Listner: DON'T Kill All The Lawyers, They're Needed As Uses of Space Evolve

Michael Listner, a lawyer, humorously urged the space community yesterday not to follow Shakespeare’s advice to “kill all the lawyers.”  Recounting a litany of thorny legal issues that may arise as collisions in space become more likely and flights into space of ordinary citizens on commercial vehicles become commonplace, for example, space lawyers will be needed more than ever.

Listner spoke at the unveiling of the 2012 Space Security Index (SSI) by the Secure World Foundation (SWF) and Canada’s Project Ploughshares at the Canadian Embassy in Washington, D.C.    This year’s edition of the SSI, the ninth in the series, summarizes key developments in civil and military space during 2011, including international efforts to assure space sustainability.  The latter include progress in the European-led effort to create a Code of Conduct for Outer Space Activities and United Nations-led discussions at the newly formed Group of Governmental Experts (GGE) under the aegis of the U.N.’s First Committee as well as working groups under the U.N. Committee on Peaceful Uses of Outer Space (COPUOS).

Cesar Jaramillo, project manager for the SSI report, reminded the audience of how space security is defined for purposes of the annual report: “the secure and sustainable access to, and use of, space and freedom from space-based threats.”   He reported that nine countries now have indigenous space launch capabilities and the barriers to entry for other countries to join the space club are decreasing.  Although there are more than 165 dedicated military satellites in orbit today, about half of which belong to the United States and another 25 percent to Russia, none are space-based weapons, he said, emphasizing that no space-based weapons have ever been launched to date.

Other speakers focused on significant developments over the past year in civil, commercial, and national security space.  Carissa Christensen of The Tauri Group revealed that her company is close to releasing a study on the suborbital launch market that it prepared for the Federal Aviation Administration (FAA) and Space Florida.  It concludes that there is “real demand” for flights by “leisure travelers” on suborbital vehicles at the price point of $100,000-200,000, noting that the term “space tourist” has fallen out of fashion.  She added that the study does not look at the business plans for the various companies building such vehicles, however, so apparently does not comment on how many companies can be supported by the expected market.  Another growth area for space endeavors is nano- and micro-satellites, she said, with the possible launch of as many as 100 satellites weighing less than 15 kilograms in the next decade mostly for governments and universities.

Implementation of the five pillars of the National Security Space Strategy has been the focus of the U.S. national security space sector since the release of the strategy in early 2011 according to Audrey Schaffer of the Office of the Deputy Assistant Secretary of Defense for Space Policy.  She also noted progress on the international front in Space Situational Awareness (SSA), with bilateral “statements of principles” signed with Australia, Canada and France in addition to progress at the GGE and COPUOS.   The U.S.-Canada agreement includes Canada sharing SSA data from its upcoming Sapphire mission with the United States, for example.  The two countries have cooperated in the area of aerospace warning and control through the bi-national North American Aerospace Defense Command (NORAD) since 1958.

The potential of U.S-China space cooperation was another topic discussed yesterday.   In response to a question from panel moderator Victoria Samson, Director of SWF’s Washington office, Schaffer disagreed with Samson’s assumption that any such cooperation is years away because of the current politically “toxic environment.”   Schaffer pointed out that the United States provided SSA support to China for its recent Shenzhou 9 mission and that counts as cooperation.  Jaramillo agreed, adding that the U.S. Joint Space Operations Center (JSPoC) notifies China of potential conjunctions (collisions) with space debris.  (U.S. government officials have highlighted in other venues that JSPoC lets China know when debris from China’s 2007 antisatellite test poses a threat to Chinese satellites.)  The Obama Administration favors at least a dialogue with China about space cooperation, but influential members of Congress, including Rep. Frank Wolf (R-VA), who chairs the appropriations subcommittee that funds NASA and the White House Office of Science and Technology Policy (OSTP), vehemently oppose it.

As for the importance of lawyers for resolving legal and regulatory questions in the years ahead, Listner, a consultant with Space Law and Policy Solutions in New Hampshire, cited several examples:  potential legal claims from collisions in space or the reentry of satellites such as 2011’s UARS, ROSAT and Phobos-Grunt; whether passengers on commercial spaceflights are entitled to the “privileges” accorded to astronauts under the 1968 treaty that governs the rescue and return of astronauts; defining the terms “space” and “space debris” — noting that the media refer to asteroids as space debris, for example; determining when a nation “expressly abandons ownership” of a space object as capabilities are developed to remove debris — however it is defined — from orbit since “there are no salvage rights akin to maritime law” in space; and, broadly, whether the current body of space law adequately addresses commercial space activities at all.

The Executive Summary of the 2012 Space Security Index, along with several fact sheets on specific issues covered in the report, are available on SWF’s website.   SWF also usually posts audio recordings and powerpoint presentations from meetings like this, so may be available in the days ahead.