Laws that are really out of this world: Attorneys focus on outer space as new legal frontier

By William Weir
The Hartford Courant

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How would crimes be handled if they took place on a space station? What laws would govern a settlement on the moon or Mars? Can property rights apply to asteroids?

Earth-bound law is complicated enough; imagine what it's like when we venture farther out. Some people would even question whether we're right to apply human law to the heavens. Nonetheless, some forward-thinking lawyers are boldly going forth into this legal frontier.

"Most people, when they think about space, think about science and engineering — law is not the first thing they think about," says Joanne Gabrynowicz, director of the National Remote Sensing and Space Law Center at the University of Mississippi's School of Law.

That could change. The success of the Mars Rover explorations and President Bush's declaration of a plan for a space station on the moon and manned missions to Mars could bring greater attention to a branch of law that largely has operated under the radar in the legal world.

Patricia Sterns of the International Institute of Space Law says it's about time. Universities simply haven't kept up with an increasingly essential branch of law, she says.

Laws about space • Using maritime law as a model, the pioneers of space law drafted a handful of international treaties between the 1950s and the mid-1970s. The Outer Space Treaty of 1967 provides the basis of space law. It decrees space open to all — no nation can claim ownership of any part of it — and it must be preserved for peaceful use. • Much of the groundwork of space law is found in "Law and Public Order in Space" by Myres McDougal and Ivan Vlasic (published in 1963 by Yale University Press). • A 1979 Moon Treaty that would have prohibited any type of space ownership has been ratified by only a handful of nations, none of them major players in space exploration. Nevada entrepreneur Dennis Hope claims a loophole in international law allows him to sell deeds to plots on the moon. • Businesses that sell the right to name stars are regarded as bogus. Only the International Astronomical Union has the authority to name celestial bodies, and it's not in the business of selling names.

Work in space law began in the 1950s once it became apparent that the planets and stars were no longer off-limits. Much of the groundwork of space law is found in "Law and Public Order in Space" by Myres McDougal and Ivan Vlasic, considered by many a cornerstone of space law.

Using maritime law as a model, the pioneers of space law drafted a handful of international treaties between the 1950s and the mid-1970s. The Outer Space Treaty of 1967 provides the basis of space law. It decrees space open to all — no nation can claim ownership of any part of it — and it must be preserved for peaceful use.

The first trips into space stirred heady debates among legal scholars on such topics as the legal rights of non-Earth life-forms or the difficulties of governing "multi-dimensional" races.

"Space law was huge in the 1950s — it was very fashionable," says Barton Beebe, a New York attorney who has written about the early days of space law for the Yale Law Review. But the Vietnam War and other earthly matters soon dampened the excitement over law in the cosmos. "After that, it sort of fell to the wayside," Beebe says.

Interest in space law waned, but technology pressed on and it's law that now has to catch up. The once remote possibility of space tourism is now around the corner, for instance, but liability questions abound.

The treaties left unresolved the matter of private-property rights, now one of the most pressing issues, space-law specialists say. Mars never will become America's 51st state, but what's to keep a corporation from settling it as a privatized colony?

A 1979 Moon Treaty that would have prohibited any type of space ownership has been ratified by only a handful of nations, none of them major players in space exploration.

An entrepreneur in Nevada claims a loophole in international law allows him to assert ownership of the moon. Dennis Hope has enjoyed a brisk commerce selling deeds to plots on the moon, claiming that the failure by existing treaties to address private ownership allows him to stake a claim, but few in the space-law community see it posing much of a legal challenge.

"There has to be some sort of sovereignty; there's going to be a state or county that you need to register with," says Colorado attorney Skip Smith. "I don't think it's as much of a loophole as some people claim."

And businesses that sell the right to name stars? Bogus. Only the International Astronomical Union has the authority to name celestial bodies, and it's not in the business of selling names.

There are trickier issues out there, though. The helium 3 isotope, abundant on the moon, could make a fortune for anyone who mines it. And space's zero gravity promises attractive manufacturing opportunities. With all the commercial possibilities, Smith says, a set of regulations is needed.

"We're going to want our companies up there," he says. "If you want business to invest millions of dollars, you have to set up some legal regime that allows for some exclusive rights."

U.S. law devotes hundreds of pages to space. It's a tangled universe out there, legally speaking, and a company needs to know whether its multimillion-dollar plan falls on the right side of the law. That's good for space lawyers.

And it's expanding quickly, says Ram Jakhu, who teaches space law at McGill University in Canada. His own university, one of the few with its own space-law program, has just added another course. The University of Mississippi established the National Remote Sensing and Space Law Center in 2002. And more universities are adding introductory courses in space law.

Taking place next month in Washington, D.C., is the North American round of the annual Manfred Lachs Space Law Moot Court Competition. This year, law students will litigate a fictional case involving the legal quandaries posed by space elevators.

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