Podcast: “Emerging Challenges in Space Law”

Today we continue with our series from our 29th Annual National Security Law Conference with podcast of our panel discussion about the “Emerging Challenges in Space Law” .

The panel consisted of truly extraordinary experts:

Prof.Chris Borgen, Professor of Law and Co-Director of the Center for International and Comparative Law at St. John’s University School of Law

CDR Tracy L. Reynolds, USN, Force Judge Advocate to Commander, Naval Medical Forces Atlantic

Dr. Hitoshi Nasu, Professor of Law at the United States Military Academy, West Point

It was very skillfully moderated by Col Ted Richard, USAF, Staff Judge Advocate, Space Operations Command at United States Space Force

I’m tempted to say that the panel was “our of the world” but that’s a bit too cheesy a description for a fascinating  discussion that tackled some of the complex topics now emerging in outer space law.

Col Richard begins the dialogue by explaining the importance of outer space for military operations.  He also explains the Space Force and answers the question as to why – currently – there are no Space Force judge advocates (the JAGs supporting the Space Force are in the Air Force).

We then hear from Prof Borgen who notes that the “revolution in space activities” is much related to emerging technology that is driving down the cost of operating in space:  He points out:

[H]istorically, it has cost perhaps $20,000 per kilogram to send something into Earth orbit. That has decreased with the use of reusable rockets, smaller rockets, other types of new technologies. That’s decreased from about $20,000 per kilogram to about $2,000 per kilogram. And it’s going down further from there.”

He adds:

“What that means in terms of cheaper costs is that there are more states with satellites. And it’s not just states. You have middle schools that have, as middle school projects, sending up a satellite on a private launch. So something that used to be the domain of the, quote unquote, “superpowers” is now something that is a middle school project, and everything in between in terms of the different types of space actors that we have in space.“

Prof Borgen also makes some observations about the varied legal regimes that can apply to space, and suggests that in terms of the law of armed conflict, there are open questions.

CDR Reynolds spoke about the applications of ethics to space activities.  As she put it:

“What I’m talking about more generally is something the philosophy of law refers to as an incompletely theorized agreement. So I think most nations and most individuals would agree that concepts of ethics are applicable terrestrially, and they’re also applicable in other domains that are explored by civilian practitioners, corporations, as well as military. And that includes areas outside the jurisdiction of any one state, of which outer space is one.

So what would ethical considerations in space look like? Well, I think we’re going to talk in more detail about Dr. Nasu and his thoughts on the law of armed conflict and his excellent work on targeting satellites. But also, we can think about that in terms of ethical obligations, as well.

Now, these incompletely theorized agreements are useful because the general principle that ethics are applicable no matter what we’re doing or where we’re doing it, that’s incompletely theorized. We might all agree that ethics are appropriate to apply in outer space context, but what does that mean exactly? That’s the incompletely theorized part.”

She goes on to offer an interesting ethical conception in the context of the “golden rule”.

Before grappling with the complexities of the law related to the targeting of satellites, Dr. Nasu sets the stage by noting that there are now 7,000 satellites in orbit (with about 5.000 being American).  These satellites have a variety of critical military and civilian functions.

Dr. Nasu points out that there “are different types of means of disabling those satellites” and explains:

“One [means] is the physical, kinetic means of destroying a satellite that can be done from the Earth. Some direct ascent [anti-satellite missile kills] can also be done from the space-based or airborne-based [platfoms].  Another kinetic means available is what we call the RPO, the Rendezvous and Proximity Operations. So one of the satellites you have launched has the capability of maneuvering and getting close to another satellite, and then destroy or otherwise manipulate it by physical means.

And on top of that, you have electromagnetic spectrum interference, such as jamming and spoofing. So that’s perhaps a more traditional and cheaper means of disabling, or at least neutralizing, the signals coming from a satellite. And then, perhaps a more 21st century version of it is a laser. So laser weapons that can be launched, either from the ground or from the air or from the satellite itself, can also be used to disable enemy satellites.

And EMP [electromagnetic pulse] is another one. There has been some report about Russia’s plan of using nuclear weapons against satellites. The key question is, why do they want to do that? What’s the purpose of using them in big nuclear bombs in order to destroy just one tiny satellite? Probably the effect they’re looking for is EMP, the Electromagnetic Pulse.”

Believe me, this is just a small sampling of what you’ll learn from this podcast; there is much, much more you’ll want to hear! 

Again, you can listen/watch this presentation here.

 

Don’t miss these other podcasts from LENS’ 29th Annual Conference :

My fireside chat with CIA General Counsel Kate Heinzelman can found here.

Brig. Gen. Linell Letendre’s presentation “Guardians of Code and Conscience: Exploring Legal and Ethical Frontiers of Generative AI” is found here.

Col (Ret.) Dawn Zoldi’s presentation “Domestic Drones and National Security,” is found here.

Dean Cheng’s presentation “Update on China: Lawfare, Technology and More” is found here.

Gary Corn on “Attacking Big Data: Strategic Competition, the Race for AI, and Cyber Sabotage” is found here.

BG David Mendelson on “LOAC in 21st Century Battlespaces” found here.

Prof. Bobby Bishop’s ‘fireside chat,’ “Business and American National Security: A Conversation with SEC Commissioner Caroline Crenshaw” is found here. 

Our panel discussion of “Maritime Law and Global Security” is found here.

As more podcasts from the Conference become available, they’ll be posted on Lawfire^® so stay tuned! 

Unless otherwise indicated, Conference speakers are expressing their personal opinions, and not necessarily those of their employer (to include the U.S. government), the Center of Law, Ethics and National Security, Duke University, or any other person or entity (see also here)

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!