Space law

In a nutshuttle

Space law (1)Yes, space law is real. And fortunately (or unfortunately?), it doesn’t involve the defense against a potential alien invasion. Space law is the body of law that governs space activity; it encompasses international and domestic agreements and treaties pertaining to areas such as space exploration, liability for damage and environmental preservation. Elements of space law also overlap with other fields of law, like criminal, commercial, insurance and environmental law.

There are five space-related treaties that the US is party to – often referred to as the five UN treaties on outer space. The treaties are comprised of the outer space treaty, the liability convention, the registration convention, the return and rescue agreement, and the moon agreement. These five treaties deal with issues such as the non-appropriation of outer space and the prevention of harmful interference with space activities and resources.

Space law attorneys advise clients on legal matters such as the financing of space assets and the launching of satellites. They also provide guidance on the regulation of satellites and associated frequencies, and monitor space law legislation and regulation.

Space law is not widely available on legal courses, as space legislation is only just starting to take shape. This might make it hard for law students and juniors to get the experience in the area that would help them bag a permanent job in the area. However, space and satellite law often intersects with telecommunications law, which is much more available for those starting out. Aspiring space law attorneys may therefore wish to try their hand at telecom work first.

“The bread and butter of space law is the licensing and compliance of satellites. We represent satellite space station operators at the FCC [Federal Communications Commission] to help them get their licenses. There are several rules the licenses have to comply with, such as spectrum use or spectrum sharing.” – Bill Wiltshire, Managing Partner, Harris Wiltshire & Grannis

 

What lawyers do

  • Harris Wiltshire & Grannis represents satellite and drone companies such as SpaceX (founded by Elon Musk), which provides broadband services to users around the globe via satellite technology. A lawyer working within the practice at HWG detailed what their day-to-day looks like: “I do a mixture of terrestrial spectrum and commercial space policy,” which may initially sound a bit Star Trek, but in reality “it mainly involves being a point of contact for satellite industry clients and drafting comments for submission to the FCC [Federal Communications Commission].”
  • HWG managing partner Bill Wiltshire explains the types of challenges space law attorneys are facing in today's ever-changing world: “Lawyers are having to think through a lot of issues the world is only just starting to see.” He adds that “the various issues involved include the potential for satellites to collide in space. How can a regulatory regime manage such issues?”

 

Realities of the job

Space law is literally rocket science. Well, kind of. Due to the technical nature of space law matters, attorneys will find themselves working with relevant experts on various issues.

Lawyers in the field can expect to:

  • Advise on the financing of satellites; act as counsel to lenders and satellite owners in relation with project financing or construction.
  • Advise cable and telecommunications clients on legal matters, such as space insurance and security interests in telecommunications equipment.
  • Work on various commercial contracts for satellites, satellite constellations, launch services and ground stations. These can include the likes of space and satellite procurement and services contracts.
  • Support clients in multijurisdictional insolvency and restructuring proceedings.
  • Work on litigation and arbitration matters, such as disputes over space and satellite assets.
  • Provide legal advice on insurance policies and the regulation of satellites and associated frequencies.
  • Work on IP matters, which can involve assisting clients with patents, trade secrets, copyrights and trademarks.

 

Current issues

June 2020

  • The shaping of current outer space legislation was done so with space understood as something explored exclusively by government institutions. Now that there are new private space companies, both space exploration and space tourism require further regulation in both the private and public sectors of legislation. 
  • In August 2019, Anne McClain, a NASA astronaut, was accused of breaching the law in space while aboard the International Space Station. Allegedly, McClain illegally accessed her ex-partner’s bank account while on board the international space station. This is the first allegation of a crime taking place in space, raising questions as to who will govern the realms of space when the exploration and habitation of space becomes more commonplace. Making things easier for now, the ex-partner in question was charged in 2020 with fabricating the alleged space crime.
  • The question of who owns lunar material has gained traction over the past decade. In 2011, various media outlets reported on NASA’s intervention when a space engineer’s widow tried to sell a moon rock, as all such material is classed as property of the federal government. Congress subsequently issued a law in 2012 that clarified which space objects could be privately owned; it did not cover lunar material and rocks and hasn’t been updated since. In 2017, The LA Times reported that the widow in question was told by the US Ninth Circuit Court of Appeals that she could sue for the manner of her detainment. In addition, in 2018, the media reported that a Tennessee-based woman was suing NASA in order to establish ownership of some moon dust.
  • On a broader note, there are questions of morality and responsibility around the potential for space mining too – not just questions of ‘who owns what?’, but also those such as ‘should we own this?’ Perhaps budding space lawyers should also take a philosophy class.
  • In April 2020, President Trump signed the executive order on ‘Encouraging International Support for the Recovery and Use of Space Resources.’ As the official White House website (whitehouse.gov) states, the order encourages “partnership with commercial entities to recover and use resources, including water and certain minerals, in outer space.” The order also highlights the international context of “uncertainty regarding the right to recover and use space resources, including the extension of the right to commercial recovery and use of lunar resources…”
  • Space tourism is an increasing area of business. Though space tourism company Space Adventures has sent fewer than a dozen private citizens into space, there are huge plans to expand this new version of ‘getting away from it all.’ Elon Musk’s SpaceX is planning on taking a handful of tourists on the orbit of a lifetime around Earth. Virgin Galactic was planning on taking its first tourist ship out in 2020 (though they have delayed the program to use their resources to make breathing apparatus for COVID-19 patients). Blue Origin is also planning on offering customers the chance to get a few minutes of space time for a rumored $200,000.
  • Entrepreneurs are increasingly working on projects to build space colonies and entire cities. Although the aforementioned Outer Space Treaty bans countries from appropriating the moon and other celestial bodies, the treaty doesn’t mention private citizens. 
  • In May 2019, Jeff Bezos, founder of Amazon and owner of Blue Origin (a rocket company) gave a presentation in Washington on his idea for the future of humankind in space. Bezos posited that space colonies will be built by future generations, comprising artificial settlements in orbit, home to as many as a million people each. The company’s website states that their vision “is a future where millions of people are living and working in space,” to “tap its unlimited resources and energy.”
  • Will space be militarized? Historically, the international Outer Space Treaty of 1967 decrees that the moon and other celestial bodies must only be utilized for peaceful purposes. As of 2019, 132 countries were either party to or had signed the treaty (with Slovenia being the latest to sign in February 2019). However, in December 2019 at the NATO summit, leaders of 29 countries came together in London and discussed the militarization of space. It was reported that Jens Stoltenberg, NATO’s secretary general, talked of space as an “operational domain” and highlighted the possibility of protecting satellites. However, NATO has made clear that it has no intentions of weaponizing space.
  • President Donald Trump reaffirmed his commitment to the idea of an American ‘space force’ during his speech at a signing ceremony in December 2019. The proposed force would be similar to the Armed Forces, Trump said: “I am hereby directing the Department of Defense and Pentagon to immediately begin the process necessary to establish a Space Force as the sixth branch of the Armed Forces.” Furthermore, Trump initiated a $738 billion defense bill for US military superiority in space. Trump described space as “the world’s newest war-fighting domain” and added that “America’s superiority in space is absolutely vital.” The Space Force will protect US assets in space, such as communication and surveillance satellites. As of April 2020, the Space Force has 16,000 personnel (primarily from the Air Force), as well as 86 fully-fledged lieutenants.