On February 6th, 2018, SpaceX launched its first Falcon Heavy into space with an unusual payload: SpaceX CEO Elon Musk’s red Tesla Roadster with Starman, a spacesuit-clad mannequin in the driver's seat “listening” to David Bowie's Space Oddity on loop.
As Starman blasted off, so did space law.
The term “space law” refers to the body of international and national laws, regulations, and customs that govern human activities in outer space. Originally, space exploration was handled exclusively by governmental entities, and its regulation, promulgated by the U.N., primarily was concerned with keeping space neutral and safe “for the benefit and in the interests of all humankind”. Those laws were modeled on previously-established international regulations, such as the Antarctic Treaty, and designed to apply only between sovereign states.
But, all of that changed when companies such as SpaceX, Blue Origin, and Virgin Galactic, began pursuing private spaceflight and space tourism for commercial profit and individual pleasure, purposes never envisioned by the drafters of the key space treaties. Existing space law was not equipped to handle the myriad of new legal questions sparked by the increasingly diverse fields of space exploration, space services, and space applications.
New legal questions
Of course, there is overlap with and expansion of existing business, employment, and intellectual property law practices as space-related investment, technology, and businesses grow and develop. But, in a largely unregulated environment, driven by profit-seeking business interests, a plethora of new legal questions arise. Criminal and civil jurisdiction; atmospheric and outer space pollution/space debris; trespass in airspace (where does sovereign airspace end and outer space begin?); property rights to outer space resources (mining minerals on asteroids, for example); and safety issues, informed consent, and liability for injuries to third parties, and the related development of an effective space tourism insurance market are just a few of the potential avenues for dispute. As an interesting aside, some observers note potential good news for the legal market: space tourists usually will be high-income earners who may be highly litigious and whose survivors can pay for high-powered lawyers.
Studying Space Law
While virtually every law school curriculum includes courses transferrable to the practice of space law, two U.S. institutions offer programs targeted specifically to the practice. The University of Mississippi offers a Master of Law degree in space and aviation law and the University of Nebraska at Lincoln launched a doctoral-level program in space law in addition to offering a Master of Laws degree in space, cyber, and telecommunications law. Other schools have space law societies and classes, including the Cleveland-Marshall College of Law which created the first space law research center.
Types of Employers
Employers for space law practitioners include:
- Private industry and aerospace companies, such as launch providers, and satellite manufactures. Currently, satellite issues are the bread and butter of space law since satellites handle television transmissions, GPS signals, and a host of other projects for commercial, military, and government clients. New public-private partnerships give rise to legal work, such as negotiating “hosted payloads,” where military users piggyback on commercial telecommunications or earth-sensing satellites. Most opportunities with space-related companies are more akin to traditional in-house or corporate legal practice, however. These are not space law positions, per se; rather, they are opportunities for corporate lawyers, litigators, compliance attorneys, HR practitioners, and the usual in-house types. At least, for now, the reality is that many in-house space lawyers engage in a more traditional law practice in government contracting or other general transactional legal work with some application to the space law aspect of the business.
- Policy making and regulatory bodies and agencies such as the U.S. State Department, the National Atmospheric and Oceanic Administration, the U.S. Air Force, and the Federal Aviation Administration. The FAA is establishing licensing and safety criteria for private spacecraft, a process that will continue to evolve as the industry matures. Several states already passed laws limiting the liability of space tourism providers under state tort law, and others will follow. The military, the Department of Defense, and defense contractors employ space law experts engaged in regulation for national security purposes. And, NASA and the United Nations have space lawyers on retainer to update old legal guidelines or create new ones in the event humanity reaches other planets.
- And last, but not least, are law firms. For example, in 2017, Reed Smith LLP announced the formation of a new area of focus for the firm– Aviation and Aerospace Finance and Commercial Space Business—which handles deals in the aircraft, satellite, and equipment finance markets. Similarly, the attorneys in Milbank’s Space and Satellite Group works collaboratively with attorneys from traditional practice areas throughout the firm. Other law firms offer practices more unique to the space industry, serving clients that include domestic and international space insurers, major aerospace companies, satellite manufacturers and operators, satellite component manufacturers, launch service providers, ground station operators, space tourism firms, and government space agencies. For example, Zuckert, Scoutt & Rasenberger, L.L.P., a Washington, D.C. firm founded in 1964, expanded its aviation practice to include space law. According to its website, it offers the following space law services:
- Space business planning and implementation;
- Commercial space contract drafting and negotiation and transaction completion (e.g., satellite purchase contracts, launch services agreements, transponder leases, and space asset purchase agreements);
- Space asset acquisition, space project investment, satellite financing, and legal due diligence;
- Contractual and legal risk analysis and mitigation;
- Space insurance (property, liability and other);
- International space contract dispute resolution, mediation, and arbitration/litigation (e.g., satellite purchase contracts, insurance coverage, launch agreements, and subrogation);
- Space technology exports and International Traffic in Arms Regulations (ITAR) licensing, regulation, and compliance;
- International Telecommunication Union (ITU) frequency coordination and preparing and advocating positions for ITU World Radio Conferences;
- Federal Communications Commission (FCC) licensing and regulation;
- Federal Aviation Administration (FAA) launch (orbital and suborbital) licensing, regulation, and compliance;
- International space trade, foreign investment, and bilateral agreements;
- Unidroit Space Protocol on security interests in space assets;
- Satellite navigation and GNSS liability;
- Satellite remote sensing policy, licensing, and compliance;
- Government (e.g., NASA and Air Force) contracts, including "CCDev;"
- Intergovernmental bilateral negotiations and agreements;
- Antitrust and other forms of competition law;
- Congressional legislation;
- National space policy; and
- International space treaties
While much of space law is the extension of more traditional areas of law practice to accommodate the needs of clients in space-related industries, as space exploration expands into new and heretofore unimagined directions, lawyers will, by necessity, create new laws and regulations and set new precedents.
Space law will venture where no lawyer has gone before.