As more countries develop satellite and launch capabilities, like India, interpretations of commonly used, but not officially defined, terms in space treaties and agreements become a concern. (credit: ISRO)

Exposing the intended justice outcome of space law

by Timiebi Aganaba-Jeanty
Monday, November 16, 2015

The ambiguous or indeterminate nature of legal norms in space law can be problematic. However, consensus may often develop around a general principle much quicker than around a detailed plan of action. The very existence of a principle can be significant because, at best, it can lead to positive change or at least can ensure the continuation of a dialogue. Such principles might have a conceptual autonomy to develop in ways that the actors most responsible for their inception, usually nations, had not foreseen. Their very ambiguity can render such evolution more likely.

In this essay, I examine the intended justice outcome of space law by exploring the foundational principle of space law that “the exploration and use of outer space… shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.” I re-explore the objective of a group of developing nations to find meaning to Article 1 of the Outer Space Treaty, which concluded with the adoption of a UN Declaration known as the Space Benefits Declaration.¹ That declaration ultimately did not create any new rights for the developing nations and based on that experience, I argue that it is almost impossible in today’s context to adopt legally binding rules in the space context that all can agree with.

Ambiguous norms

Three such ambiguous norms in the context of space exploration and the application of space law principles are the concepts of “common benefit,” “freedom of outer space,” and “space sustainability.” Even in the face of the indeterminacy of these concepts, there is a justice outcome expected from the existence of international space law. To expose that outcome it must be understood that there are positive and negative conceptions to the understanding of the freedom of outer space for the benefit of all, purported to be guaranteed by Article 1(2) Outer Space Treaty.

With no clear defined conception of common benefit and freedom of outer space, there is a dominant position whereby, at most, these concepts correlate to the negative conception of sustainable development, whereby every nation is free to determine how to meet its own needs and accrue its own benefit as long as it does not prejudice the ability of future generations to do the same. Concurrently, however, it appears that the current conception and rationale for space sustainability ties more clearly to global security than sustainable development. What is required is a broader discussion and solution aimed towards aligning space law and policy with the sustainable development paradigm, where such paradigm is focused on inclusiveness and enablement of all parties to reach a justice outcome.

Space benefits constant

The objective of deriving common benefit from any given activity sets four priorities in constant interaction, namely:

1. The need to be connected,
2. The need to be data rich and informed,
3. The need to be respected, and
4. The need for security.

I refer to this as the Space Benefits Constant.

When the constant is understood as a hierarchy of needs, the objective is to move up the needs hierarchy going from a focus on meeting individual basic needs (communication) to the collective goal of common actualization, which is mainly understood currently around of issues of global security.

Benefit sharing

In understanding common benefit, when the issue of benefit sharing is raised, the dominant position encounters a tension between established spacefaring nations and emerging and aspiring states, and the idea that freedom could take on a different meaning depending on where one is on the scale of development. It fails to recognize that solutions to contemporary and historical space governance challenges have been less oriented towards the interest of less developed states, making the accrual and sharing of benefits dependent on the free will of those states able to carry out a variety of space activities independently. The debate around common benefit is therefore currently exploited to protect individual benefits derived for established states, as opposed to determining what the effort to use space collectively can generate for the common good.

Positive and negative conceptions

The negative conception of the freedom of outer space sees the spread of benefits from space activities as a limitation on the freedom to explore² and this must be rejected. The suggested understanding of the positive conception is that rather than being seen as a limitation, the obligation of common benefit should be seen as a condition of freedom. While it may appear that these two concepts (limitation vs. condition) are merely semantics, when the literal rule of interpretation is pressed into service, a limitation is understood as a restriction on something, however condition as a noun refers to a state of affairs that must exist or be brought about before something else is possible or permitted. Or, if understood as a verb, condition refers to a set of prior requirements on something before it can occur or be done. A limitation is therefore something that one seeks to avoid while a condition is something that one seeks to fulfill, words which themselves imply strong connotations of negativity and positivity.

The positive conception is the appropriate vantage point to begin the assessment of space law norms. However, this position can be further divided into strong and weak variants, which expose ideological positions. The weak variant acknowledges that there is a general obligation to ensure common benefit but holds that by the simple act of access, benefit is produced. As the spacefaring nation engages in space activity that generally adds to development and furthering science, all countries are said to benefit.³ The weak variant, which is dominant, is favored by space nations who would continue to argue that, one, many benefits have been recorded from their space activity and, second, as a practical matter no state has asserted claims under the treaty to results obtained through its space activities. The opposite variant is the strong variant. This holds that as there is an obligation to produce benefit, and unless it is demonstrated that benefit has been produced, the freedom is not exercised in accordance with the law. In effect, there must be a literal and practical demonstration of benefit for all space activities.⁴

Finding a middle ground

Finding a middle ground position between the strong and weak variants of the positive conception of the freedom of outer space is required, to prevent focusing on extreme positions. To do this forces us to switch from the question of what is the understanding of freedom granted from the perspective of both those exercising the freedom of outer space and those countries expecting that the freedom is exercised for their benefit and interests, to answering the practical question of how can we better understand the conflicting positions between those on the margins of space activity and those gaining the greatest benefit from space? A middle ground assessment requires looking at space law obligations through an appropriate lens that seeks to uphold justice outcomes.

CAIL lens

The lens that should be used to analyze this problem is a Cosmopolitan Approaches to International Law (CAIL) lens. Unlike classic cosmopolitanism,⁵ this lens is shaped by the TWAIL school of thought (Third World Approaches to International Law),⁶ which seeks to bring the perspectives of marginalized actors to the foreground. There are, however, limits to TWAIL that CAIL seeks to address. Namely, that the review of TWAIL methodology explored (particularly in assessing the development of the UN Space Benefits Declaration) reveals that it leads to affirmation that those on the margins can make a claim upon the public good without reciprocity.

CAIL moves beyond global citizenship and sovereignty issues of Cosmopolitanism and is in line with the faction of TWAIL that questions how to transform international law to be more sensitive to the concerns of all, without having a false notion of Third World innocence and first world guilt or dominance.

The right to be enabled

In actual fact, as far as one has to “pay to play,” there must be a deeper commitment to reciprocity that acknowledges common but differentiated responsibility. In essence, while noting the obligations of those with technology to ensure benefit sharing to those wanting to access space benefit, there is also a requirement that recipients respect the conditions of the right to enabled. By this, there would need to be a test to show that one has been enabled and has met various milestones. There cannot just be a “right to benefit,” but it must be acknowledged where the beneficiaries stand in relationship to the enablement. It is of course a double-edged sword, one that can be used both to empower and to destroy weaker parties.

Double-edged sword

This idea of a double-edged sword is similar to the freedom of access to outer space granted in Article I (2) of the Outer Space Treaty. Scholars⁷ have argued that there are two aspects to this: an implicit and explicit right. The implicit right is a negative freedom case again of not requiring permission to reach a celestial body “after launch,” and the explicit right is actually contained in the provision that one may have access to celestial bodies. But to stimulate the implicit right, a nation that does not have its own launch capability must be empowered or enabled to access outer space and celestial bodies. The right is empty if permission is not granted to be able to launch. Fundamentally, this is applicable to all the other freedoms, too, as there is no exploration, use, or scientific investigation if there is no implicit access to space. As such, launching states have all the power.

As it has been argued elsewhere, export control regimes that are used as unfair swords set up a system of discrimination without the consent of the international community and permit an exclusive status for some technologically advanced nations, hindering the use of outer space by other states.⁸ To curb this, it is necessary to assert that if the beneficiary fails the test of enablement, all parties have failed, so it is in everyone’s favor to ensure actual enablement.

Creating a balance

This objective of this article is therefore to propose a balance between a soft law framework for assessing benefits that forces actors to use tools to assess their behavior, but that also allows us to give shape and significance to the hard law norm under Article I of the Outer Space Treaty. I therefore propose the development of a dynamic perspective of reciprocal relationship that arises when use/benefit is shared that is in the character of the middle ground CAILian position, called the Space Benefits Hierarchy (SBH).

The concept of a SBH is to provide a framework for understanding a sample of the range of activities that form the basis of benefit sharing. It serves as a means to demarcate important considerations between the established space players, who are usually owners of technology, and emerging, aspirant space users and actors. It is merely representative and does not claim to be exhaustive. It is a project of deconstruction involving a renewal in the way reciprocal obligations are proposed. By using a tool such as this, it is important to ask whether actors on both sides of the development divide have indeed oriented themselves toward fulfilling the responsibility inherent in the existing space law regime. Are they holding themselves accountable for inadequacies of their own procedures? How well has a cooperation ethic been internalized? After all, aspirational norms are best tested by the extent to which agents and legal subjects have made them part of their identity.

Conclusion

The rhetoric of inclusion is pervasive in that all actors purport to pursue it and can point to instances of adherence. Even positions articulated by developing states today can be read to suggest that the status quo is adequate since there are limits to what the law can require.

Authors have even gone so far as to argue that in the current landscape, a focus on what nations can do for each other is misguided because it contributes to the production of legitimacy for empire. In other words, how can the existing framework enable all countries to foster capabilities in a way that is of mutual benefit to all? It is proposed that this leads us to analyzing closely the hierarchy of possible benefits and how we can imagine a cycle of positive feedback to build increasing cooperation between those on the margins of space activity and those gaining the greatest benefit from space.

As an African and a European/Canadian, I attempt to speak from an understanding of both sides of the development divide, without being a true master of either. This centrist position in part explains my quest for cosmopolitanism. To implement a CAILian utopia it will be necessary to achieve global security and to do that entails adequate sharing of benefits while respecting both reciprocity and the conditions of enablement.

What a CAILian approach means is to conclude that there is value and significance to enabling space engagement and the goal of space exploration is worth pursuing for all interested parties. To that end, in part we resolve the danger of the single story of space actors.

Endnotes

1. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, GA res. 51/122, UN Doc. A/AC.105/572/Rev. 1 (1996).
2. Stephan Hobe, Article I in Hobe et al (eds.) Cologne Commentary on Space Law: Volume 1, Outer Space Treaty (Koln: Carl Heymanns Verlag, 2009) 25-43; Kai-Uwe Schrogl, Legal Aspects Related to the Application of the Principle that the Exploration and Utilization of Outer Space Should be Carried out for the Benefits and in the Interest of All States Taking Into Particular Account the Needs of Developing Countries in Marietta Benko & Kai-Uwe Schrogl (Eds.) International Space Law in the Making, (France: Editions Frontiers, 1993) at 219-224.
3. Eligar Sadeh, Dynamics of International Space Cooperation, Unpublished Ph.D. Dissertation, Colorado State University, 1999.
4. Valnora Leister, International Cooperation in Outer Space: Extending the European Model, Proceedings of the 24th Colloquium on the Law of Outer Space (1981) p.207-210.
5. Immanuel Kant, Perpetual Peace: A Philosophical Essay. Trans by M. Campbell Smith (New York: Garland, 1972); Jaques Derrida, Cosmopolites de tous les pays, encore un effort! (Paris : Galilee, 1997).
6. Makau Mutua, What is TWAIL? 94 American Society of International Law Proceedings (2000).
7. Stephan Hobe, supra note 2.
8. Barry Hurewitz, Non-Proliferation and Free Access to Outer Space: The Dual-Use Conflict Between the Outer Space Treaty and the Missile Technology Control Regime, Berkeley Technology Law Journal, Volume 9, Spring 1994; Ram Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, (2006) 32:1 Journal of Space Law 31.

Timiebi Aganaba-Jeanty is a PhD candidate in the Institute of Air and Space Law at McGill University.

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