The final frontier

Since the space race began in the 1950s, space law has taken a giant leap forward.

but its universal appeal has been eclipsed by issues such as pollution and debris, says Paula Rohan

Have you heard the one about the doctor, the engineer and the space lawyer who were up for selection by NASA to live on the moon?When negotiating payment, the doctor was asked how much he was prepared to accept.

'A million pounds,' he answered, 'because I want to donate it to medical research.' Next in turn was the architect: 'I want two million, so I can create a building which will be of lasting beauty for the whole world.' When it came to the lawyer, he asked for 3 million.

'Why so much more than the others?' the NASA official asked.

The lawyer replied: 'If you give me three million, I'll keep a million, give you a million back, and we'll send the doctor to the moon.'Joking aside, for those in the know, space travel these days is a risky business, and would require sufficient reward.

Space lawyers argue that abuse of - and accidents in - space are becoming increasingly common, culminating in last month's first European space conference in London which focused on such issues (see [2001] Gazette, 1 November, 6).Space as a subject matter for lawyers has been growing in importance since man first set foot on the moon in 1969, and it is now a practice area in its own right, says

Patrick Farrell, an aviation lawyer at Norton Rose.'It is similar in a way to aviation law as it is about the right to use the skies and the right to fly, and there are issues about the retrievability and the insurability of what is up there,' he explains.

'So many people think it is just an extension of aviation law.

However, it is a distinct area of law in itself, governed by a distinct body of international legislation.'A range of international treaties and conventions now governs space activities, the most important being the Outer Space Principles Treaty 1967.

This gives states international responsibility for national activities in outer space, whether carried out by governmental or non-governmental bodies.Some individual countries are still looking to implement their own national legislation mirroring this, but the UK was one of the first with the Outer Space Act 1986.

This covers launching or procuring the launch of a space object, operating a space object, and any other activities in space.

The Act stemmed from the growing commercialisation of space exploration.For example, a recent newsletter from the International Bar Association's space law committee - which has more than 150 members in 52 countries - deals with the commercialisation of the Inter-national Space Station, and the protection of intellectual property rights on the station.Just 20 years ago, this commercialisation was a dirty word, according to Tony Ballard, chairman of the conference, head of telecommunications and a space lawyer at City firm Field Fisher Waterhouse, who worked on the first major satellite launch instigated by British Satellite Broadcasting in 1989.'We did it in circumstances where nobody had done it before outside of government or government-backed enterprises, with private money,' he says.

'They sniffed at us and thought it was not something private operators should be doing outside of government, but we did, and I think we laid some ground by doing it.'Since then, space activities undertaken by both governments and private companies have been on the rise, leading to an increase in the pollution of the atmosphere around us.Space debris - which ranges from rocket bodies and satellites to smaller metallic fragments - is now a burning issue, Mr Ballard says.'We now have a sizeable quantity of space debris hurtling around above the earth at velocities of between three and ten kilometres per second,' he warns.

'Imagine the effect when the debris hits something - sooner or later, Mr Ballard forecasts that the effect of such collisions could be catastrophic.This could not only lead to the formation of a ring or a crust around the earth, Mr Ballard predicts; it could present dangers which will ultimately hinder space activities of all kinds by increasing the danger of collisions because objects cannot move around freely.

The risks could soon reach an unacceptable level, he says.Scientists have calculated the chances of a collision between two large objects in space at around one every 30,000 years.

Yet the French Cerise satellite crashed into a rocket body in 1995.

'So much for every 30,000 years,' says Mr Ballard, adding that the only reason there was no subsequent political collision on earth was because both rocket and satellite were French-owned, preventing arguments about liability between different nationalities.The biggest potential for trouble arising in space law is the launch of satellites, says Joanne Wheeler, an associate specialising in the field at City firm Allen & Overy, and secretary of the European Space Agency's European Centre of Space Law, which organised the conference.Satellite launches are the most common space activity, and a complicated business owing to the minefield of the law.

'If you are putting a satellite in space, there are a lot of regulations you have to comply with and a lot of licences you have to get hold of,' she explains.'For example, you need an outer space licence, you have to look at European directives and get a licence under these, you have to comply with the Telecommunications Act 1996 and get a licence under this, you have to make a review of other jurisdictions, and then there are the competition laws, the insurance laws, and the finance.'Because a breach of the law or an accident could result in a bill worth millions or even billions, it pays companies to make sure they have adequate financial cover.This is the reason why insurance plays such a large part in the work of a space lawyer.

However, the space insurance market is currently experiencing something of a low, which reflects a recent dip in space exploration as a whole.

Clive Smith, director of International Space Brokers, says satellites 'which basically don't work very well' have led to a poor space insurance market for the last three years.

'It has been discovered that many have genetic problems - there is a whole series of satellites with the same fault,' he explains.

'It has been a particularly slow year this year because of the low number in launches - there were about 18 big launches this year, compared to the normal 30 or so.

This has caused problems for the underwriters because there are not only big claims, there are a number of outstanding claims, which leads the market to become more nervous about new technology and about new, untried launch vehicles.' With less launches, there is less business for the underwriters.However, this has not stopped governments putting money into space projects.

Last month, the UK government allocated more than 1 million for earth observation satellites, but this was not as ambitious or unusual as NASA announcing that it intends to pump large amounts of money into an extra-terrestrial monitoring programme.This highlights a new range of space-related legal issues, the like of which have only been seen in science fiction, says Ms Wheeler.

'Think about what human beings have done when they have explored unknown territories,' she warns.

'Look, for example, at how the British went into Australia and pushed the Aborigines out of their corner; extraterrestrial life forms could come and do that here.

You only have to look at [the film] 'Independence Day'.'So, perhaps 'Independence Day 2' will see humanity fight off alien incursion by taking them to court on a no-win, no-freedom basis.For some lawyers, wonders of space are still just too far away, despite their risks.

Last week, it was reported that a South African Internet entrepreneur is set to become the world's second space tourist, and is expected to pay Russia millions of dollars for the privilege.Ms Wheeler says that given the chance, she would also be on a rocket leaving this planet: 'Socrates said that if we could rise above the earth we would know that "this is...

the true earth", and only then would we understand the world we live in.'Who says lawyers cannot be 'way out'?