Revisiting Space Law

Episode Notes

Transcript

Kate Kenney Nutting:

Hello listeners. My name is Kate Nutting, producer for Lawyer 2 Lawyer. While Craig is on vacation, we are airing one of our favorite episodes from the Lawyer 2 Lawyer Library so you can re-listen or be introduced for the first time if you’re a new subscriber. As many of you know, NASA astronauts, Butch Wilmore and Sonny Williams are currently stranded in space due to a problem with the Boeing Star liner and will now be rescued in February of 2025. This brings up many questions pertaining to the legal arena of space law. In his archived episode, originally recorded in September of 2019 titled Space Law. Craig spoke with attorneys Michelle Hanlin and Mark Sundahl as they discuss pertinent case law and other related legal issues in the space law arena. Craig will be back soon with all new episodes of Lawyer 2 Lawyer as we await his return. You can also get caught up on in dispute. Craig’s new podcast about 10 famous trials that changed history. Enjoy the episode.

Michelle Hanlon:

Space is really filled with resources that humans can use and that can make all of our lives here on Earth better and we need people in space to help us access and utilize those resources. And that’s everything from what we talk about mining and water on the moon to actually just using our orbits in space to follow things like Hurricane Dorian so we can track it and tell people that they should evacuate.

Mark Sundahl:

There are going to be jobs for space lawyers out there. As industry grows, there’ll be jobs required by industry. And then on the other side by the agencies, government agencies that are now short staffed with the rising number of applications for launch licenses, they need more good lawyers.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May It Please the court and have out two books titled The Sled and How to Get Sued. Well, space Law is defined as the body of law governing space related activities encompassing both international and domestic agreements, rules and principles. Recently, NASA Astronaut and McLean was accused of illegally accessing her wife’s bank account during her stay on the International Space Station brought up a variety of legal issues and questions about how to litigate a crime committed in space. NASA is currently investigating the matter. Well today on Lawyer 2 Lawyer, we’re going to explore the practice area of space law, civil and criminal, and we’ll discuss pertinent case law, what legal frameworks exist for crime committed in space, as well as other legal issues currently seeing in the Space Law arena. Today we’ve got a great show for you. Our first guest is Michelle Hanlon. She’s the associate director of the National Center for Air and Space Law and an instructor of aviation and space law, the University of Mississippi School of Law. Michelle is also the co-founder and president for All Mankind Inc. A nonprofit corporation that is the only organization in the world focused on protecting human cultural heritage in outer space. Welcome to the show Michelle,

Michelle Hanlon:

Thanks so much for having me Craig.

J. Craig Williams:

And our next guest is Mark Sundahl, professor at the Cleveland Marshall College of Law and Director of Global Space Law Center at Cleveland State University. Professor Sundahl is a leading expert on the law of outer space and he focuses primarily on the business legal and policy issues arising from the recent increase in private space activity. Welcome to the show, mark.

Mark Sundahl:

Thank you Craig. It’s wonderful to be here.

J. Craig Williams:

Well, Michelle, let’s turn back to you for just a moment and give us a framework of space law outline for us what the general rules and regulations are as it relates to the area we’re talking about today.

Michelle Hanlon:

So 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. And the interesting thing about the Outer Space Treaty is that it is, it gives us guiding principles, A and B, it only covers the activities of sovereigns in space. So what we don’t have right now is any kind of law that governs the activity of humans in space.

J. Craig Williams:

So Mark, is it that there’s no type of criminal law that applies in space right now?

Mark Sundahl:

Is outer space devoid of law? Is it a lawless place? I get those questions often and of course it’s not. That’s true. We have the treaties that govern countries, the activities of countries and some treaties do, but it also makes, there’s another dimension. 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.

J. Craig Williams:

Michelle space law admittedly, is a developing area. How did you first get interested in it?

Michelle Hanlon:

So I’m trekky and I think, I hope everyone in the world at one point wanted to be an astronaut when they grew up. So I came at it totally from this pie in the sky. Heavens are open to everybody. I believed as a little girl that anything was possible and that I personally would make it to the moon myself. Life intervened and I became a lawyer. I spent 25 years as an m and a attorney and started working with some startups, working with a lot of tech companies and working with my son who is an aerospace engineer. And really came to realize, came to actually embrace the understanding that space is the future of humanity, not just in terms of Star Trek and we’re all going to go live on a spaceship or on an asteroid or anything, but space is really filled with resources that humans can use and that can make all of our lives here on earth better.

And we need people in space to help us access and utilize those resources. And that’s everything from what we talk about mining and water on the moon to actually just using our orbits in space to follow things like Hurricane Dorian so we can track it and tell people that they should evacuate. So my son actually was talking to me and we started talking when he was very young about property rights and space and I actually got involved in space law because my son wants to mine asteroids. And I want to make sure that we as an international community have the right rules and regulations and laws in place so that everybody who would like to can mine asteroids and we can get the benefits of those resources to all of humanity.

J. Craig Williams:

How about you Mark, what triggered your interest in space law?

Mark Sundahl:

Well, it’s funny that I’m sitting in the airport now on the way to DC to NASA headquarters for a committee meeting tomorrow on precisely that on the responsible extraction and utilization of natural resources on celestial bodies in the hopes of convincing NASA to adopt certain principles. And so I’m very much interested in the same things, but my path was a little bit different. I started by studying ancient Greek law and I say that just to impress upon your younger audience, that doesn’t matter where you come from or what your background is, you too can become a space lawyer if that’s your passion. But I got into it working much like my colleague here in corporate international transactions and in particular international finance. And back in the early two thousands, there was a lot of activity in the drafting of the space assets protocol of the Cape Town Convention, which created an international regime for the secured finance of satellites. So you could use satellites as collateral. And so my work in international finance brought me to space and once you meet the space people and the space community, you realize what a fascinating field it is and how broad it is When you say space law, like it was said, intellectual property, property rights, celestial bodies, mining rights, the laws of war, criminal law, space law is a very broad field that really embraces everything that we do here on earth as it’s translated into outer space.

J. Craig Williams:

It’s just amazing to think about. And brings me back to something that Michelle mentioned, property rights because the most I’ve ever understood about space is air rights, which is what my deed says, that it goes up so far into the sky. But Michelle, since you brought it up, let’s talk about property rights. Where does space begin? Where does my property right as into the air end and if there’s a disputed space, who decides it?

Mark Sundahl:

Michelle’s got to take that one. Yeah,

Michelle Hanlon:

I think Australia is the only country in the world that actually defines where space begins. And I believe they define it as a hundred kilometers up where the air ends and the air law regime, which is governed so well by IKO, the international civil aviation organization and where space begins is one of those things that the international community just hasn’t been able to agree on. People either want to set limits, set a height based on kilometers like Australia, but the United States looks at it like a use. What did you use? Are you launching a rocket that’s intended to go into orbit or are you just launching a plane that’s going to go high into your air? And of course it’s important because states, nations own the air over them and that’s why we have to have agreements to have people fly over us or the country.

That’s why when airlines are shot down tragically over the Soviet Union, the Soviet Union actually had the ability to say, well, they were in our airspace and we didn’t know who they were. So they had a little bit of a defense there. So this is a really tricky question about when are you going to apply air law and when are you going to apply space law from a practical matter, you and me walking down the street, it’s not going to matter that much, but right now space is for everybody. No nation can own property in space. No nation can make any territorial claim in space, which is why my organization for all mankind is in such an interesting place because we really want to make the Apollo lunar landing sites and other incredible landing sites like Luna two, the soft landing, sorry, the first hard landing ever by any human material on the moon.

We think they ought to be special and they ought to be preserved, but you can’t claim territory and space and our heritage laws on earth are driven by territory. You can only suggest that a site in your territory becomes a heritage site under the World Heritage Convention. And so it’s questions like this, I’m not really answering your question because we don’t have this concept in space and that’s what’s really exciting. And to Mark’s point, which I think is a great one to anybody who’s interested in space, we need thinkers from everything from ancient Greece to accounting, to financing to health because we really need to change the, and change the paradigm of how we look at ourselves as a species that’s going to be space bearing and not stuck, not, I shouldn’t say stuck, but not just bound to this earth.

J. Craig Williams:

Well, let’s talk for a moment Mark about the space force. What’s going on with that and how is that going to apply? I mean, are we going to be shooting lasers around at different countries from space now?

Mark Sundahl:

Well, the short answer is hopefully no, it dovetails nicely with Michelle’s point about the distinction between air law and space law because to close the loop on that, right, you need consent to fly over another country if you’re in the airspace. So the flip side of that is that if you believe that you’re an outer space or you are an outer space, you can fly over any country without consent and engage in espionage legally. And so that is why countries have been low to set a specific altitude for the definition of the outer space because we like that flexibility of flying a little lower if we want to or a little higher with our spy vehicles. But the space force now, so that’s 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?

And the reality is that we will see likely the same rules of war extended to outer space as we have here on earth. And that might be somewhat radical for progressive space lawyer to say there is the language in the treaties, the Outer space treaty, this Magna Carta 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 and what does it mean to use space for peaceful purposes? And the way that it has been virtually explained away is that peaceful purposes only prohibits aggressive use of military force, and as long as you’re not engaged in naked aggression, then you are peaceful in your use of outer space. And that is really the same definition that applies on the surface of the earth. There is another restriction, an absolute prohibition on the stationing of weapons of mass destruction in orbit.

We don’t want nuclear bombs poised in the heavens above Washington DC so that is an interesting demilitarization of space, but if anyone believes that a military will be devoid of war or the military and they’re mistaken and now we have a space force and that’s perfectly legal. It all depends on what that space force does, but my perspective on that in short is that it’s unnecessary bureaucratic program that only serves to stoke and fan the flames of military conflict around the world because if the US has a space force, then every country will want a space force.

J. Craig Williams:

Right, exactly. Well, before we move on to our next segment, we’re going to take a quick break to hear from a message from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is Michelle Hanlon. She’s the associate director of the National Center for Aaron Space Law and Co-founder and the president of For All Moon Kind Inc. And Mark Sundahl. He’s a professor at Cleveland Marshall College of Law and the director of the Global Space Law Center at Cleveland State University. And we’ve been talking about the practice area of space law and something in addition to the recent crime that’s been alleged in space. Apparently we have now violated whatever the prime directive was in Star Trek, which is not to interfere with other civilizations or not civilizations. Apparently we’ve left biological beings on the moon. Michelle, what are the problems and the circumstances with, I think Japan ran an experiment, landed some very basic small microscopic animals and left them there.

Michelle Hanlon:

So we actually, our biological intrusion on the moon started with Apollo when our astronauts left their excrement bags on the moon because they wanted to get home safely so they jettisoned as much dead weight as they could. We’ve been polluting, if that’s what you want to call it, the heavens for a while and orbital debris is a whole nother issue, but I think you know what, China also in January ran an experiment on the far side of the moon where they actually grew lettuce seeds and I think even silkworms, I think the latest sort of incursion is what people on the Twitterverse are calling, I should say space lawyers. This little tiny slim dorky group of people are calling Tart Gate because some tartar grades, which are little poly logs that look like really miniaturized, microscopic manatees were dehydrated and sent to the moon. Perhaps maybe it said a whole issue that’s being looked into, but we do have a planetary protection policy and the international community has worked very hard on that and worked not just to protect us from contaminants coming back.

The Apollo astronauts were put in quarantine for want to say two weeks, maybe a month. But we do want to be careful and we have identified that maybe there are biological things happening on Mars that we want to worry about. We’re not worried about Venus. We’re not so much worried about the moon because it’s a category two. We pretty much have determined there’s nothing going on there. But yes, we should really think and keep these in mind as we look to the moons of Jupiter, Europa, things that planets that we haven’t had a chance to see if they have life yet, it’s smart. It would not have been nice if somebody interfered with the evolution of the earth, for example. Maybe we wouldn’t be here. It’s a really hard balance to take in terms of what can you take, what shouldn’t you take? How intense do you want to be and what you’re worried about taking up there and stuff. But the key to all of this and all of space law, I think is finding that balance and having that discussion and open discussion about what we want to think, what we want to be, how we want to move into space. And so planetary protection is important, but I don’t think it means we can’t ever fundamentally just going to Mars, even with a rover with curiosity. We have violated Mars’s environment somehow, and I don’t think that planetary protection is intended to actually keep us frozen in our space here on Earth.

J. Craig Williams:

Well, that is very interesting thought to ponder. It’s a question that really needs some answering. I guess, mark, I would like to give you the opportunity to tell us about the Global Space Law Center and what its purpose is and what’s studied and what your students are excited about and what’s on the horizon for you.

Mark Sundahl:

Yeah, thanks for that opportunity and I was afraid you were going to ask me to respond to Michelle’s comments and I really don’t have much to add to them because I think she’s right striking the right balance. What do we oppose on request of companies and what are they able to bear? We don’t want to be frozen out of the solar system. It’s very well said, and we’ve got to figure out a way to establish, so-called heritage sites or cultural sites or scientific sites of interest, and yet to have a mechanism for that. One idea was to have the P sites designated as Heritage Unesca World Heritage Sites, but that requires under their regulations that be on one of the members’ territories. But I think we’re going to make some progress there. I’m working on that very issue tomorrow and I’m on my way to DC and I’m bringing one of my students with me, and that’s really what this Global Space Law Center is all about is to give my students entree into the world of space law. It’s hard to find it. There are only a few schools that give students that opportunities. There should be more. There are going to be jobs for space lawyers out there. As industry grows, there’ll be jobs required by industry and then on the other side by the agencies, government agencies that are now short staffed with the rising number of applications for launch licenses. They need more good lawyers. And that’s what we’re trying to turn out at Cleveland Marshall College of Law.

J. Craig Williams:

Wonderful. And best of luck with that. What a goal. Well, Michelle, let’s give you the same opportunity for all mankind. Sounds like a fun name. Tell us about it.

Michelle Hanlon:

Thanks. If I can just add to Mark, at University of Mississippi, we actually have an LLM program. So for any lawyers out there who are really getting excited by this conversation, we encourage you to come and look at our LLM program because you can take it online or it comes to Wonderful Oxford, and I don’t mean to sound like an ad, but it is wonderful and actually work with us here. But for all mankind is my third baby, my third child. It’s the name references, obviously the moonwalkers and the idea that humans are going to return to the moon, but it also references that symbolically, the concept that the moon and what we do on the moon are our first footsteps into space. And the moon, particularly tranquility base, the landing side of Apollo 11 is the cradle of our space fairing human future. So the way we look at on earth and we find these pockets of civilization and say, wow, 3 million years ago in Oli, Tanzania, we stood up and took steps here, and we treasure that because it reminds us of when we couldn’t even walk and we go back and think about where we came from and how much we’ve innovated and how much we’ve done as human beings.

I think it’s so important that for Allman K, we think it’s so vital that we preserve our first landing sites, both crude and crude on the moon, so that we can capture that we have an opportunity. It took people, we didn’t discover those footsteps in Oli until the 19 hundreds, the late 19 hundreds, and they’re 3 million years old. We don’t want our great, great, great grandchildren to be shuffling around the moon trying to find tranquility base. We have the opportunity to protect it now, and as Mark pointed out, we can’t under the UNESCO World Heritage Convention, but for all mankind, we are working to do what people think is impossible. We are working to create a new convention on heritage and outer space, and we think that it’s going to be the first stop, the first convention since the 1970s about space that the international community can agree on because we already agree on it on Earth 193 nations have ratified the World Heritage Convention here on earth.

We just want to take those same ideals and put them into space. And we think that will be a great platform for all of the international community to collaborate on even more space issues like property and mining rights and so forth. So I mean, go to our website for All Moon kind.org. We are just passionate about saving. It’s not just space. It’s saving the innovative spirit so that our children, I want to get a phone call from my grandchild calling from the moon and saying, wow, this boot print is amazing. And I can’t believe those astronauts came here in that tin can that they called a spaceship. But that’s what humans do. We are amazing people and that’s what we have to

J. Craig Williams:

Well, thank you for that. Well, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m Craig Williams, and with us today is Michelle Hanlon. She’s the associate director of the National Center for Aaron Space Law and Co-founder and the president of For All Mankind Inc. And Mark Sundahl. He’s a professor at Cleveland Marshall College of Law and the director of the Global Space Law Center at Cleveland State University. I’d like to kind of turn the discussion to the interplay between science fiction and space because Michelle, I’ll be the first to admit, I would consider myself a trekky and certainly have seen, and really my question comes basically from Star Trek, which is there are a significant number of inventions that were identified in Star Trek that are now in our present lives, and that has been true for science fiction throughout the ages. We imagined it and then we created it, it seems to some degree. And what’s the interplay of what we’ve all read in science fiction from Jules Verne on up and now had the pleasure to watch and television and movies. How close are we to coming to the reality of Warp Drive and those kinds of things,

Michelle Hanlon:

Warp drive? I think we’re probably a little far away from Warp Drive. I like to think one of the things we’re doing on our journal of Space law here is we’re going to start reviewing science fiction books to see how realistic they are, and we’re starting in the next volume with the review of Artemis. Of course, I don’t know if you’ve read it, but he talks about having a human presence on the moon and they talk about how it formed and everything. And so one of our law review articles is going to be, book reviews is going to look at that and how realistic is it that a moon settlement, a Moon village would evolve that way? I think that you are seeing, I like to think, and this is why I got into space, the first question that you started with is because anything is possible, and I got my son one of those little tric quarters for Christmas, now we can communicate by hitting a button on our chest.

So you’re right, it’s right around the corner. I think from a physics standpoint, the warp drive, the time travel, those are the things that might be a little bit farther out of reach, and that’s one of the reasons it’s so important that we create a human village on the moon because one way to reduce the time it’s going to take us to get to another planet That might be something that can sustain human life, would be to start from the moon rather than from Earth and to use resources from the moon rather than from earth and to discover what can we do and what can we build? How can we create different chemical reactions in the lower gravity on the moon that will help get to and achieve these things that right now, physics seems to tell us aren’t possible.

J. Craig Williams:

Well, there were a lot of people at one point in time that thought it wasn’t possible to fly, and that’s been proven wrong time and again. Well, it, we’ve reached, that’s right. It looks like we’ve reached the end of our program. I’d like to take the opportunity to let Michelle share her final thoughts and your contact information for our guests if you’d like.

Michelle Hanlon:

Thanks so much, Craig. I really appreciate the opportunity. I think it’s pretty obvious. I’m really passionate about space law and about humanity’s future. I encourage everybody to visit our [email protected]. Please feel free to reach out to me directly here at the University of Mississippi School of Law. I’m ML Hanlin. That’s M like Mary, L like Larry, HAN, like November, LON, [email protected]. And all you lawyers. Our LLM program is really fantastic. We offer more space law courses than any other university, and we and my associate director, Charles Stotler, really are hands-on and will do anything we can to help you achieve your dreams in space.

J. Craig Williams:

Great. Well, thank you very much, Michelle, and unfortunately, mark Sundahl was unable to stay with us through the end of the program, but for our listeners who might want to reach out with him and get in touch, his name is Mark Sundahl, S-U-N-D-A-H-L. His email is m Sundahl, SUND, [email protected]. Well, that brings us to the end of our program, and we’d like to remind you that if you like what you heard today, please rate us an Apple Podcast, Google podcast, or your favorite podcasting app. You can also visit [email protected] or you can leave a comment on today’s show and sign up for our newsletter. I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic When you want legal think Lawyer 2 Lawyer.

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