As Space Law Comes to Nebraska, Space Comes Down to Earth

• Publication year: 2021

87 Nebraska L. Rev. 498. As Space Law Comes to Nebraska, Space Comes Down to Earth

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As Space Law Comes to Nebraska, Space Comes Down to Earth

Dr. Frans von der Dunk(fn*)

Honorable President of the University of Nebraska-Lincoln, Dr. James Milliken; Honorable Dean of the College of Law, Professor Steven Willborn, in absentia; Honorable Keynote Speaker, Mr. Clayton Anderson; Dear Colleagues at the College of Law; Dear Friends, some of you having come from quite far; Distinguished Guests, Ladies, and Gentlemen; Lieve Maartje, Sam, Max, and Daan; (I promise, this will be the only Dutch spoken tonight!)

It is a great honor and an equally great pleasure for me to stand here today and address you by way of an inaugural lecture, embedded in this conference on formalism and informalism in space law that we are currently hosting at the University of Nebraska College of Law.

I must admit, when I first raised the subject of giving such an inaugural lecture, it took a little while before it dawned upon me that this is not altogether a self-evident part of taking up the position of a full professor here in the United States. I come from a Dutch, even European tradition, where by contrast that is the case. But that is one of the many things one learns when one starts to move and work in a country and educational culture different from one's own; many of one's own presumptions that one took for granted do not necessarily need to be taken for granted. And that is a good thing even in academia or perhaps especially in academia.

In any case, the Dean did not blink an eye when I put the question forward he had repeatedly informed me with his usual twinkle in the eye that he found all my questions strange so I guess he had gotten used to it and courteously agreed with what now had turned effectively into a request rather than a duty. He also left me complete freedom of speech as to what to address and how to address it an

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academic freedom that cannot be praised loudly enough these days and which I do find in ample quantity here in Lincoln. To return the favor, I would like to explain first what and how, in Europe or at least in the Netherlands, an inaugural lecture is supposed to look like since, for want of more specific guidance, that is the path I intend to follow today.

An inaugural lecture then is perceived essentially as a public lecture where a newly-appointed professor sets out, for everyone to hear, his or her general ideas on, and programmatic approach to, the field that he or she is going to tackle in teaching and research in my case, all in the context of the LL.M. Program in Space and Telecommunications Law. What are perceived to be the key issues, in which direction is the academic discipline going, and what can we do about it? This also has the happy side-result of revealing one's hobbyhorses to the audience.

It should be a lecture for the general public. In other words, it should address the wider issue in a manner understandable by an interested and generally educated, but non-specialist, audience and should not go into any technical depth. No footnotes, no endnotes, and at most one or two Latin phrases. Not so much a "tour de force," but a "tour de horizon." Finally, one may insert some personal remarks, words of thanks, and such, as well as crack an odd joke.

I do not necessarily claim to do exactly all that (let alone do it in the right order) but a public lecture it will be. As my father once said, "Every good public lecture consists of three parts." First, the speaker should speak of things that everyone already knows. That way, the audience will feel comfortable that it is not ignorant after all and actually quite well-educated. Second, the speaker should speak of things that the audience does not know but can easily understand and relate to. Thus, they will go home with a satisfied feeling that it was not a total waste of time and that they indeed learned something new. And finally, the speaker should speak of things both unknown to the audience and totally incomprehensible that way, they will go home also with a feeling of awe for the genius of the speaker.

So if you do not understand parts of what I am going to say, you now know how to put a handle on that.

(That was the odd joke, I guess.)

My lecture is entitled, as you can see, "As Space Law Comes to Nebraska, Space Comes Down to Earth," for in preparing for it I came across a few interesting coincidences.

First, I found out that "Nebraska" comes from an old Chiwere word for "flat water." "Flat water," to me, suggests large, open, empty spaces, horizons without bounds a window on eternity perhaps. The Missouria, Otoe, and Ioway peoples obviously had better things to do than concern themselves with outer space in our modern sense of the

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word, but I am convinced that if today they would have to consider using a word for it, they might use "Nebraska" as coming closest.

Second, I realized Lincoln Municipal Airport is a major emergency landing fallback option for the U.S. Space Shuttle. Lincoln may not have direct air connections with any other destination than a handful of cities in this particular part of the United States, but it does have a direct connection with outer space.

And third, though hopefully, in a sense it may still take a long time before the Space Shuttle will actually land in Lincoln, whether by accident or not, at the same time space law is coming to Nebraska with the establishment of the LL.M. Program in Space and Telecommunications Law, space is coming down to earth, too.

Do not worry; I am not Chicken Little's brother. But "space," as an area for humans to be active in, in a metaphorical sense is coming down to earth, and that results in many important consequences for "space law," for what it is, how it should be studied, and how it should be further developed.

The red thread in my talk, then, is that in the history of space we are currently living through a very fundamental paradigm-change that has fundamental consequences for the way in which this strange discipline called "space law" will have to be taught and researched. At the very least, it will be the way in which I will approach my teaching assignments in the context of the new LL.M. Program at UNL.

In summary, outer space traditionally was the domain of activities either of a scientific or of a military/strategic nature, including the element of political prestige as a consequence of the Cold War between the two then-superpowers, the Soviet Union and the United States. The impact of Sputnik was first and foremost a strategic one, resulting in the prestige-driven race for the Moon. Astronauts were usually both highly qualified engineers and either the "cr&-de-la-cr&" of air force pilots or the "cr-de-la-cr" of scientists by the way, far more frequently the former rather than the latter. Of the twelve men the United States has put on the Moon, exactly one was a scientist by education and he had to put up a tremendous bureaucratic fight to prevent his place on the very last Apollo mission to the Moon from being taken by a more traditional pilot-astronaut.

With the exception of a niche area where satellites were used for more mundane telecommunication purposes a niche that slowly started growing from the late `60s onwards there was no revenue whatsoever to be found in space and space activities, which in addition proved tremendously costly and risky at the same time. Only states could be interested in investing money for the sake of the public good in space and space activities for science or military reasons, and only they could afford it.

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As a matter of fact, so costly and risky were space activities that apart from the superpowers, few states were able (or willing) to bear such costs and risks on their own. Most states either piggybacked on the broad shoulders of the space powers or pooled their financial and technological resources in unique intergovernmental organizations like INTELSAT, INMARSAT, and the European Space Agency (ESA).

This traditional situation was reflected almost one-on-one in the legal arena. In all possible senses of the word, states were both the makers and the breakers of international space law.

With regard to making international space law, this is not so surprising since, in a sense, space law is but an exotic branch of general public international law. The core of traditional space law, often referred to as the "corpus juris spatialis," is comprised of the Resolutions and space treaties drafted in the course of the `60s, `70s, and the first half of the `80s. Even if this occurred in the bosom of the United Nations, it was states that drafted, then to a large extent agreed, to the texts of these Resolutions and treaties. Then, each state in their sovereignty decided to vote for or against them, respectively ratify, or abstain from ratifying them. Nothing new there.

With regard to breaking international space law, it was on this mirror-side that space law stood out in particular. The rights and obligations that were codified or developed were almost exclusively directly addressed at states. Obviously, the interests and activities largely dealt with by such rights and obligations were very typical for states. As indicated, scientific and strategic purposes were key here although in the latter case the focus was formulated in a more positive manner, by means of the key concept of "peaceful purposes."

In particular, the Outer Space Treaty dealt prominently with such military and scientific concerns. The use of space for peaceful purposes figures very prominently throughout the treaty, and a prominent effort was made to minimize the risk of nuclear war using space. The freedom for exploration and use probably the most fundamental principle applicable to outer space, enshrined in...