By September 7, 2019 Read More →

Space law must evolve to deal with emerging challenges

Recently NASA astronaut Anne McClain was accused of illegally accessing her wife’s bank account during her stay on the International Space Station. This brought up variety of legal issues and questions about how to litigate a crime committed in space. NASA is currently investigating the matter.

Here we explore the practice area of space law, civil and criminal, and discuss pertinent case law, what legal frameworks exist for crime committed in space as well as other legal issues currently seen in the space law arena.

Michelle Hanlon, associate director of the National Center for Air and Space Law, comments: “The body of space law is really an international law. We have five space treaties that have been negotiated since the 1960s. Four of them are pretty widely ratified and the last one is not quite as popular, but what we call the Magna Carta of space law, the Outer Space Treaty is really the document that all space lawyers turn to when we consider anything that happens in space.”

Space law is becoming more important because of the recognition that space is filled with resources that humans can use. We need people in space to help us access and utilise those resources – from mining and water on the moon, to actually just using orbits in space to track the progress of hurricanes so we can tell people if they should evacuate.

But while the Outer Space Treaty provides guiding principles, it only covers the activities of sovereign states in space. “So what we don’t have right now is any kind of law that governs the activity of humans in space,” says Ms Hanlon.

This is not to say that outer space is devoid of law or is a lawless place. Mark Sundahl, professor at Cleveland-Marshall College of Law and director of the Global Space Law Center at Cleveland State University, says: “The treaties also make states responsible for the activities of their nationals and so we have therefore domestic regulations so that states carefully watch and regulate the activities of those who plan to launch rockets and objects into space. So we have a domestic layer of regulation that’s fairly mature.

“Space law has to cover the broadest aspects of intellectual property, property rights on celestial bodies, mining rights, the laws of war, criminal law and more,” adds Mr Sundahl. “It’s a broad field that really embraces everything that we do here on Earth as it’s translated into outer space.”

Property rights

Let’s consider property rights: where does space begin, where do my property rights end, and if there is a dispute, who decides it? “Right now space is for everybody. No nation can own property in space. No nation can make any territorial claim in space,” comments Ms Hanlon as a start point.

“I think Australia is the only country in the world that actually defines where space begins, and I believe they define it as 100km up,” she continues noting that, more widely, where the air ends (and thus where the air law regime ends) and where space begins is one of those things that the international community hasn’t been able to agree upon.

While some countries want to set a height, others want to look at it on a use basis, and it’s important because nations own the air over them. “It’s a really tricky question about when are you going to apply air law and when are you going to apply space law,” she comments.

Adding to Ms Hanlon’s comments, Mr Sundahl says: “If you want to fly over another country’s airspace, you need consent. By contrast, in outer space, you can fly over any country without consent and engage in espionage legally. And so that is why countries have been loath to set a specific altitude for the definition of outer space.”

This has implications for the space forces of the future, which have been established in the United States and announced by France. “Espionage is one part of the political military contest, but what else is involved in that and how is space dealt with from a military perspective?” Mr Sundahl asks. “The reality is that we will likely see the same rules of war extend into outer space as we have here on Earth.”

Peaceful purposes

“There is language in the Outer Space Treaty about the use of outer space for exclusively peaceful purposes and that’s beautiful aspirational language, but the devil of course is in the interpretation of that,” he continues. “What does it mean to use space for peaceful purposes?”

The explanation that’s been offered is that peaceful purposes only prohibits aggressive use of military force. “So as long as you are not engaged in naked aggression, then you are peaceful in your use of outer space,” says Mr Sundahl. “And that is really the same definition that applies on the surface of the Earth. So we have a space force and its perfectly legal, depending of course on what it does. If anyone believes that space will be devoid of the military or of war, then they are mistaken.”

Biological pollution

Another interesting question from the legal perspective is biological pollution of space bodies. “We do have a planetary protection policy and the international community has worked very hard on that,” says Ms Hanlon, adding that from a space law perspective they key is in finding a balance. “We need to have an open discussion about what we want and how we want to move into space. But I don’t think it means that we can’t ever do anything more than just sending a rover.

“I don’t think that planetary protection is intended to just keep us frozen in our space here on Earth.”

Edited from a discussion on space law on the Legal Talk Network. You can listen to the full discussion here

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