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Interview: Tanja Masson-Zwaan, President, International Institute of Space Law

Tanja Masson-Zwaan became President of the International Institute of Space Law (IISL) on 1 January 2008, succeeding Dr Nandasiri Jasentuliyana.

A Dutch citizen, she holds a Masters degree in public international law from Leiden University in the Netherlands.

She was Co-Director of the International Institute of Air and Space Law (IIASL) at Leiden University from 1985-1990, where she has returned as Deputy Director, in charge of space law teaching, managing and marketing the LLM programme in air and space law, and other matters.

Later, she worked for the aerospace insurance and consulting company Aon Explorer in France, and then created Adastra Consulting, working as an independent consultant on various projects in the fields of air and space law.

Within IISL, Mrs Masson-Zwaan has been responsible as Secretary inter-alia for the organisation of the annual Colloquia on the Law of Outer Space held in conjunction with the International Astronautical Congress, a variety of regional conferences and other meetings. She also organised the Manfred Lachs Space Law Moot Court Competition and the representation of IISL at international forums.

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Res Communis: Can you tell us what the International Institute of Space Law (IISL) is and how long it has been around?

Masson-Zwaan: The IISL has been around for quite a while. It was first created in 1958 as a Permanent Committee on Space Law by the IAF, and then it became an official institute in 1960. It has been established for almost 50 years. In 2007, the IISL was formally established as an independent association (NGO) under Dutch law, and its structure has been improved to better fulfill its role. The Institute is composed of a group of people around the world who are interested in the legal and societal aspects of space activities. Over the years they have organized conferences and colloquia and other activities where they meet and get together and try to move the law ahead. That, in a nutshell, is what the IISL is about.

Res Communis: What is the membership?

Masson-Zwaan: We have currently about 350 members from more than 40 countries. They are both individuals and institutional members but the majority are individual members. Institutional membership was established only ten or fifteen years ago, so the great majority are still individuals. They come from different backgrounds. They are lawyers, academics, government people, industry people, students, Ph.D. fellows, etc. It is very varied group both in terms of professional background in terms of nationalities.

Res Communis: Are there regional chapters or does the IISL exist only at the international level?

Masson-Zwaan: There is one regional chapter, the Association of U.S. Members of the IISL (AUSMIISL). They sometimes hold meetings during our annual colloquium. With 300 or 400 members there is not really a strong need to have regional chapters, I think.

Res Communis: What are IISL’s institutional goals or objectives?

Masson-Zwaan: Most importantly, to provide a forum relating to space law; by cooperating with international organizations and national institutions in the field of space law, by holding meetings, colloquia and competitions on legal and social science aspects of space activities, and by preparing studies and reports and publishing proceedings. The IISL wishes to address topics that are of real interest to all space actors, and involve them in the discussions at our annual Colloquia during the IAC. We also advise our sister organizations, the International Astronautical Federation (IAF) and the International Academy of Astronautics (IAA), if necessary. We serve as observers to the Legal Subcommittee of the UN Committee on the Peaceful Uses of Outer Space on behalf of the IAF. There is a close link with these sister organizations. We organize events for students including moot court competitions. We want to involve the new generation of space lawyers, to make sure this area is discussed and studied by lawyers of all ages. We also organize regional conferences, because sometimes it is hard for people from poorer regions to come and attend the annual Colloquium, which is quite expensive. So we go to them and set up a dedicated conference, addressing topics of relevance for the region. We have done 5 so far, since 2001. All have been in Asia but we would like to expand to other regions. We publish proceedings of all these colloquia and conferences, and we issue statements when we feel the need to do so.

Res Communis: About four years ago the IISL Board of Directors made a public statement on the question of the definition of property rights as it relates to space. How did the Board come to make that statement?

Masson-Zwaan: Yes, I remember it very clearly, it was in 2004. It came about because we had all been hearing stories about “entrepreneurs” who were “selling” bits of the Moon, establishing lunar embassies, and what have you. These persons were making a lot of money. At first, all of us on the Board had a humorous reaction. I would say, “OK, this is funny.” Of course we thought it was ridiculous and that we didn’t need to take action. But then we saw this going on and on, and saw that the so-called Lunar Embassy was opening offices in other countries and that it was really expanding a lot. Then, we thought it was time for the Board to intervene. So we created a group of a few of the Board members who came together to make the statement. Really the aim of the statement was to simply state what the law is. We wanted to make clear that these lunar property “claims” were unsupported in law. So we issued the statement and it has been on the IISL website since then. We have regularly received comments over the years since then. People write to us saying, “Come on, be honest. It is clear it should be happening” and, “You have to allow it”, and so on. But we have always replied to those requests by explaining again what the law is—explaining that there is a treaty signed by sovereign States which prohibits appropriation by the state, and hence by its subjects, and that there is nothing they can do to argue around that. So I think it is a useful tool and I hope that in the future we can do similar things. It was not an easy exercise because it took a long time to agree among ourselves on the most simple way to state the law without going into value judgments. It is quite a basic, simple statement and I think in that sense, it is useful.

Res Communis: Was this the first time the IISL or the Board made a formal statement on a space law question?

Masson-Zwaan: It was the first time. Since one of the main characteristics of the IISL is that it is a very open organization where everyone can express their view without necessarily having it attributed to a government or organization, it was not easy to agree on a statement that everyone could feel comfortable with and without taking strong positions. That is probably the reason why the Board has not issued statements more regularly. When you make a statement, you make choices, and perhaps that has been avoided more or less on purpose in the past.

Res Communis: You have recently been elected IISL President. Congratulations. You follow in the footsteps of one of the most prominent people in space law: Nandasiri Jasentuliyana. What has that been like for you?

Masson-Zwaan: I know I have big shoes to fill, Nandi has been an outstanding President for 14 years, and has achieved many good things for the IISL. But it was a smooth transition. After all I was IISL Secretary for 16 or 17 years. I feel I know the organization almost like I know my own family. Nandi has always involved me in everything and we worked as a team. I felt especially in the last year or so that he was quietly preparing me for him to withdraw and to leave me in the front line. He prepared me very well and I learned a lot from him. He is a veteran diplomat, and he has a good sense of humour too. I feel confident to take up the huge task before me, not in the least because there is a very competent Board of Directors, with many excellent space lawyers working with me in a friendly and professional atmosphere, that will help a lot.

Res Communis: What are some ideas, goals, or aspirations that you have for your administration?

Masson-Zwaan: I am not going to have any revolutions. I want to continue the work that has already been started. Innovations were initiated under Nandi’s presidency and I want to make sure those are fulfilled. The IISL has been restructured to be an independent registered organization under Dutch law. We are now going through the statutes, making them clearer, making them in tune with modern requirements, and so on. I would like to continue some reforms that have been initiated for our colloquia. IISL colloquia have been becoming increasingly interesting for a lot of people. For our five sessions we now receive some one hundred abstracts, which is a lot. I would like to find a way to make sure the sessions are interesting and at the same time encourage many people to keep coming to the sessions so they have a forum to express themselves. That is going to be a challenge. I would like to further expand the moot court competition by adding another region in Africa or Latin America and by expanding the number of European participant universities. We also need to make sure that we encourage space industry to actively take part in our work. I think that is quite a bit to keep us busy.

Res Communis: What do you see as some of the most important or emerging issues in space law? Without necessarily expressing an opinion or a view, what do you see on the space law landscape?

Masson-Zwaan: Well there is a lot. The nice thing for space lawyers is that there is always a new development that requires regulation or thinking and legal analysis. I’ve seen so many new topics arising. The most recent ones include issues such as space tourism, which of course is a very sexy topic and everyone is very interested in it. There are lots of conferences, meetings, and papers about that and of course it is something that needs thinking about. How to distinguish astronauts from space tourists? What kind of rules apply to them? Do we have to look at the synergies with air law? Should we have a kind of Montreal convention governing liability of the space operators vis-à-vis “space passengers”, and a Rome Convention for damage caused to third parties on the ground? Shouldn’t we create possibilities for space passengers to claim for damages directly, instead of having to claim via their State, which is the only possibility provided under current space law? Secondly, environmental issues—both protection of the space environment and protection of the Earth environment with the help of satellites—are of course very topical and important in today’s world. Thirdly, financing instruments and the development of the UNIDROIT Space Protocol are also very important. Hopefully, it will lead to some kind of agreement.

But in addition to these new topics I think there are also some older topics that merit our attention. A reform of the Registration Convention is important. IISL could contribute its legal expertise by advocating ways to reinforce registration requirements and to take into account, for instance, in orbit sales or transfers of ownership while a satellite is still operating. This reform is also important to adequately deal with the growing problem of space debris.

Lastly, perhaps the most important issue, and the reason why space law was established in the first place, is the militarization and weaponization of space. The recent tests by the Chinese and the Americans, shooting down their satellites to either test or show their military capacity, or to protect the space and earth environments from hazardous re-entry, whether you look at it one way or the other, exemplify and justify the growing concern about this issue. Initiatives to completely demilitarize outer space have been proposed over the years. I don’t know whether that is going to happen or not. I’m not too optimistic because in the beginning and in the end, space is of course still a military playground. It is definitely a topic that needs to have continuing attention from the lawyers as well.

Res Communis: Considering the North American, European, and Asian regions, are there any major differences or similarities that you notice in how the lawyers from those regions see space law? Do they come at it from different perspectives, or is there a foundational starting point that is common to all of them?

Masson-Zwaan: That is a difficult question. I have never really thought about it, but I think there probably are differences. Looking at the papers that come into the colloquia, the North American papers often deal with commercial topics. Papers from countries like India or Asian countries might deal more with applications of space for terrestrial needs, for example, disaster management, tele-education, tele-medicine etc. papers from Europe often address the roles of the European Commission and European Space Agency (ESA) respectively. It is a typical European problem, you have on the one hand a supranational body that also aspires to be involved with space matters, and on the other a regional space agency, ESA, which is involved with technical space issues. There are clearly topics that are more alive in one region than another. But to say what the viewpoints are on these issues is difficult because I think that in every region, and in every country, there are people who will say “white” and others who will say “black”. I would not say you can generalize, there is no typical European point of view, American point of view, or Asian point of view.

Res Communis: One of the most important space law agreements that exists is the multilateral treaty that established ESA, the ESA Convention. Could you give a brief overview of what that treaty is and what it means to Europe?

Masson-Zwaan: ESA comes from two different organizations, the European Space Research Organization (ESRO) which was established in Delft in the Netherlands, and the European Launcher Development Organization (ELDO). They merged in the early 1970s and became ESA. It has been in existence for some 35 years. It is a very efficient organization. Why? In my view because from the start it concentrated on the technical development of space for Europe. It has not been a very political organization. Now, with the European Commission coming in, politics are also coming in. Problems such as those with Galileo have taken many, many more years to solve than, in my view, they would have taken if it had been developed only by ESA from the start. Galileo would probably already be in the air. But, of course, there are other considerations in the current geopolitical reality that make it important for the European Commission to be involved. ESA is an organization of not only EU member states, there is an overlap of various different “Europes”; EU Europe, ESA Europe, and there are more. That makes it complicated. But it has been extremely successful. The Headquarters are in Paris, and there is a huge research and technology center in the Netherlands (ESTEC) in Noordwijk, the Netherlands. Then there are several other establishments such as the European Space Operations Center (ESOC) in Darmstadt, Germany, the Centre for Earth Observation (ESRIN) in Frascati, Italy, the European Space Astronomy Centre (ESAC) near Madrid, Spain and the ESA Satellite Station, for satellite control and for reception, processing, and distribution of data from onboard sensors near Kiruna, Sweden. The latest addition is the European Astronaut Centre (EAC) which was established in 1990 in Cologne, Germany. There are also several tracking stations. What I can say is that ESA has been a very efficient organization that has developed numerous succesful satellite projects, research, and technology, and that has really put Europe on the map in the space field. It is actually a model that is being followed, or trying to be followed, in Asia. There are local scholars and politicians trying to establish an Asian Space Agency because it is useful for small states to work together in a regional cooperation such as ESA. Together they are strong, and together they can do things that they could not do on their own. They are looking at the ESA Convention to see how they can apply it to their own region.

One of the big problems with the ESA Convention is the principle of fair return. There is a lot of criticism in the context of European community law where fair competition is a major characteristic. There is a clash of two fundamental principles here. I don’t see that solved yet but the concepts are coming closer and closer together. There is a lot of development still going on that may also provide interesting examples for other regions.

Res Communis: From time to time there is an attempt by the European Parliament or the EC to bring space within its jurisdiction, under its auspices. But ESA continues on and there is a back and forth effort there. Where does it stand now?

Masson-Zwaan: Well, I think they are a little bit like two fighting brothers each of whom wants to play with a ball their own way. For me it is very clear, ESA is the technical organization and the European Commission is the political entity. Projects such as Galileo or GMES have both technical aspects and political challenges. I think there is a role to play for each of them. In the beginning perhaps it was a little bit difficult for both organizations to find their exact identity and the role they need to play. Over the years I think that this has crystallized and, in my view, both of them respect the necessary role the other party has to play. They know that they have to do it together and that explains how the Framework Agreement between the European Community and the European Space Agency could enter into force in May 2004. This agreement establishes regular meetings of the EU and the ESA at ministerial level within a “Space Council”, for coordinating and facilitating cooperative activities. In this context, the Commission and the director general of ESA presented on 26 April 2007 a joint document on European space policy which was endorsed by the Space Council and formally adopted by both organisations. So, yes, there have been attempts in the past years by the European Commission or Parliament to have more say in the space arena. But the technicians and scientists are at ESA and one can’t do without the other. I think that is the bottom line.

Res Communis: The space law community has had some very important anniversaries recently. In the United States this is the 50th Anniversary of the National Aeronautics and Space Act of 1958. The 40th anniversary of the Outer Space Treaty was last year. Would share your views on that treaty forty years later? There is a lot of discussion on whether it needs to be changed, amended, or withdrawn from. What would you say about the Outer Space Treaty?

Masson-Zwaan: I think the Outer Space Treaty should stay as it is. In my view it is a brilliant document. It has been elaborated and put together by many very eminent specialists; some of whom are still with us; some of whom are not; but all have left their imprint. It is a document that is at the same time simple and also broad; it addresses a lot of topics. In my view, it does not hamper developments that are now taking place. It contains the basic principles that should always be kept in mind, such as, space is for the benefit of all countries and it is to be used only for peaceful purposes. The risk of opening it up, or making an amendment, or even to make a protocol, is the potential end of the Outer Space Treaty. I am not in favor of opening it up. I also think that now we should look at other forms of law making. The whole climate has changed from the 50s and 60s when the UN Committee on the Peaceful Uses of Outer Space was fairly limited and when it was still feasible to reach consensus. Since the Moon Treaty, this has not been possible. What has been achieved is UNGA Resolutions, which do not have the same binding force as a Treaty, and also all kinds of regional agreements such as the Intergovernmental Agreement for the International Space Station, or voluntary agreements as Agency level to deal with a specific problem, such as the very efficient Disasters Charter. Future lawmaking may go more in that direction instead of new treaties. I am hesitant whether that is still possible. With COPUOS having a broad membership and with a lot of States wanting their piece of the cake, it is now going to be very difficult to find consensus on a new treaty. This does not mean that COPUOS has become useless, far from that. So, in conclusion, I don’t think we should open up the Outer Space Treaty. It is enabling enough to accommodate various uses of space, even if additional rules are of course required in specific new fields.

Res Communis: Is there anything else that you would like to add or conclude with that has not been raised?

Masson-Zwaan: Well I think we discussed a lot and I wouldn’t know what to add, except to thank you for this opportunity. This was nice to do and I think it is a useful way to promote space law debate. Your blog is really contributing to that debate and I want to congratulate you on it.

Res Communis: Thank you.