Accessing space in the southern hemisphere

In February, the annual Southern Hemisphere Space Studies Program (SHSSP) published a report discussing how the world can take advantage of the southern hemisphere’s emerging capabilities in space activities. The research lends credit to the observation that international collaboration for next-generation space activities is better served not on the treaty level but on the project level.

The SHSSP report, Access to Space in the Southern Hemisphere, discusses an international multistate-based framework as the means for most states to benefit from the southern hemisphere’s activities in ‘newspace’ - a common reference to the privatisation of space activities, the miniaturisation of technology and the greater market-access for upcoming space actors. However, the report acknowledges limitations of such endeavours and, through a case study, illustrates how states can realise and share expertise without any regional treaties.

Legal pillars for international collaboration in newspace

The five primary international space agreements provide limited but useful principles relating to states engaging with one another in a newspace context. While the Outer Space Treaty of 1967 makes clear that no portion of space can be appropriated by any state, it does not prohibit space to be otherwise used for commercial purposes – hence the opportunity for newspace to arise. The Registration Convention of 1975 permits only one state to retain jurisdiction and control of a space object and under the 1972 Liability Convention, states assume liability for damage caused by space objects involved in their governmental, private and even non-authorised activities. As a consequence, most spacefaring states require non-state actors operating within their jurisdiction to indemnify the government.

Cross-border newspace initiatives must consider more than the five primary international space agreements. The type of governance required for such collaborative projects may include consideration of the following:

• the Wassenaar Arrangement on export controls and dual use goods – and the extraterritorial effects of the United States’ International Traffic in Arms Regulations;
• the World Trade Organization including the Agreement on Trade-Related Aspects of Intellectual Property; and
• the International Telecommunication Union rules regarding frequency and orbital allocation to enable the operations of satellites and the collection of satellite-derived data.

An overview of these and other relevant international legal frameworks concerning contemporary space activities can be found at https://spacelaws.com.

More likely to facilitate international newspace cooperation rather than a treaty, is states supporting their respective industry capabilities to participate in international projects. Although harmonisation from state to state would not be determined in black and white provisions of an international agreement, states would have the benefit of allowing their industry to realise comparative capabilities with the flexibility to adapt to the rapidly developing nature of the space sector.

The state’s role in international newspace

There are three mechanisms a federal government may employ to open its newspace capabilities to a global market:

• entering into memoranda of understanding and statements of strategic intent - useful ways for a state to declare a desired direction while not restricting itself to any additional legal frameworks;
• stimulating its own industry by supporting foreign-led projects; and
• supporting international collaborative projects led by the domestic industry.

Australia provides an example of these approaches. As a state in the southern hemisphere with growing newspace capabilities, the nation’s space office communicates the state’s civil space capabilities through building relationships with foreign agencies and multinational companies such as the United Arab Emirates Space Agency and Airbus respectively. In September 2019 the Australian government announced the equivalent of 94.3 million USD to support NASA’s Moon to Mars directions, thus opening its domestic industry to NASA’s supply chain for related projects. The industry-led SmartSat Cooperative Research Centre is an international collaboration headquartered in Australia. Investment in this project is matched by the federal government to provide a platform for multinational entities such as Airbus, University College London and Thales to contribute to the domestic capabilities in developing next generation satellite computing systems, remote sensing data management and IoT applications – all integral components of newspace.

Where to from here?

The access to space in the southern hemisphere undoubtedly offers benefit to humankind, as prescribed by Article I of the Outer Space Treaty. To harness the newspace capabilities of states in the southern hemisphere, a government is better used as a tool rather than the driver. By this means, industry can inspire a state’s decision makers to facilitate project-based collaborations under the existing space law frameworks. Avoiding the restrictions associated with reaching, implementing and following new treaties will see the benefits of newspace naturally carry over to all states.

The SHSSP report is open-access on the International Space University’s library webpage: bit.ly/accesstospace.