The Space Regulation Race: Modernizing Space Law for Modern Industry

By: Cooper Cuene

“We choose to go to the moon in this decade and do the other things, not because they are easy, but because they are hard . . .”

  • President John F. Kennedy, Address at Rice University on the Nation’s Space Effort (1962)

“Gotta go to space. Yeah. Gotta go to space.”

  • Space Core, Portal 2 (2011)

50 years after the success of Apollo 11, the United States is returning to the Moon. Following the success of the first mission of NASA’s Artemis program, the stage has been set for American astronauts to venture beyond low earth orbit for the first time in decades. The landscape of space flight, however, is much different and the industry far more crowded than the days of the Apollo program. As NASA prepares its missions to the Moon and eventually beyond to Mars, an environment crowded with other stakeholders both public and private awaits it. Inevitably, zero-gravity disputes will arise between these stakeholders, but when they do, what forums and rules are used to resolve them?

To put it gently, the law governing space is far from concrete. The majority of international space law is laid out in a small handful of treaties with the most important being the United Nations Outer Space Treaty. Counting 109 nations among its signatories, the treaty’s provisions are an international consensus. That being said, reading the Outer Space Treaty makes it clear that the agreement is a product of the Cold War and may not be suitable for the increasing number of public and private stakeholders that participate in today’s space industry. Notably, the treaty’s terms read more closely to principles than well-defined regulations. Examples of the treaty’s terms are “outer space shall be free for exploration and use for all states” and “astronauts shall be regarded as the envoys of mankind.” A nice sentiment, to be sure, but not the clear regulations needed to manage the growing space industry.

One area where this lack of regulation could prove especially damaging is the growing problem of space debris. While international regulations lag behind the lightning quick pace of private spaceflight, the debris left behind by those flights has accumulated in low earth orbit, defined as the range between 160 and 1000 kilometers above earth’s surface. SpaceX, for example, recently lost 40 Starlink satellites as a result of a solar flare. While those satellites reentered Earth’s atmosphere and burned up, plenty of other junk has taken up a concerning amount of space in lower earth orbit where active satellites normally reside. Much of the debris is harmless, but the FAA has so far failed to implement a meaningful regulatory regime to govern the creation and disposal of this kind of space junk.

Space agencies and Non-governmental organizations (NGOs) have begun to step up and propose regulations where Congress and other international bodies have failed to take action. The Inter-Agency Space Debris Coordination Committee (IADC), for example, is a coalition of space administrations that seeks to publish guidance on how to avoid the creation of space debris. While various government space agencies typically follow the rules suggested by the IADC, the same can’t be said about private spaceflight companies. Moreover, efforts to give IADC guidance the force of law is met (unsurprisingly) by pushback by both private spaceflight companies and nations that are opposed to new regulations on their own space agencies. A failure to curtail the creation of space junk could jeopardize future space missions as well as traditional flight and even people on the ground. While the IADC guidelines are a start, without true government action to create regulatory boundaries for private spaceflight companies, we risk an unregulated and dangerous environment in low-earth orbit.

So, what happens when a space-related commercial dispute occurs? As of now, there’s no good answer to that question. Like the other areas of space law discussed above, the UN’s Convention on International Liability for Damage Caused by Space Objects, or simply the Liability Convention, governs dispute resolution at a high level. However, the Liability Convention has only been invoked once, after a Russian spacecraft scattered a load of radioactive material over Canada. Hopefully, this won’t be the type of dispute that becomes common going forward. 

Existing commercial litigation doesn’t give us many answers either. Cases so far have involved government contract and intellectual property disputes within the space industry rather than cases that are unique to space. Both law firms and the government alike have generally embedded any space law attorneys within larger aerospace practice groups, again with the most common disputes centering around patents on satellites and rockets. In contrast to the sluggish pace of legal innovation in the US, the UAE has made efforts to establish a dedicated space court in Dubai for handling disputes ranging from collisions between spacecraft to litigation over satellite purchases. Only time will tell which approach wins out, but regardless of where space law begins to take shape, it will be an area of law ripe for innovation in the decades to come. 

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