Editor’s Note: Mary-Christine (M.C.) Sungaila is a partner in the Newport Beach office of Complex Appellate Litigation Group LLP and a professor in Space Law and Policy at LMU Loyola Law School, Los Angeles. She’s a two-time recipient of the California Lawyer of the Year (CLAY) Award; OC Women Lawyers Association Attorney of the Year, inaugural recipient of OC Hispanic Bar’s Judge Frances Munoz award and one of the Daily Journal’s Top 100 women lawyers in California for 16 years running. She’s a repeat nominee for the OCBJ’s Women in Business and Innovator of the Year Awards. The Business Journal’s annual list of OC’s biggest aerospace and defense contractors begins on page 17.
Our family came to Orange County, an aerospace hub, in 1980. My father transferred to the Newport Beach office of Ford Aerospace where the One Ford Road collection of homes is now. He worked in finance but started out as an engineer. He quietly shared with me during Pacific Symphony’s 2019 Segerstrom Hall performance in honor of the 50th Anniversary of the Apollo 11 moon Landing: “I worked on that.”
I later learned that he was at mission control when the Apollo 13 astronauts signaled “Houston, we have a problem.” He was among the group of engineers tasked with saving them.
My father went to night school when I was young to earn an MBA and become a CPA. Little did I know I would go back to school mid-career too. Or that an appellate lawyer, used to arguing before some of the highest courts in the land, would study space law to help architect a new legal landscape for space.
Outer space is no longer the sole province of a few spacefaring governments. The United States, China, and India have each pledged to land astronauts on the moon and establish lunar bases in the next decade. Space is increasingly a place where many different countries, private companies, space tourists, scientists and nonprofit and academic institutions operate alongside each other, often in partnership. Military presence in space will also accelerate, and many space objects like satellites will increasingly have dual civilian and military uses.
A New Dawn of Commercial Space
As a new commercial space era dawns, Southern California and Orange County remain at the center of space innovation. VAST is building the first commercial space station. Rocket Lab is second only to SpaceX in rocket launches. Virgin Galactic is ushering in an era of space tourism. Anduril is bringing defense technology to space. Relativity uses 3D printing to create reusable rockets and reduce the cost of launch. Huntington Beach’s AstroForge is pioneering asteroid mining. Terran Orbital, now a Lockheed Martin company, manufactures cutting edge satellite platforms, while Turion Space is emerging as a force in space mobility and orbital logistics.
All this activity raises the question: what laws govern? And what should the rules be for new activities like in-space manufacturing, space mining or lunar bases and settlements?
Since the original space actors were countries, the core of space law is international. The Magna Carta or Constitution of space law is the Outer Space Treaty of 1967 (OST), now ratified by 116 countries and signed by 22 more. The OST, which arose out of the Cold War Space Race, lays out open-textured principles that shape and constrain space activities and governance.
Key principles embodied in the OST include: outer space shall be freely explored and used for the benefit of all countries and shall be “the province of all mankind”; countries cannot claim ownership of outer space, including the moon and other celestial bodies; the moon and other celestial bodies shall be used exclusively by countries “for peaceful purposes,” with military bases on the moon allowed only as necessary for scientific exploration or peaceful purposes; and astronauts are to be treated as “envoys of mankind” and safely and promptly returned to their country of origin should they land in another country’s territory. Countries are required to conduct their space activities “with due regard to the corresponding interests of other” countries. They also must avoid harmful contamination of the moon and other celestial bodies as well as the Earth from the introduction of extraterrestrial matter.
A country that launches a space object maintains jurisdiction and control of that object and any personnel aboard while it is in outer space or on the moon or a celestial body. A launching state also remains internationally liable for damage by that object or its component parts to another State or its people on Earth or in outer space. States are also responsible for the space activities of their nongovernmental actors.
Thus, when a Russian nuclear-powered satellite Kosmos 954 crashed into the remote wilderness of Canada in 1978, Canada submitted a claim under the OST and the Liability Convention against Russia. Russia resolved the claim by paying Canada $3 million (Canadian dollars).
What makes space law unique is the OST’s Article VI. It requires state authorization and continuing supervision of commercial actors to make sure their activity is consistent with international law, which has led to U.S. laws to license and regulate space activity.
Domestic law flows from international law. To be a good space lawyer, you have to know both. That is not the case in other contexts.
Hot Topics in Space
Against this backdrop, a whole slew of questions arise as new actors and new activities take place in space. Here are a few of the hot topics:
– Space junk is a growing concern. As more and more objects are launched into lower earth orbit (think Starlink satellite constellations, for example), the likelihood of debris or defunct satellites hitting other satellites increases. Initiatives to enhance space traffic awareness and to enhance space traffic management gain importance. As do disposal requirements that are built into the launch licensing process.
– Space mining is anticipated to occur on the moon and other celestial bodies. The OST prohibits national appropriation of celestial bodies. Does that mean that space mining companies must share the resources they extract with the international community? Can they keep what the extract? The Artemis Accords, a Declaration of Principles signed by 56 countries that collaborate with the United States and NASA on moon exploration, has acknowledged the propriety of space mining companies keeping the resources that they extract. And the UN COPUOS’ Working Group on Space Resources earlier this year proposed temporary safety zones or managed access protocols to allow orderly access to areas on the moon where resource extraction might occur.
– What about Neil Armstrong and Buzz Aldrin’s boot prints? Can someone land on them or erase them? Right now, there is no cultural heritage protection in space, unlike on Earth. But the Artemis Accords signatories recognize the value of cultural heritage protection and the UN COPUOS Space Resources Working Group in its deliberations has at least tentatively embraced the need to protect lunar cultural heritage from space mining activities and the dust and regolith that such activities will dislodge. International law on cultural heritage protection is being made in real time.
The Next Generation
It is important for the next generation to play a role in framing these and other aspects of space law. To that end, the Space Law and Policy course I teach at LMU Loyola Law School – the only such course in Southern California – provides the next generation of space lawyers the tools they need to hit the ground running in our region’s aerospace industry.
But even if they do not end up becoming space lawyers, my students will have sharpened their critical thinking and imagination. They will have learned the importance of curiosity.
And in working out legal issues to which there is yet no clear answer, they will see our laws on Earth with new eyes and perhaps discover new approaches they would not have otherwise seen. And they will, I hope, be inspired to dream big in whatever they do next.
After all, space is a canvas for human imagination which raises questions about who we are as humans and who we want to become. It rewards the curious—including the daughter of an aerospace engineer who never thought she would have anything to do with space herself, other than being grateful that it allowed her to call Orange County her home.
