Are There Any Laws in Space? With Christopher Hearsey and Nathan Johnson

0:00You have fallen into event horizon with John Michael Gaudier. In today's episode, John is joined by Chris Hearsey and Nathan Johnson. Chris Hearsey is the co-founder and chair of the Board of Directors for the Space Court Foundation. He has over ten years experience in the aerospace industry, having previously served as a director of DC operations

1:02and corporate council for Bigelow Aerospace, special assistant to the director in the office of Space and Advanced Technology at the US Department of State and a graduate Space History Fellow at the National Air and Space Museum. He holds a BA in Mathematical Economics and Political Science and a minor in Physics from Temple University, an MS in Legal Theory from the American University, an MS in Space Studies from the University of North Dakota, and a JD with honours in Air and Space Law from the University of Mississippi School of Law. He currently serves as the Senior Executive on the global casting show Space Hero, which will launch a finalist to the International Space Station for a 10-day private astronaut mission in 2023. Nathan Johnson is the co-founder and executive director of the Space Court Foundation. He is also an attorney licensed in Washington, DC and publishes a blog and podcast AstroSquire. He graduated with his jurist doctor from the George Washington University Law School and received an LLM

2:07from the University of Nebraska College of Law and Space Cyber and Telecommunications Law. He worked at the FAA office of Commercial Space Transportation during SpaceX's first birth with the International Space Station and for the US House of Representatives Committee on Science Space and Technology during deliberation on human spaceflight regulation. Chris Hersey and Nathan Johnson, welcome to the program. Thank you for having us. Thank you. Now, gentlemen, this is one of the scariest things I've encountered in 30 years of being interested in space. The idea of space lawsuits and litigation and questions like that and even nation states, nation states of all things being formed in space. Where are we at here? When will we see space law become a huge thing, a huge industry, a huge concern? I think space laws trending in that direction more significantly every day.

3:12There are so many actors now operating in space, whether they're private or governmental or organizational. And every time we engage in that level of space activity, whether it's a satellite launch or sending a rover to Mars, you know, there are all kinds of laws that attach to not only people, but to things as well. And in terms of future disputes, I would say that we've had that at a very low level ongoing for almost probably 50 years in one form or another. And while there hasn't been a direct case that has gone to a court, there are plenty that I'm aware of. There are plenty of examples on the arbitration side where satellite companies may have to deal with a liability or an ownership question or licensing question. And the level of activity will continue to grow and based upon just that this cadence, you know, at some point you're going to have lots of people living and working in space.

4:18And you're going to have to deal with these disputes locally and teach you, so to speak, because if there is a crime or a lawsuit, there will be principles of economy that the courts will apply. There will be cost evaluations that company and governments will make because if it sends, you know, if it's cost 60 to $100 million per person to send them to space or the moon, you know, that adds up. If you're going to send investigators licensing officials like export control officials from the State Department checking on what the technology on the moon might be used for, you know, those types of things are coming. And we believe that the Space Court Foundation can provide really a backdrop to that possible future. Our organization is designed to mimic a court to the degree that there are things going on and will go on and there are rules that will need to be followed.

5:20And the question is what are those rules and that's why the primary research concern of the Space Court Foundation is what is the law? Because for it to function in the way that we would normally expect a court of law to function, you need lots of different things that may not necessarily be legal, but may be normative or done as a matter of course, because to adjudicate problems requires lots of resources, lots of people, lots of experts. We're at a point now where there is a body of law that continues to grow, but there are greater and greater questions about whether or not rules that could apply to space activities exist currently to cover the types of issues that might arise. And therefore, the Space Court is providing a public service, an educational service to help the public and to help others, researchers, academic students really understand what the law is and where it is going. And we offer opportunities to address these issues.

6:23One immediate question that we're confronting right now are satellite constellations like Starlink and these constellations seem to affect people here on the ground, you know, astronomers and things like that. Do we have legal precedents right now to tackle that kind of an issue? Are we at that most basic level yet? Well, it depends on what you mean by present is their case law, not that I'm aware of have there been objections in the past, absolutely. Since rockets first launched, there are many different groups worldwide that have objected to rocket launches and satellite placements, either for religious reasons or social reasons and certainly for political reasons. But things are moving, you know, in a way where there are other more pressing issues, at least legal issues that might be at play than what traditionally had been considered. There are prohibitions within the US space law that prohibits certain most types of advertising, especially if they create a nuisance.

7:27And so really at the end of the day, if you're talking about a satellite system that encompasses the earth that creates a nuisance, it is a possible cause of action that you could go to a court and potentially make a case out of. And as far as I'm aware, there are some amateur scientists that are, I don't know if Nathan, you want to add a little bit more to that. I mean, it's certainly a novel question and like a lot of things in space law, you know, you asked originally when are when a space law going to reach a tipping point where it becomes a large industry. And as Chris said, it's existed for a very long time already for for 50 years. And the tipping point is really when will we see the amount of legal conflicts start to appear in court because a lot of the history of space law so far has been people basing their actions on the norms or international laws to make sure that they avoid that conflict.

8:35And we've gotten ideas that come out that for one reason or another fizzle out before they raise that type of conflict. So there's believe it was a Russian company wanted to have maneuverable satellites in orbit that they could then maneuver so that they spell out words in the night sky. And as Chris said, there is a US law on the books talking about advertising in space. And so immediately, you know, I was like, well, if they actually did try to go forward with this, there would be a lot to cite to that says you, you need, you know, FCC permission or a waiver to do this sort of advertising from space, but it didn't come to pass. We didn't test it in court. So it is, it's a novel question and it's actually the sort of question that law students are already tackling. There's a law student, I believe from Tennessee who wrote an article applying environmental law to the satellite constellations on orbit.

9:35And I'm actually regional organizer for a law student competition called the Manfred Lacks space law court competition. And this year's problem that law students will be writing about and arguing against each other about involves large satellite constellations in orbit. So as we see more of this activity, we will approach the probability that we might actually have more of this legal conflict. And yes, we're actually now starting to talk about in the foreseeable future, how will we resolve this legal conflict when it comes about. What of international law though? Because space obviously is a very international endeavor. So what treaties exist or do any treaties exist that really lay out what sort of law we follow? I mean, do we follow in the case of a satellite constellation? Do we follow Russia's law or do we follow US law? How is that dealt with? Well, that's that's the critical point because it depends on what you're talking about, what type of activity you're talking about. And the way the United States does it is it regulates at the national level, remote sensing telecommunications and launch and reentry.

10:46And those generally encompass the majority of the types of activities that are conducted in orbit, but not every country has a national space law is sophisticated as the United States or China or Russia, which has spent a lot of time developing these rules for their nationals. Now, as far as international laws concerned, there there is an entire treaty system that that started with the outer space treaty, but before the outer space treaty, we did have bilateral and multi other multilateral agreements that were negotiated and signed or negotiated never signed by by the United States, the Soviet Union and others regarding different types of space activities. But the biggest thing that they cared about coming out of the 60, 1960s was telecommunications and protecting at least the United States point of view, protecting the commercial ability to engage in this type of activity, where traditionally it had been considered the purview of governments, but over the last 60 years, you've had tremendous commercialization, especially over the last 20 years that sort of creates something that was contemplated.

11:58But not fully explored out of the outer space treaty. Now, on the follow on to the outer space treaty, you have the rescue and return agreement, the liability convention and the registration can mention and the moon agreement and each of these treaties form the foundation of public international law in so far as the number of states who have signed on to that such agreements. I think there's still less than 60 signatories to the registration convention, but there are over 102 signatories to the outer space treaties, it's by far the most successful treaty. But what the rules lay out are the framework by which states can permit their nationals and themselves to engage in space activities, and that's sort of where the rub is. That's where a lot of the discussions and many fora and conferences and other groups really start to make it different in terms of how it is applied as a body of law relative to other areas of law.

13:06These are talking about applying law in outer space where there are a few actors, but at the same time, there is the fundamental ethic, the fundamental rule, which is that everybody basically gets to explore and use outer space, and that's where the beginning, you know, sort of the whole discussion begins. Now, what that means is limited by the other articles to the treaty and how courts would interpret the different rules between the different trees, but from a lay perspective, what's important to note is that in legal analysis, every law, especially as a matter of public international law, looks at every thing and person as either a subject or object of the law. And in the case of the treaties, the subject of the law is to the state to states to things that are called having international legal personality, but anyone that is not a state or does not have international legal personality, they're an object of the law.

14:11And from the treaties point of view, that includes commercial companies like SpaceX, like planet, like Airbus and Northrop and Lockheed and Boeing and all these different and Blue Origin, all these different companies are doing different things. And their activities are regulated at the national level and the link between the international and the national level as a matter of law is what's called article six of the outer space treaty, which says that states who have ratified or signed on to the outer space treaty have to authorize and continuously supervise the activities of their nationals. So everything is about what is your national doing, how is it flagged and what national rules have you implemented to engage in those activities. And as I said at the beginning, that every country does it at the national level a little bit differently, everyone generally has the same sort of sets of rules that are enshrined within the space treaties.

15:14There are countries like Russia, like China, like the United States, that have very carved out specialty rules, but all of space law fits within the field of public international law and private international law. And that is what governs the international system. Now the fundamental question that people always want to get to when it comes to talking about law is not only what the rules are, but how do you enforce the rules. And at the end of the day, there's only two real main ways that you can enforce rules. Either you self help, you go to your government or the government does it on its own and asserts itself in the international domain and say these are the rules. And this is what I expect my nationals to follow and I expect your nationals to do the same thing. And then the other mode basically is national law. So it relies on national laws, national court rules, legislatures, policies, sort of guide what the rules are and to the extent to which nationals can engage in space activities.

16:21What of nation states? Because we have groups that are talking about forming new nation states in space. Would those even be recognized? I mean, do you expect that you actually could form a separate nation state and earth orbit? Or do you expect that to fall under national jurisdiction or some mix of the two? Well, so first of all, we should, you know, state and make clear the space core foundation is not here to issue any binding rulings on anybody's claims. But the issue of forming a new nation state is or what constitutes an independent nation state is not necessarily novel. I mean, we have the, we have treaty interpretation. We have the UN charter. We have the Vienna Convention on the Law of Treaties. We have, as Chris said, already public international law that we can go back to for some of these questions.

17:22Of course, we are applying them in a completely new place because those original laws were never conceived of off of the surface of the earth. But there is a background to go to when we try to approach a question like that. Yeah. In fact, the, the, the two main sources of rules that I would point to would be the United States foreign relations rules gives, I believe, some background and what that means. Those rules, the foundation of those rules come from what's called the Montevideo Convention. And I believe it is a 19th century or no, sorry, it's an early 20th century treaty and it lays out what you would need to substantiate yourself as a new nation. And then the questions that a court would ask would be do you have a population? Do you have a territory that you can exclusively control?

18:25Do you have a formal government in some form? And do you have the capacity to engage in foreign relations? And then the next question to your point is who recognizes you? And the four elements are legal, but the last question is generally political. There are many instances in public international law and international relations where there exists states of which we interact with every day that have all of these elements, but nonetheless other countries do not recognize. So the question is is applied to space is could someone do it? I think so. When would they do it? I don't know. How would they do it? Well, you would first look at the Montevideo elements and you'd look at your national law to see if there is a congruency there. And if there is, you'd probably want to follow those rules first. At the same time as you form your government, you're going to want to reach out to different types of nations.

19:27The UN and others. And I believe there is one group. Nathan, I think it's I know at least one group, but I'm aware of as guardian is being one that is declared themselves independent and independent nation in space, despite the fact that no one's actually actually technically in space. So it's they don't meet the territorial element at the very least. So if you can't meet the legal elements, it's it's it's I would say impossible to expect that you would be recognized. And what defines I mean territorial at space does space equate to the same thing as land here on earth? Well, it depends on if you're talking about orbital space if you're talking about territory on a celestial body. And the analog as far as international law is concerned would be on the celestial body, I think, would be the direct correlation here. Really, what's interesting is then that would be tempered against the obligation under article two of the outer space treaty that says that national claims of sovereignty are barred by any other means.

20:37Well, then the question is, is are those those group of people acting under a national? I would say that to some extent, probably not, but again, it depends on some very specific facts about the types of nationals that are organizing. Such a settlement, so to speak on the moon. In fact, one of our episodes for stellar decisus considers this issue now we're going to have groups of people it seems anyway going to Mars and founding colonies in other words, Elon's plan. So say they do that and they have a Mars colony and someone commits what everybody on earth would agree is a crime, you know, somebody steals somebody's free stride space ice cream. And the law needs to be applied to that Martian colony. Do you really need can I be done from earth? I mean, can you have a judge and lawyers here on earth deal with that case? Or do you actually need to go out there or bring that person back? How would that work? Well, one of the analogs that that we've sort of highlighted in the development of the space court foundation is looking at Admiralty courts.

21:44You know, every every Navy ship has a Jag officer every ship going back 400 years that have made claims to say whales, for example, you know, they need their rights substantiated. And so it really depends again back to the question of jurisdiction and who has authority over these individuals. And if another country already claims claim, so to speak under what's called a nationality principle of jurisdiction. Once they get inside a launch vehicle and head to space, the launching states national laws are generally following you into space. So, for example, in the United States, when a SpaceX crew doors closed, those folks inside are subject under the special time, Mary, Mary time jurisdiction statute of the U.S. code, they're, they fall under the federal criminal statute.

22:44So if there is a crime on a dragon, let's say one astronaut assaults another, those would claims would be adjudicated under U.S. law. It gets more complicated when you consider either a single nation flag habitat with multinational people on it or a multinational habitat with multinational people on it. And one perfect example is the international space station is broken up by jurisdiction based upon who owns those modules in each one of those modules gets the flag of the country and the laws relating to the country follows those modules is called quasi territorial jurisdiction. Now, the caveat is there are other rules, especially as a matter of international law, basically called jurisdictional principles that could override certain types of rules, jurisdictional rules, but fundamentally, at least with respect to the European modules on the international space station.

23:49It's a different approach to jurisdiction based upon the nationality of the victim and the nationality of the habitat. So you can see it gets pretty complicated, pretty quick, just trying to figure out which courts you would even go to before you even figure out who the judge or the lawyers are going to be. And that really can turn a dispute. And so the other part of it is it's quite likely that there will be there will be people who are trained as space lawyers are trained in a particular area of law that might be applicable to settlements. And if the nationality of that settlement is within the national law of the lawyer who has that expertise, then they will apply that there in terms of adjudication. I don't know because part of the problem is going to be the time dilation or the time lag and communications the further and further we go out into the solar system. So I think holding an open court remotely from Earth doesn't seem feasible to me.

24:50And I kind of expect at some point like Jag officers or like other attorneys that have to follow different types of technologies just across the world because it's their job. I could see people being hired to be able to do the basic legal work just there. They'll have to be investigators if there's a crime because what what's implicated in all this justice principles of justice and the application and the adherence to the rule of law. And if you don't want anarchy and you don't want more and more conflict, it'll be more and more important for people to follow rules and they have to have agreed upon rules. And one, I think, perfect analog are company towns that formed in the United States in the 19th and early 20th century around coal mines and copper mines and gold mines and oil fields where there wasn't enough local US currency that the companies created their own money. They had their own courts where they just not really know.

25:52But that's a question if you're going to go and spend so many years in space, take the risk and assume that your your contract if you're if you're a private person is going to protect you and teach you. That's going to be an interesting question for courts and whether or not the risk is so high that there's a good enough excuse for you never to be able to make a claim because you signed waivers or things like that. And the US space law for launch and reentry requires informed consent so you need to understand what the risks of space flight is basically flying off the planet doesn't necessarily say that you have to understand the risks of the type of activities you may be engaged in on a planetary body. So there's a lot of ambiguity. There's a lot of nuance when it comes to the application of laws to outer space, but it's no different than what international trade has to deal with different types of people and groups and cultures and laws all all spread apart from one another and they have to interact on a daily basis.

26:59I think the only thing I think the important point to note is what we would expect or in terms of travel times in terms of of resource costs or more analogous to early early 18th and 19th century travel than it is today right today we're used to instantaneous. But again, the further and further away we get from earth, but longer and longer it takes to communicate the more expensive and timely it takes to get to Mars for example or anywhere else in the solar system. And that's sort of the future that our upcoming YouTube series stellar decisis is imagining the future where we have human interaction on other planets in the solar system that stretch those triggers. That's those traditional elements of our legal system and we have to sort of imagine and project what we think that that adjudication might look like in the future we have enough past law and past experiences here on earth and we have enough actual human activity in space and enough actual plans for near term future activity in space that we can sort of start projecting what that's going to look like what those interactions might be.

28:15And we apply what we think and imagine the court system. This sort of starts to sound like a circuit court where you got a judge old school judge that and a bunch of lawyers maybe that moves around place to place you know you do it one asteroid for this month and then two months later you're at Mars something like that. Do you think that's viable or do you think it just must always be like a like a ship where you have everything in house no matter what. My second question on this which of you is going to become the first space based law firm or will it be both of you well the answer the second question i think i'm going to allow the younger generation to do that i've got plenty of work it doesn't involve legal clients but. I don't know if they want to say anything on that Nathan is just simply not going to space and that's that. Well look there's there's plenty to do you know we want to be able to provide the the beacon and the foundation for people thinking about what this future was possible future is going to look like especially for lawyers and what not and you know it's interesting you bring up the circuit courts because.

29:26You know the reason they're called circuit courts is that early American judges literally had to ride on horseback from city to city city and sit in judgment of a case that was brought locally I don't know I you know I think I think. If we can get better efficiencies somehow out of our space technology to be able to move around more freely in the solar system it's quite likely. But I wouldn't be surprised if if some future missions include people that are educated in the law or investigative methods that at least can can document what had happened. To some degree of accuracy so that at some point if there does need to be an adjudication of dispute at least you have some semblance of justice to point to. And I think that's really important moving forward like you know we get excited about substantiating our right to explore and the limits of that right but we forget I think in a lot of ways that those rights are dependent upon everyone observing the rule of law and it's dependent upon people wanting to follow the rules and and utilizing those rules in a way that makes.

30:42External costs and risks as limited as possible because there's plenty enough out in the universe that wants to kill us so you know we don't I don't think we need to be in a position. To to to to sacrifice a lot of people in the name of progress I don't think the law alone would permit that I think it would be an importance to public policy but at the end of the day. Whether or not you know your Richard Garriott trying to get the lander in the rover he brought from the Russians as a substantiated claim or broader claim you know you still going to have to go to a court you may go to court on earth you may go to a court but someday on a different planet or maybe we do it at the international whatever the international state station 2.0 might be you know that there's a lot of possibilities but regardless of where. Where it would be constituted it will be I think a necessary thing if people are going to trust going into spaces and going to lead like.

31:45The end result of some company towns where people were abused and killed and safety wasn't followed. And you know some people are paid so there's a lot to worry about if you want to move off earth but I I also don't think it's going to be like that Sam Rockwell movie the moon. Yeah just add add a non sequitur there but. Oh and Chris a lot like the Facebook it's just moon they dropped it yeah alright yeah moon but I actually do have an answer to to your original question I think it's. It's foolish to try to predict with any certainty what the actual timeline of human development in outer space is going to be anybody who ever watches our tracks a rocket launch knows that there's always going to be delays anybody who's been waiting for a virgin galactic to fly passengers has been waiting a lot longer than they usually thought they would. So it's going to happen and it's going to happen in this century I just don't know whether I will be of the age where my bones can handle the GeForce get up there but the other thing is that.

32:58As lawyers we are not supporting this in order to get lawyers into outer space we don't want to absolutely assign a lawyer to every settlement in outer space. We don't have a quote from Brian Israel when he spoke at the manford Lex space law and court competition. And he said lawyers should not be judged by the amount of laws that they make but on their capacity to advise. And so the point of the space court foundation and what we're trying to illustrate through the show stellar devices is that we're not talking about space law because we want to write more laws and we want to regulate space. We think that human interaction needs rules and norms as Chris has said and we want to expand the audience's capacity to understand how to apply them or at least understand the system we use to apply laws and norms.

33:59Hopefully we can advance the future of advising on legal matters in space without simply trying to get lawyers free tickets to go to space. I think that's what's really interesting is you know we talk about law in this monolithic term but there are many different systems of law. There's the common law tradition that applies the United States and Great Britain but then there's a civil law code which most of the rest of the world follows and then you have the application of international law and I think it's going to be really interesting to see how these rules apply. Because insofar as the common law is concerned it has a lot more flexibility in the way that it evolves its rules than the civil law does. And civil law tends to write codes that are very rigid, very detailed and not so often have many exceptions that have been identified where the common law has lots of different principles that apply to situations that are common to human life and need to be dealt with.

35:04By a court from time to time and international law doesn't apply to probably a lot of the people that will eventually go to space directly because they aren't states they're they're the objects of public international law and so they have to follow their national laws and so these tensions are going to be interesting but again it's not it's the same sort of of issues that you that the European Union has had to deal with over the last 25 30 years. And I've written specific rules to sort of fill in those gaps so I think it's really important you know in terms of what our research is trying to do is to find not only where those rules intersect but where you know they may be silent or maybe ambiguous and that's you know the bulk of our research is in these areas. All right gentlemen we are out of time where can people find out more about the space court foundation and stellar ceases is it stellar decisus so that you can find out more information about the space court foundation at space court foundation dot org we are in a nonprofit 501 c3 dedicated to space law education in the rule of law.

36:16We would really like people to to check out our two big programs which is first stellar decisus which is an animated episodic show about space law and the future administration of justice and space. And there are major research initiative called the space court law library under the space court law library it includes our internship program our editorial committee and our outcomes of this of these projects initially right now is developing. The first of its kind internationally your book of space activities which will look at all the rules starting from 2024 and 2020 back that have been utilized developed and applied as space law and as well as our audio visual programs including including the space court video series and other video series that include discussions on what space law is and what case law is relevant to space law. Also on our website you can find our merchandise store celestial objections apparel where you can begin buying merchandise with our logo and programming on it and for any law students who are interested in competing in the man for lock space law mood court competition.

37:26You can find out more at iisl web dot org forward slash lacks underscore moot and we encourage everyone to subscribe to our YouTube channel it's the space court foundation YouTube channel. We have our initial monthly series episodes up I believe we have three up now and we will be producing about one new series a month and that is put together with assistance from Daniel poros who is the director of strategic partnerships and communications at the secure world foundation. We are also on Facebook and Twitter and highly encourage everyone to follow us and learn more about what we're trying to do in our internship program applications open for our internship program and we're doing some great things and if you want to learn more about space law or what space law is or how you could be a part of the industry. Again visit space court foundation dot org thank you right gentlemen thank you for joining us today and I look forward to talking to you again sometime yeah we'll be in touch as soon as we have the the pilot done and then we'll send it and we can set up a conversation.

38:41So quiet in here with Anna out part shopping she won't be back for hours so it's time to dig into my candy bar stash but before I do next week we have a very special show indeed we'll be talking meteorites and volcanoes in conjunction with the documentary coming out on Apple TV plus entitled fireball visitors from darker worlds I'll be joined by the directors volcanologist Dr. Clive Oppenheimer and eminent filmmaker Werner Herzog see you then. You

39:41You You