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Episode 85
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Substantive Law
Extraterrestrial Jurisdiction: Regulating Outer Space for the Benefit of Everyone
Law as stated: 30 March 2023
What is this?
This episode was published and is accurate as at this date.
Duncan Blake joins the podcast to tackle the increasingly congested, competitive, and contested arena of outer space. Including why it's important we regulate space now for the benefit of everyone and how to get involved.
Substantive Law| What area(s) of law does this episode consider? | Developments in space law. |
| Why is this topic relevant? | The reality of space exploration in the 21st century is vastly different to the 20th – when mankind first touched the stars. Because a wider array of modern players operate in the field; including potential adversaries and, recently, corporations. It can be tempting to set and forget the idea that space and space exploration will also require regulation, because it can feel like a problem for the future. But preparing for exploration and conflict in space and, more broadly, understanding outer space and regulating it is an entire new segment of legal practice. |
| What sources of law are considered in this episode? | Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) Space Resource Exploration and Utilization Act of 2015 (United States) |
| Duncan’s Challenge | “I’ll put a challenge out to whoever is listening – I would love someone to find a way to get the community broadly engaged in regulatory issues for space. Because like I say outer space is for everyone. And the Australian Space Agency can hear from lawyers, can hear from space and tech entrepreneurs, but there’s not really a good body for them to hear from the community at large. And I would like there to be such a body.” |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | The Artemis Accords: Principles for cooperation in the civil exploration and use of the moon, mars, comets and asteroids for peaceful purposes Outer space is for everyone Woomera Manual on the International Law of Military Space Activities and Operations |
| David Turner:
1:00 | Hello and welcome to Hearsay the Legal Podcast, a CPD podcast that allows Australian lawyers to earn their CPD points on the go and at a time that suits them. I’m your host David Turner. Hearsay the Legal Podcast is proudly supported by Lext Australia. Lext’s mission is to improve user experiences in the law and legal services and Hearsay the Legal Podcast is how we’re improving the experience of CPD. Today we’re talking about space law. And it can be tempting to think that the regulation of space and space exploration is a problem for the future. But that future is today, and as technology improves and proliferates as more countries and companies get involved, conflict over space in its vast resources will continue to increase. Now preparing for that conflict, understanding it, and regulating it is an entirely new segment of the law and indeed of legal practice. And my guest today has spent 22 years as a legal officer in the Royal Australian Air Force – the RAAF – has served as the Deputy Director of Operations and International Law for the Department of Defence, and now works as special counsel at the International Aerospace Law and Policy Group – or the IALPG – as well as lecturing and researching at UNSW, which I’m looking forward to asking you about soon. His name is Duncan Blake. Duncan, thanks so much for joining me today on Hearsay. |
| Duncan Blake: | Thank you very much. It’s good to be here. |
| DT: | Now as I alluded to in the intro to this episode, you’ve had a pretty interesting career working in the law and in space law in particular. Tell us a little bit about your career journey to where you are now. |
| DB: 2:00 | So, I studied at University of Western Australia in 1992 to 1996, and just before then there was the first Gulf War, sometimes known as the first space war. So that was inspirational. Also during that period was the Bosnian War and the Srebrenica Massacre and the failure of the Dutch battalion or the incapacity of the Dutch battalion there with the United Nations to do anything about that massacre. And there was a lot of talk of rules of engagement, laws of arm conflict, UN Security Council resolutions. That all sounded really fascinating to me. So, I heard about the undergraduate scheme, and I wanted to – in a way – try before you buy. So, I decided to join the Army Reserve and I did recruit training initially. And it’s amusing, I got off the bus in my civilian clothing together with a whole lot of other people in civilian clothing. We were told to line up and, as we lined up, almost immediately there was a Corporal in front of us, nose to nose shouting insults at us. And that’s not for everyone but it was so much like a movie I found it hard not to laugh. Thankfully I didn’t laugh. |
| DT: | That did conjure R. Lee Ermey in Full Metal Jacket as you described it, I have to say. |
| DB: 3:00
4:00 | Yes. So, it’s not for everyone. I went on to do officer training at Royal Military College in Duntroon and had a very short stint as infantry platoon commander in 16 Battalion Royal West Australia Regiment. And then I was accepted into the undergraduate scheme in February 1995 – fantastic thing where you get paid while you’re studying. I got to do a lot of familiarisation visits, or a few familiarisation visits, but then in defence worked for a variety of units. So, 82 Wing at that time had F-111 aircraft at RAAF Base Tindal working with a 114 Mobile Control and Reporting Unit. So, people who go out deep in the bush with a reporting post, a radar, as well as 75 Squadron – so the F/A-18s. And then I worked at 81 Wing with more F/A-18s. That was during 9/11. And immediately after 9/11, I deployed on one domestic operation where our jets were flying in circles above the Commonwealth Heads of Government Meeting in 2002 to protect the very, very important people. And then in 2003, deployed to Al Udeid Air Base in Qatar in respect of operations in Iraq. So that was the second Gulf War. I was a military prosecutor for a while. I did a Command and Staff course, which is kind of like doing an MBA – a Master’s of Business Administration – but for defence people. |
| DT: | Yeah, right. |
| DB: | And then I worked for Directorate of Operations in International Law. I deployed again to the Middle East, to Al Minhad Air Base near Dubai. I went to McGill University, paid for by defence, which was a fantastic opportunity to study space law – McGill University in Montreal in Canada. It’s one of the places to study space law in the world. I worked for a little while in an office in defence with a wonderful acronym the Defence Space Coordinating Office or DSCO. |
| DT: 5:00 | That must be intentional. |
| DB: | Yes. They had a disco ball in the roof. And unfortunately, that office disappeared, it got much larger and became Defence Space Command, but it’s a pity there’s no DSCO anymore. And I worked as well on the development of a – we call it a joint operating concept for military use of space. So, thinking about how we’re going to use space for the next 10 to 15 years. So that was my career in the military and then I got out. It was to do with something called the Woomera Manual Project, which I guess we might talk about later. |
| DT: | Yeah, well, let’s talk about that now actually, because you mentioned McGill University, that’s where you got one of your two master’s degrees in law. |
| DB: | Right. |
| DT: | And I understand it was there that you did some research into the need for the Woomera Manual. Tell me a little bit about what that is and what you’re working on with it now. |
| DB: 6:00
7:00
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9:00 | So, the Woomera Manual Project is about clarifying the application of international law to military uses of outer space. And there’ve been a number of similar efforts. Some of the listeners might be aware of the San Remo Manual to do with armed conflict at sea, the Harvard Manual to do with air and missile warfare, the Tallinn Manual to do with cyber warfare. So they all involve a group of experts coming together – and not in a representative capacity. And it’s really important that they are not in a representative capacity because if you have a number of government representatives come together in a representative capacity, then of course they’re going to represent the views of their particular nation. And then it becomes a question of what their nations want the law to be, as opposed to what the law actually is. So, these people come together in a non-representative capacity and seek to draft a number of rules representing what the law is right now. They tend to be very pithy statements of the rules. So, a single sentence or maybe more than one sentence, but then accompanied by a detailed commentary, several pages of commentary. And when you’re uncertain about the application of an area of law to an emerging activity, like military space activities, you could go searching for a whole lot of journal articles and books, et cetera and consolidate that knowledge yourself but if somebody’s already done that for you then it’s so much more convenient. And in international law we talk about sources of international law and the writings are the most highly qualified publicists. So subsidiary means of understanding what the law is. They’re not necessarily a law. They’re not necessarily a source of law unto themselves. And it’s not that the experts involved in these manuals assume that they are the most highly qualified publicists, but it’s an indication of the convenience of finding this all in one place. So that’s an effort that, in a way, started with my master’s thesis and I managed to get a philanthropist from the United States – but she does quite a bit to do with Canada as well – lady called Cynda Arsenault. And when I was at McGill University, she was interested in this and decided to provide funding for it so that was what kicked it off. But my thesis was titled A Manual of International Law Applicable to Space Warfare and she looked at this and she said; “I can see why something like this is important, but I can’t go to my philanthropist friends with a title that has warfare in space in it.” So, we talked about changing that and I proposed “Manual on International Law Applicable to Military Uses of Outer Space” and that’s become known by the acronym MILAMOS. Unfortunately, the people involved in the MILAMOS project and the Woomera Manual Project split. And there’s a story to do with that, that is challenging to tell, but it’s to do with my PhD thesis. They split; they have different foci now. The Woomera Manual Project is focused on armed conflict in space, but also military activity short of armed conflict in space, whereas MILAMOS is focused just on those military activities short of armed conflict, so it doesn’t extend into armed conflict. So, they have different foci. |
| DT: | Thank you for that explanation. Now, in addition to your research work, your teaching work and your history in military and space law, you also work as special counsel at IALPG in private practice. Tell us a little bit about the sort of work that you’re doing there. |
| DB: 10:00
11:00 | Yeah. So, the space industry in Australia and in fact globally is booming. There is what we sometimes refer to as NewSpace. So, it’s not just the government space agencies, the military forces, the major primes anymore. There are a lot of start-ups and small to medium size enterprises backed by venture capital. The billionaires that we know about, like Elon Musk and Jeff Bezos and Richard Branson, universities as well. Australia reflects this global boom as well. There are a lot of space start-ups, and they need help with things like export control laws or permits, licenses, certificates to do with space activities – so getting permits and licenses from the Australian Space Agency, but not just from the Australian Space Agency. There’s a lot of different laws that apply to space activities, potentially including, for example, laws to do with use of the electromagnetic spectrum. There’s liaison with authorities. Sometimes start-ups want to understand better the framework applicable to military space activities. So, I help with that. Some advocacy to do with regulatory development because it’s still a relatively underdeveloped area of regulation. That’s what I do although the principal of the law firm that I work with – a guy called Joe Wheeler – he works on the aviation side a bit more. And he’s represented clients to do with MH17, MH370, Boeing 737 Max, et cetera. |
| DT: | Wow. |
| DB: | So, we do a bit of that as well. |
| DT: | So, your career in military law and now working on commercial uses of space really demonstrates the evolution of space law. That it’s started as a domain of jurisprudence or of regulation really concerned with the military use of space, especially in the 60s and 70s, but increasingly there’s commercial use, private use, non-government use of space. I think it’s interesting that your career and even your work today in both the Woomera Manual Project and your private practice work demonstrates that dichotomy. |
| DB: 12:00
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15:00 | Yeah. Yeah, exactly. So, the space law though didn’t focus too much on military activities in outer space and there’s a debate. A part of my PhD thesis in fact is about the extent to which the Outer Space Treaty, for example, extends to military activities in outer space. But there’s no doubt that space was militarised from the beginning. Even before Sputnik, even before the Outer Space Treaty, the first human made objects in outer space – put there deliberately that is – were the V2 rockets that were used during World War II. TIP: Those rockets that Duncan just mentioned – the Vergeltungswaffe Zwei or V2 – were developed by the Germans at the tail end of the Second World War and fired at Allied targets like London. There was nothing else like them at the time – they were larger and had greater range than anything developed previously. In the aftermath of World War II some of the scientists – along with the remaining hardware – were transported to Allied countries, including the Soviet Union and United States, for continued development. So, their trajectory was high enough that they went into outer space at some point during their parabolic arc or their ballistic trajectory, I should say. But the Outer Space Treaty really was a product of the Cold War and of the race to the moon between the Soviet Union and the United States. And there were certain things that those two nations wanted to set down in concrete, so to speak. So, for example, the non-appropriation principle, the idea that you can’t claim any sovereignty over any celestial body or any part about a space and other things like that space is the province of all mankind and that astronauts should help one another. There’s a variety of articles in the Outer Space Treaty that we could go through but not a lot of these particularly focused on military space activities. Working out how something like the Outer Space Treaty applies to military space activities is complex. The Outer Space Treaty was negotiated in 1967 and things have changed significantly. The Outer Space Treaty is articulated in pretty broad terms though, so it’s not as though it’s obsolescent. It’s just a question of how to apply those broad terms to more current circumstances if you like. And the space industry, as you say, has changed. And as I mentioned before it’s not just the government space agencies that we’re familiar with like NASA, the European Space Agency, the Chinese, Japanese, Russian, Indian, French space agencies – they’re perhaps the most well-known. But new ones like Australia, New Zealand, UK, even somewhere like Nigeria, Rwanda, Argentina. I could go on. There’s lots of new space agencies. |
| DT: | Now, firmly in the devil’s advocate corner here so don’t judge me too harshly for this question – and you’ve answered it to a degree already. But if I were to say to you; “well, that Outer Space Treaty has been in place for 55 years as of January this year. There were some conventions that followed it, like the Space Liability Convention, exactly one claim under that so far in history. Sure, there’s some eccentric billionaires planning to launch themselves into space, sure there’s the activities of the large space fearing nations that we’ve been familiar with for about 55 years, but really so far as commercial activity and space is concerned, so far as the widespread relevance of a space law is concerned, we’re not there yet. It’s an area of study, an area of interest for the future”. Tell me why I’m wrong. |
| DB: 16:00
17:00
18:00 | We’re highly dependent on outer space. It brings us so many conveniences for perhaps people more in my generation than others. They might remember the TV show on ABC Towards 2000 and Beyond 2000. They probably didn’t imagine a lot of the ways in which space provides us with convenience and dependence and things like weather, agriculture, remote mining, utility networks – so electricity, water, gas, sewerage, phone, internet, live TV, entertainment, our smartphones, logistics, package delivery – very important during COVID, of course – and even beyond our smartphones. And that’s for the person in the street. And then for the military, the drones or remotely piloted aerial systems wouldn’t be able to work without space. Precision guided munitions, communications at the tactical, operational, and strategic levels, position, navigation and timing, logistics. All of this is really important, and those things are put at risk by the degree of commercialisation, the degree to which space is increasingly contested as well. So, there are the challenges in the space domain. There’s usually an alliteration of three Cs that are used. So, space is increasingly congested, competitive, and contested, and that’s certainly true. In addition to those there’s questions about resource exploitation which is important if we’re running out of rare earth materials or not. So, not so much running out of them, but they have all been dug up and processed in other forms and difficult to recycle back. So, if we want to get some rare minerals, for example, or we want extra energy or we want to go beyond earth orbits, then we need to think about resource exploitation and we need to think about human settlement beyond Earth as well. So, these issues need to be addressed and, yeah, no, sure, billionaires can put a car in space for a laugh or fill whole orbital shells with mega constellations. The Russians have tested anti-satellite missiles in November 2021, there was an Israeli tech entrepreneur that put something called tardigrades – a little microscopic creature – on the moon and maybe in the future there’ll be a satellite that’s abandoned by an Aussie entrepreneur that causes a cascade of collisions. And we need to have a regulatory framework that deals with these sorts of things because if we don’t, then those conveniences and our increasing degree of dependence on the space domain is going to go away and we will be put back decades. |
| DT: | Great and comprehensive answer to my devil’s advocate question there. I think every one of our listeners relies on some object in outer space every day for their daily life. |
| DB: | Absolutely. |
| DT: 19:00 | And those three Cs are probably a great intro to my next question, which was about the topic of your TED Talk. Now the topic of your TED Talk was that “outer space is for everyone”. I can certainly see how outer space becoming increasingly congested, contested, and competitive might threaten that status. So, tell me a little bit about what you discussed in your TED Talk and a bit more about those three Cs. |
| DB:
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22:00 | Yes. My TED Talk really was about that change in the space industry. So, from the typical government space agencies like NASA and European Space Agency and the fact that there are a growing number of other states in the world that are involved – and Australia is one of those, but there are a lot of other countries that you might not expect. Nigeria, perhaps, Argentina, Brazil, Malaysia, Singapore, Luxembourg, United Arab Emirates, Turkey – all have a space agency now. And although we’re probably familiar with the fact the United States now has a Space Force, they have had space units for a long time, as have Russia and China. But there are new space commands in Australia, UK, Japan, Canada, France, Germany, et cetera. So, there’s a change in respect to military forces, there’s a change in the commercial sector as well. So, we used to think of space as dominated by the major primes like Boeing or Arianespace and Airbus, Lockheed Martin, or United Launch Alliance, et cetera. But now we’re more and more familiar with SpaceX – Elon Musk being the billionaire behind that. Jeff Bezos behind Blue Origin, Richard Branson was behind Virgin Orbit, but just in the last week he’s no longer behind Virgin Orbit, and Virgin Orbit was facing bankruptcy – but I think they might have found a lifeline in respect of that. But in addition to those, you also have a lot of start-ups and small to medium size enterprises that are backed by those venture capitalists. University graduates transitioning their bigger ideas from research to commercialisation and going through the start-up phase, which is a very challenging journey and universities themselves. And so in that sense you could say that outer space is for everyone but the fact is, and I talked before about Elon Musk putting a car in space and having a mega constellation and the Russians doing an ASAT test and the Israeli tech entrepreneur putting tardigrades on the moon and when you stop to think about that, there’s a stunning amount of hubris involved in that! As though it was yours to do with what you will. The fact is everyone has an interest in space, and it was to do with that dependence that we all have, the convenience that we draw from it. And, it ought not to be the case that we are jeopardising the convenience and the dependence of next and future generations. Our actions today have implications for them and in that sense, outer space is for everyone, and everyone should be empowered to have a say about what happens in outer space. |
| DT: | You talked about a “race to the bottom” in your TED talk as being a threat to that ideal. Tell me what you mean by a race to the bottom and why we need to avoid that happening. |
| DB: | Yeah. In retrospect, actually, I regret that phrase. It’s probably more correct to say there’s a failure to regulate prospectively – rather than a removal of regulatory barriers for economic advantage. The race to the bottom idea is drawn from an analogy from the maritime industry where some listeners might be familiar with the concept of flags of convenience. So jurisdictions who have a low regulatory burden. |
| DT: | Why a lot of vessels are registered in Panama, for example. |
| DB: 23:00
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26:00 | Right. Exactly. But there’s danger in analogies and maritime ports are not necessarily a good analogy for spaceports. The latter – spaceports – are a lot more challenging than a maritime port. I mean, you can put a maritime port on your coast, but not everywhere is going to suit a spaceport. Quite typically a lot of spaceports are near the equator. There’s advantage in being near the equator because you get more momentum from being near the equator and it’s easier to go into certain orbits. And, depending on your latitude, you’re going to have limitations potentially on what orbits you can go into. But there’s also the fact that if you fire a rocket over populated areas that’s potentially a dangerous thing. So quite often they’re looking for spaceports that can be located in a way that there’s a lot of trajectories that head out over water. Which works for now, but you can imagine how even that in the future might be something we need to revisit. So those sorts of factors limit the jurisdictions that really need to have a full space regulatory framework. There’s also Article VI of the Outer Space Treaty – is a provision that says that national governments have to be responsible for all national space activities, including commercial space activities. That was largely the foresight of the Soviets during the negotiation of the Outer Space Treaty. Probably for political reasons, but it turns out to be a very good thing. And one of the impacts of that is it gives extra-territorial application to space regulatory frameworks. So, for example, the US space regulatory framework has a very broad extraterritorial application. In fact, any of them do, because the national regulators are responsible not just for regulating space activities off their shores, off their territory, but space activities of their nationals as well wherever those space activities occur. Incidentally, that also gives rise to some difficulty in terms of reciprocal recognition of, for example, permits and licenses and things like that. The ideal would be to have more reciprocal recognition to reduce the regulatory burden. But there is an impetus against proactive regulation to avoid foreseeable issues that arises from a lack of global governance because there is no global governance of space activities. And so, it comes down to a question of which national jurisdiction is going to move first. So, for example, to limit what you might call land grabs for radio frequency. And there’s been a suggestion made that, for example, Elon Musk with a mega constellation of 12,000 satellites and saying that he’s going to launch another as many as 50,000 satellites is not a genuine plan to launch 50,000 satellites, but rather a means to secure access to frequency. |
| DT: | Right. |
| DB: | And there’s some inequity involved in that. Another example might be insisting on propulsion for deorbiting. So, if you’re going to put up a small satellite, you don’t want that satellite to become space junk in the future. So, a regulator might insist that small satellite has some means of propulsion, so that it can be deorbited in the future and not become space junk. But if you’re a start-up and you’re trying to get something into space as cheaply as possible, every extra component is more cost when you put it on a launch vehicle. So, there’s a sort of impetus against proactive regulation by regulators. |
| DT: | And that’s really endangering the long-term usage of outer space. |
| DB: | Right. |
| DT: | You mentioned figurative land grabs. Let’s talk about literal ones as well. |
| DB: | Yes! |
| DT: 27:00 | Because there are now some and it’s timely that you mentioned that extraterritorial application of domestic law because there are some domestic laws concerning the ownership of space resources. The United States passed the Space Resource Exploration and Utilization Act a while ago now, actually 2015. Now I’m not a space lawyer so when I read that and I read the Outer Space Treaty which most countries, especially most space faring countries have signed, and the Moon Treaty, which almost no one has signed, both have in common this kind of utopian ideal of non-ownership of outer space… |
| DB: | Yes. |
| DT: | … of not claiming sovereignty, of certainly not claiming private ownership and mirror, in that sense, the Antarctic Convention. This idea of an untouched, unowned part of our universe that should remain that way. So how do those treaties, one of which very relevant to the interaction of state actors and non-state actors, and one of which hardly relevant at all, really. How do they interact with that domestic legislation? |
| DB: 28:00
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30:00 | Yeah. The evolution of the Antarctic Treaty and the Outer Space Treaty is really very interesting. So, you know, at the end of World War II, you had US and the Soviet Union realising that technological development was the key to their superiority. And so, the scientists had a lot of influence. And 1957, scientists proposed that 1957 become the International Geophysical Year, a special year to look into geophysical things and nations planned a number of different things. One of the things the Soviets planned – and they were already doing it for a bunch of other reasons – was the launch of Sputnik. TIP: Sputnik 1 was the very first man made satellite. Launched on 4 October 1957 by the Soviet Union it was a watershed moment in space technology and it meant panic stations for the USSR’s rival the United States. The general feeling was that the Soviets had beaten the US and the West more widely to the technological punch and the launch – subsequently called a crisis – caused huge amounts of anxiety in Washington and other Western capitals. Much like our linguistic tendency to add the suffix “-gate” to any minor political scandal following Watergate (remember “Utegate”?), a “Sputnik moment” can be used to describe a watershed moment in technology. For example, it might be said that OpenAI’s ChatGPT was a “Sputnik moment” for commercialised AI – bigger and better than anything before it, and dismaying competitors. So that was part of this international geophysical year. But as far as Antarctica was concerned, and this is relevant to the Outer Space Treaty, they have a close relationship with one another, the Soviet Union in the United States didn’t have territorial claims in Antarctica, but Australia and a bunch of southern hemisphere nations did have claims in Antarctica and there were instances of small scale disputes going on between claimants in Antarctica. And the scientists were concerned that this was getting in the way of all of the scientific benefits that could be drawn from going and doing science in Antarctica. And so, they proposed a treaty framework. The United States, and to a lesser extent, the Soviet Union championed that to some extent because they didn’t have a claim there, but they wanted the benefits of the scientific advancement that could come from exploring Antarctica. And there were a lot of analogies that can be drawn from exploring outer space as well and I’ll come to that in a moment. But the outcome was that there was a proposal to freeze the claims in Antarctica. |
| DT: | Appropriate metaphor. |
| DB: 31:00
32:00 | Yes. The term that is often used quite deliberately in respect of Antarctica. But it wasn’t enough that those claims were frozen because if you said those claims are frozen, but you can carry on with your military activities as you like, then states would be in a position to continue to, in a practical sense, enforce their claims or fortify their claims. So, it felt important in conjunction with freezing the claims to say that Antarctica should become non-militarised. So, in fact, Article 1 of the Antarctic Treaty is about non-militarisation of Antarctica, and that was extended into outer space as well when it came to negotiating the Outer Space Treaty. Initially the United States didn’t want to negotiate a treaty for the whole of space. They wanted to negotiate a treaty specifically to do with the moon, but the Soviets said, “oh, we think it needs to be to do with the whole of space.” And the same sort of ideas were transferred from the Antarctic Treaty to the Outer Space Treaty. So, if you look at Article I of the Antarctic Treaty – almost mirrors completely Article IV of the Outer Space Treaty. And so it’s not just a question. So, in the Outer Space Treaty, you have Article II, which is a bit like freezing claims in Antarctica. Article II says, and I’ve got it here, so I’ll read it out, it’s very short; “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means“. And so that seems to be an impediment to any sort of commercial utilisation for what you can dig up on the moon. |
| DT: 33:00 | Because the treaty prohibits sovereign ownership of the moon but if there’s no government body that can own it, how can you receive a grant of it? |
| DB: | Right. Exactly. And I’m glad you put it that way because quite often people put it slightly differently and say; “okay, so it’s the case that governments can’t own it. But private parties can own stuff”. The problem with that proposition is if you’re a private party and you claim ownership, then who’s going to enforce your ownership for you? |
| DT: | Who recognises your ownership? Yeah. |
| DB: | Who recognises your ownership? So, the fact that governments do or do not have ownership is very important to private ownership. |
| DT: | Makes a lot of sense in a country like Australia, where we have the notion of a literal sovereign. We have Crown grants that – deriving our source of law from English medieval law – all land belongs to the Crown, and it’s granted to individuals… |
| DB: | Right. |
| DT: | … on terms that, I guess as a heuristic, it makes sense to make that link between government ownership and private ownership. |
| DB: 34:00
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36:00 | Absolutely. Absolutely. And it relates to another concept. So, I’m going to use some Latin terms, whether outer space is res nullius or res communis. A thing owned by no one or a thing owned by everyone – the community. Some are dismissive of these old Roman concepts. But in fact, there are indigenous approaches that are far older than the Roman concepts. And property, as we understand it, is a relatively new thing in human society. It’s entwined with the evolution of the modern state and with capitalism. And it’s difficult to disentangle those sorts of things. But it relates to the question of who gives permission. Actually, I’ve missed a little bit – I’ll explain the idea that you can actually have ownership of extracted resources. So, the analogy that is often used is fishing on the high seas… So, if you take the fish from the high seas, you’re not making a claim over the high seas – you’re just making a claim over the fish that you’ve extracted from the high seas. There are problems with that analogy as there are with any sorts of analogies and if you think about it too long, you’ll discover those problems. But that’s the argument that is often put by US Congress and US government saying that there can be private ownership over extracted resources. There are many problems with that, and a number of problems is that we are extending this notion of property as it has been developed in conjunction with the sovereign state and with capitalism. And it’s a pity that we haven’t thought more deeply about that. It would’ve been better if maybe we could draw on Indigenous knowledge to think about different approaches to relationship with any form of terra firma. It’s not that I want to come across as antagonistic to commercial realisation of space and the great benefits of space because commercial entities can do wonderful things. But I think we could have tried a bit harder in respect of the regulatory regime. |
| DT: | We had a fresh start that we might have missed. To understand the analogy, I suppose you’re saying it’s not that you own the part of the moon on which – because we’re talking about here, for example, lunar mining – we’re not laying claim to the plot of earth… it’s hard to use these terms when we’re not talking about the Earth! |
| DB: | Yes. |
| DT: | We’re not laying claim to the section of the moon on which we’re conducting the mining operation, we’re laying claim to all the beryllium we extract, for example. So going back to the American Act that was passed in 2015. How does that work? |
| DB: | Of course, the US Congress and the US government say it works perfectly. |
| DT: | Naturally! |
| DB: | Because they overtly say in the Act that private entities can claim ownership over extracted resources. And they add the phrase to the extent that it’s not incompatible with the obligations of the United States under the Outer Space Treaty. |
| DT: | Oh, that old chestnut! |
| DB: 37:00
38:00
39:00 | So, they have this kind of theoretical carve out. But the US government has been very clever with something called the Artemis Accords. So, some people might be familiar with the plans of NASA in particular to put the next person on the moon, and the first woman, and the first person of colour on the moon. That’s part of the Artemis Project. And the Artemis Project has ambitions even beyond the moon. And in the context of that, they have promised commercial entities – I can’t remember the exact figure – but I think thousands of dollars per kilo of water if commercial entities could produce some water taken from the moon. And that water would provide oxygen for breathing, for rocket fuel, for power generation, and of course water that would be needed. And in fact, the NASA administrator was here in Australia just last week, and was saying exactly these sorts of things. And Australia’s signed up to the Artemis Accords, which is an intergovernmental arrangement that parties or countries involved in the Artemis project are expected to commit to. And the Artemis Accords specifically put the US view that private ownership over extracted materials is consistent with the Outer Space Treaty, and if you’re trying to change or influence the understanding of international law, then doing something like that – the Artemis Accords – is exactly the way that you do it. TIP: The Artemis Accords are a non-binding multilateral agreement that – as at the end of 2022 – has 23 countries and one territory as signatories. Its full title is the Principles for cooperation in the civil exploration and use of the moon, mars, comets and asteroids for peaceful purposes. And its purpose is to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program”. |
| DT: | Well, it’s really what you said earlier in the context of your TED Talk, it’s really about who moves first. |
| DB:
40:00
41:00
42:00 | Right. Yeah, so the US has moved first and what they’re proposing could drive an economic boom. And it’s great to think of the economic boom that could arise from this sort of thing. But as I say, I think there was an opportunity and I think there still is an opportunity to think about different approaches that we could take. So, the same Artemis Accords, for example, also set up something known as safety zones, which sounds innocuous and perfectly sensible. If you have a facility on the moon, you don’t necessarily want others getting too close because it may be unsafe. Especially if you have astronauts on the moon, your astronauts, their astronauts, et cetera. Part of the reason it would be unsafe, for example, is that the lunar dust – the regolith – that might be kicked up by any activities. The regolith tends to be quite abrasive. And if you’ve got life support equipment that is necessary to the survival of the astronauts, then that regolith could degrade that life support material. And the likelihood that nations could be operating in close vicinity to each other on the moon is quite likely because there are certain areas… if you’re going to have sustained human habitation on the moon, for example, you want a couple of things. You want access to energy. Which probably means you want to be somewhere where you can see the sun at full blast, so you put up solar panels on the edge of a crater, for example, and generate lots of power. You also want areas in permanent shadow because the moon doesn’t have the atmosphere around it the earth does. It heats up and cools down quite quickly depending on the aspect of the sun relevant to particular areas. And so, any water that is going to survive, any ice that is going to survive, would only be in areas of permanent shadow. So, you’ve got to find the edge of a crater for that energy. You’ve got to find areas of permanent shadow, and you’ve got to find areas where for other reason there might be water. And when you do your surveys of the moon, and those surveys are still going on – they’re relatively small areas. And so unsurprisingly within the last 12 months, the US has said; “here’s the area that we potentially want to set up moon stations“. China has said the same thing and some of them are exactly the same areas. So, when it comes to the US, for example, in the Artemis Accords saying; “we need to have safety zones”. You might understand the cynicism of the Chinese about those safety zones. And whether those safety zones are really just a de facto assertion of sovereignty. |
| DT: | They start to sound a bit like an EEZ or some kind of exclusion. |
| DB: | Exactly. Yes. |
| DT: | Something we’ve talked about in this interview a few times is the age of some of the instruments that we are describing. They’re from the ‘60s or ‘70s. The most recent legislation, domestic legislation, that we’ve talked about is from 2015. But the pace of technological advancement in part driven by all of that venture capital flowing into this field – and those clever university graduates starting space start-ups – means that the pace of technological innovation in space is really fast. So how is regulation and law, international or domestic, keeping up with the technology in this field? |
| DB: 43:00
44:00 | I don’t think that technology is as big a problem as maybe we make it out to be. And part of the reason I say that is because the commercial realization of research is sometimes frustratingly slow. The scope of what is theoretically possible is often far in excess of what is commercially viable. So, these university graduates coming up with great ideas about research that they can commercialise at some point have to convince a venture capitalist. And that venture capitalist gives them a reality check and says; “I’m not sure if we can make this commercially viable“. So, some people might have heard the term “technological readiness levels“. It’s a term that comes from NASA and the idea is that you start at a technological readiness level of zero or one where somebody has a bright idea, but it’s no more than a bright idea all the way up to – I think – it’s seven where something is actually being sold regularly as a commercial product. And there are all sorts of steps in between. So, to take an example. There are a number of start-ups around the world who are looking at means of active debris removal. Removing debris from earth orbits. And there are a number of ways that you could do that. There’s a UK company working with the European Space Agency who have deployed a net to catch a piece of space debris, they’ve used a harpoon. There’s ideas of an electromagnetic tether like a strong magnet. A mist; putting a mist in front of a piece of debris. All of these sorts of things. |
| DT: | How would the mist work? |
| DB: | It would slow it down. |
| DT: | Oh, I see. It’s an environment in which any friction helps right? |
| DB: 45:00
46:00 | Right. Exactly. So we tend to think of space as having no atmosphere. In fact, in earth orbits there is some atmosphere, and that presence of some atmosphere is largely the reason that objects deorbit – that’s in low earth orbit. In higher earth orbits, it might take millennia, if ever, before something deorbits. So, it’s pretty important. And so, there’s this technology that is coming downstream that is always quite foreseeable. But the question is whether it’s appropriate to regulate as soon as we possibly can. I mean, it would be nice to regulate these things in some ways as soon as we can foresee a potential problem. But I could understand the reticence of regulators to want to wait to understand the commercial manifestation of new technology before they actually regulate it. And this is probably where I would put in a plug for ethicists. Because we need integrated ethicists because the regulation is not something that maybe ought to happen immediately. There is a need to wait and see how things turn out. But I’ll give you an example. So, an Israeli company was planning a mission to the moon, and they actually crashed something on the moon. They actually had planned to land it on the moon but didn’t quite make the landing and it crashed. And this company got the appropriate licenses and permits, et cetera. But after they had got the licenses and permits, they decided to put some tardigrades, these little microscopic creatures… |
| DT: | They’re also called water bears. |
| DB: | Water bears. Yeah, exactly. They put some of these … |
| DT: | Impossible to kill, almost indestructible, right? |
| DB:
47:00 | Right, right. And they put some of these in resin and they thought it’d be cool. It’d be cool to put them in resin and put them on the moon. And, of course, this thing crashed. And so, I don’t know just how indestructible tardigrades are, but in theory, you’ve got these tardigrades on the moon that were not there beforehand. And yes, they could probably point to the regulatory framework and say; “tell me where there’s something that says I can’t do that”. And they’d be right. There’s nothing that specifically says you can’t do that, but they decided to go ahead and do it anyway. And so, regulation can’t necessarily keep up with that sort of thing. And that’s why we need ethicists I think that are integrated. So there’s a sort of whole design cycle that is used in the space environment. They have phrases like “preliminary design review“, the “critical design review” and et cetera. The ethicists, I think, need to be in there all the time involved in that. Talking about not just about whether a thing can be done and not just about whether it is prohibited or not, but whether it should be done. |
| DT: 48:00 | This really reminds me of some of the discourse around artificial intelligence regulation at the same time; that there’s really a need to consider the ethics of some of these use cases even before we consider the regulation. |
| DB: | Yes. |
| DT: | That there is disincentives that are created by regulation, but ethics can really play a role in design and implementation well before that as a kind of preventative. |
| DB:
49:00 | Absolutely. There’s a little bit of a parable I sometimes tell in conferences, workshops, et cetera when I’m talking to an audience of space entrepreneurs. So, I went to a conference of in-house counsel. And it was – I think – a three-day conference. In-house counsel were from quite a variety of companies and, as you can imagine being in-house counsel they were talking about compliance. That’s what in-house counsel does. They work with their companies to ensure compliance. The last panel of the conference was notable because the in-house counsel were representing some of the oldest companies that exist. So, I think the youngest company was 90 years old and the oldest company was 250 years old. And what was remarkable was that the in-house counsel – all of the in-house counsel in this panel – said one thing in common. And essentially it was that they don’t do compliance. They don’t need to do compliance because the regulatory framework that is applicable to their companies and what they do is a regulatory framework that they grew up with and they participated in developing. And so, I tell this story to space entrepreneurs, and I ask them; “do you want to be part of the space community or are you just to make a big buck and get out quick? Are you a flash in the pan?”. I put it rhetorically. I think you can see where my position lies. So, it’s back to “space is for everyone“. If compliance defines what you do and don’t do, then you are not really part of the community. But space is more all about you and not for next and future generations. And I think that would be really disappointing. |
| DT: 50:00 | Absolutely. Well, Duncan, we’ve covered so many areas of space law – more areas of space law than I thought existed really! We’ve covered military uses of space in celestial bodies, commercial uses of space in celestial bodies. We’ve talked about some very interesting analogies and some of the problems with them. And you’ve persuaded me – although I was never really in need of persuading wearing my devil’s advocate hat – that this is really an area that we need to understand and learn about now. That it’s so relevant to our everyday life and relevant to our political and commercial context now and in the future. So, for those of our listeners who want to learn a bit more about this area, maybe even want to start building a career in this area, how do you suggest they get started doing that? |
| DB:
51:00
52:00
53:00 | There’s lots of space entrepreneurs who need in-house counsel. There are a number of space entrepreneurs in Australia who are beginning to engage lawyers as in-house counsel. So, there are opportunities there. I think if there’s anyone out there who is drawn by ethics then, as I mentioned before, there’s a need for ethicists too. But legal support is needed across a broad range of legal fields, and I don’t think anyone ought to be discouraged just because they haven’t been heavily involved in space technology specifically. So, there is regulation in the electromagnetic spectrum. There’s contracting. There is space laws specifically. There is export control laws. There are all sorts of areas that apply to space. Even if you haven’t touched upon space specifically that should not be a discouragement. There is something called the Space Law Council of Australia and New Zealand. So, I would encourage people to look that up. There are an increasing number of universities who are delivering space law education. The University of Adelaide offers several courses. ANU and Western Sydney University have been doing space law for quite some time. Flinders is doing more of it. University of Queensland is doing more of it. My own course at UNSW Canberra is not just on space law, it covers more than space law. So, there are lots of options available. There are a growing number of professional development courses, although very few specifically on space law. There’s a growing number of conferences. If the listeners want to look up the Australian Space Agency has something called the Space Regulatory Advisory Collective. So, inviting people to comment on the development of regulation of space activities. And the Australian Space Agency regularly do consultation phases for their regulatory development as well. And I guess the final thing that I would say, and I’ll put a challenge out to whoever is listening – I would love someone to find a way to get the community broadly engaged in regulatory issues for space. Because like I say outer space is for everyone. And the Australian Space Agency can hear from lawyers, can hear from space and tech entrepreneurs, but there’s not really a good body for them to hear from the community at large. And I would like there to be such a body. |
| DT: | Well, the challenge is out there. Hopefully someone takes it up. Duncan, thanks so much for joining us on Hearsay. |
| DB: | No worries. |
| Ross Davis:
54:00
| As always, you’ve been listening to Hearsay the Legal Podcast. This episode marks the final episode of Season 3 of Hearsay – I’d like to thank our very special guest, Duncan Blake, for being a part of it. I’d like to also extend my thanks to all of you for listening throughout the season. I hope you’ve enjoyed listening to the podcast as much as we’ve enjoyed making it – and there’s more great stuff to come. From all of us at Hearsay – David, Nic, Jacob, Sophie, Elise, Arden and me – thanks for listening and see you on the next season of the podcast. As you well know, if you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest this episode entitles you to claim a substantive law unit. More information on claiming and tracking your points on Hearsay can be found on our website. Hearsay the Legal Podcast is, as always, brought to you by Lext Australia, a legal innovation company that makes the law easier to access and easier to practice, and that includes your CPD. We’ll catch you very soon. |
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