Outer space as the province of all mankind: Two decades later

Outer space as the province of all mankind: Two decades later

| By Professor David Tan |

While Singapore's global status as an aviation hub is well-cemented, its spacefaring capabilities are more modest. However, it is still home to over 60 space tech firms with over 2000 personnel today. Since 2011, Singapore has launched more than 30 satellites. This year, it was announced that Singapore will be launching a very low-orbit research satellite in 2025, named Elite, built by the Nanyang Technological University that will soar just 250km above the Earth.

The impetus to have a footprint in space began in 2013 when the Economic Development Board established the Office for Space Technology and Industry to spearhead the development of small satellite capabilities and new sensor technologies. By 2020, the office received an expanded mandate to serve as Singapore's national space office to develop the nation's space industry, space policy, space talent and workforce as well as to grow international partnerships and strengthen global space governance. In 2022, the Government announced a S$150 million investment in research and development of space capabilities to support critical domains such as aviation, maritime and sustainability, and to create disruptive technologies.

It was against this backdrop that two research centres at the NUS Faculty of Law(EW Barker Centre for Law & Business and the Centre for Technology, Robotics, Artificial Intelligence & the Law), joined forces with McGill's Institute for Air and Space Law to co-organise a two-day conference titled "New Horizons in Air and Space Law: Treaties, Technologies, and Tomorrow's Challenges"in early August 2024.

In his keynote speech, Deputy Attorney-General Lionel Yee highlighted the legal frameworks in aviation established by the Convention on International Civil Aviation, and in outer space, established through various multilateral treaties, including the Outer Space Treaty. It was patently clear that the international regulation of space activities was very much underdeveloped compared to aviation.

In the final plenary session of the conference, a panel of industry players and academics were assembled to discuss the landmark paper that I published in the year 2000 in the Yale Journal of International Lawtitled "Towards a New Regime for the Protection of Outer Space as the Province of All Mankind" which has been widely cited, and is still being cited today. The notion of states sharing a common interest in the exploration and use of outer space has led the international community to declare outer space to be the "province of all mankind" in the 1967 Outer Space Treaty. But most of the scholarship back then was largely preoccupied with the freedom of exploration and use of outer space, and comparatively little on the need to protect it from environmental damage.

"At first glance, the issues of pollution in outer space are more complex than environmental pollution on Earth, and may appear to many as far-fetched or too insignificant to merit our attention. However, there are real implications for us living on earth and for human lives."

In the 50-page article, it was argued that while the precise definition of the "province of all mankind" may be unclear, the very nature of the outer space environment demands special recognition by the international community as a whole - that it must be transmitted in a substantially unimpaired state to future generations. In balancing delicate political and economic interests, the article concluded that the protection of the outer-space environment from pollution would best be achieved by the adoption of a Framework Convention on the Protection of the Space Environment and the establishment of an International Space Agency.

Almost 25 years later, despite more and more articles being published that urge for better international regulatory oversight, none of these proposals have come to fruition. Modest progress, nonetheless, has been made by the United Nations Office for Outer Space Affairs, for instance, with the publication of a set of Guidelines for the Long-Term Sustainability of Outer Space Activities of the Committee on the Peaceful Uses of Outer Space in 2021.

Presently, the concept of the "common heritage of mankind" (CHM) is understood as a principle of international law that designates certain territorial areas to be elements of the common property of humanity and should be preserved and held in trust for future generations. Such areas include the deep seabed which has been enshrined in the United Nations Convention on the Law of the Sea (UNCLOS). The term CHM appears in the 1979 Moon Treaty which declares that the moon and its resources are CHM; but oddly the phrase "province of all mankind" is used in the earlier 1967 Outer Space Treaty. Till today, there is no settled definition of the CHM principle, and disagreements exist as to its precise content and scope of application. Nevertheless, it has been applied to a range of spaces and resources: Antarctica, the Arctic landscape, geostationary orbit, fisheries and genetic resources.

At first glance, the issues of pollution in outer space are more complex than environmental pollution on Earth, and may appear to many as far-fetched or too insignificant to merit our attention. However, there are real implications for us living on earth and for human lives.

First, the use of nuclear power sources (NPS) in outer space is aimed at providing electric power for spacecraft sub-systems such as altitude control, communications, and command, as well as for the operations of various equipment on board. The interconnectedness of the Earth's environment and outer space means that any damage or harm to the space environment is likely to have a spillover effect on Earth. Back in 1978, there is already evidence of this when the Cosmos-954, a nuclear-powered satellite, disintegrated upon re-entry, scattering a significant amount of highly radioactive debris across Canadian territory.

Second, man-made space debris or space junk has been an environmental hazard whose seriousness is a shared concern of many scientists and policy-makers in the international community. Most of the trackable objects are located in low-earth-orbit (LEO) with a significant number in geosynchronous orbit (GEO) which is an area of intense space activity. Objects of sizes between 0.01 and 1 cm can cause significant damage upon impact. Objects larger than 1 cm can produce catastrophic effects. If the growth in numbers is permitted to continue without adequate measures to safeguard active space objects from damage caused by explosion, collision, or harmful radiation, it could easily result in serious accidents involving the loss of human lives in manned space vehicles or substantial property damage.

At the conference, it was pointed out in the joint paper by Adrien Schifano and Guo Keyang that the inherent characteristics of outer space makes it an environment that is difficult to regulate despite it being a common area, unlike the deep seabed. In her presentation, Melissa De Zwart focused on how some of the present space programmes regarding establishing a human presence on the Moon, especially by the United States (NASA's Artemis Program) and China (the Chang'e Project), are giving rise to legal and ethical issues.

Ultimately, as De Zwart commented, there are no neat or easy answers to many of these questions. Applying the CHM framework from other domains or trying to define outer space as "the province of all mankind" as a sui generisregime will not address the geopolitical tensions of the nations currently engaged in outer-space related activities such as the United States, China, Russia, India and Japan. Solutions and compromises will likely have to be worked out between national agencies, commercial organisations and industry players.

About the author

David Tan is a professor at NUS Faculty of Law and co-director of the faculty's Centre for Technology, Robotics, Artificial Intelligence & the Law. He pioneered courses in Entertainment Law, Fashion Law, Freedom of Speech, and Privacy & Data Protection Law. Professor Tan's works have been published in top international law journals, including Yale Journal of International Law, Harvard Journal of Sports & Entertainment Law, Fordham Intellectual Property and Media & Entertainment Law Journal. An innovative systems-thinker, a passionate teacher, a dedicated researcher and an energetic individual, he is also an accomplished fine art and fashion photographer having held solo exhibitions in association with Cartier and Versace.