ON THE PRIVATISATION OF SPACE Francis Lyall* I. PRELIMINARY Privatisation is a neologism. Until recently it did not appear in standard UK English dictionaries. In them its closest analogue was “privateer”—generally defined as a privately owned, armed vessel authorised by a government for use against a hostile nation. That has interesting resonances. More recently, however, the new word is usually taken to refer to the transfer of assets and responsibilities from government to the private sector. It can also be applied to the diversification that has happened in which private enterprise has expanded from the provision of technologies and support services to governmental agencies to developing free-standing private enterprises of their own. I hold no dogmatic views as to privatisation per se,1 viewing its application differently in different circumstances. For this paper, I look at three areas of space activities: communications (subdivided into telecommunications and direct broadcasting), remote sensing, and global positioning. They illustrate the potentiality of the privatisation of space but raise questions as to whether the result is the common benefit that space law requires. II. BACKGROUND We are now half a century into the Space Age. Much has changed from the early days. When we began to use space, only states were involved. The Second World War was recent, the Cold War was current. For understandable reasons, states controlled rocketry and other space-relevant technologies—a satellite launcher could double as an intercontinental ballistic missile. Further, space activities were expensive and hazardous. In the early days, * Emeritus Professor of Public Law, University of Aberdeen, Scotland, U.K. 1 In this sphere a dogmatic approach is stupid. only the two super-powers could afford the investment and undertake the risks involved.2 Today, states continue to spend on space projects, but to a major degree, the privatisation of space is under way. Some private enterprises entered space business as suppliers to governments and international organisations, either by being approached to undertake tasks for which they are thought capable or by bidding for contracts. Others have entered as system providers and operators, sometimes making use of technologies developed for state purposes. In both instances, private enterprise often chafes under the constraints laid down under international and national law, but there is no escape from these—nor should there be. Once begun, space activities burgeoned. Scientific exploration led the way, as was only natural given that it was the International Geophysical Year of 1957, an international scientific project, that first opened up the use of space. Remote sensing was an obvious development for probing the Earth’s environment, though its military importance was always also clear. Satellite telecommunications became possible in a simpler form than the space stations foreseen by Arthur C. Clarke.3 New endeavours spawned inventions, which had to be incorporated in new technologies. Government alone could not do the job, and so private enterprise found new opportunities. III. THE INTERNATIONAL LAW CONTEXT Space is different from terrestrial. The legal regulation of space is not necessarily a linear prolongation of prior terrestrial law, whether direct or by analogy. Still less is space to be considered as an unregulated frontier somehow law free. It is a new field of law, which, while drawing on history, has its own special characteristics, rules, and principles.4 These are 2 The Prospectus for the Communications Satellite Corporation was categorized as “a litany of caveats”. NEWSWEEK, May 18, 1964, at 87. 3 Arthur C. Clarke, Extra-terrestrial Relays: Can Rocket Stations Give World-Wide Radio Coverage?, WIRELESS WORLD, Oct. 1945, at 303-08. 4 MANFRED LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY LAW-MAKING (Tanja Masson- Swaan & Stephan Hobe eds., Martinus Nijhoff Publishers 2010) (1972) (particularly chapters 1-3). 2 relevant in the privatisation of space, albeit the terrestrial rules as to company organisation, taxation, and such-like otherwise apply. Early in the Space Age, the nations of the world affirmed that the use of space is to be for the benefit of all.5 This principle was translated into paragraph one of the 1963 Space Principles Declaration,6 and broadened in the terms of Article I of the 1967 Outer Space Treaty.7 Other provisions of that treaty further distinguished the legal regime of outer space from those applicable in other environments. Thus the second and third paragraphs of Article I provided for the freedom of exploration, for the use of space by all states without discrimination, and for states’ lawful access to all areas of celestial bodies; Article II excluded the national appropriation of space by claim of sovereignty, whether by use, occupation, or any other means; and Article VI imposed international responsibility for national activities in space, including requiring the licensing and supervision of nationals (including companies) to ensure that the provisions of the Treaty were complied with.8 Later space treaties expand and extend these international rules. The legal systems of states which ratify these treaties incorporate the rules by appropriate processes, or lay themselves open to a charge of failure to comply with their international obligations whatever their national laws provide.9 In addition, a number of UN General Assembly (UNGA) Resolutions are relevant to the use of space. States should also take these into account in their licensing of space activities. For the purpose of this paper, the two most important UN Resolutions are on 5 See International Cooperation in the Peaceful Uses of Outer Space, G.A. Res. 1802 (XVIII) (Dec. 14, 1962); International Cooperation in the Peaceful Uses of Outer Space, G.A. Res. 1721 (XVI) (Dec. 20, 1961). Both Resolutions were adopted without vote, the highest form of UNGA approval. 6 “The exploration and use of outer space shall be carried on for the benefit and in the interest of all mankind.” Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, G.A. Res. 1962 (XVIII), ¶ 1 (Dec. 13, 1963). Adopted without vote, see supra note 5. 7 “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Treaty on Principles Governing the Activity of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. 5, para. 1, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force October 10, 1967). 8 These provisions, inter alia, mean that it is not competent to argue from the long title of the treaty that it applies only to the activities of states and not to the activities of private entities or persons. 9 One hundred and one states, including all those space-competent, have ratified the Outer Space Treaty and a further twenty-five have signed it. 3 cooperation in space, including the participation by all states in its benefits,10 and the remote sensing principles of 1986.11 Taken together the space treaties and UN resolutions establish an altruistic approach to the dissemination of the benefits of space, which privatising devotees of Ayn Rand may find unacceptable, but that is how the law stands. How does privatisation interact with these obligations? I suggest that there are differences between the case where a space activity is or should be classified as a “public service” and that where a service is provided to the public but for which a charge, through which the provider looks to profit on its investment, is payable. In any event, as a simple matter of general morality in privatisation, a balance must be kept between the service provided and the profit to be garnered from investment. Value for money must be present. IV. COMMUNICATIONS The role of economics soon became important in the development of space. If taxpayers were to be content to continue paying for space activities they needed to see benefits somewhat more practical than those offered by pure scientific inquiry. Radiocommunication is essential for space activities so invention and innovation were stimulated swiftly to improve. Telecommunication systems (as opposed to individual links to a satellite) became possible and offered that needed opportunity to show benefit for expenditures on space. World and national communication services could be improved and extended by satellite links. Business and inter-personal telecommunications, data transfer, and TV interchange became possible. So did direct broadcasting. I take these elements separately. 10 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, G.A. Res. 51/122 (Dec. 13, 1996). 11 Principles Relating to the Remote Sensing of the Earth from Outer Space, G.A. Res. 41/65 (Dec. 3, 1986). 4 A. TELECOMMUNICATIONS It is a basic fact that satellites require reliable interference-free radio links for command, control, and the monitoring of the health of the satellite as well as the reception and transmission of messages and data of all kinds. That need stimulated technical invention. It also made possible our satellite telecommunications systems. In the 1960s and before modern fibre-optic cabling was invented, telecommunication by satellite provided a system that had more versatile linkages, was less subject to outage, was capable of providing many telephony and data channels between points remote from each other, and offered a more generous bandwidth than the then cable systems.12 In the world’s interest, improved telecommunication facilities were therefore an obvious development.13 Who would provide it? Unlike in other jurisdictions, the United States’ telecommunications, including broadcasting, were in private hands.