Space Science & Technology

The benefits to be gained by exploring and using outer space for scientific purposes were among the main early arguments advanced to justify space activity. It is submitted that advancement in the field of scientific research presents further factors that advance the arguments for the establishment of a sector-specific dispute settlement procedure for space activities. Firstly, the exploration and use of outer space for scientific purposes involves international and interdisciplinary cooperation. Such cooperation envisages actors of var- ious States and professions working together to successfully launch, operate and manage space missions. It is reasonably foreseeable that with so many dis- parate actors such cooperation may potentially lead to disputes. A universal mechanism for dispute settlement may be the solution that provides a workable process for these actors to resolve any arising disputes. Secondly, a dispute set- tlement mechanism is generally one of the means by which law develops with ambient developments in the field. It is submitted that the institution of a dispute settlement mechanism will ensure that international space law evolves so as to remain relevant in the rapidly advancing fields of space sciences and technology. Thirdly, many scientific space missions generally involve small win- dows of opportunity for launch and operations. As such, any disputes relating to such scientific missions must be resolved as efficiently as possible so as not to jeopardize the success of the scientific mission. It is submitted that the establishment of a viable dispute settlement framework will allow the efficient resolution of disputes within the law and the general principles of justice and equity.

Switzerland and the United Kingdom. Luxembourg is expected to become a member of ESA in 2005, and Canada, Hungary and the Czech Republic participate in some projects under cooperation agreements. See generally Kalternecker, H., “The European Space Agency (ESA)”, in Jasentuliyana, N. and Lee, R.S.K. (eds.),Manual on Space Law, seesupranote 50 at 427. See also Bour´ely, M., “L’Agence spatiale europ´eenne”, (1976) AASL 186

53_{ibidem; also see Bour´ely, M., “The Legal Framework of European Cooperation in the}

Execution of Space Application Programmes”, (1975) 28 Proc. Coll. Law of Outer Space 58

The Outer Space Treaty advances two principles about space science in particular:

1. There shall be freedom of scientific investigation in outer space, and to that end outer space shall be free for exploration and use and is not subject to national appropriation; and

2. There shall be freedom of access irrespective of States’ degree of scientific development; and to that end international cooperation shall contribute to scientific development.55

Scientific research and the international scientific community are referred to in various provisions of the Outer Space Treaty and the Moon Agreement, but there is no specific treaty dealing with cooperative scientific agreements. There have been however, many international cooperative projects involving space science and technology. Aside from the massive undertaking that is the International Space Station, they include,inter alia,

1. Past international scientific missions: (a) COS-B (ESA, 1975)56

(b) International Ultraviolet Explorer, IUE (ESA-NASA-UK, 1978)57 (c) European X-Ray Observing Satellite, Exosat (ESA, 1983)58

(d) AKEBONO / EXOS-D (Japan-Canada, 1989)59 (e) Infrared Space Observatory, ISO (ESA, 1995)60

55_{Lafferranderie, G., “Space Science and Space Law”, in Lafferranderie, G. and Crowther,}

D. (eds.),Outlook on Space Law over the Next 30 Years, (1997) 107

56_{This scientific mission was to study the sources of extra-terrestrial gamma radiation at}

energies above about 30 MeV. It lasted nearly 7 years. Swanenburg, B.N., et al, “COS B Observation of High Energy Gamma Radiation from 3C273”, Nature 275, 298 (28 September 1978)

57_{This analyzed ultraviolet light from the stars and storm signals of cosmic upheavals.}

This mission lasted nearly 19 years until 1996. Wilson, R., “The International Ultraviolet Explorer”, Mitteilungen Astron. Gesellschaft Vol. 47, 91 (1980)

58_{Its goal was to make observations in the X-ray band of many classes of objects, including}

active galactic nuclei, white dwarfs, stars, supernova remnants, clusters of galaxies, cata- clysmic variables and X-ray binaries. This mission operated between May 1983 and April 1986. Warwick, R.S., Turner, M.J.L, Watson, M.G. and Willingale, R., “The Galactic Ridge Observed by Exosat”, Nature 317, 218 - 221 (19 September 1985)

59_{This Japanese-Canadian cooperation studies auroral phenomena. Abe, T., B. A. Whalen,}

A. W. Yau, R. E. Horita, S. Watanabe, and E. Sagawa (1993), EXOS D (Akebono) Suprather- mal Mass Spectrometer Observations of the Polar Wind, Journal of Geophysical Research, 98(A7), 11, 19111, 204

60_{This mission aimed to detect this kind of radiation invisible to the human eye}

and to optical telescopes. Kessler, M.F., et al, “The Infrared Space Observatory (ISO) Mission”, Astronomy and Astrophysics 315, L27L31 (1996), available online at http://www.iso.vilspa.esa.es/outreach/bck grnd/a and a/2300l27.pdf (Last accessed: 15 January 2006)

(f) MUSES-B (Japan-USA-ESA-Russia, 1996)61

(g) NOZOMI (Japan-USA-Canada-Sweden-Germany, 1998)62

2. Ongoing operative scientific missions: (a) Ulysses (ESA-NASA, 1990)63

(b) Hubble Space Telescope (ESA-NASA, 1990)64

(c) GEOTAIL (Japan-NASA, 1992)65

(d) Solar Heliospheric Observatory, SOHO (ESA-NASA, 1995)66

(e) Cassini-Huygens (NASA-ESA-ASI, 1997)67

(f) MUSES-C (Japan-USA, 2001)68

(g) LUNAR-A (Japan-USA-France, 2002)69

61_{This is a Very-Long Baseline Interferometry (VLBI) to allow, among other things, high-}

resolution imaging of active galactic nuclei. Hirabayashi, H., et al, “Overview and Initial Results of the Very Long Baseline Interferometry Space Observatory Programme”, Science Vol. 281. no. 5384, pp. 1825 - 1829, 18 September 1998

62_{This project planned to study Martian plasma. It has since been abandoned after efforts}

to insert it into the Martian atmosphere failed. Lammer, H., Stumpter, W. and Bauer, S.J., “ Upper Limits for the Martian Exospheric Number Density during the Planet B/Nozomi Mission”, Planetary and Space Science, Volume 48, Number (15 December 2000), pp. 1473- 1478(6)

63_{The main scientific goal of Ulysses is to make measurements of the unexplored region}

of space above the Sun’s poles. This project is funded until March 2008. Smith, E.J., Marsden, R.G. and Page, D.E., “Ulysses Above the Sun’s South Pole: An Introduction”, Science 68(5213), pp. 1005-7, (19 May 1995)

64_{This is a long-term space-based observatory. Current mission end estimate is 2010. Pol-}

idan, R.S., “Hubble Space Telescope Overview”, Paper presented at AIAA, 29th Aerospace Sciences Meeting, Reno, NV, (January 7-10, 1991) p.5

65_{This mission studies the structure and dynamics of the tail region of the magnetosphere}

with a comprehensive set of scientific instruments. Fairfield, D.H., et al, “Geotail Observa- tions of Substorm Onset in the Inner Magnetotail”, Journal of Geophysical Research, Vol. 103, No. A1, pp. 103118, (1998)

66_{SOHO is a space-based observatory, viewing and investigating the Sun from its deep}

core. This mission is slated to run until 2007. Domingo, V., Fleck, B. and Poland, A.I., “The SOHO Mission: an Overview”, Solar Physics, v. 162, p. 1-37 (1995)

67_{This mission’s mandate is to explore the Saturnian system. The Huygens probe landed}

successfully on Titan on 14 January 2005; the Cassini orbiter is expected to orbit Saturn for four years from 1 July 2004. Jaffe, L.D. and Herrell, L.M., “Cassini/Huygens: Science Instruments, Spacecraft and Mission”, Journal of Spacecrafts and Rockets vol.34 no.4 pp. 509-521 (1997); see also Lebreton, J.-P., et al, “An Overview of the Descent and Landing of the Huygens Probe on Titan”, Nature 438, 758-764 (8 December 2005)

68_{This is an asteroid sample return mission. Fujiwara, A., Mukai, T., Kawaguchi, J. and}

Uesugi, K.T., “Sample Return Mission to NEA : MUSES-C”, Advances in Space Research, Volume 25, Issue 2, p. 231-238 (1999)

69_{LUNAR-A is a moon penetrator. This mission aims to study the lunar interior using}

seismometers and heat-flow probes installed in the penetrators. Mizutani, H., et al, “LUNAR- A mission : Goals and status”, Advances in Space Research, Volume 31, Number 11, June 2003, pp. 2315-2321(7)

(h) International Gamma-Ray Astrophysics Laboratory, INTEGRAL (ESA-Russia-USA, 2002)70

(i) Double Star (China-ESA, 2003)71

(j) SOLAR-B (Japan-USA-UK, 2004)72 3. Planned scientific missions:

(a) Orbiting Carbon Observatory, OCO (NASA-Germany-France-New Zealand, 2007)73

(b) SAC-D /Aquarius (NASA-Argentina-Italy-France, 2008)74

(c) James Webb Space Telescope, JWST (ESA-NASA-Canada, 2011)75

(d) Bepi Colombo (Japan-ESA, 2012)76

70_{The task of INTEGRAL is to gather some of the most energetic radiation that comes}

from space. This mission will last till 2008. Winkler, C., et al, “The INTEGRAL mission”, Astronomy and Astrophysics 411, L1-L6 (2003)

71_{This mission studies the effects of the Sun on the Earth’s environment. The mission is}

slated to last 18 months, but its mission lifetime has been doubled and extended to December 2006. Liu, Z.X. and Escoubet, C.P., “The Double Star Mission”, Geophysical Research Abstracts, Vol. 7, 04722, 2005; see also Liu, Z.X. and Cao, J.B., “A Brief Introduction and Recent Progress of the Geospace Double Star Program”, Chinese Journal of Space Science 2004 Vol.24 No.z1 P.39-45 (in Chinese)

72_{SOLAR-B will be placed in a polar, sun-synchronous orbit about the earth to study}

the Sun’s magnetic field, luminosity and generation of ultraviolet rays through quantitative measurements of the full vector magnetic field. This mission will continue through to 2008. Shimizu, T., et al, “Solar-B”, Advances in Space Research, Volume 29, Number 12, June 2002, pp. 2009-2015(7)

73_{This is a NASA Earth System Science Pathfinder Project (ESSP) mission designed to}

make precise, time-dependent global measurements of atmospheric carbon dioxide (CO2) from an Earth orbiting satellite, to study the phenomenon of climate change. This mission is slated for launch in 2007 and will nominally last to 2009. Crisp, D., et al, “The Orbiting Carbon Observatory (OCO) Mission”, Advances in Space Research 34 (2004) 700709

74_{SAC-D/Aquarius is a multi-sensor mission covering ocean, land, atmosphere and}

space environments. The primary science goal is to study the processes that couple changes in the water cycle and ocean circulation, and influence present and future cli- mate, by measuring global sea surface salinity variations. This mission is slated to run between 2008 and 2011. See http://www.invap.net/news/novedades.php?id=26 and http://www.astroseti.org/vernew.php?codigo=164, both websites in Spanish, (Last accessed: 10 January 2006). See also Raul Colomb, F. et al, “The SAC-D/Aquarius Mission: Scientific Objectives”, (2004) Gayana Concepci´on 68(2), also available online at http://www.scielo.cl/, (Last accessed: 10 January 2006)

75_{This is the successor to the Hubble Space Telescope, slated for launch in 2011. This}

mission is planned for a nominal 5 years, extendable to 10. H.S. Stockman,James Webb Space Telescope: Visiting a Time When Galaxies Were Young, AURA, 1997; see also Seery, B.D., “The James Webb Space Telescope (JWST): Hubbles Scientific and Technological Successor”, available online at http://www.ngst.nasa.gov/project/text/JWST HST successor.pdf (Last accessed: 10 January 2006)

76_{This cooperation plans to explore the planet Mercury. It is slated for}

(e) Laser Interferometer Space Antenna, LISA (ESA-NASA, 2014)77

(f) Darwin (possible ESA-NASA-Russia-Japan, 2015)78

This list is by no means exhaustive. It does however illustrate the extent of international cooperation involved in space science missions. It is important to note that issues relating to space science cannot be treated in isolation. These necessitate the harmonized efforts of intergovernmental organization such as UN COPUOS, and professional institutions such as COSPAR and the Interna- tional Astronomical Union (IAU). The proposed framework of dispute settle- ment for disputes arising from space activities has to understand the scientific schedules and technological aspects and likewise scientists have to acquaint themselves with the rules and constraints of international space law. In partic- ular, any dispute settlement mechanism must carry enough professional weight and credibility with all these disparate actors.

Issues to be tackled in the establishment of any dispute settlement mecha- nism include,inter alia

1. Access to and use of scientific data: Generally a Memorandum of Un- derstanding (MoU) contains articles as to the access and use of scientific data. Access to data is in principle open to all scientists in the world sub- ject to an initial period during which access is reserved for the Principal Investigators. Arrangements have always been left entirely in the hands of MoU drafters, there are no particular recommendations emanating from the scientific community that has been formulated. It is submitted that the proposed dispute settlement mechanism will need to find an ac- ceptable framework for the coordinated and systematic protection of the access to and use of scientific data from these missions.

2. Environmental protection: Planetary protection in the form of protection against forward and backward protection will be important in the light of scientific mission that involve planetary probes,in situanalysis or sample

http://www.stp.isas.jaxa.jp/mercury/index-j.html, in Japanese, (Last accessed: 10 Janu- ary 2006); and http://sci.esa.int/science-e/www/area/index.cfm?fareaid=30, (Last accessed: 10 January 2006); see also Anselmi, A. and Scoon, G.E.N., “BepiColombo, ESA’s Mercury Cornerstone Mission”, Planetary and Space Science, Volume 49, Issue 14-15, p. 1409-1420 (2001)

77_{LISA’s mission is to detect and observe gravitational waves from massive black holes}

and galactic binaries. This mission consists of three spacecraft that act as an interferometer and is nominally slated for operation between 2014 and 2019. Danzmann K., et al, “ LISA: Laser Interferometer Space Antenna for Gravitational Wave Measurements”, Classical and Quantum Gravity, Volume 13, Number 11A, 1996, pp. A247-A250(1)

78_{Darwin will use a flotilla of three space telescopes to scan the nearby Universe, looking for}

signs of life on Earth-like planets. The launch of Darwin is planned for the 2015 timeframe. L´eger, A., et al, “Could We Search for Primitive Life on Extrasolar Planets in the Near Future? The DARWIN Project”, ICARUS 123, 249255 (1996)

return. It is submitted that any proposed dispute settlement mechanism must be capable of considering environmental protection issues both of the Earth and of outer space in general.79

3. Use of and liability resulting from damage caused by nuclear power sources: One example of public concern as to the use of nuclear power sources is the 1989 Florida Coalition for Peace and Justice v. George Herbert Walker Bush.80 In this case, the Florida Coalition and the Christic Insti- tute led the challenge against alleged potential environmental and health threats presented by nearly 22 kilograms of plutonium carried aboard the Jupiter-bound Galileo probe launched in 1989. Although the Coalition failed to prevent the launch of Galileo, it brought similar charges with regard to the Ulysses probe in its Amended Complaint, filed 29 January 1990.81 _{The case is important because it indicates that any framework}

of dispute settlement relating to space disputes, as well as the space sci- ence community, should be prepared to address environmental concerns and ensure careful compliance with laws and regulations so that potential litigants will find nothing with which to take issue.82

Any dispute settlement mechanism should be instituted based on analy- ses of the guiding principles of international space law for perceived scientific projects and problems, as well as the requirements for solving such specific problems.83 Any workable dispute settlement mechanism will need specialized scientific knowledge. The political, legal and social problems that will be cre- ated by space science and exploration require legal analysis from the dispute settlement mechanism to promote the benefit of all mankind.84