advanced science and technology does not affect only the people of one country.” For example, several non-functional satellites, known as “space debris,” orbit the Earth. Some of these satellites are nuclear-powered satellites. In the late 1970s, one such satellite crashed in Canada. Although no human casualties were reported, radioactive debris from the impact contaminated the vast natural environment. Current technology cannot determine the exact location of space debris, except for just over 30 minutes before impact. “The need for international risk management is critical, irrespective of who launched the satellite.”

Fairly Distributing the Benefits of Space Development

In addition to formulating rules for risk distribution, the benefits of R&D should also be fairly distributed. Fair distribution of benefits is not equivalent to equitable distribution among humans. The personnel involved in providing these benefits, such as researchers and developers, should be rewarded. For example, the financial reward of researchers and developers may vary depending on the country with poorer countries being charged less.

An example of equitable distribution is the allocation of geostationary satellite orbits in the 1980s. Geostationary satellites are a type of artificial satellite that can remain in the same position relative to the ground, as if stationary, by orbiting above the equator at the same speed as the Earth’s rotation. This type of satellite orbit is called a geostationary orbit. Only three satellites in this orbit cover the telecommunications of all areas of the Earth, except the polar regions. Kawamura explains that during the Cold War, spacefaring countries tried to place satellites in the geostationary orbit. However, the constant flying of satellites from major powers over the territory of equatorial developing countries was not welcomed by the residents of these territories. These residents considered the geostationary orbit over their territory as their natural wealth and resources and claimed their sovereignty by invoking the UN Declaration on States’ sovereign rights over their natural wealth and resources. Sovereignty over space is not recognized by the Outer Space Treaty and other developing countries opposed the exclusive rights of equatorial countries. Thus, the equatorial countries withdrew their demand but were granted recognition for the fair distribution of profits. Rules have now been established within the framework of the International Telecommunications Union to ensure a fair distribution of geostationary orbits and radio frequencies by the quinquennial world allocation plan. Equatorial countries lease their allotted orbits to other countries or engage in joint development with technologically advanced countries.

The effective enforcement of rules established even under the Moon Agreement is not guaranteed unless each state adheres to them. “This is where the difficulty of international law lies,” Kawamura points out. “However, the law has been traditionally more flexible.” Only a few countries and a limited number of spacefaring countries have ratified the Moon Agreement. One of the reasons for this is the groundbreaking phrase in the Moon Agreement that designates the Moon as “the common heritage of mankind.” The industries from the United States strongly opposed this principle, and consequently, the United States did not ratify the agreement. “Both the United States and the Soviet Union participated in drafting the agreement and agreed on the outline of the text. Hence, I believe that the Moon Agreement can be interpreted as a general principle of law. Except for resource-related points, such as not placing weapons or not conducting military exercises on the Moon, the content of the agreement can be agreed by every state.”

Examples of Space R&D Governance and the Application of the History of the Space Legal Regime to Other Areas of Science and Technology

Recently, Kawamura has been interested in governance through public-private partnership. The management of lunar resources was a major issue during the drafting of the Moon Agreement. However, national and private organizations have been recently working together internationally to explore and exploit these resources. Lunar exploration, which has continued since the Apollo missions, has revealed that the helium isotope helium-3 is abundant on the Moon but scarce on Earth. Helium-3, which is considered to be an efficient nuclear fusion energy source, produces very little radioactive waste, and only 30 tonnes of Helium-3 can operate a power plant of 1 million Kw for a year. To use helium-3 as an alternative energy resource to oil, discussions on a mechanism of global governance have been actively pursued, especially in the United States, by governments, public institutions, private companies, and investors since the 1980s. Kawamura believes that these discussions can be applied not only to space but also to R&D in advanced science and technology in general.

In some cases of joint R&D between the government and the private sector, government involvement has become unnecessary with the progression of commercialization and practical application as observed in the case of Intelsat, which began as an international organization. Technologically advanced countries, such as the United States, liberalized international satellite communications. Thus, international public institutions for satellite communications could not compete with the private sector, resulting in their privatization. However, to ensure that communications essential to national security would not be disrupted in times of emergency, public services were decided to be provided by another public organization, the International Telecommunications Satellite Organization, rather than Intelsat. Although the state still plays a central role in space development, it will be substituted by the private sector in the near future. Kawamura speculates that the case of the Intelsat privatization negotiations may be useful in demarcating the roles of the private sector and the international public services.

Kawamura is also exploring legal principles, such as the prevention principle, the follow-up obligation, and the precautionary principle, which are crucial for establishing new rules and institutions that correspond to the risks associated with advanced technology. For example, the “follow-up obligation,” as outlined in the Outer Space Treaty, is crucial for new technologies whose efficacy might be scientifically proven but not for technologies for which the related risk cannot be predicted, such as AI and mRNA vaccines for the coronavirus. This obligation is key to a new governance mode that balances the promotion of R&D with risk management and prepares for potential unexpected harm.

The legal framework governing space R&D has been established through cooperation among multiple countries even during times of deteriorating international relations, such as the Cold War. Kawamura notes that the accumulation of these efforts provides an invaluable precedent for establishing governance in emerging scientific and technological fields. She aims to continue her research on establishing norms and institutions that will efficiently utilize the results of cutting-edge science and technology in collaboration with researchers not only in Japan but also abroad.