GeoLegal Weekly #8 - Space Law / Virgin Galactic AGC on Space Wars
Space law, space wars and "astropolitics;" SCOTUS says Trump can run for president; UK likely to restore litigation funders, WTO delivers nothing and monster payout for Tesla plaintiff lawyers.
I go to a lot of conferences. I rarely go to conferences about outer space aboard haunted ships. Last week, I attended the inaugural Space Beach Law Lab, which raised some really interesting questions not just about space law but about how relevant global context is to everything lawyers debate, discuss and advise on.
Justin Hectus put together this “South by Southwest of space law” driven by his own personal enthusiasm about space and his belief “in the power of community and creativity when faced with complex challenges or uncharted expanses.” Before diving in, it is worth noting that NASA is perhaps the only governmental service Democrats and Republicans are both enthusiastic about. So space is not just the domain of self-proclaimed space nerds.
Below I dive deep on the history of space law as well as key issues in commercial space law. But what truly piqued my interested in the topic was headlines in recent weeks that the US was concerned Russia wants to put nuclear weapons in outer space. Paging my memory of International Law 101 - isn’t there a treaty that prevents that?
To get to the bottom of whether we’re headed for a space war - and to understand the legal structures around it - I spoke with Chris Brown who is AGC at Virgin Galactic. Chris hosted a panel on whether armed conflict in space is inevitable. We spent nearly a half hour on a range of topics (which you can watch below) but I’ll also summarize the key issues.
Click here or the video above to watch the video embedded in the web version of this post.
Star Wars but for real?
Is space war inevitable? Chris tells me “I'd like to say that it isn't inevitable, but I think it is. And that's because we have competing understandings of what exactly conflict would mean in space.”
Basically, Chris tells me, the more we have conflict on the ground the more we could see it escalating into space, for instance “knocking out each other’s satellites to prevent…tracking troop movements or preventing those satellites from being able to see where ballistic missiles are being hidden”. That’s different from Star Wars but equally scary.
We talked about how non-state actors like the Houthis are sending missiles above the Earth’s atmosphere (one was recently intercepted in space) so the idea that terrorists could launch objects into space isn’t crazy. And that’s kind of terrifying.
Similarly, while the grandaddy of space law, the Outer Space Treaty, prevents weapons of mass destruction in space, you could have a real debate about what is a WMD. For instance, dropping a tungsten rod from space onto a single target versus a city would have different interpretations. And, finally, we discussed how it could be self-defeating to use nukes in space because they would probably have catastrophic effects for the communication systems of the aggressor. But I’ve read scenarios elsewhere about how the threat to destroy satellites might be used to cajole countries into earthly concessions - thus avoiding blowback, if a party can make a credible threat.
So the backdrop of all space law discussions really is the geopolitics of the Earth (by the way, apparently the correct term for geopolitics of space is “Astropolitics”…#themoreyouknow) And we live in a moment of a rule of law recession where countries are not keen to cooperate with each other on new regimes, as I outlined in my 2024 GeoLegal Outlook. Thus, countries are unlikely to ratify any truly global treaties on space any time soon. But that doesn’t mean space law isn’t being made.
Michael Mineiro, now of Akin but with a long track record at the White House and Capitol Hill, gave a masterful presentation drawing a line from the Law of the Sea to laws in space. He reminded the crowd that the sea is basically free except in territorial waters, historically defined by the distance a cannon can shoot because that made sense back when cannons were the core projection of force in the sea. The key point being that maximalist international laws that can’t be enforced are kind of meaningless - and instead law for global challenges is developed pragmatically. Where it took 10,000 years of evolution in customary sea law to get to today’s current principles, it only took 10 years during the Cold War to craft an international Outer Space treaty that basically forbids colonization and weaponization of the moon and other celestial bodies.
International law goes from practice, to custom, domestic regulation, and ultimately to international law, like treaties. As a result, if there’s no practice, then there is no custom and no real impetus for additional laws. Michael stressed that the law follows the private and government actors in outer space. Right now, there is little economic activity in space that has real return on investment - beyond basic transmission of data or space tourism. As economic activities expand, so will the practice, customs, domestic law, and eventually international space law.
In effect, this means that the commercial activities companies are undertaking today will fundamentally drive the needs and texture of the law of the future because they are doing practical things in outer space that are defining the facts around which law and regulation needs to develop. I wrote about this phenomenon as well in my 2024 GeoLegal Outlook theme about Lawyers in the Lead - basically, where law is emergent from corporate behavior, it is actually big company lawyers who set the ground rules. So it’s an increasingly fun time to be a space lawyer.
There is no consensus on just how big the space economy will be in the next 15 years except that it will be somewhere between the size of Saudi Arabia and India based on demand for internet, broadband, tv, as well as related ground equipment and government uses. But the fact is the race for commercial control is beginning.
Since you can’t develop explicit rules and laws for space at a time when major powers are clashing and when the private space economy is in its infancy, countries are rushing to seize their own advantage. For instance, the US has promulgated the Artemis Accords with around 30 other countries to outline its own view, basically, that space is a peaceful place you can’t colonize - but a place where you can claim resources. This may seem or be self-serving but the fact is that practice underpins international law and so if the US and allied parties begin to allow or encourage private or state-based exploration to extract rare earths and other minerals from the moon, you can expect other countries to follow suit.
Phone Home Insight
As I left the event I came away with a real appreciation for the challenges of writing law and regulation of emerging technologies - or advising companies operating amid such uncertainty. We think about this a lot with respect to AI, which I wrote about recently, or other technologies like blockchain or the metaverse. In effect, there is a need to balance existing stakeholder interests against the likely evolution of the technology, all wrapped in a quixotic aspiration for government to stay ahead or at pace with the private sector.
But while AI can be weaponized, blockchain can fund illicit activities and the metaverse could become a 3D alternative universe of vice, space is fundamentally different because it has historically been under government control and because it is already a war fighting domain.
The direction of travel for space, then, is unique - it is about governments ceding ground to private interests aligned with national interests. Those private interests will have to figure out the ins and outs of commercial activities within the spaces they are allowed to play - in effect mimicking traditional commercial activity but always at the pleasure of the governments that allow them to play.
Thus, commercial activities in space are even more beholden to geopolitics than other emerging technologies clouding the decision-making calculus further. For instance, a company may get a national license to mine the moon for minerals, which is good business until another country says no way. At which point we truly find out how geopolitics escalates to space, with commercial actors caught in the middle.
Back on Earth…
SCOTUS says Trump can run for President - The Supreme Court unanimously threw out the ability of US states to disqualify Trump under the 14th Amendment even though there was dissent on some further reaching parts of the majority opinion. Justice Barrett basically claimed this to be a victory for rule of law: "The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.” Was this purely a legal opinion or was this a shrewd move by a court whose own popularity has been flagging? Let me know what you think below. This may not be the last 2024 election issue the court decides.
Why use billable hours when you can just ask for $6bn - Lawyers representing plaintiff Tesla shareholders beat back Elon Musk’s $56bn pay package and only want $6bn of shares in return.
Litigation funding in the UK - The UK Supreme Court dealt a major blow to the litigation funding industry last summer. The UK Lord Chancellor and Justice Minister says he will introduce legislation to reverse that.
WTO - Nothing to see here - It was hard to imagine that a WTO meeting amid elections in around 70 countries would produce much - and it didn’t.
—SW