Space law professors at the University of Arizona have little regulation in a rapidly changing field

Two professors at the University of Arizona recently completed teaching a one-of-a-kind class for the school: space law and policy. Instructors included professors of law and planetary sciences, and students learned about major space treaties as well as national laws and policies. There are a few universities that offer these types of classes, but not many.

Andrew Woods was the legal half of the teaching team. He is a professor at the James E. Rogers College of Law at the University of Arizona, where he directs the technology law program.

He says when he and his friend started planning classes, they weren’t sure there would be enough demand. However, he says, student interest was surprisingly high – he even received e-mails from students asking to teach classes again next semester.

Woods talked to The Show more about the class and the field of space law in general, starting with how solid this area of ​​law is.

Full interview

ANDREW WOODS: It’s tiny. There are only a handful of law schools that have created space law programs, and these programs are, of course, quite small. But the field of space law is really – in terms of what the actual law is – it’s quite small, depending on what you look at.

So if you look at it from an international law perspective, there are five main treaties, and they were all passed during the Cold War. And then no more treaties were drawn up.

But if you look at the domestic regulatory environment – as if you were advising a satellite launch company – there are a whole host of regulations that are non-legal but still legalistic.

MAREK BRODY: It seems that there are, perhaps in some cases, two competing elements in the context of, as you described, international law. What needs to happen for domestic companies, at least in the U.S., to launch satellites or launch other craft? Do they conflict with each other at any point? Do they generally seem to coexist?

FOREST: There are ways in which they interact with each other and maybe there is a bit of conflict, although I think more often you’ll see domestic actions that are actually attempts by the United States to honor its international obligations.

Let me give you an example. So right after we landed on the moon – and, of course, our astronauts planted a big flag on the moon – Congress passed a law with no specific rules, but intended only to declare to the world that this was not a claim of territorial sovereignty. And this act that was passed by Congress to support the Outer Space Treaty. So the first major international treaty states that no country can claim the Moon as its sovereign territory, for example.

So we have an example of domestic law that was developed in direct response to our international treaty obligations.

BRODIE: As more countries engage in space exploration and more commercial entities engage in this field, is there any talk of updating or supplementing the international treaties and documents you describe?

FOREST: There’s an awful lot of conversation. I’m not optimistic that this conversation will lead to anything.

BRODIE: What areas really need to be addressed now? As we’ve talked about, more and more countries are going into space, more and more commercial entities are going into space, and technology is advancing to the point where it allows us to do things that we couldn’t necessarily do in the 1960s. Which areas are really mature to try to resolve potential disputes?

FOREST: That’s a great question. There are many issues, but if I had to pick one, it would simply be the disconnect between treaties that only talk about national space activities and the reality today of this massive commercial enterprise. The major treaties that govern the rules governing countries operating in space, all of these rules apply only or almost exclusively to sovereign countries and do not really take into account private commercial exploration and activities in space. And yet today we see that it is not the US government that is doing much more space stuff, but rather private ones: SpaceX’s Blue Origin. This is a huge, huge expansion of the private space sector. And this area was simply not considered when these treaties were drafted.

BRODIE: Where does the potential militarization of space lie in this? The US now has a space force. Other countries will likely have similar military units that patrol or do something in space.

FOREST: Oh yes. They are very active. To be clear, the United States is not the only one that has a Space Force, even if other countries have not officially announced it as a new branch of their armed forces. This is a very active area of ​​military affairs.

And as we see during the war in Ukraine, this is absolutely necessary. When you talk about Star Wars, it’s not just about the military considering military conflict in space. Although of course it’s true. But you see how much of the country’s military and territorial affairs depend on the space capabilities of nations.

The example of Ukraine was discussed extensively this semester. So Russia invades Ukraine and one of the first things they do is try to basically disable communications in Ukraine. And that includes blocking access to satellites, communications satellites.

And the Ukrainian military was able, with the help of allies, to restore many services that were disrupted by the Russian military attack. However, they have achieved this largely thanks to private sector tools such as Starlink.

And it’s just something completely new and something that the law doesn’t think about much. And that raises important questions like: Does this private company – SpaceX, which offers this internet service – what is its role and responsibility now, let’s say, under the laws of war? And from Russia’s perspective, what are the rules of engagement with this American company that helps the Ukrainian military? This sort of thing was simply not contemplated by treaty authors in the 1960s and 1970s.

BRODIE: It seems like we hear about this situation a lot, especially with new technologies, where policy just can’t keep up with the technology – that things are happening much faster than policymakers can really keep up.

FOREST: Yes, that’s completely true. I came to this class not as a space law expert. In fact, agreeing to teach the classes was partly to force myself to deepen my knowledge of space law. But I’m really coming at this as someone who writes and thinks about the regulation of technology. And it was striking to me to the extent that you just touched on, it was really striking, how often space law issues sounded similar to issues that we saw in cyberspace, on the Internet.

One of the things that happens in conversations about space law is that people try to find an appropriate analogy for outer space. You will hear conversations in which outer space closely resembles the deep seas. It is a global common property that is not owned by any country and everyone works in it.

Other times people will say, “No, no, space is more like the Arctic, where we have treaties, there are a lot of scientific studies and policies on militarization, but no one owns it.”

I actually think that space is most similar to cyberspace, where we have a global commons and a huge amount of private investment and cutting-edge technologies and innovations. But we also have this kind of overlap of private innovation, private market activity, with national security interests. And that raises a number of interesting questions, especially for the lawyer, that we haven’t really addressed yet.

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