A presentation by Prof. Ram Jakhu Institute of Air and Space Law McGill University, Montreal, Canada at International Symposium on Solar Energy from Space Ontario Science Centre, Toronto, Canada Tuesday, September 8, 2009 SOLAR ENERGY FROM SPACE “Space Law and Possibilities for an International Space Treaty”

INTRODUCTION One of the objectives of this Symposium is: “To frame a notional international roadmap that will lead the realization of the (space-based solar power (SSP)) concept” My presentation is in that context: i.e. the role of International Space Law and Possibilities for another International Space Treaty in the realization of SSP concept. Donald Rapp correctly points out that: “It is perhaps not an exaggeration to suppose that the political and legal aspects (of SSP) may be as challenging as technical and economic aspects.” Fundamental and undeniable facts: - Need for energy will grow exponentially in the future (A NEED TO BE MET) - Access to and use of energy, as an internationally traded commodity, is a grave global concern - Environmental degradation and adverse climate change are inherently global (A PROBLEM TO BE SOLVED) - Space is an international environment, beyond the jurisdiction of any state - It is believed that the next major international conflict (world war) will be over access to energy sources and fresh water; i.e. possibility of threat to international peace and security (A TRAGEDY TO BE AVOIDED)

Therefore, orderly, economic and efficient construction of a SSP system will have international implications, involvement, cooperation, coordination, regulation and/or most probably operation. This can be achieved only through an appropriate international regulatory regime. “Regime” generally means “a set of mutual expectations, rules and regulations, plans, organizational energies and financial commitments, which have been accepted by a group of states.” International regimes are generally created through international treaties under which the participating states agree to regulate their relationships and to abide by the agreed upon rules. Space-related matters have been subjected to international space regime created primarily through the UN sponsored international space treaties and some other agreements. All SSP systems must comply with this existing regime. I will briefly list the most important elements of the existing regime (international treaties ) that are directly applicable and relevant to a SSP system Sometime, states believe that their interests are well-served if they participate in an international organization that is created for commercial exploitation of a technological discovery & technical systems. Such organization is established through a mutually negotiated international treaty. I will briefly address the issue of the need and possibility of an international space treaty in order to jointly develop, construct and commercially operate a SSP system.

Existing international space treaties space activities must be carried out for the benefit and in the interests of all countries and shall be the province of all mankind (a SSP system must somehow benefit all countries) space is free for exploration and use by all states, without discrimination of any kind a state (including its private companies) must not appropriate space by any means (capturing of solar energy is not appropriation; but use of a GEO position for a long time might be defacto appropriation) a state (including its private companies) must carry out space activities in the interest of maintaining international peace and security and promoting international co-operation and understanding. (conflicts must be avoided) states are prohibited from placing in space nuclear weapons or other weapons of mass destruction. states bear international responsibility for space activities of their public entities and private companies. (private space companies must procure appropriate licenses from their governments) states are internationally liable for damage caused by a space object of its public entity or private company to a foreign state or to its persons (absolute liability, if damage is caused on the Earth or to an aircraft in the air; faulty liability if damage is caused in outer space) a state (including its private companies) must (a) carry out its space activities with due regard to the corresponding interests of all other states, and (b) avoid harmful contamination of outer space and celestial bodies and also adverse changes in the environment of the Earth

Other existing international treaties ITU Constitution and Radio Regulations: Are applicable to radio frequencies for non- communication purposes (i.e. microwaves for transmission of energy from GEO) Radio frequencies and GEO positions must be coordinated through and registered with ITU. Access to & use of RF and GEO are available on a ‘first-come, first-served’ basis; late comers must coordinate with earlier users; first comers are under no obligation to accommodate late comers 2.45 GHz frequencies for SSP system, but this use should be made exclusive; need for technical standards for avoidance of harmful interference and adverse impact on environment and humans. ICAO Convention and Regulations: There will be an exponential increase in traffic to and from space for the construction of SSP system(s). It is important to carry out orderly and safe space and air traffic; thus ICAO should be mandated for aerospace traffic management rules & safety standards. There is no need to change the existing space treaties and perhaps they will not be modified for a few decades. They must be complied with for the construction of any SSP system. Others existing treaties need to be expanded to address specific requirements of SSP system(s). Challenge will be posed by requirement of compliance with non-binding international Space Debris Mitigation Guidelines (2007). Space debris problem is being recognized as a very serious impediment for safe and successful space operations. Construction of an extremely large facility like SSP system undoubtedly holds great potential for creation of significant amount of space debris in GEO, where junk will stay for hundreds of thousands, if not millions, of years.

Construction & use of a SSP system? Unilateral national approach might be taken because of: -national prestige, national security, national economic and technological benefits; and - multinational cooperation is perceived to be complex, time consuming, reduces flexibility, involve multiple political constraints; there might be a possibility of leakage of advanced technology especially to adversaries, (ITARs) etc. However, a treaty creating an international organization for multinational participation might (should) be preferred because of: - necessity for sharing the prohibitive cost (estimated from $100 billion to $1 trillion). The major segment of such cost is the launch of materials and robots (and possible humans) to GEO. This expense could be shared with low cost space transport service providers, like China, India - expansion of market for energy. Growth of demand in developing countries, like Brazil, China, India etc. If a SSP system is only owned-operated by the US, others will not let the American monopoly go unchallenged. - it is unclear as to how many SSP systems can be constructed, but more systems will place serious demands on the availability of highly scarce resources of radio frequencies and GEO positions; also might create more space debris.

- use of fossil fuels causes environmental degradation and adverse climate change which negatively affects both the polluter and non-polluter nations alike; thus all should be allowed and encouraged to use clean and green energy sources, like SSP - there is a perception that a national SSP system could be used for military purposes; such perception could be cleared or mitigated by allowing all countries to participate in the construction, ownership and use of the system - liability for damage caused by a space object (including debris) could be shared with other partners and avoided among participants by making a provision in the application treaty for ‘cross-waiver of liability’ (e.g. ISS). Under this provision, all partners agree not to make a claim for any damage. This is a major tool for risk management and for reducing cost for construction and operation of a SSP system - constituting treaty might have a quick dispute settlement mechanism; thus avoid lengthy and expensive litigations - international antagonism might be avoided and international cooperation could be enhanced by multinational participation; such cooperation would be necessary for adopting new rules for SSP systems in ITU, ICAO and others - multinational participation through international organization would be considered effective implementation of the cardinal principle of space law that space activities must be carried out for the benefit and in the interests of all countries.

Self-interest in international organization International organization for the construction and operation of a SSP system will be in the self-interest of the US (or of any other nation that might think of having national system) - This will show US leadership (not dominance); create friendly relations with all participating countries; avoid conflict; and help develop national technological capability (as was achieved through INTELSAT) Model For An International Organization: Various models are proposed; however I prefer an international body like the International Satellite Telecommunications Organization (INTELSAT) (also is INMARSAT) - Created as an interim body in 1964 at the initiative of the US and was made permanent in Had international legal personality (not subject to any national jurisdiction) and the role of participating states was limited to providing advice only - Financial participation was by private or public national telecom operating entities (shareholders) - Governing board represented the shareholders and managed the construction and operation of satellite system - The Board was based on a corporate model in which the directors we entitled to weighted votes according to their respective financial contributions - The level of financial contributions was determined on the basis of actual use of the system by each shareholder - “INTELSAT's aim was to achieve a single global commercial system as part of an improved global telecommunications network which will provide expanded services to all areas of the world and contribute to world peace and understanding.” - The organization became highly commercially successful consortium of over 100 states operating a fleet of over 50 GEO satellites. In 2002, it was ‘privatized’ (actually de-internationalized & placed under the US jurisdiction)

Next first steps INTELSAT was based on international policy adopted by the United Nations General Assembly under its Resolution 1721 D unanimously adopted on of 20 December 1961: -‘that communications by means of satellites should be available to the nations of the world as soon as practicable on a global and non-discriminatory basis” For SSP purposes, a similar resolution should be adopted perhaps stating that : -‘that space-based solar power should be available to the nations of the world as soon as practicable on a global and non-discriminatory basis” (Canada should take a lead in presenting a draft of such resolution to the UN COPUOS) The US initiated the formulation of the international treaty that created INTELSAT with a statement by President J.F. Kennedy made on July 24, 1961: -“I again invite all nations to participate in a communication satellite system, in the interest of world peace and closer brotherhood among peoples throughout the world.” It will be good if President B. Obama is persuaded to make a similar policy initiative with respect to space-based solar power system.

Conclusions-Messages Construction of a SSP system will have international implications, involvement, cooperation, coordination, regulation and/or most probably operation. Current international regime, in the form of five UN space treaties, that will continue apply to SSP systems, seems for the time being to be appropriate & sufficient; it needs no immediate change and perhaps will not be modified for few decades. However, others treaties, like the ITU and ICAO, need to be adapted and expanded to meet specific requirements of SSP systems. For commercial operation of SSP system(s), an international organization, preferably like the INTELSAT (before its privatization), should be established through an international treaty open to participation by all nations. Rationale for such action is that in the future: - There will be a clear global need for extensive energy resources that must be met - There will be a serious global problem of environmental degradation and adverse climate change that must be resolved - There will be a strong possibility of occurrence of a serious tragedy of a major international conflict that must be avoided

Thank You For Your Attention !!!