Space Law Really is the New Frontier with Chris Hearsey

Episode Notes

Transcript

Chris Hearsey:

When you think about what is space law, what is space policy that say even to today that it may be aliens or it only applies to NASA isn’t telling the full story. This is a sophisticated and growing ecosystem that includes all types of actors. Space law is not very broad. It’s not all that deep. Its foundations are really centered in regulatory law.

Announcer:

That’s today’s guest on SideBar. Chris Hearsey, chairman of the Board of the Space Board Foundation. SideBar is brought to you by Monterey College of Law, San Luis Abispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura. Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina and Mitch Winick

Mitch Winick:

Jackie. I’ve mentioned before on SideBar that I grew up in the shadow of the Johnson Space Center in Houston, Texas. My neighbors were some of the first astronauts and the voice of mission command. Shorty Powers who led the nation through the first Mercury space flight TV coverage lived just down the street from me. It should be no surprise, therefore that I have had a lifelong interest in space flight and space exploration. In fact, our law school, Monterey College of Law has registered the first law school for the moon lunar college of law. We have our deed for a future lunar campus not far from the sea of tranquility, which is where Apollo 11 landed in 1969, making it the first location on another celestial body to be visited by humans. Many of us remember the words spoken by Neil Armstrong Houston Tranquility Base here the eagle has landed.

Jackie Gardina:

Mitch, I’m so young that I can’t even remember when we first reached the moon, unlike you. But what happens in outer space increasingly affects our lives on earth from hosting satellites that power the internet and our cell phones to space, tourism and exploration to national and global concerns like control of resources extracted from extraterrestrial sources and even warfare in space. The landing on the moon in 1969 started another important series of conversations here on Earth. How will we regulate and protect interests in space?

Mitch Winick:

Jackie? It may surprise our listeners that there are five United Nation treaties that govern outer space, the moon agreement, which governs the activities of nations on the moon and other celestial bodies. The Outer Space Treaty, which establishes the foundation for the use and exploration of outer space and states that space is intended to be a free area for all to explore and use the rescue agreement, which is of particular interest as we currently have two astronauts who are literally stranded with a malfunctioning spacecraft. The liability convention, which addresses the increasing number of satellites, launch vehicles and space debris being left in space and assigns international liability for damage caused by space objects. And then finally, the registration convention, which emphasizes the need for countries and private corporations to register objects launched into outer space. Although you might think that space law is pretty obscure and not a vibrant and growing area of international law, there were activities related to the existing space treaties and the new international Artemis Accords that we’ll discuss later in the program as recently as May and June of this year.

Jackie Gardina:

And as usual, when we venture into the new frontier of legal areas where no man or woman has gone before, we bring on an expert to lead us into these new legal worlds. Chris Hearsey is a global space executive entrepreneur and space lawyer. He’s also chairman of the board of the Space Court Foundation, an international space law and policy research and educational organization that is working towards advancing the legal frameworks that will shape our journey into space in the coming decades among his multiple academic degrees. Chris has a JD in aviation space and remote sensing law from the University of Mississippi and an MS in space studies from the University of North Dakota. Chris, welcome to SideBar.

Chris Hearsey:

Thank you for having me. I’m very excited to be here and talk about space and space law.

Mitch Winick:

Okay, Chris Space law, the first reaction by many of our listeners here on SideBar, is this a joke?

Chris Hearsey:

No.

Mitch Winick:

Even my co-host Jackie and our producer Dave probably rolled their eyes quietly when I suggested space law is a topic for SideBar. However, your work with OSA consulting and the Space Court Foundation is not only important. It is a growing international area of law and policy for those who are uninitiated. Can you give us an overview of the primary focus areas of space law and policy and examples of some of the work that you are doing?

Chris Hearsey:

Well, absolutely. It governs our relationships with aliens. Of course, at least that’s what I’ve been told by people who ask me what I do. But in reality, space law is a set of legal rules and principles that both commercial government and other intergovernmental actors actually abide by. There are principles that have been discussed for over 60 years, and in fact, the history of space law in and of itself has a very unique history and intertwines with World War ii. It intertwines with what happened coming out of Caltech in the 1920s and thirties, and it obviously intertwines internationally. So space law by itself is just a set of rules that govern space activities, what they technically regulate or space objects. That’s basically the center of the law is the thing that you send or intend to send to space is a space object. Any space object is subject to these rules.

Now, the rules and who they apply to will vary depending upon the rules. So if your listeners aren’t familiar, there is what we understand. Domestic law, you’re in the state, you’re in state of Texas, California, Maryland, wherever you are, you’re beholden to the jurisdiction of that state. So if you commit a crime or you get sued in a particular state, those are the rules that apply. But at the international level, the rules are with respect to how countries work together. And there’s over 500 years of international law and coming out of World War ii, it sort of got solidified through the treaties you mentioned. And so the treaties were meant as the initial principles because if you think back to October, 1957, there’s a famous story that on October 4th, there was a meeting at the National Academy of Sciences in Washington DC that night, and they all knew it was going to happen.

And the reason that they knew put was going to happen was because everyone already knew what was going on, which was there was an attempt by scientists starting in the United States to create this environment for the peaceful launch of satellites to measure the world around us, to measure the universe, to look and understand the world that we live in. But obviously this is under the backdrop of the Cold War. Thinking back at that point, there was a lot of people that overreacted to that moment. But it’s very interesting when you look at the history and the policymakers, people understood what was coming. And so when you think about what is space law, what is space policy that say even to today that it may be aliens or it only applies to NASA isn’t telling the full story. This is a sophisticated and growing ecosystem that includes all types of actors.

I would say for the last 15, 20 years, the proliferation of different organizations and people that go to space has increased at a rate that we are still barely understanding the measure of. And as a consequence, we need these rules to govern our ability to interact with each other so we don’t interfere. That’s a major principle of the outer space treaty, that if there is harm caused, that there’s a way to assign responsibility and go through a legal process to recover. So if you’re damaged, you want to know who do you want to sue? All these different types of rules, they apply to jurisdiction, they apply to process, but they also apply to substance. And that’s where people get really excited about law because space law is not very broad. It’s not all that deep. Its foundations are really centered in regulatory law. And that regulation is different depending on which country you’re talking about.

Because to regulate something means that you have to have an indigenous community of people operating in that way. So in this case, do you have people that can create a technology that could be sent to space? Do you have the capability to go to space and do you have the capability to send humans to space? And there are only a few countries in the world that can do that. When you think about all the different types of people now going to space and now wanting to go to the moon to exploit and to use resources, you can think about all the different types of conflicts and opportunities that can come. So how do you figure out how to work together? The best frame that I’ve ever heard is from a former professor of mine, Dr. PJ Blunt. He talks about thinking about space in the context of you’re in college, you get roommates, you got three, four roommates. How do you guys all work together so that you don’t end up killing each other, making sure the bills are paid on time, making sure someone’s taking out the trash and other responsibilities.

Jackie Gardina:

I just want to follow up on that for a moment because I think one of the things that I think about when I think about space law is an opportunity to actually develop a legal framework that might be better than the one that we’re dealing with here in the United States. And on the international front on earth, is there an effort not to just mimic what’s happening here on earth and try to actually create a better, more inclusive legal framework in space? Or is it pretty much taking what we know and understand about the law here and transmitting it to space?

Chris Hearsey:

It’s actually more complicated than that because when it comes to, I said space object, space, object can almost be anything. You could talk about a dog, a person, an appliance, laptop by virtue of just being in space, your legal characteristics are highly dependent on how you got to space. For example, there’s this concept of jurisdiction in the law. Anytime if you’ve ever been speeding in a state that you’re not from and you get ticketed, it’s because you went through the jurisdiction of that county and that they were able to fine you for speeding. That type of thing doesn’t exist in space. There’s no traffic monitors, there’s no one giving out tickets for speeding. So every country has to regulate themselves. So you can imagine there are about 200 countries that are members of the un. And out of those 200, about half are members of the UN committee on the peaceful uses of outer space, UEN, copious is where the treaties came out of.

And that growth and membership of the committee gives you a sense of the scale of how everybody wants to be a part of this. But the thing is is that in terms of inclusiveness, that’s a resource issue. That’s a country to country. Do you have technologies? Do you have intellectual capital? But when you talk about rules, you’re talking about you want to move to harmonization. And let me give you a good example. In the United States, we’re a bit cute. And what I mean by that is that there’s only really three areas that we license space activities that’s launch and reentry. So you go up and you go up down. There’s remote sensing, you put a camera up, you look down, you look any other direction. You got to tell the government what you’re looking at and who’s going to be using those data. And then there’s telecommunications.

The telecommunications is the reason why this is going to be hard to build out a sufficient regulatory regime, but at the same time is the only way to do it. The reason is, is that to send up anything to space, you have to communicate with it, you have to be able to find it. When you send up a satellite, it pings and when it’s initially released, it’s hard to find where it is. It’s like trying to find a bullet that you shoot several miles away and figure out its exact location. That’s what companies do. There’s companies that help you communicate with the satellite, but in order to communicate with your satellite, you need a license. And in the United States, you have to go to the FCC. Well, the FCC only has so much spectrum that it can license to any commercial activity that wants to do stuff in space that is a sliver of all of the spectrum that has been allocated to the United States that is governed by an organization called NTIA.

Well, where does NTIA get all of that authority? Well, obviously from congress to service domestically, but where do they get the spectrum allocation that is dictated by a treaty? It’s called the International Telecommunications Union, and they meet every four years. So let’s put aside any details. If you think about a regulatory body that meets every four years to change the law in an industry that innovates daily, there’s a mismatch. And the premise of the ITU is not necessarily to allocate orbital slots, but once you can be assigned to be at a particular location in space, you have told the ITU and the FCC that you need these frequencies to be broadcast at these times. Well, you have to have a satellite that turns things on and off. If you don’t have a satellite that turns things on and off, then you’ve just created a big old loud machine in space that everyone who has the detector can hear, and that creates interference that creates problems.

So you have to do this whole coordination thing with the entire world to deconflict just for ground based interference. Now we’re talking about novel space activities. So now it’s not just about dealing with people on the ground, it’s not dealing with all your neighbors to the right left up down of you, and it’s a big, big country space and it’s all international. The problem now becomes what happens when you start doing that on the surface of a planetary body like the moon and Mars. Now here’s the problem. You’re now operating in gravity fields that are different than Earth. And when that happens, the physics change. If physics change, then your experience of being on the surface will change, right? You’ve seen the people bounce on the moon from the Apollo area. Same thing will happen on Mars. People will have a little bit lighter feel to their bounce, but think about something that’s got a bunch of stored energy that decides to blow up for whatever reason, that’s sending things very, very far and creating risk profiles that we still need to work out on earth. So now you go back to, everybody wants to go back to the moon. So now we got to keep away electromagnetic interference and kinetic interference. You don’t want people negligently operating, blowing stuff up or kicking dust in your direction. So there’s a whole coordination problem which does center on telecommunications. And guess what? It gets more complicated now because now people are fighting over who gets access to which spectrum on the moon itself.

Jackie Gardina:

I want to follow up on that because I think that’s an important point. You’ve mentioned resources and access to resources multiple times as you’re describing the complex interplay of domestic and international law to regulate this. So resource exploitation is a major issue in the field of space law. As more countries and private companies develop plans to return to the moon and strategize about access to other planets, comets, meteors, the legal community will need to address issues related to the question of monetization and commercialization of space resources. So how should the law come into play for such literally remote concepts?

Chris Hearsey:

So there’s a couple of things. In the interest of full disclosure, when I was at Bigelow Aerospace, I worked on this asteroid resources act. So I’m very familiar with the bill. Part of the company team working to get that passed in. I think it was 2015. We looked at this. I gave a lot of input to Congress about what this should look like. And so the conversation at the end of the day was, is there anything impermissible with respect to US law and its obligations that would limit any American from going to space and obtaining a speech resource? And technically there’s not. In fact, there’s tons of legal precedent that says you absolutely can, but that’s not the concern, right? And I say obtain because obtain is not perfection of a right? That’s something that still needs to be had. And the reason why this is interesting is that we are now since the nineties, way more aware of our, let’s say orbital neighborhood.

We know what’s kind of around us. Now we’re just looking for things that we don’t know that are going to kill us, but every little thing we kind of know. So then it’s all about, okay, well do you have the capacity and the capability to do that? Well, you may remember about 10 years ago, a little over 10 years ago, there’s a lot of asteroid companies that got formed that really wanted to do this stuff. Well, what ended up happening is the money dried up. Technology was created, but it wasn’t commercialized at the level that you think it should have been. And again, that is telling us a lot up until recently, the market wasn’t ready, meaning the technology wasn’t there to exploit resources. Because one of the biggest problems you have with exploiting resources or extracting them in any new fashion is that we’ve only tested welding or voltaics that can break down materials twice in the last 30, 40 years.

So this is an area ripe for research. There’s organizations like Ohio State University and others that are looking at this stuff, companies like Siz Lunar that are looking at this stuff. So the takeaway that I think your listeners should have is that space object is anything. Therefore anything technical still needs to be tested in space. And it’s still amazing to me. There are so many things that we take for granted that we think are the state of the art on earth have not been tested in space. We do not have data sets for using AI to be able to model the environment. That’s all this stuff’s going on right now. So when you talk about trying to exploit resources, you need all this enabling technology. You have to be able to get out there, you have to be able to scan it, and then you have to be able to have the drill bits.

If you remember from the movie Armageddon, that was a whole big plot line, drill bits breaking because of different metals. But that’s also kind of fantastic because we kind of know ahead of time where we’re going and what we can extract. So the last problem is once we do, what do we do with all this stuff? And economically it makes no sense in bringing mass quantities back to the earth and putting them into the metal market. But what it does make sense is using it in its place. So one of the things that has come out of the asteroids discussion is now, okay, well lots of things are resources, even paint flux and metal bits. So if you can capture them, you can kill two birds with one stone. You start cleaning up space, you put ’em into your little melting pot and then you recycle. This is the direction we’re going.

Mitch Winick:

So let me go further on that because I like what you’re saying and it makes sense that we need to change our thinking about actually doing things onsite elsewhere. But with numerous countries and private companies conducting missions and operations around the moon, a common set of principles to govern civil exploration and use of outer space sounds like it is necessary. So NASA started this conversation in coordination with the US Department of State, and they established what I mentioned earlier, the Artemis Accords in 2020, along with seven other founding member nations. Now, these accords are intended to reinforce the commitment by the signatory nations to the registration convention as you talked about the rescue and return agreement. But as saying also best practices and norms of responsible behavior onsite and where they’re doing these types of work. So first of all, give us a brief description about what is the difference when countries do an accord versus a treaty, and second, is this type of voluntary agreement going to have any real effect?

Chris Hearsey:

Okay, the first question, what is the difference between an court and a treaty? The basic issue is what is the treaty? The International Court of Justice article 38 says there are things called international agreements. These are the treaties that we colloquially know. International agreements are binding instruments, meaning there’s obligation by all signatories. And so as a matter of law, they can be held liable if they breach those obligations. Every country does things differently when it comes to trying to get a international instrument implemented as a matter of law. So for example, if the Russian Federation signs a treaty, it automatically is part of their constitution becomes their law. And the United States and in Great Britain, we do not have those rules, those legal rules. In the United States, there’s a whole process which people may remember from civics class where a treaty is sent by the president to the Senate.

The Senate debates it, they ratify it through the committee and the legislative processes, and then once it’s voted on it, it becomes a law that sits just below the Constitution, but above federal law and regulation. So it has this intermediate period. And so the way that the United States has done things is that I think you mentioned the moon agreement as being one of the five. Well, the United States never signed the moon agreement. There’s a whole history about why, which would take another half hour to explain. But essentially what happened is that a lobbyist came in, found a way to sour the work that was done with the Senate Foreign Relations Committee in 19 79, 19 80, and the premise basically had to basically centered around this idea that you don’t know how resource extraction will evolve, therefore, there’s no point in setting up this major regulatory system because you just don’t know who’s going to do what, when or why.

And part of the reason why is because the law of the Sea had an entity within its treaty structure that governed mining in the seabed, and even today still has not produced any commercial anything. So no one wanted to overregulate. But as a consequence, and you think about the 1980s Reagan administration, there was this huge effort to privatize. I just want to make this really big distinction because this idea of private space, while it had been around even with von Braun in the fifties, didn’t really see a sea change until the 1980s when a lot of people put their reputations on the line to demonstrate that this was feasible. Why? What was the alternative? NASA wanted to control everything, do everything. Well, the problem that NASA figured out over time is that Congress gets to tell NASA what it gets to do and how much money it spends.

And so it was creating capability gaps because you had a lot of private entities that wanted to create novel technologies and there wasn’t really anything that said they couldn’t weren’t building nuclear weapons. And so as you move forward, you get to the 1990s and the United States continues disposition that it doesn’t want to sign treaties. When you look at the international agreement for the International Space Station to some of the signatories within the individual countries, they’re treaties, but to the United States, it’s an executive agreements, not a treaty, meaning that anyone can cancel participation in the program. Congress could defund it, which they almost did in the nineties. It’s survived by one vote vote, and there are other instruments the United States has used over time. Now, the Accords and all that are names. What’s important to focus on with the Artemis Accords is that their bilateral discussions with individual countries, I want to take you back to the point about why ITU and that structure is difficult to maneuver because you got to get everyone in one room altogether.

If you all individually like the United States has done with the Artemis Accords, then you can get one consistent set of rules. And the problem is with copious getting any further rules on anything, and it really doesn’t matter what it is, the Copus operates on a consensus basis. So if one country objects that’s done, you can’t move it forward and all you’re really doing to move it forward is if you get the consent and move it out of the committee. It’s just sending it to the general assembly and then they have a vote on it. Now, COPUS has set up that process. The United States has been part of that process so far. It’s worked without any major problems. There’s been here and there, but this is the whole reason I think the United States in particular, the State Department took the approach that did, and I commend my friends and colleagues.

Mike Gold used to be my former boss of Bigelow and Gabriel Sweeney, who I’ve worked with over the years for leading this internationally. And I have to say a lot of this also came from this idea that when I was a Bigelow with Mike Gold, my first week in the job, I was asked to do something that I was, I was very excited to do, but was I was surprised to do out of law school, which was write a letter to the FA Office of Space Transportation and ask them two basic questions. Would the US permit a human commercial habitation system to land on the surface of the moon and in doing so, does it violate any policy or rules of the FAA or international obligations of the United States? And they eventually came back and said, no, that moment is what’s kickstarted all of these conversations, because then what ended up happening is that we had these discussions about non interfer zones.

Sometimes they’re called safety zones, but that is what the accords were meant to do is to create the practical regulatory hook without going to the national legislatures or regulators and saying, listen, the principles themselves and the way that we do are operations anyway. It doesn’t matter which country you do, satellite operations have become pretty standardized. These are the rules that we all have to agree to. And so doing it bilaterally then got everyone to agree, yes, yes, yes, yes, yes. And you didn’t have to deal with a collective one person objecting, and it gives a basis for the conversation.

Mitch Winick:

Let me ask one more thing about something you said earlier, which was the concern about overregulating when we didn’t know what the outcomes or processes were going to be, as you were saying that, it made me think, I think we took the same approach to environmental law in the United States, and so we allowed mining and strip mining and fracking and all of these other things because the argument was, well, we don’t really know whether there’s going to be any negative impact, so let’s not regulate them. Isn’t it the same risk of taking that attitude into space law when we say, well, just because we don’t know the technology or perhaps the environmental danger or the other impacts, we just can’t afford to set guidelines?

Chris Hearsey:

There is some of that, but let me just tell you what the actual dysfunction, the political dysfunction really is. The political dysfunction has to do with the way that Republicans and Democrats in the United States think about space. Unfortunately, I would say the Republicans have taken a bit of an extreme, although I do kind of favor this approach, but they do take it in extreme where it’s like you kind of can do whatever you want. We’re not going to dictate. On the other hand, when you talk to Democrats, the problem is there’s a lot of suspicion about commercial, and the thing is, is that at the same time, they’re suspicious about everything NASA does, but there is a bit of a sea change. All the rules that like the FCC has come up with and others, and even the Europeans to meet your analogy, I would say it’s like we recognize there’s smog in LA and that they probably should have a thing called catalytic converters.

That’s where space needs to be. I don’t want to scare your listeners, but they may have seen a report a few months ago that the Russian Federation launched a nuclear weapon into space. That’s half true and half not true. What they did is, and this is just from reporting, they sent something that was capable of mimicking a nuclear detonation, and in space, it’s not the boom that matters, it’s the electric magnetic pulse that is generated that knocks out satellites. It’s exactly what happens during a solar storm. So basically there’s creating a solar storm weapon. The thing is, is that it does have a limited range, but if you think about this, you put it in the right congested area, you have a whole bunch of dead satellites and you’ve created debris, so it’s a denial tactic. Now, the Chinese and the US are not happy about that because both of them are in a race to develop space.

This is sort of this weird paradigm of we’re really concerned about the environment, we’re really concerned about misbehavior by commercial activities, but there is also a greater fear and it has to do with intentionality. Years ago, I gave a presentation about the morality and ethical rules that are in the outer space treaties, just the treaties themselves, and in doing so, I got a CEO of a satellite company very forcefully stand up and asked me a question. So he gave me a hypothetical and he said, I’m a commercial space operator. I have a satellite that’s making money, and the Chinese decide to send a missile to blow up my satellite. Who do I sue? I mean, at the time I hadn’t gone to law school, but I understood how the legal process works. And I said to him, if that happens, I think a lawsuit’s the least of your problems because that alone is based upon that fact pattern.

How would you know what the intent is? Right? For all we know, this guy was beaming something down into China that he shouldn’t have. On the other hand, the Chinese could have gotten bad intel and targeted the satellite and appropriately either way, because it’s an American satellite. The United States military and the president of the United States and Congress are going to be thinking about drafting war articles, and people are going to frame that as Pearl Harbor and space. Absolutely. That’s how it’s going to get framed. The irony in all this is that there are colleagues I know that realize that we’re not actually going to get the regulations. We need to figure out how to deconflict this until we have someone really seriously screw up. That’s the fear, because we’re doing it so well right now by putting all these little payloads in these little pockets of open space, hoping they don’t run into debris, but everyone is moving in that direction.

So it is a collective action problem that can be solved by industry, but industry can only create the rules that it is necessary for it to do its business. Government still needs to have that dialogue, and that’s hard when you have, at least in the United States, political parties, at least at that level, that have completely opposite, even though it’s bipartisan, opposite philosophies on this. And at the top level, you still have Russia, China, the United States playing the same old war. I’m pretty sure we’ll eventually figure it out with space because despite the antagonism from some countries, everyone has an incentive to use space, and there’s just more opportunities to do than there’s ever been before.

Jackie Gardina:

I have a question I wanted follow up. One of the things that I am curious about and I think a little concerned about is the privatization of some of the technology and abilities to go to space. And at the beginning of the Ukraine, Russia conflict, there was questions about Elon Musk’s willingness to make his satellite available to Ukraine or make it available to Russia or make it available to neither. I am curious what regulates his ability to act potentially in opposition to what might be a particular country’s desires?

Chris Hearsey:

Let me be careful. I know everyone at this point is acquainted with Elon one way or another. There are concerning things that have come out about what degree of relationship Elon personally has with members of the Russian Federation and including Putin. He’s had conversations with Zelensky, he’s had conversations with the right people. Let’s separate the man from the tech. The true answer is, is that you’d have to have evidence that he violated his security clearance. That would be the first thing. That’s highly unlikely, mostly because he doesn’t know enough to violate it, I don’t think. And second, how he wants to handle his economics, right, at the end of the day is his business. But it is concerning because it’s not so much the concern about how starlink operates in Ukraine. It’s the relationship between the DOD and SpaceX and Elon in particular. To some extent, it’s very clear what Elon’s doing. He’s taking the Trumpian model and making it his own thinking that this is going to help him in some way. But to your point, if he interjects in foreign policy, that’s a whole other issue that taken up with the Secretary of State.

Jackie Gardina:

And I think that was more my question. I used him as an example, but the privatization of some of the work going on in spaces is happening across multiple companies, and there will be a time where the United States government needs to rely on those private companies to engage in a way that is consistent with foreign policy and with the needs of the United States as opposed to an economic interest of the company. What kind of ability does the United States have to say, you need to make that available to this particular ally of ours. You don’t have a choice. Is there any authority for them to do that?

Chris Hearsey:

Yes and no. It’s actually a bit more complicated than that because what’s implicit in the context of the question is to understand that government was for a very long time, the only player in town, the commercial industry, and everything we’ve benefited from since the 1980s in particular since the Reagan administration with the help of Clinton and Obama to help commercialize space, by the way. But guess what’s going on Over the last few years, the Space Force has said, sure, come on over. We want to talk about it. And the thing is that the Space Force isn’t looking at just military applications. They’re looking for dual use in the same way that the US Calvary was asked to help secure the frontier, it’s more of building out the capabilities you need anyway to protect the US interests and to protect the planet as well.

Jackie Gardina:

You serve as the research director for the Space Court Law Library, and one of your professional objectives is to publish what is being called the big books of National Space Law, which will be a curated compilation of law and policies relating to national space activities. Why do you think this is needed? What impact do you think the book will have on the development of space law and policy?

Chris Hearsey:

I co-founded with my friend and colleague, Nathan Johnson, who is a space lawyer as well, the Space Court Foundation six years ago to promote space law, education and the rule of law. We have three primary objectives. One is original research. We run a global internship program of about 30 students every year. We’ve been doing it for about four and a half, almost five years now. And then we’re also content creators, so we have a YouTube channel. We’ve done some things during the pandemic where we were promoting space law through one, a fake podcast called the Space Bar Show. And then we did a educational pilot, which called Stellar Decisis. We’ve mapped out about 10 episodes, but we produced one, which is a sort of a moot court presentation because the foundation administers the North American Regional competition for the locks space law, moot court competition. The problem just actually just got released a couple of weeks ago, and if you are a law student and want to participate, check out our [email protected].

Everything is tied in together because what we really want to focus on is the rule of law part because you can have tons of rules, but there’s no obligation that says you must do something. So once you have law, that’s the point. You must do something. The rule of law is to get the expected adherence to the rules. And so what we’re trying to capture with the big Book of National Space Laws, it’s kind of a misnomer because it’s not one book. It’s multiple volumes. And the objective is, is that we’re just literally writing down the black letter law of every country that has a space law. The way that we do that is very straightforward and unique, which is we give you basically a presentation of the legal system, the government system of that country. We prepare the us, Russia, Japan, Canada, uk, so a lot of different countries.

So you get an overview of how does the government work, what court systems would you go to, who has regulatory authority, their summaries. They’re not a huge dissertation on these things. And then we get into the first part of it, which is jurisdiction, understanding how the law attaches to an object or a person. So those are procedural rules. And then there’s the substantive rules, which is all the cool stuff everybody wants to talk about. Can you actually license the rights of an asteroid to a person? Can you own the sun? Well, no, you can’t own the sun. There’s lots of reasons for that, but a lot of those reasons aren’t legal. They’re philosophical. They’re things that grew up within our tradition. So we do have a conflict of traditions, so that’s always there in international law, but at the end of the day, all these rules work together. If everyone’s using the same rules, well, you have some great harmonization there. You couldn’t ask for a better development. You don’t see that anywhere else. We are putting together the first space law dictionary. We’re constantly looking to fill the gaps.

Mitch Winick:

Chris, thank you. Much of this involves topics that we do not think about on a day-to-day basis, and yet there’s no question that they’re going to impact us for generations to come. Thank you for the work that you’re doing, and thank you for sharing it with us today on SideBar.

Chris Hearsey:

Thank you for the invitation.

Jackie Gardina:

Thank you, Chris. Mitch, the episode actually surprised me in terms of how complex the idea of space law is and what it’s going to take to actually create the legal and regulatory framework to make it work. And I do worry because we haven’t done such a great job here on earth, and I do worry that we’re going to just duplicate the issues in space. He didn’t necessarily dissuade me of that concern with some of his answers, so I’m left a little bit still concerned and worried.

Mitch Winick:

Jackie. I think those are absolutely valid concerns. I think that leaves that up to all of us. Our listeners are law students, our legal colleagues to step up in this topic area, as well as in other constitutional law areas we’ve talked about, to look to the future and do some of the hard work it takes to be a little more collaborative, a little more forward thinking. I took two things away from this. One was I taught international law, and people forget that international law, as Chris says, goes back hundreds of years and the law of the sea and the law of war were the first two international treaties, and it was fascinating that we’re still looking at those two treaties hundreds of years later to define how we’re now going to consider space and the context for space law. So some things never change, and we still have some basic principles to work on. But the second part does go to what your concern is, which is he clearly emphasizes that interconnectivity, conversation, collegiality, transparency, all of those characteristics that require countries and companies to work together with a forward vision is what’s going to make this work.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.