Washington Lawyer - December 2017 - 20

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We're moving into an era of more private
companies, both here and abroad, being
involved in space, and we're providing
incentives for this to happen. If something
does happen that's an accident or a
problem, we don't have a good dispute
resolution system up there.
HENRY HERTZFELD
Elliott School of International Affairs, The George Washington University

Who is accountable for cleaning up space debris?
And what should be done about commercial space
disputes?
Companies like Blue Origin and SpaceX are moving
at a speed previously unseen in the space industry,
and they are looking to lawmakers and international
diplomats to find solutions to their regulatory challenges as quickly as their companies are advancing
the new space race.
"We're moving into an era of more private companies, both here and abroad, being involved in space,
and we're providing incentives for this to happen,"
says Hertzfeld. "If something does happen that's an
accident or a problem, we don't have a good
dispute resolution system up there."

THE NEXT STAGE

states there. There are private corporations. There
are private individuals," Secretary of the U.S. Air
Force Heather Wilson said in September during
a space forum hosted by Politico.
Outstanding issues on liability for disaster, ownership
of space, and sovereignty of national operations are
the kind of accord busters that may not be solved for
decades to come. In the meantime, there are plenty
of emerging problems facing space development
that international leaders could tackle.
Orbit Location. The International Telecommunication
Union, which operates as part of the UN, allocates
the limited number of orbital slots available above
Earth, and potential legal claims and disputes may
not be satisfied with the ITU allocation mechanism
in the future.

Experts believe the best regulatory approach may
be incremental, combining discrete, reasonable
regulation with a laissez-faire sense of enterprise.
A hybrid regulatory structure would allow principal
documents like the OST to stand while giving
companies and countries enough freedom to
move within its boundaries.

Oversight Authority. Moon Express wants to go
to the moon, and Bigelow Aerospace seeks to
create private space stations in orbit, but there is
no current regulatory framework that allows the
U.S. government to oversee those missions. Again,
oversight has been handled on an activity-byactivity basis, and any new legislative solution
needs to be holistic, though not too prescriptive.

"I think that space will become more like the oceans
where there are multiple players. There are some

Space Maintenance. With millions of pieces of space
debris zipping through orbit, it's clear that space

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maintenance is an important activity in the not-toodistant future. Companies need to repair and refuel
satellites and remove dead satellites before their
orbits decay. These types of space hygiene must
be regulated internationally, experts say, because
the impact is global.
Space Enforcement and Dispute Resolution. Enforcement of current rules is often slow due to ambiguities in the rules and national security issues. Many
believe stronger enforcement and dispute resolution are necessary when bad actors break the rules,
whether it's shooting a satellite down or failing to
get appropriate consent from tourist astronauts for
space flight.
In the 50 years since its adoption, the OST grounded
global space development in universal and conscientious principles. Yet, like space exploration and
development itself, the pace of updating the OST
for a new generation has taken decades. The legal
and regulatory challenges ahead are complex and
multifaceted, making it essential for international
leaders to establish legal accords that respond in
real time and to realistic disputes.

Sarah Kellogg is a regular contributor to Washington
Lawyer.
Henry Hertzfeld, courtesy of Henry Hertzfeld
http://www.dcbar.org
Table of Contents for the Digital Edition of Washington Lawyer - December 2017
