Hard law or soft law? The debate about the future of space law

Plans by NASA and others for expanded lunar exploration, and use of lunar resources, is stimulating debate about whether new treaties are required or existing agreements are sufficient. (credit: NASA)

The Cleveland-Marshall College of Law hosted “Returning to the Moon: A Legal Symposium” at Cleveland State University on March 6. Jointly produced by the University’s Global Space Law Center (GSLC) and Global Business Law Review, the conference discussed the current issues in space law and how the private sector can become more involved. The underlying question throughout was whether new international agreements were needed or if the current treaties, with evolving norms and customs, would be sufficient.

The program began with an introduction to space law by Prof. Mark Sundahl, Director of the GSLC, and Chris Johnson, space law advisor for the Secure World Foundation. They discussed the Outer Space Treaty (OST), the “Constitution of Space Law”, focusing on Article I, which states that outer space “shall be the province of all mankind”; Article II, which prohibits national claims of sovereignty; and Article VI, which requires countries to “bear international responsibility” for activities by their citizens in space. They concluded that the OST provides an adequate legal framework for private activity in outer space, though later speakers would suggest that a stronger framework of laws is necessary to grant possession/property rights, considering the prohibition against national appropriation in Article II.

“Who is Going to the Moon? Public/Private Partnerships and Procurements” was the topic for the first panel. Steven Mirmina (International Law Practice Group, NASA) and Diane Howard (Chief Counsel, Office of Space Commercialization, Dept. of Commerce) joined Sundahl and Johnson. They talked about the already robust partnerships between the United States government and private industry that have grown around the International Space Station and the commercial cargo and crew missions. They also highlighted the international agreements that have evolved to codify the cooperation between nations that is required for projects like the ISS.

They acknowledged that, in the United States, there are multiple agencies with jurisdiction over different aspects of space activity (e.g., Department of Transportation, Department of Commerce, the Federal Communications Commission) but that steps were being taken to streamline the process and shorten the time between application and launch. One possibility is to issue licenses that are for types of activities rather than a specific activity, allowing for changes in timing and cargo that would not require a new application. They also discussed space debris and satellite constellations. Although most of the panel’s time went to activities in low Earth orbit, there was a presumption that the traditional economic model would be extended to lunar activities: NASA contracting with private industry to build the Lunar Gateway station and send landers to the Moon.

The conference then went local: “How Ohio Companies Can Get Involved in the Artemis Program – Lessons from NASA and Industry Lawyers.” The panelists were John Sankovic (President, Ohio Aerospace Institute), James Jackson (NASA Glenn Research Center, Office of the General Council), Justine Kasznica (Babst Calland LLP), and Jon Yormick (Phillips Lyttle LLP). They noted that Ohio was the birthplace of aviation—the Wright Brothers—and was currently the largest supplier for Boeing. The Rust Belt region, stretching from Pittsburgh through northern Ohio to Detroit, has been transforming itself and is now a center for high-tech development in many industries. These skills and resources can be leveraged to become contractors or subcontractors in upcoming space-related projects, including the Artemis program, for hardware, software, and related products/services.

Although there are many nut-and-bolts to the process, both literally and figuratively, the region and its institutions have the capacity to meet any legal needs, from protecting intellectual property to government applications and certifications. Like the preceding panel, there was a presumption that the role of the private sector would be as contractors and subcontractors for government projects, both domestic and international (e.g., the lunar lander being built by Astrobotic in Pittsburgh). Neither panel envisioned the private sector acting on its own.

The afternoon panels were more expansive, beginning with “How Will We Govern a Moon Village? Jurisdiction, Enforcement, Standard Setting, and International Cooperation.” There were four new panelists: Giuseppe Reibaldi (President, Moon Village Association, or MVA), Michelle Hanlon (Founder/President, For All Moonkind), Jessy Schingler (Open Lunar Foundation), and myself, as Founder/President of The Space Treaty Project. Reibaldi spoke by video from Italy, a concession to the spreading global pandemic. He introduced the newly drafted MVA Principles, an effort to provide guidance for activities on the Moon. The principles urge all actors to abide by the first four space treaties (OST, Rescue, Liability, and Registration) and detail non-binding recommendations/obligations—aka “soft law”—in lieu of the fifth space treaty, the Moon Agreement. The obligations include registering lunar activities, avoiding “harmful interference” with such activities, and avoiding harmful contamination of the lunar environment. The Principles will (hopefully) be presented at this summer’s meeting of the UN’s Committee on the Peaceful Uses of Outer Space in Vienna.

A conference panel discusses lunar legal issues. From left: Dennis O’Brien, Michelle Hanlon, Chris Johnson, Steven Mirmina, and Jessy Schingler. (credit: Cleveland-Marshall School of Law)

The Open Lunar Foundation envisions nonprofit actors on the Moon in addition to government and commercial actors. It has eight engineers working full-time on spacecraft development and a think tank to work on legal matters, to “fill the gaps in the Outer Space Treaty, of which there are many,” according to Schingler.

In addition to leading For All Moonkind, Hanlon is also director of the Center for Air and Space Law at the University of Mississippi. The center is also looking at the Outer Space Treaty to determine if it can support commercial activity on the Moon or if the legal framework needs something more. Her own research is focused on human rights in outer space and how individuals will be protected.

Like the other three nonprofits represented on the panel, the Space Treaty Project was started three years ago, indicating a natural emergence of interest and focused activity as humanity prepares to leave the home planet. The project has taken the position that additional hard law is needed to support private activity in outer space, and that the best vehicle for creating such law is an implementation agreement for the Moon Treaty, along with updates for the Rescue, Liability, and Registration treaties. “The state of space law concerning private activity is, at best, uncertain,” I explained, “and businesses and investors hate uncertainty.” The project has published its latest proposal for an implementation agreement for the Moon Treaty. http://spacetreaty.org/implementationagreementjournalrevision.pdf.

“That’s really the question on this panel,” observed Sundahl, who was moderating. “Do we need additional laws and what should they look like? I would love a treaty, too, but I think the chances of a wide-ranging international treaty are zero.”

“This year,” I replied.

“This year,” acknowledged Sundahl. “We shouldn’t give up entirely, but there are political realities.”

The panel went on to discuss “soft law” efforts to fill the gaps in space law, such as MVA’s Principles and the Building Blocks of the Hague International Space Resources Governance Working Group. Some advocated for an expanded use of registration, perhaps under the Registration Convention, that would allow actors to give notice of their activities on the Moon and thus protect such activities from “harmful interference” that are prohibited by the OST. There was also a discussion of personal jurisdiction: what country’s laws govern the actions of an individual? Everyone agreed that the laws of the state authorizing an activity would follow the individual even when visiting another state’s activity site, though there seems to be an exception for individuals seeking asylum. The operating agreement for the ISS was cited as an example of how an additional international agreement—hard law—could be useful when different states must coordinate their activities in close proximity. The panel also discussed establishing liability for damages and the use of arbitration to resolve disputes between actors of different states, including enforcement of decisions and awards.

The final panel focused on “Land Rights, Natural Resources, and the Protection of Sites of Significant Historical or Scientific Interest.” Steven Freeland of Western Sydney University, an expert on international law, joined the panel via video. Australia is a State Party to the Moon Treaty, and Freeland spoke in favor of additional international agreements to provide “clarity and certainty” concerning property rights and other outer space activities. He noted that some countries, like the United States and Luxemburg, had passed national laws on these issues but that there is an effort among other states for a multilateral approach. The panel agreed that conflict is possible, perhaps even likely, over certain scarce resources like water and locations that provide “eternal sunlight” for solar energy farms, and that we need some framework, be it soft law or hard law, that helps actors avoid or resolve such conflicts.

Hanlon noted that preserving historical, scientific, and cultural sites is the primary mission of For All Moonkind, and that they were worried about the effects of landers on such sites. The debris kicked up by landers’ engines will travel far, because of the lower lunar gravity and no air resistance to slow it down, harming such sites even at a distance. Her organization is currently working on designated landing sites with protective berms to reduce debris spray and hopes that there can be an international agreement to use them. “We need to build public support for the universality of space, to make the world realize that those bootprints on the Moon are like those footprints (on Earth, preserved in hardened mud) made three million years ago… Preservation is a great starting point to get everybody on the same page.” NASA’s Mirmina noted that the agency has adopted guidelines to provide such protection to all human heritage sites and that any country working with NASA must agree to do so. There is also a bill before the US Congress, the One Small Step to Protect Human Heritage in Space Act, that provides such protections. Open Lunar Foundation’s Schingler suggested that we allow specific activities at specific locations and agree to leave the rest of the Moon alone.

An audience member asked if UNESCO could designate lunar sites as cultural heritage sites and thus give them the same protections afforded such sites on Earth. Hanlon explained that the UNESCO charter (Convention Concerning the Protection of the World Cultural and Natural Heritage) requires that any nomination for a site to be designated for protection must come from the state within whose territory the site is located. But, because of the prohibition against national appropriation in Article II of the OST, no state can make such a claim. This appears to be another gap in the current framework of space law that will require a hard law international agreement to fix.

The panel agreed that the current treaties and laws are subject to differing interpretations. They supported efforts by the Hague International Space Resources Governance Working Group (Building Blocks) and the Moon Village Association (Principles) to develop guidelines that could be adhered to by states pending any new international agreements. Expanded registration of activities, for example, would at least put others on notice and reduce the likelihood of harmful interference. Johnson pointed out that the voluntary Sustainable Development Guidelines for outer space adopted by consensus at last year’s COPUOS meeting were the product of years of negotiations involving all stakeholders; such extended negotiations would likely be necessary for the success of any future effort at international agreements.

As Johnson put it, “If you don’t have a regulatory compliance plan as part of your business plan, you don’t have a business plan.”

“One of the things investors are looking for is our answers so they can take away as much of the risk as possible. One of the biggest risks we’re dealing with, with respect to mining on the Moon or creating a community on the Moon, is what are the laws and regulations that are going to apply?” Hanlon said. “We don’t want burdensome regulations, but we want to know what’s going to happen when we get there; that is a fundamental need for anybody. We want transparent and clear laws so that you can go to your investors and say ‘I know this is what’s going to happen and I know this is how I’m going to make money off it’ and we don’t have that yet.”

There were additional topics worthy of expanded discussion, such as how to share the benefits of outer space with all nations, but time was limited. The conference had already been reduced from two days to one, as some speakers cancelled due to the impending pandemic. Indeed, had the conference been scheduled a week later, it would likely have been cancelled. Attendance, though, was good, and overseas speakers were able to participate by video.

Those who attended appreciated the information presented and the opportunity to engage with those directly involved with space law and its impact on the private sector. By the end of the day there was a feeling that the Moon Village already existed, that those at the conference were its first inhabitants, with a duty to work for those who followed and a mission of providing hope and inspiration to the people of Earth. Could building a peaceful and cooperative society on the Moon help nurture peace and international cooperation on Earth? For those on the forefront of space law, the answer is yes.