Prof. Tanja Masson-Zwaan is Assistant Professor and Deputy Director of the International Institute of Air and Space Law at Leiden University. Tanja has specialised in the field of air and space law since 25 years. She is the President of the International Institute of Space Law since 2007 and has published papers on a variety of topics over the years. In August 2012, she was appointed by the Dutch Government as an Arbitrator with the Permanent Court of Arbitration in The Hague in the framework of the Optional Rules for Arbitration of Disputes Relating to Outer Space Activities.
1. Recently IISL published a statement endorsing the US Space Legislation on space mining. and now Luxembourg plans to do the same. In light of these national initiatives, do you think the prospects of the Moon Agreement are dim?
IISL statement does not explicitly ‘endorse’ the US law. It says that the US law is a possible interpretation of international law. It does not say this is the only correct interpretation or that this is the way forward. What it says instead is that the US law is not illegal and it can be a possible interpretation of international law, however, there can be other interpretations of international law too. In the absence of any international agreement it is important that states discuss these developments. The statement was an important achievement of the Institute because the Board comprises representatives of many different geographical and professional backgrounds.
The fact that Luxembourg is also announcing that it would like to establish a legal framework is very interesting. I was at Committee on the Peaceful Uses of Outer Space (COPUOS) last week and some States expressed concerns that it is necessary for Luxembourg to establish a legal framework. Luxembourg, as you know, does not have a national space legislation yet and they have several large operators who are based there like SES and Intelsat. Luxembourg has reassured that it will create a legal framework. Even though the European Union now has competence over some space activities in Europe, that does not prevent Luxembourg from making a law. The European Union’s competence lies more in research and development and not in commercial use of outer space. So, it will not be a problem for Luxembourg to enact a legislation on space mining, but it is important that Luxembourg reassures the international community that it will also cooperate in negotiating an international agreement.Luxembourg was invited to participate in the Working Group we set up here at Leiden and they accepted. I think all states, including the United States, understand that it is important to have an international agreement. That does not mean that the national space legislations are illegal. However, according to Russia, it is not acceptable to make a unilateral national law in the absence of an international regime.
The moon agreement is one such agreement which does provide for an international regime. The member states of the Moon Agreement have tried to move the Treaty forward and to emphasize its benefits like in the Joint Statement they issued in 2008. They are also working on a Joint Declaration in which they would like to set the cornerstone for the regime under Article 11, but this has not yet moved forward. In the absence of things moving forward, we have set up this Working Group to have international discussion and both US companies and the Luxembourg government are part of it.
2. Recently ICAO-UNOOSA had a conference on suborbital flights at Abu Dhabi. What do you think is the way forward for safety and economic regulation of this industry? Will air law principles govern suborbital flights or space law? What could be the possible outcome of ICAO working with UNOOSA?
Yes, it was a major achievement that last year for the first time these two organisations came together to talk about this new activity which is, let’s not forget, not really happening yet but is soon going to happen hopefully. We still do not know, despite the fact that we have been talking about it since more than 10 years, how to regulate this, as aviation or space activity. It is good that the UN organisations in charge of aviation and of space are talking together. My view is that they will be conversing much more, and they will be talking mostly in terms of safety from the start because these vehicles will have to go through initially segregated air space but later on they will have to be be mixed with normal aviation activities, if in the end it is to become a regular economic activity. So issues of Air Traffic management and probably space traffic management will have to be agreed upon. I was not present in the recent Abu Dhabi meeting though I understand, there has not been much progress. For the time being it is good to have a forum for the exchange of information. However I see that in countries like the UK, which is very active in getting this industry on its feet, the government is supporting with funding, and the Civil Aviation Authority is working on plans for a regulatory framework. In the absence of international law and European laws in this field, you will find that States which have an interest in this activity want to move things forward. I see that for the time being it is happening more in the aviation field, with probably ideally a sui generis regime eventually emerging. There is more experience in regulating passenger liability and so on in aviation law, with which we have no experience in the field of space regulation.
3. Do you think that there might be an outcome of a new legal regime like an air-space regime from this exchange of information ?
That will probably take a long time, but yes, we should perhaps have some kind of aerospace law instead of air law and space law. It would mean that you will take basic elements of one regime and supplement it with some elements of other regimes and come to a sui generis regime which could be called aerospace law, because these activities take place at the border line between aviation and space. My expectation is that this would probably take a long time and we have to be pragmatic and have to come to some ad hoc regulations at the national level, like the United States has done.
4. The US has recently imposed ban on US companies from using Indian launch vehicles, stating that the Indian market is closed for US companies and hence the justification of not allowing India to benefit from launch services provided to US companies. Do you think this has negative impact on liberalization of the space industry? What steps should be taken in order to liberalize this industry?
I think the US industry is suffering from these export regulations. There has been a long history of discussions that the industry wants to alleviate these restrictions on free trade. However, we also know that United States is very keen to protect its national security and it will not easily allow launchers from China or India to carry US technology; that is always a problem with the dual nature of space technology. So it is very important for countries like India to concentrate perhaps on working with Europe, or focus on the BRICS countries, and trying to make itself more competitive irrespective of these trade restrictions. With diversification and commercialization, there will be business elsewhere too.
5. Privatisation and commercialization of space travel and transportation has opened up space exploration. The current success of SpaceX in being able to land a launched rocket on a drone-pad is one such major achievement by a private space transportation company. What should be the way forward for states with respect to regulation of such private endeavours?
Yes, it is a fact that privatization and commercialization are increasing each day. The huge success of SpaceX will bring an important change in the scenery. We see this happening in the United States where the Government is actively promoting, and using, private, commercial space launch services. What has to be done in terms of regulations is that States will have to realise that they must find a way to adhere to their Treaty obligations when they allow private space activities to take place on their territory. This means for many states that enacting national space legislation with a licensing system, with, for instance, provisions relating to recourse in case of liability, obligatory insurance, registration data and so on will be advisable.
6. With the increasing reliance of state, military or non-military, and non-state actors on space technology, is there an urgent need for a manual or international treaty which deals with the possibilities of conflict between states, use of force in space, and criminal activities possible in space transportation and travel?
The military use of outer space is a fact, it it is something which is happening currently and is not forbidden, as you know there are certain provisions in the Outer Space Treaty and in the Moon Agreement that prohibit certain but not all military use of outer space. There is however an increasing tension in the world and there is a fear of weaponisation, therefore it is important that we agree on transparency and confidence building measures (TCBMs) in which the community of states reassure each other that they will observe all legal principles and that they will not resort to putting weapons in outer space. However, that is not easy. There is a proposal for a Treaty by China and Russia, which is not accepted by others and since 2008 there are talks about a Code of Conduct proposed by the European Union. Activities such as the Governmental Group of Experts (GGE) on TCBMs can help build confidence and lessen the tension that is there. I am not too optimistic about a new treaty on this issue but I think TCBMs and guidelines can help address these issues.
7. Does COPUOS have any involvement in these issues, specially on military aspect of outer space ?
COPUOS’ efforts are focused towards peaceful use of outer space. In the early years, there has been a clear division of powers and COPUOS is in charge of civil use of outer space and the Conference on Disarmament (CD) is in charge of the military aspects and (de)weaponisation.‘Military Use’ is not a formal item on COPUOS’ agenda but in terms of peaceful use of outer space, there is of course a link. The two bodies are always careful to not tread on each other’s mandate, and each has a clear mandate, but there is a growing cooperation between the two.
(We thank Rishiraj Baruah for helping us arrange this interview.)