Space Law: Promoting the Rules-based Order through Multi-Domain Lawyering

Good morning. I want to thank General Whiting, Brigadier General Letendre and Colonel Hall for inviting me to speak at the U.S. Space Command Legal Conference today. I am delighted to be here. Bringing the legal community together to discuss the legal and policy aspects of space operations is a critical component of our effective implementation of the law. Space offers a fascinating lens through which to consider the practice of national security law—in which each of us is fortunate to engage every day. There is no doubt that space law is cutting edge.

We all can see that space is rapidly evolving, with an ever-growing number and variety of actors—governmental and commercial—and increasingly strong connections across the public and private sectors. President Biden explained in the 2022 National Security Strategy that we live in a “decisive decade,” one marked by dramatic changes in technology, geopolitics, economics, and the environment. That observation applies with equal force in outer space as on Earth. Indeed, much of our current technological revolution relies on our space capabilities. As the National Security Strategy affirms, all of humanity benefits from the continued and increasing exploration and use of space, whether through the opening of new economic opportunities, or the development of novel technologies, or an enhanced ability to monitor the climate. With these exciting advances comes an increasing need to protect our interests in space.

The National Security Strategy articulates a four-part framework for safeguarding U.S. interests while avoiding destabilizing arms races and responsibly taking care of the space environment. First, the United States will continue to be the world’s leader in space and work together with the international community to ensure the domain’s “sustainability, safety, stability, and security.” Second, we are at the forefront of updating governance mechanisms for outer space, including by establishing a spacetraffic coordination system and “charting a path for future space norms and arms control.” Third, the United States is working with our allies and partners to develop policies and regulations that pave the way for the growing U.S. commercial-space sector to compete internationally. And finally, the United States is enhancing the resilience of U.S. space systems that we rely on for our national defense and intelligence collection.

I. Overarching Themes

Just as the use of space involves a variety of actors and activities, so the practice of space law involves engagement across many sectors and the harnessing of a range of tools to implement the law and develop best practices. Before I speak in more detail about several specific space issues, I want to highlight two overarching themes. First, the broad and diverse legal issues relating to space operations are integral to DoD’s efforts to promote the rules-based international order. And second, the practice of space law is, in effect, “multi-domain lawyering.” 

  a. Space Law is Integral to Promoting the Rules-Based International Order

The law is an integral part of achieving the strategic objectives set forth in the National Security Strategy. One of my key priorities as General Counsel is ensuring not only that we follow the rule of law in our own work, but also that we, as a Department, promote the rule of law around the world. From the Secretary and the Chairman on down, our clients fully embrace the importance of adhering to U.S. and international legal obligations. Indeed, a crucial plank of the 2022 National Defense Strategy, as in the National Security Strategy, is the promotion of a rules-based international order. International law is the framework that States have adopted to set binding standards for their behavior, serving as an essential pillar of stability in the international system.

All of us, and DoD lawyers specifically, have a profound obligation to ensure that the Department’s many activities are conducted consistent with all applicable domestic and international law. Those activities increasingly include space operations in support of a variety of mission areas, such as space domain awareness; positioning, navigation, and timing; intelligence, surveillance, and reconnaissance; and satellite communications. The multi-faceted nature of space operations—as well as operations across other domains that touch or rely upon space capabilities—demands that we analyze, apply, and implement the law with an understanding of the interconnectedness at play. 

  b. “Multi-Domain Lawyering

That brings me to my second major theme. Not only is space a linchpin of multi-domain operations, but the practice of law with respect to space operations is “multi-domain lawyering.” By nature, space operations, space capabilities, and space developments occur across multiple sectors: public and private; civil and military; domestic and international; departmental and interagency. One might say that very little in space happens in a vacuum. In the same way, “multi-domain lawyering” cannot be carried out by individual lawyers acting in silos. Space thus demands a legal practice that is nimble, cross-cutting, and able to thrive in a world of coordination. Indeed, providing timely legal advice on space issues invariably involves leveraging a network of experts from across DoD and the interagency legal community—often including consultations with foreign partners and commercial entities as well. Fostering those deep intradepartmental and external relationships is one of the things I’ve seen DoD lawyers do best. 

Lawyers for space operations do not simply advise their clients on what is permissible under the Outer Space Treaty. They do that, to be sure. But they also advise on the drafting, negotiation, and interpretation of agreements with partner nations that allow for the installation of ground stations; on the plans and orders that the joint force develops to integrate space capabilities with terrestrial activities; on the procurement activities and test and evaluation programs that preserve U.S. leadership in space technology; and on the personnel and organizational policies that transform talented individuals into high-performing teams. This truly is multi-domain lawyering. And lawyers who work in this area are trusted by our clients. I appreciate how hard you each work to maintain that trust.

Consider some of the goals set forth in DoD’s recent 2023 National Defense Science and Technology Strategy and how they relate to space. That Strategy calls for us to work through bilateral and multilateral channels to strengthen our science and technology defense cooperation with allies and partners, and to create new science and technology partnerships with countries that “share our values, that innovate to create new technologies, and that are committed to protecting technologies from competitors who seek to erode our advantages.” The Strategy also emphasizes the importance of finding new ways to take advantage of dual-use technologies that solve national security problems, such as by promoting interconnectivity within the “innovation ecosystem” and taking advantage of the innovative work of the U.S. small business community. Our legal advice to clients on the development, design, and maintenance of such initiatives across the varied sectors of the space arena involves multi-domain lawyering. I see huge value in lawyers being involved in these initiatives from the very beginning to help shape them consistent with applicable law. 

As we think about the rapid evolution of the space domain and all that comes with it, it is important to remember that, although space presents a steady array of fascinating legal issues of seemingly first impression, we already have an extensive body of international law and a growing body of domestic law that are often directly applicable and, if not directly applicable, may provide useful guidance. Our clients with technical expertise would not approach the development of a new capability for a national security space purpose as an entirely new problem, but instead would tackle that project by leveraging existing tools and lessons learned from developing and acquiring other systems and technologies. We lawyers should, and do, bring the same approach to space law issues. Lawyering in the space arena therefore requires not only the application of existing space law and other applicable international and domestic law, but also, where relevant, the nuanced incorporation of lessons from the practice of law in all other domains.

At the same time, we have to be careful to avoid the use of imperfect analogies, such as from the law of the sea or air law, especially when we have legal rules unique to the space domain. I’ll discuss this in greater detail in a few minutes.

II. The Themes at Work

These two themes—the promotion of the rules-based international order and the idea of “multi-domain lawyering”—play out across the practice of space law. In our remaining time together today, I’d like to showcase four areas that illustrate these themes: first, working with allies and partners; second, the development of norms and policy that build on core elements of international law; third, engagement with commercial industry; and fourth, collaborating with the interagency legal community.

  a. Allies and Partners

Our engagements with allies and partners are essential to promoting and strengthening the rule of law, particularly in the contested and rapidly evolving space domain. It is imperative that we continue to work with our allies and partners, as we have for more than half a century, to reinforce the core principles set out in the Outer Space Treaty. For example, we must re-emphasize the iron-clad international consensus regarding the danger of, and prohibition against, the placement of nuclear weapons or other weapons of mass destruction in outer space. Such prohibitions help us safeguard the free use and exploration of outer space for all. 

At a more operational level, working with our allies and partners offers us tremendous advantages, such as our collaboration in operating the SPACECOM Joint Commercial Operations cell. JCO, which is managed here in Colorado by the National Space Defense Center, enables the development of Space Domain Awareness entirely from commercial sources, facilitating the sharing of data and products with allies and partners because the information is not based on classified collection. Ally- and partnerled regional JCO cells in Europe and the Indo-Pacific region add depth and resilience to the capability, transferring management of the JCO mission from cell to cell around the globe in 8-hour shifts for comprehensive 24-hour coverage.

Another example is the Combined Space Operations Initiative (CSpO), a multinational partnership with a mission to generate and improve cooperation, coordination, and interoperability to sustain freedom of action in space, optimize resources, enhance mission assurance and resilience, and deter conflict. In December 2023, defense representatives from Australia, Canada, France, Germany, New Zealand, the United Kingdom, and the United States welcomed three new partners to the CSpO initiative, from Italy, Japan, and Norway. I understand representatives from all of these CSpO partner nations are attending today, many in person, and I wish you a warm welcome.

These values-based alliances and partnerships are a significant advantage for the United States, essential to demonstrating our shared values and commitment to the rule of law. As in other domains, developing consensus or at least common understandings across different countries’ legal systems takes hard work. There is much we agree on, of course, but even when we occasionally have different interpretations of particular legal rules, it is important to be aware of such differences, and to continue to collaborate and engage in conversation.

One challenge in engagements with allies and partners is the classified nature of much of the information related to space operations. Collaborating with our allies and partners requires us to navigate each other’s security rules, which can be more complicated when our classification standards are not in sync with operational needs. Ensuring operational alignment with our allies and partners was a key reason that DoD led a comprehensive review of classification for space capabilities, culminating in an updated policy issued in January of this year by the Deputy Secretary of Defense. This new space classification policy lowers the minimum level of classification for various types of space capabilities, which will allow for greater sharing of information, not only within the U.S. Government, but also with our allies and partners. 

  b. Developing Norms and Policies to Promote Responsible Behavior

Part of our work with allies, partners, and the international community as a whole involves the development of voluntary norms, best practices, and guidelines that are not legally binding, but that can play an important role in guiding and influencing State behavior. Such norms may be the most attractive option when, as now, competition and conflict result in a geopolitical environment that is not conducive to developing new legally binding obligations. Voluntary norms are also appropriate in the context of rapid ongoing technological advancement, to avoid inadvertently hindering the development and use of novel technologies. Such best practices, guidelines and norms allow us to identify and address behaviors that have the potential to lead to miscalculation and misunderstanding, and thereby to mitigate the risk of inadvertently causing a conflict or a degradation of the outer space environment. The U.S. Government has recently taken or proposed several actions to promote such norms, in both the international and domestic arenas.

From an international perspective, in April 2022, Vice President Harris announced a new U.S. commitment not to conduct destructive direct-ascent anti-satellite missile testing—an important example of U.S. leadership. The Vice President called on other nations to make similar commitments and to work together to establish this commitment as a norm, explaining that such efforts benefit all nations. Just a few months later, in December 2022, the United Nations General Assembly overwhelmingly adopted, in a vote of 155-9, a Resolution calling upon all States to commit not to conduct destructive direct-ascent anti-satellite missile tests. The Resolution further affirmed that such a commitment is an urgent initial measure to prevent damage to the space environment and to help to avoid an arms race in outer space. To date, 37 States – including Canada, Germany, Japan, and New Zealand, who have representatives here today – have made this commitment. These commitments by States across the globe, from Europe (including the European Union itself) to the Indo-Pacific region, with Norway and Costa Rica as the most recent, contribute to the establishment of a recognized norm of responsible behavior. Unfortunately, other nations that have recently conducted destructive direct-ascent anti-satellite missile tests – notably China, Russia, and India – either voted against or abstained from voting on the General Assembly Resolution. Clearly, there is still work to do, and we will continue to seek to advance additional norms of responsible behavior in space multilaterally.

Two domestic developments showcase the U.S. Government’s—and, in particular, DoD’s—efforts to promote responsible norms that build on core elements of international space law. First, in July 2021, Secretary Austin set out the Tenets of Responsible Behavior in Space for DoD components. This memorialization of longstanding military practices in the space environment enhances clarity and predictability for space operations. U.S. Space Command elaborated on these Tenets by proposing (perhaps with the involvement of some of you in this room) eight specific behaviors for how to implement Secretary Austin’s five Tenets. The Secretary approved these eight behaviors in February 2023. 

The Tenets of Responsible Behavior, and the eight associated specific behaviors, draw from principles reflected in space law and best practices for space sustainability. Consistent with the five Tenets, DoD Components will: (1) operate in, from, to, and through space with due regard for others and in a professional manner; (2) limit the generation of long-lived debris; (3) avoid the creation of harmful interference; (4) maintain safe separation and safe trajectory; and (5) communicate and make notifications to enhance the safety and stability of the space domain. The Tenets are directives to DoD Components, but can also serve as a starting point for conversations with the international community about norms.

The Tenets reflect the importance of two pillars of space law: first, due regard for the corresponding interests of all other States Parties to the Outer Space Treaty and second, avoiding harmful interference with the peaceful space activities of other States Parties through efforts such as notices, communication, and consultation. As we have explained in multilateral fora, the U.S. Government believes that due regard means that “acting in a safe and professional manner in outer space entails taking into account the corresponding interests of other operators,” much like operations in the air and at sea. A “practical set of common guidelines and standards” for actions that can be taken to avoid impeding others’ space operations can help to create “a more orderly and predictable space environment for all, allowing space operators to avoid unnecessary maneuvers and other activities that could arise from confusion about another’s plans or intentions.”

Efforts to avoid harmful interference, particularly with respect to the strategic systems of other States during peacetime, can similarly help to avoid misperceptions and miscalculations regarding a State’s intentions. “For example, States could view interference with certain space objects, such as those designed to support treaty compliance monitoring; command, control, and communications of nuclear forces; or missile strike warning, as a precursor to other, more escalatory activities.” In addition, “harmful interference with space-based services that constitute or support critical infrastructure, such as global navigation satellite services, could have widespread impacts on society.” Working to identify responsible behaviors, both in our domestic policy and in our multilateral engagements, will help in developing voluntary, non-legally binding norms that address how to operate safely in outer space, consistent with existing international law. Although the development of detailed, legally binding rules defining responsible behavior in space is challenging, the U.S. Government has taken the initiative to enhance transparency and promote consensus on responsible behavior.

The second major effort by the U.S. Government to develop norms and policies to promote responsible behavior concerns State responsibility with respect to commercial space activities. The White House recently issued the “United States Novel Space Activities Authorization and Supervision Framework” and accompanying legislative proposal. I’ll give some background before saying more about these recent initiatives.

State responsibility refers to the responsibility that States bear for their own conduct and for conduct attributable to them under international law. Under customary international law, a State bears responsibility for its internationally wrongful acts. It also bears responsibility for the acts of persons or entities that are attributable to the State— including the acts of a non-state entity that is acting under the State’s direction or control. This rule of attribution governs when the actions of private parties—whether a non-state group, individual, or commercial entity—are attributed to a State for the purpose of assigning responsibility for internationally wrongful acts. 

In space, however, implementation of State responsibility is governed by special rules of international law, with implications for the regulation and supervision of commercial activities and potential ramifications with regard to activities in situations of conflict. For example, Article VI of the Outer Space Treaty provides that States Parties to the Treaty “shall bear international responsibility for national activities in outer space,” whether those activities are carried out by governmental agencies or non-governmental entities. This space-specific principle of State responsibility attributes responsibility to States for certain conduct by non-state actors that would not otherwise be attributable to a State. 

Although the Outer Space Treaty’s intent to broaden the scope of State responsibility seems clear, determining the Treaty’s application in practice may involve a complex assessment of distinct yet interrelated treaty concepts. For example, under Article VI of the Treaty, the activities of non-governmental entities require the “authorization and supervision of the appropriate State,” but the phrase “appropriate State” is not defined. Under the Outer Space Treaty and Registration Convention, the “Launching State” is responsible for adding a space object to its registry and for exercising “jurisdiction and control” over that object. When more than one State qualifies as a Launching State, those States may consult before launch and reach agreement about which State will register the object. But what if they don’t? And how should the Article VI concept of international responsibility be applied in a world where rogue non-state actors may develop the capability to conduct activities in space—without the authorization or even the knowledge of the State from which the activity is launched? Although these prospects were mere academic questions just a few years ago, rapid advances in space capabilities, such as the prospect of launches from maritime areas beyond national jurisdiction, or launches from international airspace, could make them a reality. 

As I alluded to above, one component of State responsibility in space law, as reflected in Article VI of the Outer Space Treaty, is the obligation of the “appropriate State party” to authorize and exercise continuing supervision over the space activities of non-governmental entities. This requirement remains a unique and critical piece of the legal architecture of space law. Here, the United States is demonstrating leadership in behaving responsibly through our efforts to update our multi-sector commercial space licensing processes. Under the current U.S. regulatory system, the National Oceanic and Atmospheric Administration licenses private remote sensing activities; the Federal Aviation Administration licenses commercial launch and reentry activities and sites; and the Federal Communications Commission licenses non-Federal government use of the electromagnetic spectrum. Across these three U.S. licensing entities, there are clear parameters to ensure that space activities are conducted responsibly. 

But evolving space capabilities and activities, such as refueling, in-space assembly and servicing, or towing for end-of-life disposition, introduce novel and challenging questions that highlight the need for multi-domain lawyering across not only the interagency community, but also between the government and commercial sectors. These new activities require rendezvous and proximity operations, resulting in controlled physical contact between space objects. But a satellite that can touch another space object for refueling or repositioning could also be used, in theory, to damage the other object deliberately. Or, if poorly executed, the operation could result in damage to the target space object and, potentially, significant space debris. Navigating these types of scenarios requires careful legal analysis and an understanding of the obligation under the Outer Space Treaty for a State to authorize and exercise continuing supervision over nongovernmental entities. In addition, there are potentially complex questions regarding attribution and State responsibility. Novel space activities present not just technical issues, but also difficult legal questions.

It is with an eye to these sorts of novel space activities and the questions they will raise that the Administration issued its Novel Space Activities Framework and complementary legislative proposal last December. This Framework, and associated legislation if enacted, significantly updates how the United States will accomplish its authorization and continuing supervision function. It formally defines “novel space activities” as those activities “that are not directly regulated under the current U.S. regulatory regime for private sector space activities, including industry, academia, and non-profit organizations.” 

Such activities include commercial habitats, in-space manufacturing, and on-orbit refueling, among others, which are not clearly addressed by existing licensing schemes. As Vice President Harris has explained, the Administration is committed to establishing rules for commercial space activities that are “strong enough to promote the safe and predictable use of space but flexible enough to ensure that we do not stifle innovation.” The Novel Space Activities Framework recognizes the importance of maintaining access to and freedom of use of outer space as well as the importance of protecting U.S. national security and other interests. It thus seeks to position U.S. policy and systems to be adaptable to changing needs “and provide a predictable, transparent, and justifiable foundation for U.S. entities to pursue their economic, intellectual, scientific, exploration, and cultural goals in space.” 

This Framework and legislative proposal represent bold, innovative thinking and demonstrate this Administration’s leadership in promoting the rule of law. Bringing our regulatory process up to date to reflect current realities and capabilities will help the United States continue to be at the forefront of how a responsible spacefaring nation regulates commercial industry. 

  c. Engagement with Commercial Industry

At a broader level, DoD’s engagement with commercial industry is a third area that illustrates my two themes of promoting the rules-based international order and multidomain lawyering. The dramatic expansion of commercial capabilities in space provides both opportunity and risk. Commercial innovation and economies of scale promise to bring cheaper, faster, and more reliable capabilities to the space enterprise. At the same time, the widespread availability of space capabilities will increase the number of potential security challenges and concerns for DoD. For example, if the Department designs its own system, it can build elaborate security measures into that system. But design and procurement take time and money. The Department could, alternatively, use commercial systems, which are available much more quickly and at a cheaper price—but without DoD-designed security measures. These are trade-offs that policymakers must consider.

To keep us on the right footing as we balance these risks and opportunities, we need lawyers—from both the public and private sectors—to help ensure that advancements in space are made responsibly. Norms of responsible behavior in space must incorporate commercial space service providers. Lawyers for spacefaring organizations, including DoD, are critical to making that happen. From requirements definition through contract closeout, we ensure that our clients in DoD are implementing the Tenets of Responsible Behavior and working with industry to do the same. 

Responsible behavior in space boosts the long-term financial viability of commercial capabilities. For example, consider the impact space debris could have for commercial activities. The growth and vibrancy of the commercial space industry relies on a sustainable space environment. But reckless decisions to conduct debris-producing anti-satellite missile tests can imperil that sustainability. Similarly, slow implementation of multilateral operational guidelines – such as the space debris mitigation guidelines coordinated by the Inter-Agency Space Debris Coordination Committee or the United Nations guidelines for the long-term sustainability of outer space activities – unnecessarily hinders sustainability efforts. Proliferation of debris, especially in protected environments such as low Earth orbit, increases operating risks and complicates insurance markets for commercial space providers. As part of the government effort to enhance the sustainability of space, DoD is coordinating closely with the FAA on a proposed rule on mitigating orbital debris caused by the upper stages of launch vehicles. Lawyers across DoD and the U.S. intelligence community are also working with lawyers in the space and insurance industries to better understand ways to manage the risk debris poses for commercial space operations.

As another example, we help our policy clients coordinate with the commercial space industry on the use of DoD-managed airspace and the National Space Test and Training Complex. This coordination helps to provide the flexibility for launches and reentry or recovery at sea that lead to private-sector innovation, while also ensuring the appropriate environments are available for space launches, aircraft operations, naval exercises, and space test and training activities.

  d. Working Across the Interagency Legal Community

Finally, space also highlights the importance of collaboration across the interagency legal community. In particular, DoD worked with the National Space Council and lawyers from Commerce, the FAA, NASA, the State Department and other agencies on the legislative proposal on Novel Space Activities to help ensure that, if enacted, it would provide authority to the Secretary of Commerce to develop and operate a capability to collect and disseminate space situational awareness (SSA) data, information, and services. The proposal would also, under the heading of Space Traffic Coordination, have the Secretary of Commerce “provide operational recommendations to eligible entities to ensure safety of space operations, compliance with United States international obligations, foreign policy interests, and other national interests of the United States.” At the same time, the proposal preserves DoD’s ability to protect national security by providing that Commerce’s new authority “complements the continued [statutory] authority provided to the Secretary of Defense … to provide similar data in furtherance of [the] national security interests of the United States.” 

DoD’s role in providing information and services about the ever-increasing number of trackable space objects is, therefore, evolving. While DoD continues to perform its historical role in providing information to underpin the global safety of spaceflight, DoD is also supporting the Department of Commerce to transition many of these services to be integrated into Commerce’s vision for Space Traffic Coordination, a new activity. Meanwhile, DoD continues to have statutory authority to provide SSA services and information to non-U.S. Government entities, “[t]o the extent that the Secretary [of Defense] determines such actions are necessary to meet the national security interests of the United States.”

The proposed legislation would help to take today’s Space Situational Awareness environment into the future. The Department of Commerce would be the government provider of SSA data for civil purposes and would be the face of the government to the commercial world for the safety of spaceflight operations. Although DoD will always need to retain SSA capability for its own operations, the transition would allow DoD to focus its efforts on Space Domain Awareness—that is, efforts to understand and characterize activities in orbit, including potential threats, for national security purposes. Taken together, this redistribution of efforts within the Executive branch —aided by interagency legal collaboration—will allow for greater efficiencies and a more logical distribution of responsibility. 

III. Conclusion

To circle back to where I started, the rules-based international order is critical to a well-functioning world economy and to efforts to maintain peace and stability. We must continue to work to advance that order in our new space age. Even against the backdrop of a geopolitical scenario that makes the negotiation and development of new treaty law challenging, the United States can advance the rules-based international order through whole-of-government norms development, such as the commitment not to conduct destructive direct-ascent anti-satellite missile tests. We can promote and advance the rules-based international order as a Department, through conduct consistent with the Tenets of Responsible Behavior promulgated by the Secretary and further developed by the Commander of U.S. Space Command. We can advance the rules-based order by working with our interagency partners and the private sector to help ensure appropriate regulation and oversight of novel commercial space activities. And we can even do so individually, every day, in the course of our work. By supporting such efforts, and through your own outstanding work, we can be effective multi-domain lawyers at the forefront of ensuring that U.S. and DoD space operations are at the leading edge—both technically and legally.

Thank you.