* This text is part of an academic paper delivered to evaluation in the LL.M. in European and Transglobal Business Law.
In the final moments of our
seminar we were left with the following question to debate: “What if someone
builds a ladder to the GSO?” Is it possible? Is it in accordance with international
law? It could be built by a private entity? We may think that nobody would even
believe that building a ladder of 150 km high is possible, however, the variety
of private space activities predicted being exercised in the near future, such
as, the commercialization of flights to the outer space, or the mining of the
moon and asteroids for obtaining helium-3 and raw materials, demonstrates that the
exercise of certain space activities is not planned in the most adequate way. On the contrary of what Clara Moskowitz[1]
says[2],
the outer space is not at the free disposal of individuals. Whether it is true
that no country has sovereignty from a given limit (this limit depends on the
theory regarding the definition/delimitation of outer space adopted) it is also
true that there are rules governing the outer space and these rules must be
respected. The most relevant instrument of space law is
the Outer Space Treaty since it was ratified by an extensive number of States. Under
the OST, public international law applies to space activities, particularly the
principles of peace and cooperation envisaged in the UN Charter. Moreover, according
to Article I of the OST “the exploration and use of outer space (…) shall be
carried out for the benefit and in the interests of all countries (…) and shall
be the province of all mankind”. In line with the General Opinions Contained in
the Non Working Paper of the COPUOS of 1989, the use of GSO has to be rational,
equitable and exclusively for the benefit of all mankind.
Therefore, the only way that
an entity could build a ladder to the GSO is if it would do it so as to benefit
all mankind. I have doubts that a ladder to the GSO would be built in order to
benefit the mankind, in particular if the entity responsible for the
construction is a private company. Private companies usually do not have the
main purpose of benefiting the mankind. Instead, their purpose is to obtain profit.
The same can be said in relation to the commercialization of flights to the
outer space or the mining of the moon and asteroids. From my point of view, these
activities are not designed to benefit the mankind. On the contrary, they are
designed to benefit (monetarily) exclusively the entities that perform them. As
a result, the exercise of such activities is not in accordance with the OST and
other space law rules. In what concerns the argument that the Outer Space
Treaty only applies to States and does not apply to private entities, we cannot
accept this interpretation. Accept it would mean that private law is above
public law and that is not correct. Additionally, under Article VI of the OST, “activities
of non-governmental entities in outer space (…) shall require authorization and
continuing supervision by the State concerned”. Consequently, Article VI prohibits,
as a matter of treaty obligation, strictly private, unregulated activity in
outer space.[3] Since
non-governmental entities need an authorization by one State and are subject its
supervision, it is quite clear that the State that confers the authorization
can only confer it for the company to exercise its activities in the same
manner that the State would exercise them, i.e., in conformity with the Outer Space
Treaty. States cannot confer more rights than the ones that they have. Having
this said, there is no doubt that the OST has to be respected not only by
States but also by any private entity that performs a space activity.
Through what has been said we
can conclude that the construction of a ladder to the GSO would only be
possible if it was done to benefit the mankind. Under space law, more
specifically, under the OST, the outer space is province of all mankind and so its
exploration cannot be done only in the benefit of a strict group of persons. Regarding
the argument that the OST is only applicable to States, we have seen the
reasons why this argument is not acceptable. Hence, whether we are talking
about the construction of a ladder to the GSO, the commercialization of flights
to the outer space, or the mining of the moon and asteroids, we have to bear in
mind the existence of space law rules, according to which the performance of
such activities should only be possible if the entity responsible for it would
do it so to benefit all mankind. I have difficulties to understand why a
private entity would build a ladder to the GSO with the purpose of benefiting
the mankind, because the main purpose of private entities is usually obtaining
profit, however, the benefit of the mankind is a condition sine qua non to
exercise a space activity.
By Francisco Portugal
March, 2014
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