At The Rhodes Law Firm, we are seeing a new phase of entrepreneurship move into space. Whether it's launch, vehicles, communications, research or defense, we're working with startups that are building the new space economy and paving the way for an interplanetary future. With all of the recent activity, I thought this would be a good moment in time to start laying out the fundamentals of space law, the challenges ahead, and what it means for startups in the space sector.
The Core Principles of Space Law (Or, We Did This Already)
We can all be grateful for the foresight of space pioneers who came together during the Space Race to form a series of international treaties. Simply put, the treaties seek to preserve space for the betterment of humankind, for peace and international collaboration, all things we have trouble with here on Earth. Here's a quick overview of the core treaties governing our activities in space:
1. The Outer Space Treaty of 1967 sets forth the basic principles that space activities are for the benefit of all nations, and any country is free to explore orbit and beyond.
2. Rescue and Return Agreement of 1968 provides for the rescue and return of astronauts in distress and of space objects to their launching authorities.
3. The Liability Convention of 1972 defines the circumstances in which a launching State is liable for a space object (which is pretty much all the time), and establishes an ad hoc Claims Commission to settle claims between two or more States (more on this later).
4. The Registration Convention of 1975 provides for the registration of space objects by the State, or one of the States, launching the space object.
5. The Moon Agreement of 1979 covers the Moon and all celestial bodies, providing that no State may claim sovereignty over any part of outer space, and significantly limits military activity in space.
I think it's clear from the fundamentals of space law that while the drafters had great foresight in building a peaceful future in space, it was less clear to them who would be doing the building. The treaties focus almost entirely on "States," assuming decades ago that nation states would be the primary actors in space. However, with the rise of companies like SpaceX and Blue Origin, we can see now that the future of space will likely be led by private actors, with States playing a research and regulatory role (much as they do on Earth).
What do these international principles mean for space startups today? For companies putting objects in space, they will be linked to the State from which they register and launch. Thought should go into the legal protections and challenges, including regulatory hurdles, the company may have under the jurisdiction of that State. The International Treaties provide a very helpful starting point toward a peaceful and collaborative future for humans in space, but as the space sector evolves quickly from State actors to private companies, there is a growing gap in the legal framework.
The Future of Space Law, Where No Lawyer Has Gone Before
The International Treaties drafted nearly 75 years ago and simply could not have foreseen the future we are building today. Companies like SpaceX and Blue Origin are having rapid success and, in some cases, outpacing developments of NASA. While legal principles envision a peaceful future, there is now doubt that the biggest State actors in space are now militaristic, with the creation of the United States Space Force being just one of the well-publicized examples. The future is exciting, and worth the same level of collaboration and foresight given by our predecessors if we hope to keep space peaceful and prosperous for all. Here are some of the current challenges I think we should consider:
1. Increasing Involvement of the Private Sector in Outer Space Activities. The international treaties hardly considered the role of private companies in space. As technology has evolved, costs have come down, and private capital has found its way into the space economy, private companies are now leading the way. Under the Treaties, States still have responsibility for non-state actors. So from the perspective of entrepreneurs, we have to figure out a new scheme for liability and property among other issues. So, from the perspective of entrepreneurs, we have to figure out a new scheme for liability and property among other issues. At the same time, States must consider the great responsibility and risk they have for the growing number of private entities acting in space under their flag.
2. Space Debris. The only thing more unbelievable than the amount of space debris already in space is the amount of damage it can cause. There are millions of pieces of our junk already orbiting space, some the size of a marble, some the size of a softball, and some much larger. At the speed this debris travels, even a fleck of paint can cause damage requiring repair. We must not only limit the introduction of new space debris, but we must also find ways to collect it and hold those who "litter" accountable. This issue clearly relates back to the importance or registration of space objects, and the questions around liability for damages.
3. Property Rights and the Future of Mining in Space. The International Treaties clearly provide that no State can claim sovereignty over space or a celestial body. But what about the resources in space? The treaties are not clear, in fact they may be silent, as to who can claim property rights to resources. Will we have a repeat of resource degradation here on Earth? In determining property rights, we must balance those against the sustainability of our future in space.
4. Data Privacy. Questions about data privacy abound on Earth, and as we travel to distant and non-jurisdictional places in space these issues will certainly continue. The question will be whether data privacy benefits from being tied to the terrestrial legal frameworks of data privacy, or if we will be better served by new, non-jurisdictional regimes for storing and protecting data.
5. Dispute Resolution. Current treaties provide for non-binding arbitration between cooperative actors. What will happen when parties to the treaty need a binding resolution, or when parties outside of treaties have a dispute. Will we always “phone home” to settle disputes in terrestrial courts? Or as we become multi-planetary will we develop some new venues?
What does this mean for the entrepreneur? It means that disrupting the status quo of state actors in space will create new questions of law. It means a little uncertainty at this stage. But that is not a great thing for the future of a functioning and stable economy. As startups lead the way, we lawyers must help by building a protective legal framework around them.
Next Steps for the Final Frontier
Probably the best next step in answering these questions is to continue the conversation. From universities to UN committees, we need our legal thinking to keep pace with our technological progress and entrepreneurial spirit. If you have a question about space law, or if your startup is working in the space, contact me and I'll be happy to talk about our future in space!
Jonathan Rhodes is the founder of The Rhodes Law Firm in New Orleans, working nationally on technology, communications and our future in space. He serves as a project founder, attorney and advisor to leading tech companies. Follow the commentary here and on social.