NEEP 602 Lecture #39

NEEP602 Course Notes (Fall 1996)
Resources from Space

Lecture # 39 Second, we kill all the lawyers, again!

Title: Legal Regimes for Space Enterprises - Approaches

Relevant Law and Precedents

The Moon Agreement of 1979
- Negotiated in the UN Outer Space Committee
- Entered into force in 1984 with five countries having ratified - a few more since
- Major space powers have not ratified, including US, Russia, China, Japan,
- To a large degree, repeats the obligations contained in the Outer Space Treaty
- New obligations/rights include:
  - samples can be remove and retained
  - resources may be used to support activities on the Moon
  - prevention of the disruption of the existing environmental balance
  - free access of other parties cannot be impeded
  - the statement "The Moon and its natural resources are the common heritage of mankind.."
  - agreement, in Article 11, to undertake to establish an international regime to govern the exploitation of lunar resources "as such exploitation is about to become feasible"
    - orderly and safe development
    - rational management
    - expansion of use
    - equitable (not defined) sharing of the benefits
  - informing the public of any natural resources discovered
- US did not sign or ratify due to concerns about the interpretation of the "common heritage" language in light of the history of the Law of the Sea Convention
  - one view is that the phrase contemplates a moratorium on use of lunar resources
  - other view is that the phrase has never had a fixed meaning and the negotiating history of the Moon Treaty supports this view
- Extent of agreement on "common heritage" phrase as it might relate to lunar resources
  - mining areas not subject to national appropriation
  - shared management responsibility
  - sharing of economic benefits
  - use for peaceful purposes
  - free and open scientific research
  - concern for protection from environmental harm
- No management regime established
  - Article 11 expressly contemplates a separate negotiation without preconditions other than those already accepted for outer space activities
  - Any disagreeing state will not be legally bound by whatever management regime is defined by this negotiation
  - It does not appear that the use of the phrase "resources may be used to support activities on the Moon" was intended to preclude broader use of such resources
- Detailed environmental obligations left open
- No consultations held in 1994 as scheduled due to lack of interest in returning to the Moon.
INTELSAT Agreement of 1964
- Result of Kennedy decision to share US communications technology with the world
- Major provisions:
  - applies to space segment only
  - purpose to provide international public telecommunications via satellites
  - membership open to any member of the International Telecommunications Union (ITU)
  - benefits of space made available to all through access to satellite communications
  - user-based control, i.e., shares based on percent utilization of the system
    - US initially would have had majority control but voluntarily limited share to 40% (now much less)
  - INTELSAT can act as a legal entity
  - nondiscriminatory pricing structure for its services
  - thinly used links subsidized
- Currently considering reorganizing into a public corporation
  - Major problem has become inability to compete with private communications systems due to requirement to subsidize thinly used links
INMARSAT Agreement of 1976
- Same structure as INTELSAT for mobile maritime communications
- Expanded into land mobile communications
- Recently spun off a public corporation to compete in satellite based mobile communications
Lessons Learned?
- User-based, international organizations like INTELSAT and INMARSAT, with narrow and achievable objectives, work
  - every party has always paid their bills to retain what is perceived to be indispensable service
- Designed to improve service to an existing market
International Space Station (ISS) Intergovernmental Agreement (IGA) of 1988
- Signed by US, Europe (ESA), Japan, and Canada
  - Original agreement based on Antarctic and Space Treaty-like arrangements
  - Innovative provision on criminal jurisdiction
  - Each party responsible for funding and building is contribution to the ISS
  - US (NASA) responsible for launch, integration, and overall management
  - Withdrawal allowed with 1 year notice
- Russia invited to join after several redesigns of ISS
  - Revised IGA in negotiation (CRS 1996)
  - Phase I (1994-1998): joint Space Shuttle and Mir activities
  - Phase II (1997-1998): Russia will build and launch the central core module (providing GN&C), provide re-boost through a Progress Module, and provide Crew Return Vehicles (Soyuz), in support of US power and habitation modules.
  - Phase III (1998-2002): European, Japanese, Canadian, and Russian research modules added.
- Major Issues resulting from Russian participation
  - Political stability of Russia
  - Adequate funding for its commitments
  - Russian participation linked to its adherence to the (Ballistic) Missile Technology Control Regime (MTCR) and to the transfer of large sums (about 590 million as of today) of US dollars.
  - US Congress worried about ISS dependency on Russian performance and stability
  - Original savings (2 years and $4 billion) have largely disappeared.
  - Russian launches depend on good relations with both Kazakstan and Ukraine.
- NASA's own technical and political issues are formidable
  - Launch schedule margins
  - Shuttle operations and funding
  - Extravehicular Activity requirements
  - Congressional support
- Lessons Learned?
  - Do not negotiate agreements piecemeal.
  - Insure that all parties have a vested interest in the success of the enterprise.
  - Start with as simple an engineering and operational design as the principle goal of the enterprise permits.
  - Although developments have endangered the success of this Agreement, it does provide some precedents on cooperation between partners each with significant technical and financial resources to bring to the table.

The INTERLUNE model for international management of a lunar enterprise (see Schmitt, 1992)
- Modeled largely after the INTELSAT and INMARSAT agreements

INTERLUNE Organization Chart

Parties involved:
- Nations
  - Traditional parties to treaties and international agreements
- Users and customers
  - Part of the INTELSAT and INMARSAT systems
- Investors
  - Non-traditional parties but now part of the INMARSAT public corporation
- Assembly of Parties - member nations
  - Policy authority
  - ~ Shareholders
- Board of Governors - major contributing nations
  - Operational authority over the Director General
  - ~ Board of Directors
- Board of Users and Investors
  - Represented on the Board of Governors
  - Present recommendations affecting the interests of users and investors
- Director General and staff
  - Operation and Management
- Judicial Tribunal
  - Final arbiter of internal disputes related to interpretation of the Charter
  - Final court of appeals in criminal and civil matters
- World He-3 energy and Environment Foundation
  - Recognizes "common heritage" and "environmental heritage" themes of modern international law
  - Third World nations and UNEP would be among the beneficiaries
  - Assist in the broad utilization of fusion power
  - Assist in countering the effects of global change
Provision for Self-Determination
- Seats for permanent settlers on the Assembly of Parties, Board of Governors, and Judicial Tribunal
- Incentive compensation for permanent settlers
- Provision for accumulation of voting shares by permanent settlers
- Recognition that the success of INTERLUNE will ultimately guarantee political and financial control if desired
Ancillary goals of INTERLUNE
Develop a customer base
Seek a competitive return on investments
ensure the neutrality and security of its activities

INTERLUNE Summary

Implementation

Major events involving INTERLUNE

Environmental Law: International Principles; Rio Treaty
Other Treaty and Customary Law
Conclusion

References:

Bilder, et. al., 1989, Legal Regimes for the Mining of Helium-3 from the Moon, WCSAR-TR-AR3-8901-1, p54-79.

Congressional Research Service (CRS), 1996, Space Station, Issue Brief, 3/20/96.

Schmitt, H.H., 1992, INTERLUNE Concept for Helium-3 Fusion Development, in W.Z. Sadeh, et al., editors, Engineering, Construction, and Operations in Space III, p804-814.

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Fusion Technology Institute

Lecture # 39 Second, we kill all the lawyers, again!

Title: Legal Regimes for Space Enterprises - Approaches

References: