Issues in Global Space Governance

June 11, 2014

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2nd Manfred Lachs Conference, Montreal, Canada, 29-31 May 2014

Carneys aviation lawyer Bradley Hayward attended the 2nd Manfred Lachs Conference on Global Space Governance in Montreal, Canada, on 29-31 May 2014.  The conference was hosted by the McGill University Institute of Air & Space Law, and was called upon to discuss the broad issues of global governance of activities in outer space.

Eminent space law scholars from around the world gathered at Montreal to discuss issues such as the evolution of human society towards space exploration, astrosociology, trends in international law and global governance, the adequacy of the current space law governance regime, the exploitation of natural resources in space (i.e., space mining), space-based solar power, satellite telecommunications, space security, environmental governance in space, and regulation of remote sensing activities.  In all, 60 papers were presented to the conference over two and a half days.

Brad presented a paper addressing the various forms of legal instrument that might be used in global space governance in the future.  There are currently five international treaties that govern activities in outer space, and all were developed in the 1960s and 1970s. None of the treaties have been amended since they were opened for signature, and the most recent, the Moon Agreement, was finalised in 1979.  With only fifteen States Parties, none of which being a major space power (Australia is the closest State Party to such exalted status), it can fairly be said that the Moon Agreement has failed in its objective to regulate activities on celestial bodies.  In international law, these treaties are considered ‘hard’ law, as they impose obligations on States Parties to each treaty that are both strict and binding.

However, space law has continued to develop in ‘softer’ ways, utilising various non-binding instruments, such as resolutions of the United Nations General Assembly, to set out principles for behaviour in outer space.  Those resolutions address issues such as remote sensing, the use of nuclear power sources in satellites, and the protection of the interests of developing countries in outer space.  Other non-binding instruments have been developed by States operating in outer space, such as the Space Debris Mitigation Guidelines published by the Inter-Agency Space Debris Coordination Committee.

Brad’s paper, entitled Searching for ‘Just Right’:  Options for Regulating Space Activities on Celestial Bodies, discussed other ‘soft law’ instruments that might also be used.  The paper considered issues relating to the use of ‘codes of conduct’ and ‘model laws’.  Building on the past development of space law, and other areas of international law, it was also suggested that the ‘soft’ rules contained within those instruments might eventually ‘harden’ into the basis for an international multilateral treaty regime.  In doing so, the paper suggested that there are two options for treaties regulating space activities, particularly those on celestial bodies, on a global basis.

The first option is to continue with the current ‘suite of treaties’ approach, perhaps by negotiating a new treaty to replace the Moon Agreement.  Such a treaty should aim to strike an appropriate balance between the interests of scientists, explorers and commercial prospectors, as well as acting to protect the environment of the celestial body.

The second option is to develop a single ‘omnibus treaty’ to replace all five of the current space treaties, which would result in a similar treaty structure as seen in other areas of international law, such as international civil aviation, and the international law of the sea.  Development of such a treaty would be a large undertaking for the international community, but it may be done in a piecemeal fashion by using ‘soft law’ instruments to develop and test the function of rules before they become binding.