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Space travel laws need to balance 'competing interests'; Experts weigh in

By Amanda Robert | Jun 28, 2017

WASHINGTON (Legal Newsline) - How does one establish proper policy and regulation without stymying innovation in the space travel industry? That’s a question scientists, legal experts and lawmakers from around the world have been working to answer since the 1960s.

The Outer Space Treaty, the primary source of international space law, was ratified two years before the Apollo 11 astronauts walked on the moon. It requires that countries be responsible for national space activities involving both governmental and non-governmental entities and holds them liable for any and all damage that results from those activities.

Joanne Gabrynowicz, an internationally recognized space law expert and editor-in-chief emerita of the Journal of Space Law, contends that the Outer Space Treaty includes an even more significant principle – a strict prohibition on placing nuclear weapons or other weapons of mass destruction in space.

“The Outer Space Treaty is one of the most important treaties of the 20th century, because for 50 years, we have had a successful ban on those weapons in space,” she said.

Dr. Frans von der Dunk, a professor of space law at the University of Nebraska College of Law, explains that international space treaties, including the 1967 Outer Space Treaty, as well as the 1972 Convention on International Liability for Damage Caused by Space Objects and 1975 Convention on Registration of Objects Launched into Outer Space, were drafted during the Cold War era with governmental space activities in mind.

While he says the treaties are in many ways “insufficiently precise or open to deviating interpretations,” they form the legal foundation for commercial spaceflight. A number of countries have drafted their own national space laws to fulfill treaty obligations and exercise some control over private companies that get involved in space activities.

Henry Hertzfeld, a professor of space policy and international affairs at George Washington University, agrees that space treaties ratified in the 1960s and 1970s reflect both the era and international compromises.

“So, are they perfect for commercial operations in space?” he said. “No, they’re not, but we’re able to do the commercial and private sector stuff anyway because they don’t prohibit it and the United States in particular has encouraged it."

Von der Dunk contends that the United States has the most extended legal regime, with the Federal Aviation Administration licensing space launches, Federal Communications Commission satellite communications and National Oceanic and Atmospheric Administration remote sensing operations.

The FAA’s Office of Commercial Space Transportation licenses commercial space transportation activities in accordance with the Commercial Space Launch Act. Enacted in 1984, this law permitted the private sector to get involved in space activities and develop commercial launch vehicles, orbital satellites, and operate private launch sites and services.

The Commercial Space Launch Amendments Act of 2004 built on this law and instituted several regulations, including a mandate that companies conducting commercial spaceflight operations ensure that participants are informed of the risks associated with those operations. Companies must obtain written consent from spaceflight participants that demonstrates acceptance of the risks.

The law also introduced a “learning period” to prevent the FAA from imposing stringent safety regulations that could potentially stifle the growing industry.

The most recent update to commercial spaceflight policy came in the Commercial Space Launch Competitiveness Act in 2015. In addition to extending companies’ learning period to 2023, the law permits companies and the government to continue sharing the risks of space launch until 2025.

Gabrynowicz contends that U.S. space law has developed in tandem with spaceflight technology. She says the newer laws – the Commercial Space Launch Competitiveness Act, the National Aeronautics and Space Administration Transition Authorization Act of 2017 and a pending bill known as the American Space Commerce Free Enterprise Act of 2017 – don’t actually help regulate national space activities.

“Overall, these laws and bills are more politics than law and contain little substance,” she said. “They have a lot of technical legal language, like ‘sense of Congress’ provisions that do not create law.

“In all, they are intended to appear like authentic law when, in reality, they embody a great deal of legal uncertainty.”

Hertzfeld points out that the industry needs policies that address for-profit operations in space, particularly activities that will be managed or operated by the private sector. Until now, he says, most private sector activities have been narrow, but that could change as companies become more involved with satellites and in spaceflight.

“How do you deal with property rights in space?” he said. “Ownership of these natural resources, mineral resources, up there? How do you deal with approaching satellites that are perhaps owned by someone else, particularly if it’s another nation’s satellite? How do you deal with debris that could cause accidents?”

“There are lots and lots of questions in how you do this internationally, because other nations are involved. These are the issues that are not clearly defined right now.”

Von der Dunk adds that there are still many countries that have no, or only a limited, national space law program. As a result, he says, in the implementation of the Outer Space Treaty, a divergence has grown that has led to gaps, inconsistencies and overlaps in domestic oversight.

“Ideally, at the international level it would be good to have some form of harmonization at least of the approaches, noting that of course every sovereign state may have some individual idiosyncratic elements to deal with, but that idea has never moved beyond the stage of academic discussion,” von der Dunk said. “Sovereign states are not willing to comply with any serious effort to make this happen.”

Von der Dunk says that those in the space industry can implement good laws without stunting innovation by balancing two competing interests – regulating “ahead of the curve” to protect safety, security and international peace and cooperation, and regulating “as closely behind the curve as possible” once a number of private manned flights have demonstrated specific risks and threats.

“As far as I can see, the FAA in particular does a really great job in trying to balance those two sometimes contradictory interests, but it is after all charged by Congress to both regulate and stimulate,” he said.

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