Space Governance 3.0*

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020

Space Governance 3.0^*

Brian R. Israel^**

I want to first give my thanks and congratulations to the editors of the Georgia Journal of International and Comparative Law and to the Dean Rusk Center, for a timely and beautifully executed symposium.

I will contribute to our confrence theme, the "Future of Space Governance," by offering a perspective on evolutionary changes in how the rules governing human activity in the space domain are made, and who makes them.¹ I'll begin by unbundling what I see as the constitutive strands of our topic. Assumptions about the future of space activities necessarily underpin predictions about the future of space governance, and I will shortly outline my assumptions in this regard. I will do the same for the national and international lawmaking processes that shape the international regime for outer space. In short, I do not foresee the conditions for major multilateral treatymaking returning in the near term,² although I hope to be proven wrong. I do foresee the intervention of a new technological medium for governance enriching the future of space governance. Accordingly, I will introduce blockchain technologies and illustrate how the capacity of spacecraft operators to make and enforce commitments, without recourse to a national legal system, may unlock new solutions to governance challenges inherent in the legal and physical attributes of the space domain.

My assumptions about the future of space endeavors are closely linked with my own experience with emerging space technologies and activities; I'll summarize this experience to make my biases and blind spots apparent. I served in the State Department's Office of the Legal Adviser from 2009 to 2017. For most of this time, I was the primary official responsible for international negotiations to interpret and apply the international legal framework for space to newly-contemplated space activities. I also worked to adapt U.S. regulatory frameworks for non-governmental space activities to implement international obligations. My time at the State Department coincided with a new

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dynamism in commercial space activities. While private enterprise has been involved in space exploration since the beginning, the planned activities that began to surface in the early 2010s combined two attributes that enlivened space governance debates in both the United Nations and in national capitals. First, whereas a government had generally been a customer—if not an operator—of commercial space activities, the government's relationship to this new generation of pure commercial space activities would be solely as a regulator. Second, some of the planned private space missions went beyond what governments had achieved in space and implicated the international legal framework in novel ways.

In 2017 I left government and became General Counsel of one such company: Planetary Resources, a venture-backed asteroid mining company. From that vantage point as a private operator trying to push forward the boundaries of space exploration, I gained some fresh perspective on the limits of the traditional mechanisms of space governance and began to envision a future with a richer set of tools for collective action in the space domain. About this time last year, Planetary Resources was acquired by ConsenSys, a blockchain technology company, and I co-founded ConsenSys Space and began to put my ideas for space governance tooling into action.

On the opening day of the International Astronautical Congress, ConsenSys Space released an experimental open source, open-sensor system called TruSat for creating an independent record of satellite orbits.³ We designed TruSat to fill what we believe is a crucial gap in transparency and accountability for sustainable orbital operations by supplying a freely accessible, globally-trusted source of space situational awareness data that can be used to measure satellite operators' performance against sustainability standards. Progressing TruSat from a limited prototype to a valuable resource for preserving the future of spaceflight will depend on the ideas and efforts of a global open source community.

TruSat is but a modest first step along a path I see for how blockchain technologies could unlock new solutions to some of the most stubborn space governance challenges. I will introduce the opportunities I see, mindful of the perils of predicting the future not only of space activities, but also a promising-but embryonic technology in its early days.

Before we explore solutions, let's begin with the problem. The most general challenge of space governance I am concerned with is maintaining a cohesive international regime for all space actors. I use "international regime" as defined by Stephen Krasner: "principles, norms, rules and decision-making procedures around which actor expectations converge in a given issue-area."⁴

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While I refer to international regime in the singular for simplicity, the future of human space endeavors will likely require a number of specialized regimes to account for practical and political realities that vary by activity and location. For example, the physics and prevailing uses of Low Earth Orbit (LEO) counsel for different end-of-life spacecraft disposal practices than the Geosynchronous Orbit (GEO). The maturation of space resource utilization activities will almost certainly require an international regime addressing the most fundamental dimensions of this family of activities, as well as specific regimes for, say, the Moon, or even lunar poles.

The growing number and diversity of space actors, a symptom of progress in many respects, also challenges the cohesion of the international regime. This growth, diversity, and the attendant governance challenges are most apparent in LEO, where university cubesat missions share the increasingly congested orbital regime with all manner of commercial satellites and government national security missions. So-called "mega-constellations" of LEO satellites blanketing the Earth in broadband internet coverage are projected to increase the population of active LEO satellites ten-to-twenty-five-fold over the coming decade.⁵ This magnitude of LEO congestion, dramatically increasing the frequency of potential satellite collisions, heightens the imperative for clear, rules-of-the-road-like norms internalized by all actors. In this domain beyond territorial jurisdiction, with this diversity of public and private actors, how do we achieve such a cohesive international regime?

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For much of the first half century of spaceflight, the solution was to negotiate the rules of the road on a global basis and then extend these global rules to non-governmental space missions through national legislation and regulation.⁶ The dynamics of these international negotiations are shaped by the constitutional nature of the Outer Space Treaty, and the Treaty's constitutional role within the international regime for space.⁷ I have called this paradigm "Space Law 1.0."⁸ The role of national legislatures in this paradigm is to extend agreements reached on the international plane to non-governmental space activities conducted by their nationals. In a world of frictionless international and national lawmaking processes, Space Law 1.0 might be the end of the story. But in labeling this "Space Law 1.0," you have probably deduced that the plot thickens.

What I term "Space Law 2.0" is a diffusion of the interpretation of the Outer Space Treaty to national legislatures; from an inter-state negotiation to a series of uncoordinated intra-state negotiations. My first encounter with Space Law 2.0 was the Space Resources Exploration and Utilization Act of 2015,⁹ which, as its name suggests, concerns the exploration and utilization of the natural resources of celestial bodies. At the State Department I was involved in shaping the Act for consistency with the United States' obligations under the Outer Space Treaty. I was also the U.S. Representative to the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space at the time, and so I was responsible for explaining this controversial law to the world. Contrary to the breathless headlines and genuine concern this law generated around the world, I submit it changed precisely

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nothing about the substantive law or procedure regarding space resource utilization in the United States. But the concern is understandable, because, upon first reading, it can easily be mistaken for casually answering one of the most sensitive questions in international space law at the time: Whether, and under what conditions, the natural resources of celestial bodies may be utilized.

I'm not going to unpack the law and politics of space resources; what's important here is that the Act simply points back to the United States international obligations without opining on the content of those obligations. Congress abstained from interpreting the Treaty to expressly delineate the contours of permissible space resource utilization activities.¹⁰ It left this to the Executive Branch, which evaluates non-governmental space activities for conformity with the United States' international obligations through federal licensing processes.

While the Space Resources Exploration and Utilization Act did not effectuate substantive changes in space law, it is nevertheless noteworthy for the evolutionary trends in space activities that led the U.S. Congress to be seized with a controversial matter concerning the interpretation of the Outer Space Treaty. With the prospect of private space missions that go beyond what even governments have done in space, national legislatures are wading into controversies over the interpretation and application of the Outer Space Treaty in parallel with—or even ahead of—international lawmaking processes. This diffusion of treaty interpretation to national legislatures is what I classify as Space Law 2.0.¹¹

A...