DigitalCommons@University of Nebraska - Lincoln - Frans G. von der Dunk: Sovereignty Versus Space - Public Law and Private Launch in the Asian Context

Law, College of

Space and Telecommunications Law Program Faculty Publications

Title

Sovereignty Versus Space - Public Law and Private Launch in the Asian Context

Authors

Frans G. von der Dunk, University of Nebraska - Lincoln

Document Type

Article

Date of this Version

2001

Comments

Abstract

In the more than forty years which have gone by since the birth of space law, there has not been a more revolutionary development than the rapidly increasing involvement of private entities in space activities. International space law in the narrow sense—essentially five space treaties and five United Nations Resolutions on space constituting the core of the corpus juris spatialis internationalis— developed for its most fundamental part when only states (and a few international organisations) were undertaking space activities in any meaningful sense of the word. Its exclusively public character, for example in terms of rights and obligations provided for, was a direct consequence of this.

This poses the fundamental question whether international space law is adequate to deal with private space activities, and notably to balance valid private interests with the general public one in outer space and space activities. In other words: are private enterprise's interests sufficiently heeded by the body of international space law, and are, at the same time, the interests of the public at large sufficiently protected against the undesirable (side-) effects of private enterprise's entry into outer space?

This question is perhaps of special importance for Asian countries. Traditionally, Asian societies and states have been inclined more than e.g., European ones to focus upon the general collective, i.e., public, benefits of any economic activities, including those in outer space. In this context, private economic initiatives have often been frowned upon, alternatively kept on a short leash. In legal terms, this notion of 'the collective' translates largely into the concept of 'sovereignty', as a legal tool to defend a state's interests both on the international and on the national plane.

At the same time, the advance of private enterprise into the space arena over the last decade or two has probably been nowhere as marked as in Asia. Economic tigers such as Singapore, Taiwan, Malaysia and Thailand, having already considerable experience with the role of private enterprise in a general economic sense, are increasingly becoming present also in outer space through private and commercial participation. Major powers such as India and Indonesia are moving away from their traditional distrust of private enterprise and private intentions, and structured efforts are under way to facilitate private entities' participation in various fields of space activity. Even the People's Republic of China is taking fundamental steps to take part in an international, read global space economy being increasingly liberalised—not in the least in the field of launching.

Yet, there is an almost complete silence of the aforementioned treaties and resolutions of international space law on private entities and private activities. For Asian countries, the question of the fitness of international space law and its major instruments in dealing with the private character of a considerable and growing measure of space activities is of crucial importance. As launching in a sense represents the key to most other relevant space activities—without launch, satellite communications, satellite remote sensing, satellite navigation or space station operations are not possible—such a general analysis applies to this field in particular.