Tanja Masson-Zwaan on European Lawyers

Space is for everybody. It’s not just for a few people in science or math, or for a select group of astronauts. That’s our new frontier out there, and it’s everybody’s business to know about space. - Astronaut Christa McAuliffe

If you weren’t as lucky as Stephen Colbert to have the Combined Operational Load Bearing External Resistance Treadmill named after you or you are not really interested in the new Star Trek movie releasing this week, then you might think that there is nothing in space worth knowing about. However, gazing into the stars at night you might realize that there is something bigger than yourself out there. Certainly, space is filled with wonders including galaxies, planets, nebulae and the unknown, but we here on Earth have often wanted a say in how things are run in space.  Hence, there is: space law. Space, its triumphs and its tragedies, are a big part of life and the future and space law finds itself entwined with these dreams and visions.

The broad dreams of a child wanting to go and explore space are tempered with the reality of space law. Space law is one of the ’newest’ fields in the law although it has been around for over 40 years. It continues to grow as new explorations and discoveries are made daily. There are currently treaties and regulations guiding nations that are actively exploring the universe and discussions held regularly about the future of space and law. While the discovery of what exists in outer space happens outside of our eyes’ range, there are people here on Earth trying to create, manage and foster understanding of space law.

One of the people helping guide law into the new frontier of space law is International Institute of Space Law’s President Tanja Masson-Zwaan. Her passion in space law has led her to become one of its leading scholars. Her experience varies from working with aerospace companies as a consultant to teaching space law at LL.M. level at Leiden University (The Netherlands) to serving on and organizing space law forums and moot court competitions.  She recently spent some time discussing space and the laws that apply to it with me:

 
Matthew Crouch: First what, by definition, is space law?  And what should J.Q. Public (as an "average" citizen of any country) know about space law?

IISL’s President Tanja Masson-Zwaan: Space law is the body of national, regional and international laws and regulations that govern space activities. Nowadays, space law does not only consist of the UN treaties and resolutions, it goes beyond that. Apart from regional and national laws and policies, the field also concerns other areas of law, such as trade law, intellectual property law, criminal law, etc.

I think the main message should be that space is free for peaceful exploration and use by all states, but such use and exploration must be carried out for the benefit and in the interests of all states. Private activities are allowed, but states remain responsible and must supervise that these activities comply with the rules agreed between states. It is also essential to know that appropriation of outer space and celestial bodies is forbidden, by states, by individuals or by private companies. Thus, when they buy a so-called ‘lunar deed,’ they will understand that they are merely buying a piece of paper that they can frame and put above their fireplace.

 

MC: What are the current laws regarding travel into space? Is there one international treaty?

TMZ: There are five UN treaties regulating the activities of states in outer space, and the rights and duties under these treaties also apply to private entities undertaking space activities, although the state always remains responsible for these ‘national activities.’

If you specifically refer to rules governing private human spaceflight, or space tourism, there is no specific treaty regulating this; such rules are rather being developed at national level, such as in the USA Code of Federal Regulations (CFR). In addition, there are some guidelines about so-called ‘spaceflight participants’ in the ‘Crew Code of Conduct’ agreed in the framework of the International Space Station (ISS), which is an agreement between the five ISS partners. But there are no rules at international level yet.

 
MC: Where does the responsibility of enforcing those laws lie? And is there a mediation or court with jurisdiction over space law?

TMZ: Enforcement of international law, including international space law as laid down in the UN treaties, remains a matter subject to the sovereignty of states. There is no international police that can put a state in jail, so to say. The enforcement of international law depends on the political will of a state to abide by the rules it agreed to by signing a treaty. If it does not, another state can go to the International Court of Justice (ICJ) in The Hague, but even the decisions of this ‘World Court’ are not ‘enforceable.’ Here as well everything depends on political will and of course on moral pressure from fellow members of the international community, which usually helps a good deal (but not always...).

Unfortunately, there has never been a space law case before the ICJ. It would be good if that happened, because it would allow for the treaties to be interpreted by this prestigious Court and might help in solving some ambiguities. Interestingly, Judges of the ICJ have served as judges in the finals of the space law moot court competition that the IISL organizes every year since 1992.

 
MC: What is the legal status of the Moon?

TMZ: The status of the Moon is regulated under the space treaties. Its exploration and use are free and should benefit all countries. No one can own the Moon, or a piece of the Moon. A more complicated matter is the exploitation of the Moon’s resources - this is much less clear. The Moon Treaty of 1979, which addresses exploitation (i.e. the next step, after ‘exploration’ and ‘use’ ), is controversial and has not been ratified by any of the space powers. It foresees in the setting up of an international regime to govern the exploitation of such resources, ‘as such exploitation is about to become feasible’. Here is again that question whether we should regulate before or after the fact. The Moon Agreement is very wise, because it says we should wait until exploitation becomes feasible. It is not at all certain whether that is already the case. Often, Helium-3 is cited as a very useful lunar resource that we can soon start to exploit. However, as long as we don’t have fusion capacity here on earth we cannot do anything with Helium-3, so we are definitely not there yet, and may not be for a 100 years!

 
MC: What is the most misunderstood facet of space law?

TMZ: Actually, most people don’t even know it exists... And when they do, they have difficulty in understanding that there is no sovereignty in outer space, that no one, states nor private entities, can claim property rights over parts of outer space - that is something we are not used to on Earth, and it is what distinguishes space law from for instance air law (where states are sovereign over the airspace above their territory and you need permission to fly through it).

 
MC: If space travel was available to you right now, where would you go and why?

TMZ: I don’t think I could ever afford it, but even if I had a free ticket, I would stay on Earth. I’m too terrestrial, and perhaps not adventurous enough - not knowing for sure that I will be able to get back to my family puts me off. Moreover, I was told that the Moon is a dusty dark place and I don’t really see the fun of going there. Going to Mars and back will take close to 2 years and I would never volunteer for that! Imagine that 6 people recently locked themselves up for 500 days, for an experiment for a mission to Mars and back! This all sounds a bit negative, but I do think mankind should continue to explore outer space, and I am amazed when I see the beautiful images that we receive for instance from Hubble. It’s just that I don’t really fancy going there myself... The only thing that is apparently life-changing and that might tempt me is to observe our blue planet from outer space. I think it would be humbling for many of our world’s leaders to experience that.

MC: What is your favorite law and why?

TMZ: I love space law in general, because not everything is written in stone, and because it tries to provide a legal framework for the dream of every human, to push his frontiers ever further. The founding fathers have established very wise guiding principles and it is up to us to further develop and interpret these rules as new issues arise.

For additional information on International Institute of Space Law and  President Tanja Masson-Zwaan, please visit;  www.iislweb.org