With the closing of the Apollo Era, the priorities of the world’s space agencies began to shift. Having spent the past two decades racing to send astronauts to orbit and to the Moon, the focus now changed towards developing the technologies needed to stay there. A new era of international cooperation, space stations, and partnerships between space agencies and the commercial industry is what followed.
In the near future, things are expected to become even more interesting, with plans for the commercialization of Low Earth Orbit (LEO), the mining of Near-Earth Asteroids (NEAs), and the establishment of a permanent human presence on the Moon. Beyond the logistical and technical challenges this poses, there’s been no shortage of concern about the legal issues and implications this will raise as well.
To this end, a group of legal scholars and space experts recently came together to form the Space Court Foundation (SCF), a non-profit educational organization created to foster a conversation about these and other related space issues. By beginning the conversation now, they hope, the public will be able to play an active role in the burgeoning and evolving domain known as “space law.”
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The Space Court Foundation is the brainchild of Chris Hearsey, Nathan Johnson, and a team of experts in space law. Hearsey was formerly the chairman of the Astrosociology Research Institute (ARI), secretary at the American Institute of Aeronautics and Astronautics (AIAA), and Corporate Counsel and Director at Bigelow Aerospace. He currently serves as the chief liaison at Space Hero (where contestants compete to win a trip to the ISS).
Johnson, meanwhile, is the founder and editor-in-chief of Astro, Esq. and the North American Regional Organizer of the Manfred Lachs Space Law Moot Court Competition, as well as a former attorney with the FAA’s Office of Commercial Space Transportation and member of the House Committee on Science, Space and Technology.
Other luminaries found on the SCF Board of Directors include Nivedita Raju, the deputy representative of the US Federal Aviation Administration’s (FAA) Center of Excellence for Commercial Space Transportation (CoE-CST) a former intern with the Indian delegation to the International Civil Aviation Organization (ICAO), and a former research assistant with McGill University’s Institute of Air & Space Law (IASL).
On the Board of Advisors, you have people like Director Daniel Porras, a former Space Security Fellow at the UN Institute for Disarmament Research (UNIDIR) who interned at the UN Office of Outer Space Affairs (UNOOSA). He is currently the Director for Strategic Partnerships and Communications at the Secure World Foundation (SWF). There’s also Chris Johnson, a space law advisor at the SWF and adjunct at Georgetown University who also interned at UNOOSA.
Recently, Chris Hearsey and Nathan Johnson spoke to Universe Today about their work, which was facilitated by Shawn Case (founder and CEO of Enterprise in Space and the SCF’s social media manager). In the course of our discussion, Hearsey and Johnson indicated that they were inspired to create their educational foundation because of all the major developments that are happening right now.
For example, next month will be the 53rd anniversary of the Outer Space Treaty, signed on Oct. 10th, 1967. This landmark agreement established that space was for the exploration and peaceful use of all nations. It also banned nuclear testing in orbit, forbade signatories from asserting national sovereignty in space, and set the precedent for all future space treaties.
Similarly, in preparation for their return to the Moon, NASA recently proposed the Artemis Accords, a basic legal framework (based on the Outer Space Treaty) for establishing common principles for lunar exploration. As Hearsey noted, while there haven’t been that many treaties that deal with collective action (which is essential to space exploration), there is a growing perception that more is needed before we embark on anything.
But, as Hearsey explained, there needs to be a conversation about what the law is and what the law isn’t first:
“There are so many activities that you can engage in space, from satellites to human spaceflight, to robotic exploration, and humans bring everything with them, all the good and the bad. Everyone’s got ideas about what the law should be, but not everyone truly understands what the law is.
“What we are very interested in is education and the rule of law. To do that effectively, our entire research approach has been, ‘we need to fundamentally understand what the law is before we say what the law ought to be… It’s always a good start to talk. Obviously there’s lots of questions to be had and we’re happy to have those discussions. “
In recent years, these frameworks have come to include a number of measures that open space up for commercial ventures. Examples include the U.S. Commercial Space Launch Competitiveness Act (CSLCA, or H.R. 2262) signed into law in 2015, Space Directive-1 (SD-1), in 2017, and the “Encouraging International Support for the Recovery and Use of Space Resources” of 2020.
Interestingly enough, Hearsey himself played a large role in the drafting of SD-1, along with many other members of the commercial space industry. In many respects, these measures recognize the growing reality of space, which is fast becoming a domain for commercial interests – with everything from satellite constellations to orbiting hotels and habitats. On the other, it has sent a signal to other nations that space is “open for business.”
What this will mean for generations to come remains to be seen, but it’s clear that a legal framework must exist for overseeing conflicts not only between national entities, but commercials ones as well.
At present, the business of enforcing the articles of space law (such as the Outer Space Treaty) falls to both national and international courts. To a large extent, this is done predominantly by US courts since the majority of space infrastructure is owned by the US government and it has been responsible for passing the majority of space laws.
In the event of a dispute, there are a number of outlets for private citizens and industry to engage with. In the event of international disputes, there is even the International Court of Justice (aka. the World Court), located in The Hague, which one of six principal organs of the United Nations. To date, this court has adjudicated less than 200 cases, but in the next fifty years, that is expected to change drastically. As Hearsey characterized it:
Unfortunately, there is a lot of ambiguity when it comes to legal matters in space, especially where international players are concerned. And as more nations and commercial entities come to participate in space exploration, the law needs to be clear and an enforcement mechanism needs to exist. As Hearsey characterized it:
“It’s easy enough to identify and catalog and count the general consistent practice of a state. It launches satellites, it puts them in orbit, and then it regulates them at the telecommunication level. But it’s different if you’re trying to tag them with a legal obligation to which you can hold them accountable in a court.
“If the government is going out and constantly saying ‘these are the rules we believe we need to live by,’ then you have something to always point to and say ‘you said you were going to live by these rules, and in this case, you did not.’ How are we going to handle a future dispute?”
NASA’s approach with the Artemis Accords, rather than prescribing law, has been to foster a dialogue about what space law should look like and get others involved. This is something the SFC hopes to facilitate. The ability to have such dialogues has been complicated by the recent global pandemic. But at the same time, it has drawn attention to how people from all over the world can connect and have things like virtual conferences.
These forgo the sometimes burdensome necessity of travel, paying for accommodations, or having to attend events in person to participate. According to Hearsey, this presents an opportunity of sorts:
“We can take advantage of that as a Space Court to have those types of dialogues. And that’s why the Artemis Accords and having a discussion about the future of space governance is critical. It needs to be a continuing conversation. Space Court wants to put itself in that position and be a recognized foundation and institute that is a home for practitioners, for scholars, [and] for students.”
The ways in which they plan to engage the public include Stellar Decisis, an animated series that examines the practice of law and the administration of justice in space. Each episode will examine how courts in the future will handle disputes and will have special guests – scholars, and luminaries from the space community – who will serve as judges, examine the evidence and arguments, and render a verdict.
The SCF will also be starting an internship program for people looking to make meaningful contributions to the study and research of space law. The internships will last for a year and successful applicants will have the opportunity to renew as they go. This program will be open to all people, regardless of their background and whether they have any legal education.
But the flagship, according to Hearsey and Johnson, will be the Law Library. This Library will consist of four major elements, which will include the International Yearbook of Space Activities – an annual catalog of major events that have an impact on space law. These will be modeled after existing yearbooks of international law that are kept by various nations today.
“What they really are is a compendium of documents and chapters analyzing those documents and drawing conclusions about the law and how it develops from year to year,” said Hearsey. “So we’re going to start with this year and work our way back.”
Other tools will include the Space Court Law Library website, the Space Law Dictionary Online, and the Space law archive projects. The focus of all this, says Hearsey, will be primary materials – such as treaties, regulations, and other relevant documents – so people can see what the law has been (rather than what it should be).
At the international level, there is UNOOSA, there are several entities that deal with space law, like the European Centre for Space Law (ECSL), and the International Institute of Space Law (IISL). There are also academic bodies, like the Institute of Air and Space Law at McGill University, the University of Cologne Institute of Air and Space Law, and the Leiden International Institute of Air and Space Law.
The University of Pennsylvania’s Carey Law School, where Hearsey worked as an undergrad, also maintains a section on space law. It was here that he got his first taste of the legalities of space exploration, and was told by the library’s director to go to Washington DC to pursue it. While there, he worked as a graduate fellow at the National Air and Space Museum alongside its Curator, David DeVorkin.
It was here that Hearsey learned how the history of a topic is most informative, as it tells us what to do and what not to do (as well as how to/not to do it). It also taught him that educational institutes need to be set up to communicate with professionals and the public effectively. This is especially important (he claims) when it comes to space law since most people don’t understand how it operates:
“What we want to do is to put together on our website a way and a mechanism for researchers, students, and practitioners to see primary sources. But the most fundamental thing that we are doing, which (as far as I know) no one else is doing, is to start to put together actual public statements made by government officials over the years [provide insight] on what that state’s position is with respect to that space activity.”
The SCF is currently engaging in talks with various law libraries, archives, and space law institutes around the world in the hopes of entering into partnerships. While there is no shortage of legal scholars or institutes that possess documentation pertaining to space law, what is missing is a community where all this information is accessible so the most important conversations can be had.
Fostering these types of connections has the added benefit of enabling the preservation of historical documents that might otherwise be lost. During the Space Race, countless policies, decisions, and precedents were established, but the documentation for them no longer exists. This is due in part to extenuating circumstances – like the collapse of the Soviet Union – or failure on the part of governments to properly preserve them.
This is one of the SCFs long-term projects. But most of all, Hearsey, Johnson, and their colleagues hope the SCF will become the first major institution that has the most up-to-date version of space laws in one place. This would make them an indispensable resource to people who play an active role in researching space policy, not to mention those who have a hand in shaping it. Said Hearsey:
“One of the outcomes that I want for this project, in particular, is we want to be the first website, the first institution, to get the new laws. Whether it’s the Chinese space law in Mandarin, or the next law or the next treaty, or next regulation or rule. We want people to be able to come to our website and say, ‘This is the most up to date information. This is going to save me hours… because it’s all right here. Because again, no one is doing this.”
Because they are a non-profit that’s not affiliated with anybody, Hearsey believes that the SCF can do all this and put itself in a position that others can’t. Someday, they also hope that a Space Panel will be created as part of the International Court of Justice and that perhaps it will look to the SCF when its attorneys need to review the history of a specific legal issue and make a ruling.
In the meantime, the team at SCF is producing educational videos that featured guest speakers. The most recent video (posted above) was a roundtable discussion with special guest Mike Gold, the acting Associate Administrator for NASA’s Office of International and Interagency Relations (OIIR). Gold is also the former VP of Civil Space at Maxar Technologies and a longtime associate with Bigelow Aerospace.
Other videos include a roundtable discussion with famed astrobiologist and author David Grinspoon on the subject of what decades of planetary science have taught us about ourselves and a series of panel discussions in honor of Yuri’s Night. Earlier today (Fri., Sept. 18th), they also hosted an Intern Orientation video, where members of the team let aspiring applicants know what to expect!
The SCF also has a line of merchandise (masks, mugs, iPhone cases, apparel, etc.), the proceeds of which go towards the production of Stellar Decisis episodes and their other educational efforts. Be sure to check all this out at the Space Court Foundation website, and stay tuned for more developments!
Further Reading: Space Court Foundation
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