© The Author(s) 2015Ruwantissa AbeyratneRegulation of Commercial Space TransportSpringerBriefs in Law10.1007/978-3-319-12925-9_3
3. Economic and Social Issues
Global Aviation Consultancies Inc, Cote Saint Luc, Québec, Canada
3.1 Economic Issues Relating to Commercial Space Transport
3.1.1 ICAO’s Views on Economic Oversight
The Secretary General of ICAO, in his letter of invitation to Commander Hadfield (alluded to in the Preface) speaks of addressing economic and social issues related to commercial space transport at the UN/ICAO Symposium. In other words, how would commercial space transport be regulated economically. Regrettably, ICAO’s track record in the economic aspects of air transport has been abysmal1 and the mind boggles as to how ICAO will have the credibility to address this issue. Article 44 of the Chicago Convention2 merely cites as an aim and objective of ICAO fostering the development of air transport. Would ICAO discuss at the symposium the same “fostering” of commercial space transport? If, as some have simplistically stated that a separate Annex to the Chicago Convention can be drawn up for commercial space transport, would that Annex be subject analogically to Article 6 to the Convention which stipulates that no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization?
Another aspect for consideration would be economic oversight of commercial space activities. How would ICAO view spaceports and navigation service providers? At the Conference of ICAO on the Economics of Airports and Air Navigation Services (CEANS), which was held in Montreal from 15 to 20 September 2008,3 The ICAO Secretariat, in submitting its views on economic oversight to the Conference, commenced with the fundamental postulate that the State is ultimately responsible for protecting the interests of users through economic oversight defined the term “economic oversight” as monitoring by a State of the commercial and operational practices of service providers.4 It was suggested that economic oversight may take several different forms, from a light-handed approach (such as the reliance on competition law) to more direct regulatory interventions in the economic decisions of service providers. It is interesting that the Secretariat took a direct and clear position that States may perform their economic oversight function through economic regulation, either through legislation or rule-making, and/or the establishment of a regulatory mechanism.5
It was also argued that the objectives of economic oversight could include: ensuring that there is no abuse of dominant position by service providers; ensuring non-discrimination and transparency in the application of charges; providing incentives for service providers and users to reach agreements on charges; ensuring that appropriate performance management systems are developed and implemented by service providers and assuring investments in capacity to meet future demand. The priority for each objective may vary depending on the specific circumstances in each State, and there should be a balance between such public policy objectives and the efforts of the autonomous/private entities to obtain the optimal effects of commercialization or privatization.
The Conference was advised that there were already several modalities in Doc 9082,6 para 15 of which recommends that States establish an independent mechanism for the economic regulation of airports and air navigation services. This provision suggests that such a mechanism would oversee economic, commercial and financial practices and its objectives could be drawn or adopted from, but need not be limited to certain principles.7 The Secretariat also drew the attention of the Conference to the Manual on Air Navigation Services Economics 8 and the Airports Economics Manual 9 which suggest such modalities of economic oversight as (a) application of competition law; (b) fallback regulation, whereby regulatory interventions are limited to situations when the behaviour of the regulated entity breaches publicly-stated acceptable bounds; (c) institutional arrangements such as requirements on consultation with users (often supplemented by arbitration/dispute resolution procedures), information disclosure, and a particular ownership, control and financial structure; (d) a third-party advisory commission, whereby a group of interested parties reviews pricing, investment and service levels proposals; (e) contract regulation, whereby the State grants a contract, or concession, to provide airport or air navigation services under certain conditions; (f) incentive-based or price-cap regulation; and (g) cost of service or rate of return regulation.
3.1.2 Other Views
During CEANS, one delegation suggested that regional organisations can provide the necessary resources for States that do not have their own capacity to adequately perform economic oversight functions. It recommended that there should be mechanisms for ICAO to work with such regional organizations through the development of guidance material. Another delegation put forward the view that there was a compelling need for regulatory interventions to be measured and applied in a manner proportionate to the specific circumstances. Yet another delegation underscored the need for economic regulation and urged States to implement the ICAO Assembly Resolution A 36-1510 regarding economic regulation of international air transport.
Delegates were unanimous in the view that economic oversight of airports and air navigation services is a necessary State responsibility with the promotion of an appropriate balance amongst safety, security and facilitation, environmental and economic issues. The overall package of economic instruments should provide net economic benefits for all developing countries and preferential measures for the Least Developed Countries in particular. There was also the view of one delegation that the role of the States in economic oversight in the form of legislation or through the establishment of an appropriate regulatory mechanism to resolve the issues on the increase of the cost of aviation fuel was vital while another stressed that applying similar forms of economic oversight to airports and ANSPs ignores the differences between the two types of service providers, in particular their divergent degree of competition. Therefore, it was contended that the proposed amendment of Doc 9082 should be consistent with the underlying assumption that airports do not per se have a dominant market position. The suggestion was also made that any regulatory interventions should be kept at a minimum, be subject to a cost-benefit analysis, and ensure sufficient investment to meet future demand.
3.1.3 Conclusions of the Conference
There was discussion during CEANS where some delegations suggested that, in order to “give teeth” to ICAO policy, there be a recommendation in Doc 9082 to the effect that amendment to Doc 9082 should be incorporated by States in their national legislation. It is submitted that such a measure would tantamount to treading uncharted and dangerous ground. While it is one thing to assert that the only way that ICAO policies could be implemented is for States to opt incorporating such principles in their legislation, it is something quite different to recommend that States go ahead and do so.
As a necessary compromise and in order to reach a balance, the Conference broadly recognized the need for economic oversight in the increasingly commercialized and privatized environment for airports and air navigation services. It considered a number of suggestions that were made by the delegates for improving the proposed new text for Doc 9082. The following conclusions were reached by the Conference:
States should bear in mind that economic oversight is the responsibility of States with the objectives, inter alia, to prevent the risk that a service provider could abuse its dominant position, to ensure non-discrimination and transparency in the application of charges, to encourage consultation with users, to ensure the development of appropriate performance management systems, and to ascertain that capacity meets current and future demand, in balance with the efforts of the autonomous/private entities to obtain the optimal effects of commercialization or privatization;
States should select the appropriate form of economic oversight according to their specific circumstances, while keeping regulatory interventions at a minimum and as required. When deciding an appropriate form of economic oversight, the degree of competition, the costs and benefits related to alternative oversight forms, as well as the legal, institutional and governance frameworks should be taken into consideration;
States should consider adoption of a regional approach to economic oversight where individual States lack the capacity to adequately perform economic oversight functions; and
ICAO should amend Doc 9082 to clarify the purpose and scope of economic oversight for airports and air navigation services with reference to its different forms and the selection of the most appropriate form of oversight.11
3.2 Social Issues
In the inevitable event of commercial space transport becoming prolific in the years to come, it is incontrovertible that chances of encountering extra terrestrial life would be more of a possibility than before. Marcia S. Smith12 envisions that if life were to be found in outer space the ensuing conduct of human kind would be more an ethical issue. Any inquiry into life in outer space has to take into account both vegetation as well as intelligent life. In both instances the main consideration would be how we could protect such life forms and use them for the benefit of human kind. The central theme of space exploration would incontrovertibly be international cooperation and abstinence from the use of force, which collectively form the cornerstone of space exploration from a legal standpoint.
Ms. Smith asks the pertinent questions: “Do we send more probes to further investigate and do we have a responsibility to protect that life and allow it to develop naturally? If robotic probes definitively find life, should we erect a “do not disturb sign” and refrain from sending further probes?” While these questions would have to be asked and answered at one point or another, the more immediate issue would be what we would do on Earth to cope with the new exigency.
One of the corollaries to finding life in outer space would be the issue of how we would use such a discovery in the context of the prevailing environment of international relations. In this context international politics within the umbrella of the United Nations and the United Nations Charter may become extremely relevant. It is not unrealistic to envision that the discovery of life in outer space could spark a discourse on interests and a renewed initiative to revisit international treaties to ensure the peaceful uses of outer space while at the same time ensuring some degree of control on the use of life so discovered.
At the 79th Plenary Meeting of its 61st Session, the United Nations General Assembly adopted Resolution 61/11113 which, inter alia, expresses serious concern of the General Assembly about the possibility of an arms race in outer space and urges all States, in particular those with major space capabilities, to contribute actively to the goal of preventing an arms race in outer space as an essential condition for the promotion of international cooperation in the exploration and use of outer space for peaceful purposes. Doubtless, such a threat would prove to be more real and ominous if life in outer space were to be discovered.
The General Assembly also agreed that a panel of space exploration activities, including the participation of the private sector should be convened during the 50th session of the United Nations Committee for the Peaceful Uses of Outer Space (UNCUPUOS). Perhaps the most noteworthy of the Assembly’s observations as recorded in the Resolution is that the recommendations of UNISPACE III14 could be integrated into the work programme of the Office of Outer Space Affairs and that UNCUPUOS could consider these recommendations for implementation. UNISPACE III is the genesis of the Vienna Declaration15 which, inter alia espouses the protection of the outer space environment.
3.2.1 Is There Life in Outer Space?
Although the title of this article is purely conjectural, its contents—in the eventuality of the occurrence suggested therein becoming real—bring to bear the need to reflect on principles of human conduct and liability prescribed by existing legal norms and ethical considerations with regard to the treatment of life.
American geneticist Joshua Lederberg introduced to the world the science of exobiology (or astrobiology)—a branch of biology which deals with the search for extraterrestrial life, especially intelligent life, outside the solar system. Although remote astronomical observations of a planet or other celestial body provide information about its physical environment, the determination of the presence of life on these bodies is more difficult. Exobiological techniques are designed to detect life forms, artefacts produced by intelligent life, waste produces of metabolic reactions, remnants of former life, pre-biological molecules that may reflect early evolutionary stages or substances such as carbon or combination of Hydrogen and Oxygen forming water that are necessary for the sustenance of life as it is experienced on Earth.
In 1948 the U.S. Air Force commenced maintaining a file of reports relating to extraterrestrial phenomena called Project Blue Book. In July 1952, the U.S. government established a panel of scientists including engineers, meteorologists, physicists and an astronomer to investigate a series of radar detection coincident with visual sightings near the national airport in Washington D.C. The panel was organized by the Central Intelligence Agency, which underscores the thrust of public and government concern and interest at the time.16
The concern was based on U.S. military activities and intelligence and that its report was originally classified Secret. Later declassified, the report revealed that 90 % of UFO sightings could be readily identified with astronomical and meteorological phenomena (e.g. bright planets, meteors, auroras, ion clouds) or with aircraft, birds, balloons, searchlights, hot gases, and other phenomena, sometimes complicated by unusual meteorological conditions.
The publicity given to early sightings in the press undoubtedly helped stimulate further sightings not only in the U.S. but also in Western Europe, the Soviet Union, Australia, and elsewhere. A second panel established in February 1966 reached conclusions similar to those of its predecessor. This left a number of sightings admittedly unexplained, and in the mid-1960s a few scientists and engineers, notably James E. McDonald, a University of Arizona meteorologist, and J. Allen Hynek, a Northwestern University astronomer, concluded that a small percentage of the most reliable UFO reports gave definite indications of the presence of extraterrestrial visitors.
This sensational hypothesis, promoted in newspaper and magazine articles, met with prompt resistance from other scientists. The continuing controversy led in 1968 to the sponsorship by the U.S. Air Force of a study at the University of Colorado under the direction of E.U. Condon, a noted physicist. The Condon Report, “A Scientific Study of UFO’s” was reviewed by a special committee of the National Academy of Sciences and released in early 1969. A total of 37 scientists wrote chapters or parts of chapters for the report, which covered investigations of 59 UFO sightings in detail, analyzed public-opinion polls and reviewed the capabilities of radar and photography. Condon’s own “Conclusions and Recommendations” firmly rejected ETH—the extraterrestrial hypothesis—and declared that no further investigation was needed.
This left a wide variety of opinions on UFO’s. A large fraction of the U.S. public, and a few scientists and engineers, continued to support ETH. A middle group of scientists felt that the possibility of extraterrestrial visitation, however slight, justified continued investigation, and still another group favoured continuing investigation on the grounds that UFO reports are useful in socio-psychological studies. These varying views and attitudes were expressed at a symposium held by the American Association for the Advancement of Science, in December 1969. Several years later, in 1973, a group of U.S. scientists organized the Centre for UFO Studies in Northfield, III., to conduct further work.
On 24 June 1947, American pilot Kenneth Arnold described some unusual flying craft he had seen over the mountains off the west coast of the United States. In his words: “they flew like a saucer would if you skipped it across water”.17 Newspapers applied his phrase to the craft themselves, and the misleading label “flying saucer” has followed the phenomenon of the unidentified flying object (UFO) since.
The Word UFO—unidentified flying object—officially means simply something that has not been, or cannot be accounted for by any of the known laws of physics. But the seemingly rational behaviour reported in many UFO sightings, as well as the accounts of meetings with humanoids, has led to the speculation that UFOs are, in fact, spacecraft bringing creatures from outer space.
If this is so, the spaceships must be able to cover immense distances. People who claim to have had contact with extra-terrestrials often say they have spoken with Venusians. But Venus is highly unlikely to be inhabited. Any intelligent life forms must be coming from still further away, and, even assuming that life spans of creatures from other planets may be much longer than our own, it is clear that UFOs must be able to travel very fast indeed if they are not to take hundreds of years to travel between inhabited planets.
Reports of the movement of UFOs are remarkably consistent. Most people describe them as hovering and then taking off at very high speed, often executing manoeuvres that would be impossible in conventional aircraft. Even allowing for exaggeration by excited witnesses, the consistency of the reports suggests the UFOs use a very powerful force to produce dramatic accelerations.
None of the rocket fuels we use at present can produce either the speed or acceleration observed in the UFOs, because they store only a small amount of energy for a given mass. Right from the beginning, rocket travel has been faced with the problem of enabling the rocket to carry enough fuel for its journey—it must lift the fuel, which can be very heavy if the journey is long, as well as itself and its occupants. The solution has been the multi-stage rocket: the initial acceleration is given by a rocket that is jettisoned when its fuel is used up and a second rocket takes over.
Space flights have always stretched our rocket technology to its limits—and, as everyone knows, our rockets and spacecraft do not accelerate very briskly away from the Earth. Although they eventually reach quite high speeds, they are nowhere near fast enough to reach planets outside our Solar System within a human lifetime.
If we assume UFOs are subject to the same laws of physics as we are, then, to operate on and near the Earth with the rapid accelerations and manoeuvres at high speeds that are often reported, they must be using a different source of energy from conventional chemical fuels. Their fuel must be highly compact, with a high energy yield for a small mass: the obvious source is nuclear fuel.
As long ago as 1958—just after Yuri Gagarin had become the first man ever to orbit the Earth in space—Freeman Dyson, a theoretical physicist, embarked on a plan for a nuclear-powered spaceship. He had previously worked on the development of the atom bomb and had a comprehensive understanding of nuclear power. He assembled a group of scientists at La Jolla, Southern California, to work with him; he called his scheme ‘Project Orion’.
Project Orion was a serious attempt to build a spacecraft powered by nuclear explosions, and was intended as an alternative to the multi-stage rockets that Werner von Braun was proposing for space travel.
Freeman Dyson’s ultimate aim was to build a spacecraft the size of a small city that would take a group of people to a distant comet on the edge of the solar system, where they would settle. This may have been only a pipe-dream, but the design was real enough.
The spacecraft was to be powered by hydrogen bombs. Essentially, his idea was to carry a number of hydrogen bombs aboard the spacecraft; these would be moved, one by one, to a position underneath the craft where they would be exploded. The base of the spacecraft would absorb the shock and the craft would be driven along. Obviously the spacecraft and the bomb system would have to be designed so that the craft was propelled along and not simply blown apart, but—in principle, at least—this was straightforward. However, Dyson was never able to test his ideas: he was prevented by public concern about the pollution of the atmosphere by radioactive fallout.
UFOs are often reported as disappearing rapidly—going of ‘like a television set’ and reappearing just as quickly. This aspect of the phenomenon has puzzled scientists for a long time and has led to suggestions that UFOs use some kind of ‘anti-optic device’ to prevent them from being seen. There are, however, some simpler explanations that account for the majority of reports. UFOs ‘disappearing’ in the of night could do so by simply switching off their lights’ daytime discs could appear to vanish by turning themselves sideways on to the observer—it would be very difficult to pick out the thin edge of a disc against the sky. These explanations do not, of course, account for radar-visual sightings that suddenly vanish. But if a UFO disappeared behind a patch of disturbed air, a mirage-like effect could easily screen it both from sight and from radar detectors.
There are, however, cases on file for which none of these explanations seem credible. It seems that the phenomena involved can only be explained as products of a technology much further advanced than our own.
By far the majority of UFO reports describe the strange objects as disc- or cigar-shaped and it could be that most UFOs reported as cigar-shaped are in fact discs. Whether or not this is actually the case, the number of reports of saucer-shaped UFOs is overwhelming. There has been a great deal of speculation as to why this should be so—some people have suggested the mystical significance of the circle may have something to do with it—but there is a simple explanation.
On long inter-stellar voyages, a spacecraft will pass through vast regions of empty space—far from the regions of gravitational attraction of any major objects—where there is no wind resistance, no up or down, no east or west, nothing. The most logical shape for a vessel travelling in these circumstances is circular, for a circle is symmetrical about an infinite number of axes. The fact that most UFOs are disc-shaped rather than spherical can be explained as a design feature that allows spacecraft to operate at high speeds once they have entered the atmosphere of planets: by flying with their edges into the wind, they can cut down the effect of air resistance almost to zero.
Whether or not UFOs existed in the past, there is no doubt that UFO sightings have proliferated in astonishing numbers over the past 30 years. This fact seems to be in some way linked with man’s first steps towards exploring space, and this connection is undoubtedly an important clue in trying to explain the UFO.
Estimates of the total number of UFO sightings vary so widely as to be meaningless; more helpful figures are provided by the catalogues of reported sightings prepared by individual investigative organizations. In the 1960s a French team catalogued more than 600 encounter cases in France alone, each vouched for by responsible investigators. In the early 1970s UFO investigators made lists of all reported landing cases for particular countries: 923 were recorded in the United States, 200 in Spain.
Are UFOs real in the sense that, say, spacecraft are real? The surest proof would be actually to get hold of one, and there are persistent rumours that certain governments, notably that of the United States, have indeed obtained a UFO, which is kept in total secrecy. However this remains mere conjecture, despite the sworn affidavits of alleged witnesses. Indeed, the whole matter of governmental involvement—or the lack of it—is a further and fascinating aspect of the UFO controversy.
In the absence of a real UFO that we can touch and examine, there is a great deal of evidence of the phenomenon in the form of a mass of photographs and a handful of movies. The majority are undoubtedly fakes. Those with good credentials are so blurred, so distant or so ambiguous that they simply add a further dimension to the problem: why, if UFOs exist, and in an age when many people carry cameras with them most of the time, have we not obtained better photographic evidence?
Perhaps the strongest evidence we have is from the effects caused by UFOs on surrounding objects, particularly machinery. In November 1967 a truck and a car approaching each other on a Hampshire road in the United States in the early hours of the morning simultaneously suffered engine failure when a large egg-shaped object crossed the road between them. The police, and subsequently the Ministry of Defence, investigated the incident, but no official explanation was ever issued. Such a case may leave investigators puzzled, but it makes one thing certain: if they can cause physical effects, UFOs must be physically real.
If they are physical objects, UFOs must originate from somewhere. When the first UFOs of the current era were seen, back in the 1940s, it was assumed they came from somewhere on Earth. The Americans suspected they were a Russian secret device, perhaps developed using the expertise of German scientists captured at the end of the Second World War.
But as more reports came in it became clear that no nation on Earth could be responsible. Nor was there sufficient evidence to support other ingenious theories—that they came from the Himalayas, long a favoured source of secret wisdom, or Antarctica, where unexplored tracts of land and climatic anomalies provide a shaky foundation for speculation. Instead, ufologists began to look beyond the Earth, encouraged by the fact that our own space explorations programme was just beginning. We were starting to take an active interest in worlds beyond, and it seemed reasonable that other civilizations might have a similar interest in us.
However, although the number of potential sources of life in the Universe is virtually infinite, the probability of any civilisation being at a stage of development appropriate for space travel is very small. They fact that no solid evidence has been found for the extraterrestrial hypothesis is discouraging. Although it is the best available explanation, it remains no more than speculation.
3.2.2 Close Encounters
Established science has always tended to view the UFO phenomenon with scepticism. In his book, The UFO experience , 18 Dr. J. Allen Hynek, who was astronomical consultant to Project Blue Book (the U.S. Air Force investigation into UFOs), tells the story of an event at an evening reception held in 1968 in Victoria, British Colombia, at which a number of astronomers were present. During the evening it was announced that strange lights—possibly UFOs—had been spotted outside. Dr. Hynek continues: “The news was met by casual banter and the giggling sound that often accompanies an embarrassing situation.” And, he reports, not a single astronomer went outside to look.
Even project Blue Book attempted to explain away every reported sighting in terms of conventional science. It soon began to earn itself a bad name because many of its explanations were impossible to believe. In 1966 the U.S. Air Force set up a 2-year research project—to investigate, in effect, its own investigations!
Dr. J. Allen Hynek, while acting as a consultant to Project Blue Book, developed a system of classification of UFO ‘types’, which has become standard. He divided UFO reports according to the distance, greater or less than 500 ft. (150 m), at which the UFO was observed, and subdivided each of these two sections into three, giving six categories altogether.
The commonest sightings are of the “distant” type. Nocturnal lights are strange lights seen at a distance in the night sky, often with unusual features such as variations in the intensity of light or colour and sudden, remarkable changes of speed and direction of movement. Daylight discs are distant objects seen against the sky during the daytime. The shapes vary considerably: cigars, spheres, eggs, ovals and pinpoints as wee as discs are often reported. Radar-visuals are distant UFOs recorded simultaneously on radar and visually with good agreement between the two reports. Dr. Hynek excluded “sightings” made solely by radar since false traces can result from a number of natural factors such as ground scatter—the signal is reflected from high ground—temperature inversions and even thick banks of cloud or flocks of birds. Radar-visual sightings are the most important categories of UFO reports as they given independent instrumental evidence of the sighting; unfortunately, they are very rare.
Reports of UFOs seen at close range are the most interesting and often spectacular; these are the famous “close encounters”. Close encounters of the first kind are simple observations of phenomena where there is no physical interaction between the phenomena and the environment. Close encounters of the second kind are similar to the first kind except that physical effects on both animate and inanimate matter are observed. Vegetation may be scorched or flattened, tree branches broken, animals frightened or car headlights, engines and radios doused. In cases of electrical failure the equipment usually begins to work normally again once the UFO has disappeared. Close encounters of the third kind occur when “Occupants” are reported in or around the UFO. Dr. Nynek generally ruled out so-called “contactee” cases in which the reported claimed to have had intelligent communication with the “occupants”, arguing that such reports were almost invariably made by pseudo-religious fanatics and never by “ostensibly sensible, rational and reputable persons.” But even these cases occasionally have to be taken seriously by scientists.
3.2.3 Legal Principles
In a purely forensic sense, the fundamental postulate of space law, which devolves upon States the responsibility to explore and use outer space for peaceful purposes is pivotal to the conjecture of extra terrestrial life.
The first source at hand is international treaty law and the Outer Space Treaty 19 of 1967 is the first point of reference. The basic principle of space law is the “common interest” (or common heritage) principle which emerged as a result of the first specific Resolution on space law of the United Nations General Assembly in 1958.20 The “common interest” principle has since been incorporated in subsequent multilateral treaties, particularly the Outer Space Treaty