International Space Law in “The Martian”

So it took me a while to catch up, but I finally watched the film “The Martian”, in which the main character, Mark Watney, is left behind on Mars when the rest of his crew makes an emergency departure, assuming he is dead at the time. I expected yet another drama-filled sci-fi film, complete with intense music and an apocalyptic scenario, and instead I was treated to a story about problem solving and co-operation, accompanied by a fun disco soundtrack, since this is the only music left behind for Watney to listen to. It struck me that the book by Andy Weir, and the film based upon it, were written to inspire a new generation of space scientists and policy makers, about what’s possible if we set our minds to it. (And that even a woman might be the scientist who makes an important discovery, in the depiction of satellite operator Annie Montrose.)the-martian-movie-poster-matt-damon-600x240

As an international space lawyer I am also excited to see some elements of space law come to the surface. Without wanting to spoil the film for anyone who has not seen it, I want to comment on a few such issues which arose in the film.

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“What’s gender got to do with it?”: Historic diversity in Canada’s new Cabinet

Yesterday Justin Trudeau was sworn in as the 23rd Prime Minister of Canada and he brought with him gender parity in the Cabinet for the first time in the country’s history. Trudeau is a self-proclaimed feminist, and had made it an election promise to nominate 50% of his minsters as women. Although others have made similar statements in the past, he was the first to fulfill on that promise. Asked after his swearing in ceremony why gender parity is so important to him, his answer was simple: “Because it’s 2015.”

The pool of women in the party from whom he could choose as his minsters was significantly smaller than the pool of men: there are 134 men and 50 women MPs in his Liberal party. And although a record number of women were elected to the House of Commons across all parties, a total of 88, this still only represented 26% of all MPs. Apparently choosing 15 female MPs to be part of his Cabinet has meant that some long-standing male MPs missed out on being picked, and as former Liberal Premier of the province of Quebec, Jean Charest stated: “There are lot of people who legitimately feel they could sit around that table and they won’t be there.”

What an interesting statement. Especially coming from Charest, who himself brought gender parity to the Quebec provincial government in 2007. Charest has made public statements that he supports Trudeau’s appointments, and that it is “a message to Canadian women — and young women in particular — that this world is about you…You have to move beyond the old boy’s network.”

So why is it a problem that there are some people who legitimately feel they could sit around they table and won’t be there? Aren’t there plenty of women who have felt that way for decades?

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Why international law matters in outer space – Part 2: because, military!

In the first part of this blog post yesterday, I described the extent to which we are dependent on space technologies for our daily activities, and the role of international law.  But what about military activities? Right from the beginning of the space race between the USSR and the USA in the 1960s military technology has been at the forefront, and until recently it was what drove most innovation in space. Indeed, GPS was a US military invention, and they decided to share it’s benefits for civilian use. Intelligence gathering by remote satellite imaging, as well as communications, GPS for aviation and marine operations, and many drone and weapons technologies are highly dependent on high-tech satellite networks. How does international law apply to this 21st century environment?

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The notion of “space warfare” may not be something that belongs to a long time ago in a galaxy far, far away; in fact many people refer to the Iraq war in the 1990s and the US-led “Operation Desert Storm” as the first space-led war. There was a significant reliance on satellite imaging and telecommunications as an integral part of that operation. These days most Western naval, air and army units rely on multiple forms of space technology, as do Russia and China. In the last year the US has increased it’s “big data” reliance , making such satellites very precious assets.  Recently, North Korea has been launching objects which many worry are not just rockets, but rather anti-satellite weapons. Where space used to be considered the ultimate military “high ground”, it is now accessed by many more States, and if these space assets can be targeted by adversaries, dependence can lead to vulnerability during a conflict.

Worryingly, a recent report on 60 Minutes titled “The Battle Above” painted a fairly dire picture of outer space as a “wild west” when it comes to military activities, asserting that there is essentially no law regulating this new potential battlefield and that it is every country for itself. And even when speaking to people who specialise in “space security”, I have heard many express the concern that military activities in outer space take place in a legal vacuum.

I would beg to differ, and thankfully I am not alone.

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Why international law matters in outer space – Part 1

Most of us don’t think about outer space when we think of international law, but the technologies that allow us to expand our exploration and use of our space environment also drive our modern global society, and international law is at the cross section.  Our daily activities, from email, phone calls and Facebook to every automatic bank transaction you make, are dependent on satellite technologies. When you take a plane, the air traffic control is dependent on GPS. Even disaster management is dependent on satellite imaging.

In this two-part blog post, I want to introduce the key aspects of why international law matters in outer space, the first part focusing on civilian and commercial activities in space, and the second on military activities.

The space environment is often described as increasingly “congested, contested and competitive“, as was reported to the UN General Assembly’s First Committee (Disarmament and International Security) in 2013.

Congested because there are more and more States becoming “space faring nations”, and more and more satellites are launched each year. Currently there are about 1,200 operational satellites orbiting above us, as well as half a million pieces of “space junk”, including debris from various collisions and left-over rocket pieces, but also decommissioned satellites that have run out of fuel. The film “Gravity”, for all its shortcomings, painted the scenario for us of the risks involved with space debris. Our propensity to trash our natural environment has spread out into space.

Contested because although space is big, our near-Earth environment where satellites can fall into useful orbital paths, is limited. Every space object that is launched must be registered according to the 1974 Convention on Registration of Objects Launched into Outer Space, and in order to “claim” an orbital slot and a frequency band on which to send it’s signals back to earth, and claim a right to non-interference with that slot, satellites must be registered with the International Telecommunications Union (ITU). But the most interesting orbits for internet and communications are geostationary, meaning that a satellite orbits the Earth at the same rate as the spin of the Earth, so that it looks like it’s stationary above one point. These orbits are focused around the equator, but obviously it has not been the Equatorial States who have been launching satellites over the last few decades. Since 1976 these and other developing nations have been protesting that their potential access to space is extremely limited by the over-use of limited natural resources, namely the orbital slots and radio frequencies, by a small number of Western States.

Competitive because as you may have noticed it’s no longer just States launching things into space, and attempting to outdo each other with high value technologies, there are now lots of commercial entities entering the space market. Elon Musk’s visionary SpaceX company has already shuttled supplies to the International Space Station and hopes to shuttle astronauts as well; Richard Branson’s Virgin Galactic enterprise hopes to take tourists into zero-gravity; Google bought a start-up satellite company called Skybox which it intends to use to provide continuous global internet access everywhere on the planet, partly in response to the garnering success of a company called O3B (Other Three Billion), which aims to provide internet to remote and less affluent parts of the world. Telecommunications companies procure, launch and operate satellites at huge costs and with huge insurances to cover possible liability if something goes wrong. Moreover, there are entities showing interest in potential technologies like mining asteroids or the moon for precious resources, and we’re not too far off that becoming a reality.

With technologies developing so rapidly, and the so-called “democratization of space”, how does international law regulate this congested, contested and competitive environment?

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Four women at the top of the International Criminal Court – an international first

​New ICC President Judge Silvia Fernández de Gurmendi (Argentina) ©ICC-CPI

Something happened last week that almost seems to have slipped by unnoticed: the International Criminal Court (ICC) has become the first international court entirely headed up by women. On Tuesday March 11, just days after International Women’s Day, the judges of the ICC elected from among their midst the court’s first female President, Judge Silvia Fernández de Gurmendi from Argentina. Not only that, but she is joined by two women in the rest of the presidency; is Judge Joyce Aluoch from Kenya has been elected First Vice President, and Judge Kuniko Ozaki from Japan has been elected Second Vice President. And since 2012 Fatou Bensouda, from the Gambia, has held the office of Chief Prosecutor, meaning that now all the leading positions of the court are held by women.

Women have presided over international courts before; Gabrielle Kirk McDonald was the first woman to preside over an international criminal tribunal at the International Criminal Tribunal for Yugoslavia (ICTY), Navi Pillay presided over the International Criminal Tribunal for Rwanda (ICTR), and Dame Rosalyn Higgins presided over the International Court of Justice from 2006 to 2009. However there have never been this many women in the top positions of an international court. At one point the ICTY had women presiding (Judge Gabrielle Kirk McDonald), as Chief Prosecutor (Louise Arbour) and as Registrar (Dorothee de Sampayo Garrido-Nijgh), however it has always had a vast majority of men on the benches.

The importance of having women in these leading positions is evidenced by the fact that some issues to do with gender violence have only come to the forefront in decisions influenced by women such as Navi Pillay, later judge at the ICC (under whose inspirational guidance I was privileged to spend some time as an intern) and recently retired UN Human Rights Commissioner. During her time at the ICTR, it was the attention she paid to evidence being presented about acts of sexual violence targeting Tutsi women, that led to the inclusion of rape as an act of genocide in the well-known Akayesu judgement. She has stated that she recognised the evidence as representing something more serious and specific than the way in which it was characterised by the prosecutors.

Indeed, this International Women’s Day the ICC pubished a press release reaffirming “its commitment to accountability for perpetrators of sexual and gender-based crimes.”

However there was no celebration nor even mention of this important, perhaps historical election of an all-female presidency in the ICC’s own press release naming Judge Fernández de Gurmendi as the new President. The fact that it has also gone unnoticed in the media is disappointing. The only media statement I could find highlighting this was from the Hirondelle News Agency, based in Arusha, Rwanda and focusing on issues of international justice. Continue reading