International law is all about reacting to technology

Steven Freeland is Emeritus Professor of International Law at Western Sydney University, specializing in Commercial Space Law, and previously the Dean of the School of Law. He also holds Visiting or Adjunct positions at various other Universities/Institutes in Copenhagen, Vienna, Toulouse, Hong Kong, Montreal, Kuala Lumpur, London and Queensland. Prior to becoming an academic, he had a 20-year career as an international commercial lawyer and an investment banker. He is a Member of the Advisory Group of the Australian Space Agency and has been an advisor to the Australian, New Zealand, Norwegian and several other Governments on issues relating to national space legislative frameworks and policy. He has represented the Australian Government at Committee on the Peaceful Uses of Outer Space (UNCOPUOS) meetings and has also been appointed by UNCOPUOS to co-chair multilateral discussions on the exploration, exploitation and utilization of space resources, which will take place in May/June 2021. He is a Co-Principal of specialized space law firm Azimuth Advisory and is also a Director of the International Institute of Space Law, and a Member of the Space Law Committees of both the International Bar Association and International Law Association.

Interview by Alfonso Delgado-Bonal.

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1.- a) The US never signed the Law of the Sea Treaty.  b) After a very short period, the US withdrew from the Paris climate agreement and is officially out since November 4th, 2020.   c) The US signed the Outer Space Treaty (OST, 1967), and then Obama passed the SPACE act in 2015, which, in the mind of many, contradicts the agreement. 

Is International Law actually useful, or you can take it or leave it as you please, depending on the moment?

You have to put in context the OST of 1967, the Moon Agreement of 1979, and the Law of the Sea Convention of 1982. Essentially, those latter two treaties were negotiated at the same time by the same diplomats, under the same geopolitical context of decolonization, and many people saw similarities between the exploitation of the seabed and the Moon.

In areas such as the sea or space, there are two options: no law, which would lead to the Tragedy of the Commons, or international law. For obvious reasons, humanity decided to go for the latter and classify space as “global commons,” meaning we all have a stake in it. In the 70s, all the new countries being created by those decolonization processes suddenly also had a stake in space. In theory, it belongs to us all, but they can’t take part in it because they don’t have the technology, and they perhaps see some of the activities of the larger space-faring countries as a new form of colonization. In the end, the world decided that if we were going to do this, it has to be equitable, sharing benefits, etc., and they created a political concept (not a legal one), the “Common heritage of (hu)mankind,” which in reality is to be interpreted within the specific context in which it is found.

International law is all about reacting to technology. As we get new technological capabilities, we can do more things and there are more and more opportunities but also legal challenges. In the end, industrialized countries did not (initially) sign up for the Law of the Sea Treaty or the Moon Treaty because that would create more obligations. The US has still not signed the Sea Treaty but has declared that it will abide by its terms when it is in its interests.

I am probably more a practitioner than an academic, and I think multilateralism is stronger than ever these days out of necessity – because it needs to be stronger. Multilateralism and globalization go together. President Trump’s withdrawal from the Paris Climate Change  Agreement is unfortunate, but it is not the death of multilateralism. The world is becoming more and more engaged with each other, and that is the case for space, notwithstanding the tensions, the talk about weapons, etc. You can’t look at the law of the Sea in isolation, or the climate agreement in isolation … for any action, there is always a counterforce, and you have to listen to all the other voices. That is what international law is about, hearing all the voices before making any choices.

The interaction between international law and national law is a 2-way street. International law informs but does not in any way prevent countries from lawfully enacting national law. And at the same time, national laws can inform the international community. Most countries are distrustful of international law, but if you explain to them that it is not just an imposition, if you explain that national law also informs international law, they can see its necessity and advantages even more.

2.- The US didn’t sign the Moon Treaty in 1979 either, which aimed to create a protected environment (a bit like Antarctica). Now we have the Artemis Accords. What are the main differences between the Moon Treaty and the Accords from the commercialization point of view?

At a basic level, the Moon Treaty is a Treaty; it is a legally binding document for the parties. On the other hand, the Artemis Accords is not a strictly legally binding document but a political one; the signatory States are obligated to each other in different ways but not legally. According to NASA, the Accords are completely consistent with the OST, are operationalizing the OST.

The Accords and the Moon Treaty are not mutually exclusive. Take, for example, Australia. It is currently the only country that is party to both. There are many useful things in the Accords, but also in the Moon Treaty, about the environment, sustainability, future generations, etc. The Accords introduce concepts that are not in the OST or the Moon Treaty, but which may represent another positive set of inputs to ultimately assist the broader international community to ultimately work out how are we going to undertake such activities, because we need to have these broader discussions. China, Russia, India, France, and others are not (yet) part of the Artemis Accords, but if we don’t have the discussion and find a mutual agreement between those most capable of getting there, as well as all stakeholders, then we risk potential future conflict.

The Artemis Accords is a sophisticated document – clearly, a lot of very qualified people worked on it, but as good as some parts are, it raises many questions. You have to look at these things as part of a broader framework. You take a piece of this one, a piece of that other one, and put all the parts together. We don’t have to accept everything in there but it is good to have many well-considered ideas from many parties. In this sense, the US is being proactive.

3.- In the event of a conflict in space, how will it be solved? Will the Permanent Court of Arbitration (PCA) Optional Rules for Arbitration of Disputes Relating to Outer Space Activities play any role, or since they are optional, they won’t really matter?

There are many possible ways of solving disputes in outer space. All international laws encourage the peaceful resolution of conflicts. In this case, you need to have something specialized about the uniqueness of space. Space has insurance requirements, technical challenges, geopolitics, etc.

There will be more and more disputes and the actors will be different: governments, non-governmental organizations, international bodies … there is no “one size fits all” dispute resolution mechanism. To solve those questions you will need experts, not just lawyers, but also technical experts, and we need to have the mentality that if something goes wrong, we have to talk about it. The PCA is one of the many possible ways to approach the issues, but space is unique and will require new and differing approaches to properly relate to any specific set of circumstances.

4.- Let’s talk about space debris. Quite often, we read about the Kessler Syndrome, a hypothetical situation where access to space will be blocked due to space debris. There are no laws about space debris, rather voluntary guidelines, and we have the technology to actively remove it (ESA is about to spend $100 million to bring back a piece of it): do you think such a law is necessary, or we can continue like this?

The Treaties are relevant to space debris. The OST is all about space being for everyone. The Treaties have a lot to say about how do you conduct yourself in space, not just specifically about space debris.

There is a reason why the Treaties never mentioned explicitly space debris: those Treaties were negotiated in the 60s and 70s, and there wasn’t even any significant environmental ‘movements’ here on Earth. Space debris is a major challenge and nowadays we have mitigation guidelines, long-term sustainability guidelines, COPUOS calling to implement national plans, etc.

We certainly are developing technology but I’m not convinced we have the technological capabilities to comprehensively clean up space just yet. You know the numbers, there are billions of pieces and even though we can’t track the vast majority, those pieces have destructive capabilities. We can take big pieces, and even that is technologically challenging, things can go wrong. Moreover, you have to prioritize because you can only take one or two pieces a year, but we are launching much more so the problem continues to increase. A ‘business as usual’ mentality is simply not feasible if we are to avoid a ‘tragedy of the commons’ in space. Notwithstanding, I think we have the capability to shift behavior because if we continue with business as usual, it can be catastrophic.

Shifting behaviors is a balance because you have to change standards, and even if it is for the greater good, it may add to the cost and disincentivize activities in outer space. You have to consider who is going to pay for it. Countries are developing their own standards not necessarily because they think they have a responsibility to do it, but because civil society pushes them to do so.

Are we going to have a Treaty about space debris? Treaties come with obligations. You don’t want to impose standards for the sake of doing it; you have to find a balance. However, the most powerful thing about space is the notion of common interest, captured in the preamble of the OST. If you irreversibly mess it up, you do so for everyone, including yourself. With climate change, those that will suffer the most are the poorest countries, but for space, if we get it horribly wrong, those who will suffer the most will be the biggest countries because they have the greatest dependence on space technology and therefore the greatest vulnerability when their access to space is compromised.

In space, you have more in common than you have differences. You can be competitive and all, but you don’t want to, ultimately, compromise your own capabilities and ambitions. It is all about ensuring only responsible behavior.

8.- Planetary protection aims to avoid harmful contamination of planetary bodies, and has been the norm for space agencies such as NASA or ESA. This year, NASA “relaxed” the planetary protection principles for the Moon and Mars, thinking of human exploration. Now a private company (SpaceX) says that they send humans to (occupy) Mars soon. Albeit they claim that they will take planetary protection seriously, there are no legal pathways to verify it. Should we just trust their word

The US, like any other party of the OST, has the obligation to assure that activities by non-governmental entities within its jurisdiction do not violate the Treaty. The US – and every party to the OST – has a clear legal obligation not only to authorize and supervise those entities but to assure that their activities are in compliance with the OST.

No country wants to be seen in violation of international Treaties. Private companies drive technological development and innovation, playing an incredibly important role in space, and will be used more and more by the governments for civilian and military uses. That said, countries can’t afford to allow their companies to engage in activities that clearly violate the terms of the Treaties. It is in the best interest of the US – and indeed every country – to assure that so all the others will do the same, and that has more power than legal documents.

Planetary protection documents are not binding but we have to make sure we are not seduced by ideas such as terraforming without clearly thinking through all of the potential consequences. International law encourages countries to implement these standards about space debris, sustainability, planetary protection, but if someone wants to behave badly, they will do. However, once they behave badly, people will see beyond the seduction and would be tremendously difficult for companies to keep doing their business. Look at the illegal satellite launches by Swarm Technologies, or the Israeli Lunar Lander that spilled Tardigrades on the Moon. If they want to behave badly, they will do, but there will be consequences.

The US is transitioning from Trump to Biden’s administration. What are your thoughts regarding the changes in space policy?

Together with some colleagues at McGill University, I recently wrote about it. Last year, India blew up a satellite just to prove they were able to do it, in the run-up to its national presidential election. Many actions related to space are for internal politics. The problem is that doing these things encourage others to do it. There has to be a change in the language. Instead of talking about space war as President Trump did, we have to talk about space cooperation. The leading countries such as the US can still be leaders and support their own interests whilst, at the same time engaging in what I would term ‘cooperative leadership’. It is a ‘win-win’ situation if seen from that perspective.

The world is changing. We still have one space power but the others are catching up. We have to think of space as Cooperative, Communal, and Commercial. Commercial space actors don’t want a war in space, that is bad for business. There are so many benefits from space that a war would not be in the interest of the US – or anyone. Talk about a war in space is largely for internal consumption, but the US has a great opportunity to cooperatively lead the way forward for the peaceful uses of outer space. Agreements don’t have to be through formal treaties. We are talking about understandings, common rules, best practices, and coexist, and doing the best for ourselves at the same time.