Space Law 101: Filling the Legal Vacuum
Profile | Joanne Irene Gabrynowicz
Professor Emerita, University of Mississippi School of Law
The Soviet Union launched the world’s first artificial satellite, Sputnik 1, into a legal as well as a physical vacuum.
It wasn’t until some 10 years later, in 1967, that the United Nations Outer Space Treaty entered into force, providing a foundation for space law that endures today. The treaty notably prohibited the placement of weapons of mass destruction in space or on the celestial bodies, protected space from national sovereignty claims and made states responsible for all space activities conducted from within their borders.
Since that time — only a handful of countries were active in space in 1967 — space has become a beehive of scientific, military and commercial activity carried out by state and nonstate actors whose ranks are growing by leaps and bounds. Even human spaceflight is moving into the private sector, while companies are exploring even more ambitious ventures such as mining asteroids.
Government legal and regulatory regimes, which operate within the framework of the Outer Space Treaty, have yet to catch up in some areas, says renowned space law expert Joanne Gabrynowicz. The evolution of space law is painstakingly slow, a reality that makes virtues out of patience and tolerance for ambiguity, she says.
Gabrynowicz, whose career, in her own words, “has been all space law, all the time,” just returned from a stint as a visiting professor at the Beijing Institute of Technology School of Law. Before that she was a research professor and director of the National Center for Remote Sensing, Air, and Space Law of the University of Mississippi School of Law.
Currently she is editor-in-chief emerita of the prestigious Journal of Space Law, the world’s oldest journal of its type, which has been published by the University of Mississippi since 1973.
Gabrynowicz spoke recently with SpaceNews correspondent Leonard David.
How would you characterize or define space law today, nearly 60 years after Sputnik?
The first real iteration of space law was the treaty system and that is still in place today at the international level. In the last decade or so, what we have seen is the evolution of space law at the national level, and it’s now integrating more and more with other bodies of existing law. For example, to work for a space company these days it’s not enough just to know the treaties. It’s not enough just to know the space statutes. You also have to have a specialty in some related field — say, intellectual property or export control.
What drew you to space law?
When I first started teaching space law in 1987, we were still in the throes of the Cold War. What attracted me to space law as a child of the Cold War was that I really saw space law as an arena in which we could address the really dangerous parts of the Cold War. We had an alternative there. We could use space law to do international cooperation, détente; we could learn to work with one another in the field of space law and maybe carry over those lessons into other things. And I still think that’s an important part of space law because a lot of the principles that it embodies are part of that.
Are there areas where space law has been slow to catch up to reality, or where current or planned activities will challenge the existing legal structure?
Not any one topic. Things are evolving. Just look at the last six months or so. There was a hearing on legal aspects of asteroid mining. Then there was the recent Federal Aviation Administration letter [to Bigelow Aerospace regarding private-sector operations on the moon]. Those are very interesting developments.
In the letter to which you referred, the FAA said it would do what it could within its launch licensing authority to protect Bigelow’s planned commercial lunar habitat. What’s your view on the letter and its meaning?
The letter documents two important points. First, it lets the world know there are credible private U.S. companies that are serious about conducting commercial activities on the moon and they want to do it legally. Secondly, the current U.S. regulatory framework is insufficient to ensure that the U.S. government can meet its obligations under the Outer Space Treaty. This includes the absence of a congressional grant of lunar licensing jurisdiction to the appropriate federal agency. The first point is an opportunity for interested nations to engage the United States to officially make their views known. The second point is an opportunity for the United States to establish an effective lunar licensing process that can serve as a model, the way it has for commercial launches and remote sensing.
Some see the Outer Space Treaty as antiquated because it doesn’t take into account private-sector space activities. Your thoughts?
They are completely wrong. The Outer Space Treaty is one of the most important treaties that we are party to. There is no way we could get that treaty today. And it is not anti-commerce. The people who say that just don’t understand what’s in that treaty. As far as property rights, it is completely silent on that; it neither forbade it nor allowed it. The Outer Space Treaty keeps nuclear weapons out of space. If you get rid of the Outer Space Treaty that would all be up for grabs again.
Does the United Nations play as prominent or important a role in space law today as it has in the past?
It is not nearly as productive and efficient as it was when space law first began. That’s clear. It has become much more political, just like anything else. Whatever you are talking about, it goes through a political filter of what’s going on in the world. The issues of the East and the West during the Cold War are now overtaken by issues of the North and the South, the rich and the poor, the haves and have-nots. But if we didn’t have something like the U.N. we would have to create something like the U.N. because we need a place to talk.
Do you see outer space becoming militarized, a weaponized arena for warfare?
I’m not an arms control expert. As a matter of law, the military has been in space since day one, but they are legally constrained in what they can do. They can’t test weapons on the lunar surface. They can’t place weapons of mass destruction into space. So at least from my perspective, there’s still a good reason to make a distinction between weaponization and militarization. To say that we can’t militarize space is simply factually inaccurate. Another thing from a legal point of view — and it’s even true of criminal law — is that it’s very hard to define what a weapon is. That’s why in criminal law we look at the person’s intent. It’s a subjective thing that we try to determine what they were thinking at the time.
Some are arguing that international orbital debris mitigation guidelines, even if universally adhered to, will not solve the debris problem and that active removal is the answer. What are the legal challenges there?
There are legal issues. If you are talking about going and grabbing something in space and bringing it back, you better make sure it’s your own object. And that’s a very big deal because maybe it’s not Country A’s object that’s causing the most hazard. Maybe it’s another country. But you can’t just go get it. So there’s lots of work to be done there. Here’s a good way to do it: The U.S. and Russia, and now China, are an illustrious group that have produced the most debris. Let’s say that Russia and the U.S. could reach some kind of agreement where the U.S. gives Russia permission to retrieve a U.S. object and Russia gives the U.S. permission to retrieve their object. Both work together using their expertise. The planning is transparent; both sides know about it. That is how you begin to create a precedent for removing things from space by other nations.
You recently returned from teaching space law in China. What have you learned from the experience about how the Chinese view space law?
I’ve been lecturing in various Chinese law schools on a regular basis since about 2007. They have a lot of the same questions that we do over here. They are looking into business and industry, and laws to create corporations. They have questions about separating military power from civilian power. Right now there are some important things going on. The academic community in China has been saying for a long time that China needs to have a national space law and that it would be in their national interest. As a trend in space law, I would definitely keep track of whether China passes a national space law and if they do, what it contains. Or if they don’t, what happened? I would definitely keep an eye on that.
What else should we be looking out for on the space law front?
Finding out what happens with spaceports is another thing to watch. Each is a unique beast. Some of them have pre-existing infrastructure or start from scratch like New Mexico’s Spaceport America. Some offer tax benefits. Each one needs to be looked at individually.
How do you see the regulatory and legal regime shaping up for the space tourism industry?
We’re not going to know anything until the first tourist flights go. There is a whole regulatory framework that involves risk allocation and waiver of liability. Those laws exist at the federal level. And then there are laws that exist at the state level for the various spaceports, and they are trying to fashion the state laws to overcome what they perceive to be weaknesses in the federal law so they can attract people to come. Until these laws are tested we won’t know which ones are good and which ones have to change. And that will be very interesting.
Is it significant that the National Transportation and Safety Board (NTSB) is leading the investigation into the fatal mishap last year of Virgin Galactic’s SpaceShipTwo vehicle?
Yes, absolutely. They investigate anything that moves that has an accident. If there is going to be commercial human spaceflight — and by the way, tourism is never mentioned in the law as a word; it’s commercial human spaceflight — then the NTSB has to be there. We don’t know what they are going to find. They are always very, very careful and good at what they do. Whatever it is that they find is going to give information to the industry that they can use.