Characteristics of Governance for Domains beyond National Jurisdiction: Lessons for Future Outer Space Governance

ABSTRACT

Outer space is a domain beyond national jurisdiction where the governance regime is generally permissive. However, as actors and activities increase, additional governance is required. Other domains beyond national jurisdiction already benefit from functioning governance structures that have enabled activities to be conducted in an orderly, peaceful, and equitable manner. Although, as a physical domain, space is unique, the actors and interests are not. The actors are states and private entities. The interests are economic gain, safety and sustainability, national security, and international relations. Governance regimes for international civil aviation, telecommunications, and commercial shipping share common characteristics essential to achieving the consent and cooperation of states. Since the actors in the outer space domain are also states and private entities, and their interests are similar to those which they, by their very nature, pursue in other domains, the common characteristics shared among actors can guide the quest for future governance regimes of outer space.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

¹ ESA’s Annual Space Environment Report, ESA Space Debris Office, 22 April 2022, 4, https://www.sdo.esoc.esa.int/environment_report/Space_Environment_Report_latest.pdf, accessed 9 Oct 2022.

² Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature at London, Moscow and Washington on 27 January 1967, 610 UNTS 205, 18 UST 2410, TIAS 6347, 6 ILM 386 (entered into force on 10 October 1967) [OST].

³ Ibid at art II.

⁴ Convention on International Civil Aviation, opened for signature on 7 December 1944, 15 UNTS 295, (entered into force on 4 April 1947) [Chicago Convention].

⁵ Convention on the International Maritime Organization, originally called Convention on the Intergovernmental Consultative Maritime Organization, signed at Geneva 6 March 1948, entered into force on 17 March 1958.

⁶ International Convention for the Safety of Life At Sea, 1 November 1974, 1184 UNTS 3. [SOLAS].

⁷ Constitution and Convention of the International Telecommunication Union, concluded on 22 December 1992 in Geneva [ITU Constitution].

⁸ Radio Regulations of the International Telecommunication Union, Edition 2020..

⁴ Convention on International Civil Aviation, opened for signature on 7 December 1944, 15 UNTS 295, (entered into force on 4 April 1947) [Chicago Convention].

⁵ Convention on the International Maritime Organization, originally called Convention on the Intergovernmental Consultative Maritime Organization, signed at Geneva 6 March 1948, entered into force on 17 March 1958.

⁶ International Convention for the Safety of Life At Sea, 1 November 1974, 1184 UNTS 3. [SOLAS].

⁷ Constitution and Convention of the International Telecommunication Union, concluded on 22 December 1992 in Geneva [ITU Constitution].

⁸ Radio Regulations of the International Telecommunication Union, Edition 2020.

⁹ The European Union stands out as a significant exception.

¹⁰ Chicago Convention at 1.

¹¹ United Nations Convention on the Law of the Sea, concluded on 10 Dec 1982, entered into force 16 Nov 1994, 1833 UNTS 397. [UNCLOS].

¹² Convention on the Territorial Sea and the Contiguous Zone, concluded at Geneva on 29 April 1958, entered into force on 10 Sep 1964, 516 UNTS 205.

¹³ UNCLOS at 91 and 94.

¹⁴ ITU Constitution at Preamble.

¹⁵ Ibid.

¹⁶ Outer Space Treaty at I, VI, VIII.

¹⁷ Chicago Convention at 3(a).

¹⁸ Chicago Convention at 3(d).

¹⁹ Rules of the Air, Annex 2 to the Convention on Civil Aviation, tenth edition July 2005, at 3.8.1.

“Interception of civil aircraft shall be governed by appropriate regulations and administrative directives issued by Contracting States in compliance with the Convention on International Civil Aviation, and in particular Article 3(d) under which Contracting States undertake, when issuing regulations for their State aircraft, to have due regard for the safety of navigation of civil aircraft. Accordingly, in drafting appropriate regulations and administrative directives due regard shall be had to the provisions of Appendix 1, Section 2 and Appendix 2, Section 1.”

²⁰ SOLAS Regulation 1 – Application.

²¹ ITU Constitution, at 48 (1).

“Member States retain their entire freedom with regard to military radio installations.”

²² These include: (1) statutory provisions relative to giving assistance in case of distress, (2) to the measures to be taken to prevent harmful interference, and (3) the provisions of the Administrative Regulations concerning the types of emission and the frequencies to be used, according to the nature of the service performed by such installations.

²³ The ITU Constitution exempts “military radio installations”; the Chicago Convention exempts “state aircraft”; the SOLAS exempts “warships”, and “government owned ships operating on government non-commercial service”.

²⁴ ICAO Secretariat, International Civil Aviation Organization, https://www.icao.int/secretariat/Pages/default.aspx, accessed 9 Oct 2022.

²⁵ Structure of IMO, International Maritime Organization, https://www.imo.org/en/About/Pages/Structure.aspx, accessed 9 Oct 2022.

²⁶ World Radiocommunication Conferences (WRC), International Telecommunications Union, https://www.itu.int/en/ITU-R/conferences/wrc/Pages/default.aspx, accessed 9 Oct 2022.

²⁷ The International Association for the Advancement of Space Safety (IAASS), the Space Safety Coalition and The Consortium for Execution of Rendezvous and Servicing Operations (Confers) are such examples.