TRU professor one of a handful of Canadian academics researching space law

Researching laws for space

Photo: Castanet

TRU Law professor Jack Nelson, 36, is one of a "generous handful" of academics in Canada studying space law.

Jack Nelson is one researcher out of a “generous handful” of Canadian academics seeking to tame the endless frontier — outer space.

For some, the cosmos may seem like the lawless Wild West, but the Thompson Rivers University professor doesn’t think it’s an entirely apt comparison.

“I don’t think it’s true. We do have treaties, we have laws that govern it, but it’s also not something that I think we should aspire to,” Nelson told Castanet Kamloops. “The Wild West was a very brutal place.”

Space has so far avoided that brutality, which Nelson said is partially thanks to a bedrock of international space law laid down in the 1967 Outer Space Treaty.

But with access to space skyrockets increasing and few internationally accepted or binding laws governing the domain, Nelson said the challenge for researchers like himself studying space law is to keep it that way.

“The trick for lawyers engaged in this area is how do we develop those principles into definable rules that will preserve peace in outer space,” he said.

In space, no one can hear you comply

The 1967 treaty was largely negotiated between the United States and Soviet Union in the midst of the Space Race. Nelson described it as the primary of five treaties established by the United Nations during the Cold War, a “kind of miraculous treaty” that aimed to foster a “healthy competition.”

“It tries to foster scientific exploration of space, it gives a lot of rights to every nation, every state essentially, to engage in scientific exploration of outer space,” he said.

“I can't imagine trying to negotiate this today. The state of geopolitics — it simply wouldn't happen.”

Nelson said countries generally follow international laws. If they don’t, the state breaching the law has to consent to have that dispute resolved. If they don’t consent, another country could pursue measures like sanctions or cutting commercial ties.

More contemporarily, more than 60 nations have signed on to accords established by NASA and several partner countries which aim to reinforce commitments made in some earlier treaties, laying out best practices for responsible civil space exploration and use.

But the accords are not binding international law. And unlike aviation law, no one manages or enforces space laws.

Nelson said the challenge for lawyers and academics is to design a system where it is in each state's interest to comply, which can entail some creative thinking.

“You do have to get away, in this area, from the idea of law as we might think of criminal law — you breach the criminal law, you then get prosecuted, you might end up in jail, you’ll have a trial, so on, so forth,” he said.

“When you’re talking about space law, the need is to look for things where compliance will be in the interest of everyone, rather than relying on a police force.”

Houston, we have a debris problem

Nelson said the ideals of the Outer Space Treaty have somewhat been upheld, but pollution presents the biggest challenge.

He said SpaceX’s reusable rocket has dramatically dropped the cost to launch satellites, and space accessibility has “exploded” in the last decade.

Nelson said low-earth orbit has been “massively polluted” with space debris. Preventing outer space from becoming “a junkyard” is a practical and legal problem, he said.

“The risks of catastrophic collision effectively destroying our access to orbit through a cascading exponential generation of space debris is a very real one,” he said. “On the legal side, we have no binding obligations in relation to this.”

He said there is a two-part solution. One is remediation by cleaning up the debris. The other solution is mitigation by designing assets that don’t generate as much debris when launched, which is the focus of much of Nelson’s legal work in the area. He said universal compliance is effectively what would be necessary.

“Legally, the best we’ve got is some non-binding guidelines released by the United Nations Office of Outer Space Affairs,” he said.

Where no lawyer has gone before

Nelson’s research is largely focused on commercial space activities.

A hot topic of debate centres around when a country is responsible for the space-related activities of a private company based within its borders, as outlined in the Outer Space Treaty.

Nelson's current research is largely focused on how “safety zones” around space stations might be implemented while being compliant with the treaty.

“The problem is, once a state lands a base on the moon and builds it out and then declares a safety zone, it starts to look a lot like they own that area, which is prohibited,” he said.

“How far can you go to ensure that operational safety before you cross over to prohibited national appropriation?”

His goal with his research is to “ventilate” issues in order to work towards a consensus, and ultimately create laws and norms that nations will follow.

Nelson sees space law research as being underpinned by a “practical idealism," and he thinks the demand for space lawyers will grow in tandem with industry and government need.

"The core skills it requires are still very much the traditional lawyer skills, interpretation of written texts, coming up with solutions that will work for most people," he said.

“I think you have to have a certain hope for the fact that we might be able to fulfill the dream of not exporting all our problems here on earth to space."