outer space

In day-long event capping Georgia Law course, international law students hack global problem of space debris

Five teams of J.D., LL.M., M.S.L., and Graduate Certificate in International Law students spent Saturday endeavoring to solve the global problem of what to do about the debris – that is, junk – which litters outer space. The day-long “Space Junk Hackathon” was hosted by the University of Georgia School of Law Dean Rusk International Law Center. It brought to a close an innovative Spring 2023 international law course taught by Professor Melissa J. “MJ” Durkee, the law school’s Associate Dean for International Programs, Director of the Dean Rusk International Law Center, and Allen Post Professor.

As detailed in prior posts here and here, this course began with a Space Law Speaker Series featuring, over the course of January and February, presentations by four expert academics and practitioners: Christopher Johnson, Tanja Masson-Zwaan, Cris van Eijk, and Kathleen Doty.

At Saturday’s hackathon, Professor Durkee reviewed with students aspects of the space junk problem, as described by the series of speakers. She noted the inadequacy of existing international and domestic regulations – among them, the 1967 Outer Space Treaty, which was signed on behalf of the United States by then-Secretary of State Dean Rusk, our Center’s namesake.

Having recapped the problem, Durkee told students, “Your task is to solve it!”, by devising law or policy interventions. The star-named student teams, Antares, Polaris, Rigel, Sirius, and Vega, then decamped to breakout rooms and went to work.

At day’s end, the teams presented their proposals before three judges: Professor Durkee, Georgia Law Professor Christian Turner, and Jackson Tilley, Ph.D. candidate at our university’s School of Public & International Affairs. All students were praised for their creative interventions. Team Polaris, comprising Alma Bajramović, Kyle Renner, Bobby Dong, and Nishka Malik, was named the strongest.

Assisting with administration as part of their work on Georgia Law’s Graduate Certificate in International Law – for which this was a required course – were the staff members of our Center’s Global Practice Preparation portfolio, Sarah Quinn and Catrina Martin.

Georgia Law Professor MJ Durkee publishes “Interstitial Space Law” at Washington University Law Review

Professor Melissa J. Durkee, the J. Alton Hosch Associate Professor of Law here at the University of Georgia School of Law, has published her article “Interstitial Space Law” in the latest issue of the Washington University Law Review.

Here’s the abstract:

“Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this ‘attributed lawmaking.’

“Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space. The treaty does, however, attribute private sector activity to nations. The theory of attributed lawmaking suggests that the attribution renders the activity of private actors in space relevant to the development of binding international legal rules. As a doctrinal matter, private activity that is attributed to the state becomes “state practice” for the purpose of treaty interpretation or customary international law formation. Moreover, as a matter of realpolitik, private actors standing in the shoes of the state can force states into a reactive posture, easing the commercially preferred rules into law through the power of inertia and changes to the status quo. Attributed lawmaking is not a new phenomenon but it may have increasing significance at a time when multilateral lawmaking is at an ebb, lines between public and private entities are blurring, and the question of attribution becomes both more complex and more urgent.”

The article’s also available at SSRN.

“The Future of Space Governance” conference will convene experts on October 28

17-098-Kepler-90_MultiExoplanetSystem-20171214On Monday, October 28, 2019, the Dean Rusk International Law Center and the Georgia Journal of International and Comparative Law at the University of Georgia School of Law will host a daylong conference to explore “The Future of Space Governance.” The conference will feature a keynote speech by Professor Emerita Joanne Irene Gabrynowicz, University of Mississippi School of Law, as well as panel discussions by academics and practitioners.

Participants will consider the following concept note:

International legal frameworks governing outer space developed under the conditions of a bi-polar, Cold War world, where the two great powers were the only spacefaring nations, and were engaged in a feverish race to space. The international agreements reflect the concerns of the time, primarily to prevent militarization and colonization of outer space. It seemed essential to keep the cold war out of space, and to keep it from going hot. Then, the U.S. made it to the moon, winning the race and effectively freezing space governance in Cold War terms.

Exactly half a century later, the world has changed, and so has space. A bi-polar world has gone multipolar, and an optimistic period of multilateralism has given way to a decline in robust international cooperation. Meanwhile, developments in outer space have exploded in complexity, ambition, and commercial promise. The number of entrants and potential entrants has proliferated: seventy-two nations now claim they have space agencies, and at least fourteen have orbital launch capabilities. One of the key new entrants is China, which is busy exploring the dark side of the moon and plans a permanent Chinese lunar colony as early as 2030. India, too, is broadening its ambitions, launching a moon lander trip this year, and planning for manned spaceflight and a space station launch soon thereafter. The SpaceX program is making rocket launches available for bargain basement prices, bringing space activities within the reach of a gaggle of startups keen to grab their piece of the commercial pie. Other commercial actors imagine space tourism, colonies, and missions to Mars. At the same time, the United States, still the dominant player in space, has announced plans to launch a “Space Force,” aimed at defense of U.S. military interests from space.

Fifty years after the first moonwalk, the prospect for a new set of multilateral agreements governing outer space is remote, yet the legal questions raised by new space activity are mounting. With little prospect of new multilateral treaties, outer space governance will need to make do with existing law, generate customary rules to govern new applications, and develop forms of sublegal understanding and cooperation.

This conference takes a stakeholder approach to emerging questions of outer space governance. It seeks to understand the perspective and concerns of classic space powers, new entrants, non-space faring nations, and international organizations like the Committee on the Peaceful Uses of Outer Space, as well as civilian space agencies, national militaries, and commercial actors. It asks for views on the sufficiency of existing law and governance structures and probes the legal needs of new and existing stakeholders. It will explore the agendas of the growing collection of actors, and attempt to find new prospects for governance.

Here’s the schedule:

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8:45-9:00  Welcome

Peter B. “Bo” Rutledge, University of Georgia School of Law

 

9:00-10:30  New Entrants: Nations

What are the emerging governance challenges as new nations emerge as space-farers?

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Steven Mirmina, NASA

Saadia Pekkanen, University of Washington, Henry M. Jackson School of International Studies

Cassandra Steer, Women in International Security Canada

Charles Stotler, University of Mississippi School of Law

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Moderator ǀ Harlan G. Cohen, University of Georgia School of Law

 

10:45-12:15  New Norms? Commercial Actors

What norms govern, or should govern, potential commercial uses such as extraction, tourism, and settlement?Panel 2

Julia Selman Ayetey, McGill University

Frans von der Dunk, Nebraska College of Law

Brian Israel, ConsenSys

Mark J. Sundahl, Cleveland-Marshall College of Law

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Moderator ǀ Melissa J. Durkee, University of Georgia School of Law

 

Gabrynowicz_hi_res_small1:15-2:00  Keynote

Professor Emerita Joanne Irene Gabrynowicz, University of Mississippi School of Law

 

 

2:15-3:45  New Uses: Security in Space

What are the appropriate responses to the new U.S. “Space Force” and other threats of space militarization?

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Mariel Borowitz, Georgia Tech, Sam Nunn School of International Affairs

David Kuan-Wei Chen, Center for Research in Air and Space Law, McGill University

James Gutzman, United States Air Force

Andrea Harrington, Air Command and Staff College, Air University

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Moderator ǀ Diane Marie Amann, University of Georgia School of Law

GJICL EIC3:45-4:00  Closing Remarks

Lauren Elizabeth Lisauskas, Editor-in-Chief, Georgia Journal of International and Comparative Law

 

 

Registration, CLE credit, and other details here. Additional cosponsors include the International Law Society, Georgia Law’s chapter of the the International Law Students Association.

Georgia Law Professor Durkee presents space law paper at British Columbia

Georgia Law Professor Melissa J. Durkee recently presented her scholarship at the University of British Columbia Allard School of Law as part of the school’s faculty colloquium series.

Durkee, who is a J. Alton Hosch Associate Professor of Law, researches new forms of global governance, particularly interactions between government and business actors that affect the content and success of international legal rules. Her paper, “Interstitial Space Law,” explores these topics in the context of space. Here’s the abstract:

Private space companies have begun to stake massive investments on the prospect of deriving commercial value from objects in outer space. The multinational asteroid-mining company Planetary Resources recently explained to a U.S. Senate Subcommittee that it will “conduct a historic and unprecedented mission to. . . . prospect several near-Earth asteroids.” Amazon’s Blue Origin just launched a collaboration with German space companies to start a “permanent presence on the moon.” Elon Musk’s SpaceX intends to “focus all its engineering talent on building its Mars rocket.” Yet it is unclear whether these companies have a legal right to appropriate outer space materials for private commercial use. The controlling international law is a cluster of 1960s-era treaties, designed for the realities of cold war space exploration. The centerpiece of the early treaties, the 1967 Outer Space Treaty, clearly specifies that materials cannot be appropriated for national use, but the treaty is silent on private commercial use. Exploiting the opportunity this silence affords, private companies have begun to advance their own interpretation of the treaty in addresses to lawmakers, press releases, and corporate disclosures. They have also acted as though their interpretation were law, pressing forward with plans to commercialize space, and seemingly content to gamble on the possibility that international law will develop in their favor. The paper argues that this practice merits our attention as one of the diverse ways private companies take roles in international lawmaking. Here, private companies are working on two levels. First, they are shaping the development of international customary law by exploiting the failure of nation-states to shut down their activities. Second, they are creating a body of practice that would constitute the building blocks for customary international lawmaking, if the private companies were governmental actors, raising the possibility of a private common law for space.

 

Emerging security challenges require norm development, State lawyer says

IMG_5540At first blush, today’s security challenges may seem familiar. Yet they are new – emerging, in U.S. State Department parlance – because of the novel ways in which those challenges present themselves.

So explained Mallory Stewart (near right), Deputy Assistant Secretary of State for Emerging Security Challenges & Defense Policy, during her fascinating talk Monday at Tillar House, the Washington, D.C. headquarters of the American Society of International Law. We at Georgia Law’s Dean Rusk International Law Center were honored to join ASIL’s Nonproliferation, Arms Control & Disarmament Interest Group in cosponsoring Stewart’s talk, “Common Challenges to Diverse Security Threats.” (For the event video, see here.)

Stewart’s talk followed introductions by Kathleen A. Doty, Interest Group Co-Chair and our Center’s Associate Director for Global Practice Preparation, as well as opening remarks by yours truly (above, at right) respecting Dean Rusk’s arms control legacy.

Stewart pointed to technological change, in outer space and elsewhere, as one of the emerging challenges. Within this category was what is essentially garbage; that is, the debris left in outer space by state actors and, increasingly, nonstate/commercial actors, whose celestial flotsam and jetsam continue to orbit and present hazards to active satellites, space stations, and the like.

Another challenge is dual-use technology. Items as seemingly innocent as chlorine – a chemical essential to everyday cleaning – can become a security threat when deployed as a weapon, as is alleged to have happened during the ongoing conflict in Syria.

Yet another is ubiquity, the reality that technologies, such as cyber capabilities, are, literally, everywhere, and thus not easy to contain.

Containment – regulation – thus is difficult both to design and to effectuate. With regard to dual-use technologies, for instance, Stewart posed questions of intent: How, exactly, does one define and identify the moment that an innocent item is transformed into a weapon? What about attribution – in areas like cyberwarfare, how can the perpetrator be identified? How can attacks waged with such weapons be prohibited in advance?

Stewart gave due respect to the 20th C. arms control treaties that form the core portfolio of State’s Bureau of Arms Control, Verification & Compliance, where she practices. Nevertheless, stressing global interdependence, she stressed the need for more nimble forms of international lawmaking. To be precise, she looked to mechanisms of soft law, such as codes of conduct, as ways that states and other essential actors might develop norms for responsible behavior in the short term. In the longer term, if the internalization and implementation of such norms should prove successful, eventually legally binding treaties may result.

(Part 2 of a 2-part series; Part 1 is here.)