An Article by Yaiman Bande
Introduction
Space has always fascinated mankind since time immemorial. Whether it is the astrological analysis of the stars and their constellations or the scientific investigation of black holes, human beings have always shown curiosity. To the human mind, the cosmos appears to be an enigma: A world of mystery and paradoxes. Just like the scientist, the lawyer is hard-pressed to admit a complete understanding. In particular, space law has developed in a piecemeal fashion with no specific end in sight. Due to its unregulated state, this young branch of law appears to be a ‘sight for sore eyes’ for the entrepreneur. As an illustration, SpaceX (a space exploration Company) has made it possible for Elon Musk to be crowned the richest person on the planet (as of 12thJuly 2022).[1] With this in mind, this article attempts to forecast the future of commercial space law, and the possible implications it will have on States.
Brief History
The history of Space Law is intricately tied to the years preceding World War II. During that time, there was a lot of advancement in space technology by countries such as the Soviet Union (USSR), Germany and the United States of America (USA).[2] In April 1961, Yuri Gagarin shocked the world by being the first man to enter outer space. This outstanding feat was only challenged a couple of years later by the United States’ Apollo 11 mission, which put Neil Armstrong on the moon. At this point and perhaps due to the influence of the Cold War, it became clear that there was a need to put laws in place governing outer space. This became especially necessary because the massive mushrooming of space technology and the possibility of unhealthy manipulation of outer space became apparent. In 1958, the United Nations General Assembly (UN) passed a resolution which called for international cooperation and joint efforts to use outer space for the common interests of mankind.[3] Since then, developed nations have sent satellites into space which have massively impacted the way people communicate through telecommunications and broadband internet, just to mention a few.
The Legal Framework of Space Law
In 2016, a telescope in Chile called TRAPPIST-1 was used to discover a solar system that is approximately 40 light years away from planet Earth. NASA (the National Aeronautics and Space Agency) announced that this system has about seven (7) Exoplanets and decided to call it TRAPPIST-1 (i.e. in honour of the telescope that was used to discover it). Studies by scientists now show that this solar system is capable of supporting life due to the presence of water which has striking similarity to that of Earth (with some Exoplanets actually believed to have more water than planet Earth).[4] This amazing discovery arouses many interesting questions such as: if mankind were to reach this solar system, what laws should be used to govern the discoveries found there? Alternatively, if a new life form was discovered on this solar system by a space exploration company, would such a discovery be patentable or maybe perhaps the traditional exceptions to patentability of life forms naturally occurring in nature would apply?
It is no surprise that the answers to these questions are not only important to the field of space exploration but are also cardinal to commercial space law as well. On 12th December 1959, the United Nations Committee on Peaceful Use of Outer space (UN COPUOS) was established. This committee had the mandate to set the foundation of the legal framework to which Space law was to operate. Later on in 1961, another resolution was passed which set out the two fundamental principles of Space Law: (i.) Outer space and celestial bodies were not subject to national appropriation, but were free for exploration and use by all states and; (ii.) The UN Charter applied to outer space and celestial bodies.[5] Two treaties are of particular importance to commercial space law namely, the Outer Space Treaty of 1967[6] and the Liability Convention of 1972.[7] One of the major problems that commercial space law faces today is the issue of ratification of these conventions. Not all states in the international community have signed them and that is where problems begin to arise for enterprises. For example, what happens when a collision occurs between satellites belonging to a company registered in a non-state party on one hand and another company registered in a state party to these treaties on the other? Would the tax principles of sterilization of a company asset as set out in Glenboig Union Fireclay v IRC still apply and what about insurance and the right of subrogation? It is clear that these complex legal questions cannot be easily resolved with mathematical precision and would require careful analysis of the facts and the law by an adjudicator (judge).
Intellectual Property Rights and Commercial Space Law
Most industrialized states have received the commercialization of outer space with open arms. One of these countries is the United States. Section 203 (c) 5 of the NASA Act of 1958 authorizes NASA to enter into agreements with commercial entities. One event that clearly illustrates this is the signing of the Joint Space Flight Agreement between SpaceX (a commercial entity) and NASA on March 18 2021.[8] What appears to be a grey area, however, is how far intellectual property rights in outer space would extend and whether the law of contract (aforementioned) or existing laws governing intellectual property would apply.
According to the World Intellectual Property Organization (WIPO), ‘Intellectual Property’ includes author’s rights, copyrights, proprietary rights, legal protection of industrial property rights, as well as other rights resulting from intellectual activity as defined in Article 2 VIII. It is without a doubt that Intellectual Property rights based on this definition have to be respected but what is perhaps challenging is deciding which law should govern an infringement: Should existing copyright law apply to satellite activities? Or maybe perhaps new rules of international law should be made to protect these rights?
The UN resolution of 1982 is imperative in answering these questions. It contains principles that govern the use of artificial earth satellites for international direct television broadcasting. Particularly, Principle H provides that, ‘without prejudice to the relevant provisions of international law. States should cooperate on a bilateral and multilateral basis for protection of copyright and neighbouring rights by means of appropriate agreements between the interested states or the competent legal entities acting under their jurisdiction…’This reading supports the position that States should use bilateral and multilateral agreements as a way of protecting copyright. It does not confer any new law per se but it is a great start nonetheless. However, the complexities of intellectual property rights in commercial space law are still profound and the 1989 Berlin case[9] clearly exemplifies this. In that case, a certain advertising agency had used a photograph taken by Meteosat (a satellite belonging to the European Space Agency [ESA]) without acknowledging the copyright of the ESA. The case was decided using German law. Under that law, copyright protection is only provided to personal intellectual creations. It was found that the ESA could not prove this element because only a natural person could enjoy copyright protection for being a maker of a particular piece of work. The outcome of this case leaves much to be desired. One wonders whether the outcome would have been different if perhaps the governing law used was that of another country. What is clear is that the nuances of commercial space law were not considered by the drafters of the Berne Copyright Convention[10] and that in of itself poses a huge challenge to the courts of law.
Insurance and Commercial Space Law
A U.S. writer and journalist by the name of Ambrose Bierce, once wrote in his book titled ‘The Devil’s Dictionary’ that ‘insurance… is an ingenious modern game of chance in which the player is permitted to enjoy the comfortable conviction that he is beating the man who keeps the table.’ Then a U.S. business analyst by the name of Maryann Keller when referring to General Motors once wrote, ‘almost everyone who has worked for General Motors could get every organ in his body replaced and it would not cost him a dime.’ It can hardly be disputed that the modern day insurance industry is the bedrock of hedging against uncertainties in the business world. However, it appears that on an international level, contracts of insurance have not been regulated. Therefore, this discovery raises interesting legal questions in relation to international commercial space law.
The first satellite insurance contract was written in 1965 for Intelsat’s ‘Early Bird’.[11]It was a fairly reasonable contract which covered pre-launch risks related to the manufacturing and transport of satellites. With respect to insurance of spacecraft, insurance companies play a huge role in calming the fears of investors. However, given the fact that there is no international legislation that regulates contracts of this nature; can insurers go after third-parties by exercising rights of subrogation? Case law seems to agree with this proposition. In Lexington Insurance Co. v. McDonnell Douglas,[12] the plaintiff had insured the Indonesian government against any losses which would arise from the launching of the satellite into space. As things would stand, the satellite actually failed to meet its target orbit and hence, caused the Indonesian government heavy financial losses. After the insurance company had paid off the government, it successfully exercised its right of subrogation and was able to recover damages under breach of warranty. Clearly, the courts did not have an issue with rights of subrogation. However, issues to do with insurable interest in commercial space insurance still remain unregulated on an international level. Perhaps it is best that the UN COPUOS enact a treaty that would regulate insurance on an international scale so as to avoid these types of problems from occurring. Nonetheless, the bottom line is that there is a growing insurance industry in commercial space flight. Whether the international community will act fast enough to regulate that industry still remains a matter of speculation.
Final Thoughts
In closing, the commercialization of space i.e. through travel or any other extraneous way will continue to impact mankind for the foreseeable future. It is unlikely that these advances will proceed unregulated or without some international legal framework to serve as a guide. Possibly, the international community as well as the legal scholar, awaits feedback from the discoveries that the scientist has to offer. If that be the case, then it is only a matter of time that international space law will take its rightful place in the annals of International Public Law.
[1]Forbes’ The World’s Real Time Billionaires (12th July 2022) available at https://www.forbes.com/real-time-billionaires/#3d625f4e3d78 (accessed on 12th July 2022)
[2] D-Verschoor, Introduction to Space Law (3rdedn, Kluwer International Law BV, The Netherlands 2008)at p.2
[3] General Assembly Resolution.1348 (XIII), 18th December 1958
[4]F Chou (2017) NASA Telescope Reveals Largest Batch of Earth-Size, Habitable-Zone Planets Around Single Star, NASA 22nd February available at https://www.nasa.gov/press-release/nasa-telescope-reveals-largest-batch-of-earth-size-habitable-zone-planets-around/ (accessed on 12th July 2022)
[5] General Assembly Resolution 1721 (XVI), 20 December 1961
[6] United Nations (UN) Outer Space Treaty 18 U.S.T. 2410 610 U.N.T.S. 205
[7] United Nations (UN) Liability Convention 24 U.S.T. 2389
[8]J D Harrington (2021) NASA, SpaceX Sign Joint Spaceflight Safety Agreement. NASA (online) 18th March available at https://www.nasa.gov/press-release/nasa-spacex-sign-joint-spaceflight-safety-agreement (accessed at 12th July 2022)
[9] M M.Kaiser, The 1989 Berlin Court Decision on Copyright to a Space Remote Sensing Image, Proceedings 47th Colloquium (Vancouver 2004) p.91-105
[10] Berne Convention for the Protection of Literary and Artistic Works, Completed at Berne on March 20 1914
[11] D-Verschoor, Introduction to Space Law (3rdedn, Kluwer International Law BV, The Netherlands 2008)at p.113
[12] Ibid at p. 116