Lawyers in Space

On Monday, in the U.N.’s Vienna office, an obscure subcommittee convened with little fanfare, far from the hubbub of Turtle Bay. Don’t be fooled by the subdued arrangements: Members of this subcommittee will spend the next two weeks weighing in on questions central to humankind’s future on Earth — and beyond. The U.N. Office for Outer Space Affairs (UNOOSA) Legal Subcommittee, meeting currently for the 54th time, is the primary international forum responsible for developing guidelines and laws for human activity in space. This group works on the legal problems that arise as companies, nations, and international bodies expand their presence beyond the planet. Some of these questions are both thorny and profound: On the agenda for this session, for instance? “Matters relating to the definition and delimitation of outer space.”

The committee is going boldly where few lawyers have gone before — but where more and more are headed, as human space exploration becomes increasingly democratized and commercialized. Monday’s symposium on “space traffic management” — this session’s first major conversation, following opening remarks in a fourth-floor boardroom — included presentations by experts from the Beijing Institute of Technology, the Netherlands-based International Association for the Advancement of Space Safety, the U.N. International Communication Union, and the U.S. Embry-Riddle Aeronautical University, among others. The subcommittee, representing 76 UNOOSA member states and chaired by European Space Agency Policy Department head Kai-Uwe Schrogl of Germany, regularly invites leaders in related fields to give presentations or participate as observers.

Space programs around the world have a long history of productive cooperation. But issues fundamental to uncharted elements of human space exploration, such as regulations on space mining and space garbage cleanup, remain on shaky legal footing, as practitioners of the burgeoning field of space law struggle to sort through an uncharted landscape potholed with knowledge gaps and new territory. Should missions to asteroids serve science and the common good, or mining companies, or some combination thereof? Questions like these, in a matter of decades, have gone from thought exercises to legal work.

The international community took its first stabs at putting space under legal jurisdiction during the 1960s and 1970s, beginning with bilateral talks between the United States and the Soviet Union in 1958, shortly after the launch of the first Sputnik satellite. Held mostly in letters between then U.S. President Dwight D. Eisenhower and then Soviet Premier Nikita Khrushchev, these early conversations ended in impasse: The Soviet Union was confident of its technological superiority at the time and saw no reason to join with the United States in regulating space, thereby abdicating a perceived advantage in that arena. By 1959, the U.N. had created the Committee on the Peaceful Uses of Outer Space and the international community began to move beyond the space age’s brief but disquieting unregulated period. The committee’s attempts at a legal framework led to a cluster of international treaties, which established a basis for the somewhat amorphous set of international agreements and domestic regulations that comprise space law today.

The four widely ratified foundational treaties were sweeping in scope: They established space, including celestial bodies, as part of a shared human heritage, not to be claimed or weaponized by any state. Other provisions established freedom of exploration; the obligation to rescue astronauts in distress, should the need arise; nations agreed to carry full legal responsibility for any object launched within national borders; and an international registry was created to monitor all man-made objects in space.

As the treaties slowly came into law, human space exploration continued to advance. Between 1961 and 1972, NASA’s Apollo program sent six manned missions to the moon. A fifth treaty in 1979 attempted to lay the groundwork for international jurisdiction on the moon and other celestial bodies, as it became increasingly apparent that nations would not have equal access to potential space resources in a post-Apollo world. The attempt largely failed. No nation with a major space program ratified — a foreshadowing of legal challenges that would arise when space exploration first began taking a commercial turn.

The treaties created an international architecture for humankind’s budding off-world forays, but decades later, major questions still remain unanswered. For instance: “There is no agreed upon definition for where space begins,” said Henry R. Hertzfeld, a space policy expert at George Washington University’s Elliott School of International Affairs and private sector advisor to the U.S. delegation in Vienna. Hence the subcommittee, and its unsexy but increasingly important work.

The era of the International Space Station poses legal challenges the Apollo astronauts could scarcely have imagined: Whereas space travel began in a world in which each national space program ran its own missions, manned space missions today are more likely to involve intricate minute-to-minute international cooperation predicated on a dizzying mesh of regulatory arrangements at the intersection of domestic and international legal systems.

The ISS — the largest, most expensive, and most complex project completed in space — is at the heart of legal uncertainties that characterize all space ventures. Constructed beginning in 1998 in a cooperative effort by Canada, the European Space Agency, Japan, Russia, and the United States, astronauts representing 15 countries have served on it since 2000. This unique collaboration has posed unusual legal questions, both immediate and hypothetical.

NASA Astronaut Scott Kelly and Russian cosmonauts Mikhail Kornienko and Gennady Padalka arrived last month at the ISS after a successful launch from the Baikonur Cosmodrome in Kazakhstan. Their flight aboard a Russian Soyuz spacecraft was quicker than a commercial hop from New York to London, but their mission will last longer than any other in the history of NASA: Kelly and Kornienko will remain in space for a year — part of an effort to study the medical, psychological, and biomedical challenges posed by long-duration spaceflight.

So far, cooperation aboard the ISS — between astronauts and between partner states — has been smooth. But space crime won’t remain a hypothetical forever. Nations participating in the ISS project are expected to extend their national jurisdictions to the space station components they contributed. For instance: A crime committed in a module built in Japan would be tried in Japan; a crime committed in module built by the United States would be tried in the United States. Under this understanding, astronauts routinely cross national borders projected into space in the course of their work. And the jurisdiction laws apply beyond criminal matters: liability and intellectual property also come into play. Under U.S. law, any intellectual property invented in a station module built by the United States is subject to U.S. patent law. Other states have followed this precept, even without specific laws on the books. But scholars have pointed out that significant problems remain unaddressed. “Consider the scenario where an experimental payload, specifically identified as a Japanese experiment… is permanently moved from the Japanese Experiment Module to the U.S. Lab,” Theodore Ro, Matthew Kleiman, and Kurt Hammerle wrote in an article published by the Journal of Science and Technology Law in 2011. “If the payload reads on the claims of a U.S. patent, the patent owner may be able to sue the Japanese payload owner for infringement,” arguing that the action constituted the illegal importation of a patented invention.

Some jurisdictional projections have posed unintended problems. Spacefaring nations continue to own their decommissioned satellites — a hurdle in the effort to clean up space debris. Each individual object in space, even a small satellite fragment, would require identification and permission from its country of origin prior to any attempt at disposal.

In recent years, the space law community has faced new challenges wrapped up in the emergent commercialization of space enterprise. While outer space exploration remains very much a government game, the potential for commercial space tourism and space resource exploitation looms ever larger; lawyers may strain to cram these endeavors within the confines of old treaties written with different sorts of space initiatives in mind.

Several companies have put forward proposals for asteroid or moon mining, although the legality of laying claim to asteroid resources remains a murky matter. “The law on this is not settled and not clear,” Hertzfeld told LiveScience in 2012. “There are lots of opinions on the status here, and nobody is necessarily right because it’s complicated.” The U.S. legal position has been that any nation that finds resources in space should be able to mine them. Some experts have argued the mining on the moon would be legal, but that mining companies would not own the resources they extracted.

Not every industry trying to make money in space is going after tourism or mineral resources. Space tourism company Virgin Galactic turned down a $1 million offer to partner with a pornographic film seeking to shoot in zero gravity — a mere prelude to the uses of space for profit and entertainment that privatization might eventually allow.

Space law offers more questions than answers — a reasonable state of affairs for the legal field in an arena that humans have only just begun to explore. As Kelly and Kornienko continue to settle in for their long stay on the ISS, the legal subcommittee in Vienna will continue to ask those questions — though the answers may be slow in coming.

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