Aviation, Space, Cyber, Telecommunication, and Property Law

Terrestrial Mining historically answered global demand for minerals and metals. But, as Earth’s once-plentiful mines diminish, companies and states seek new avenues to meet the world’s ever-increasing resource demand. Instead of down, scientists are now looking up at the stars, to Space Mining, which entails resource extraction from celestial bodies. It is not yet economically feasible, but strides are slowly being made in turning this futuristic industry into a reality. Currently, Space Mining has limited regulation, creating the potential for conflict over space’s valuable resources. Therefore, the international community should begin preparing for the industry’s eventual rise by creating a regulatory and dispute resolution framework. This comment will advocate for incorporating the regulatory and dispute resolution regimes of Deep-Sea Mining in the space context. The two main modes are (1) an industrial regulator akin to the “International Seabed Authority” and (2) an International Arbitration Panel dedicated to handling Space Mining disputes like the “Seabed Disputes Chamber.” These frameworks can properly monitor potential externalities while still providing incentives to encourage discovery.

A day without space, a term used to describe the loss or destruction of America’s space assets, and the potential generation of novel biological threats using AI and synthetic biology present catastrophic and potentially existential threats to U.S. security in a way that nuclear weapons did before and continue to do so today. Yet they have not received the level of attention from national security lawyers or commentators they warrant. This article describes the threats. It describes the current and inchoate nature of the law to address these threats. And it makes initial recommendations to policymakers and lawyers about how to use law to address these threats. This article is a warning order: It is time for national security lawyers across the government and not just specialists to engage these issues, which require whole of government and whole of country solutions. 

Imaginations of Planet Earth as-a-whole—that is, Earth conceived in planetary terms by wide publics—have been shaped over several decades by the growing capabilities of artificial Earth satellites to image the whole Earth, to specify all locations, and to integrate the Earth’s diverse orbital space with everyday human activities. Different Earth orbits are becoming more densely used, more securitized, more intensely managed from Earth, and more integral to activities on Earth.

This Article focuses on two categories of satellite systems that contribute directly to planetary knowledge, Global Navigation Satellite Systems (GNSS) and Earth Observation Satellite Systems (EOSS). GNSS and EOSS have earlier military and intelligence origins, but were readily associated with 1990s-type “globalization”—the encouragement of trade and communication, and the monitoring and discouragement of illicit activities and flows. More recently both have also been integral to a process of “planetization”—the construction and wide diffusion of understandings of Earth in planetary terms, as a shared and contingent habitat with many dependencies. This Article traces the policies and conditions under which data from these satellite systems has become (for the time being) open and widely available to general publics, and the basis for “planetary” infrastructural development and dependence.

We argue that the major GNSS have all become “infrastructural”: broadcasting without charge freely available signals which enable timing, positioning, and navigation via receivers and downstream products for billions of users, as well as a fast-increasing range of important environmental uses. EOSS supply images and other data which flow into scientific models of Earth systems and many business and governmental use cases—with or without charge or restriction, depending on the provider and on government controls. EOSS have become, or are becoming, infrastructural for many forms of planetary knowledge. However, the provision of comprehensive, free-to-all, and highly reliable GNSS and EOSS data and services is not legally embedded or guaranteed, and it is far from assured. Both are “dual use” and vulnerable to kinetic or cyber disruption in conflict. GNSS are government-provided but readily spoofed or jammed, and governments are seeking to develop more resilient alternatives. EOSS are often privately owned or government-controlled, and the data or downstream products are increasingly liable to private enclosure or to government restriction on release. Questions about their assured availability and extension swirl together with renewed nationalism, military prioritization, and contestations of “planetary” politico-legal thinking and its imaginaries. It is now necessary to “think infrastructurally” about legal, policy, and economic means to ensure the reliable and universal availability, sustenance, and supplementation of these important foundations of planetary knowledge.

For better or worse, technology at heart is—except to the extent that artificial intelligence fundamentally becomes involved—not so much a creator as a facilitator and enhancer of human acts, actions and activities, allowing them to become more effective, less costly, or sometimes even just merely feasible. Perhaps nowhere that is more pertinent then when it comes to human activities in outer space, which are still overwhelmingly conducted remotely and hence crucially dependent on technology. Given that “the law” has always been geared to address humans and their acts, actions, and activities, this gives rise to a rather special approach to maintaining and further developing a legal regime for outer space. The present Article intends to address and assess some of the most pertinent aspects of the unique body of space law from precisely this perspective, to shed some light on how “the law” would, could, and/or should handle relevant human endeavours in or with regard to outer space, in particular in the context of legal responsibilities and liabilities.

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, beyond global governance. We suggest that interplanetary risks warrant new institutions for risk regulation at the interplanetary scale. We discuss several examples, recognizing that interplanetary risks may be difficult to foresee. Some interplanetary risks may arise in the future, such as if settlements on other planets entail the need to manage interplanetary relations. Some interplanetary risks are already arising today, such as space debris, space weather, planetary protection against harmful contamination, planetary defense against asteroids, conflict among spacefaring actors, and potentially settling and terraforming other planets (whether to conduct scientific research, exploit space mining, or hedge against risks to life on Earth). These interplanetary risks pose potential tragedies of the commons, tragedies of complexity, and tragedies of the uncommons, in turn challenging regulatory institutions to manage collective action, risk-risk tradeoffs, and extreme catastrophic/existential risks. Optimal interplanetary risk regulation can learn from experience in terrestrial risk regulation, including by designing for adaptive policy learning. Beyond national and international law on Earth, the new space era will need interplanetary risk regulation.

This Essay sketches an informal theory of the impact of technological change on international economics, and hence international relations expressed as international law. The theory points to a policy trilemma, something that I call Cerberus in a perhaps futile attempt at an arresting metaphor. The Essay uses the trilemma to illuminate the general trends in technology policy we see playing out in China, Europe, and the United States. It argues that we have the privilege of witnessing an ongoing natural experiment in optimal technology regulation and legal policy, with no guarantee as to which approach will prevail.

Of course, like all natural experiments, the signal struggles to emerge against a background of geopolitical noise. Events and projects unrelated to policy competition might decide the game, and we might never find out what an optimal strategy may entail. Still, we can’t rule out the chance that we might learn something as the great game plays out.

From the launch of Sputnik I in 1957 to proposals for In-Space Servicing, Assembly and Manufacturing (ISAM) and new lunar activities such as resource utilization, advancing technology has always been a driving factor in the creation of space law. From a legal-historical perspective, the notion of law as creation should be contextualized in a broader legal-philosophical transition that began with the rise of positivism. Article VI of the Outer Space Treaty orbits unsteadily between international obligations and national implementation measures, rendering significant States’ understandings of those provisions. Our understanding of Article VI turns on perhaps the most creative legal endeavor: interpretation. Bing Cheng established Article VI as a lynchpin between international obligations and national measures by finding in its first sentence an attribution clause extending responsibility to non-governmental activities falling under the jurisdiction of States. Though Cheng’s interpretation has been accepted by scholars, and some domestic rules evidence its employ by States, the interpretation has been assailed on the basis that Cheng did not follow the strictures of the Vienna Convention on the Law of Treaties (VCLT). Codification, such as the VCLT, is itself an act of creation, which can have unintended consequences. Through the lens of Article VI, this Article explores interpretation as creation. It seeks to demonstrate that antipodal interpretations can be correct, that our determination of which interpretation to follow involves something other than a strict, positivist approach, and that the outcome of this debate may be more significant than perceived as states create a path forward for new space activities.

For a quarter-century, a consensus has prevailed that territorial sovereignty applies online as it does offline. Since practically all the Internet’s infrastructure and its billions of users reside on the territory of states, conventional wisdom holds that sovereignty must extend to cyberspace. Such accounts ignore how people experience cyberspace as a distinctive place, and how current international law lacks safeguards to prevent states from exercising their sovereignty to splinter the Internet into a set of national networks. Territorial sovereignty is also hard to square with pledges by the world’s democracies to keep the Internet free, open, and global; yet it is not the only way that international law knows to define the powers of a state.
Drawing from the law of the sea, this Article argues that we should anchor the nature of state authority in cyberspace in the limited sovereign rights that coastal states possess in the waters off their shores. Unlike the plenary powers that sovereignty vests in states over their entire land territory, a coastal state’s sovereign rights weaken the further one goes out to sea, and they are subject to the rights of other states (and of their nationals) to engage in certain peaceful uses of such waters. By redefining state authority over cyberspace in terms of layers of sovereign rights that are subject to the digital rights of others, states can enact legitimate online regulations within international legal constraints that preserve the Internet’s free, open, and global character.

I. Introduction