Commercial Space Operations-The Final Frontier of Law: An Interview With Chris Johnson

For this interview, I was fortunate enough to speak with Chris Johnson, a Space Law Advisor for the Secure World Foundation of the Georgetown University Law Center. Our conversation largely revolved around the premises of historical space regulations and how such legislation will be interpreted moving forward—given the emergence of the private space industry. However, despite this private sector emergence, we also discussed the role of government agencies and how historical space legislation applies to them, particularly with regard to the recently-established US Space Force. Ultimately, it is my hope that this conversation can help identify areas of previous space law that will maintain relevance in the coming future—as well as areas that may need updating/replacement.

This interview was conducted in Spring 2021. It has been edited for length and clarity.

Harvard Undergraduate Law Review (HULR): You have a great familiarity with previous and current international regulations in space; however, such agreements were made for sovereign states. How will private companies be impacted, given the rising popularity of space tourism and commercialization?

Chris Johnson: The US Government authorizes and supervises, regulates, and licenses the private-sector space activities. So, it’s not merely that the private sector is also bound by the structures of international space law, but it also incorporates how the US aims to regulate and also foster their commercial space activities—not just governmental space activities. So law obligations imposed on commercial actors and also national interests—over how the US will regulate those space activities.

HULR: Now, you’ve stated that the concern of military Space Force operations is negligible given previous international legislation (1967 Outer Space Treaty, Artemis Accords); however, do you foresee the Space Force policing private commerce in space?

CJ: It’s a difficult area, and I think there's a different subject matter area; I think there are different rules and possibilities, whether it’s low-Earth orbit, geosynchronous orbit, or the Moon and other celestial bodies. So, you know, international law serves as the guardrail, the backstop for some of these activities. Military activities are permitted in outer space, and there are legal military activities as long as they’re done in a manner that is in conformity with the rest of international law. For example, the UN charter of the Prohibition of the Use of Force, Article 24 of the UN Charter; so a military activity in space, say the surveillance of a foreign state—it seems totally fine that we have the overflight rules of outer space. You’re allowed to put a satellite in orbit, put a camera on it, and look at other space territories. In that respect, the Space Force’s military activities are permitted in space. Military activities are also permitted for self-defense—so someone illegally uses force against your space assets. There are certain caveats for self-defense in space, just as there are certain caveats for self-defense on Earth—meaning Article 51 of the UN Charter Individual and Collective Self-Defense, those rules are not modified largely for outer space. But then we have the Outer Space Treaty; I would like to put out there the importance of the article for the Outer Space Treaty, specifically the second paragraph of the article for the Outer Space Treaty—which deals with the Moon and the real prevention of military activities of the Moon. I’m going to quote this again—Article 4 Paragraph 2 of the Outer Space Treaty: “The Moon and other celestial bodies shall be used by all states to the treaty exclusively for peaceful purposes.” Then it has a further prohibition: the second sentence states, “the establishment of military bases, installations, and fortifications, the testing of any types of weapons, and the conduct of military maneuvers on celestial bodies shall be forbidden.” This is a strong prohibition. So, basically, the Space Force seems absolutely forbidden to go to the Moon. It seems very difficult for me to see the Space Force going to the Moon. The third sentence is a carve-out to that; it says the use of military personnel for scientific research or for any other peaceful purposes should not be permitted. So if you’re a member of the Space Force, you may be allowed to go to the Moon if you’re serving as a liaison at a scientific radio astronomy location or a lunar mining facility—and you just happen to be in the Space Force. But that’s a carve-out to the previous sentence—he conducted military maneuvers. So if the Space Force is up there, and it’s justified as some sort of peaceful scientific research—if what they’re doing rises to the level of a military maneuver. And then the final sentence says, “the use of equipment or facilities necessary for peaceful exploration of the Moon and other celestial bodies also should not be prohibited.” So here’s the further carve-out: that means a space station or a space settlement or installation on the Moon, that’s not prohibited; that’s totally fine. Peaceful uses, scientific uses, are permitted on the Moon. Maybe Space Force personnel are permitted on the Moon, but military maneuvers are prohibited. I think this will be crucial as we have to make sure that it’s not just applied to American Space Force but any space forces. Any military forces on celestial bodies, that prohibition is stronger than elsewhere in space. It’s easier to justify Space Force circling around in geosynchronous orbit, but the Moon is different. It’s a dichotomy in treatment and in domains. 

HULR: Do you still foresee the Space Force having international interactions in the coming years, whether in regards to orbital operations or events further out in space?

CJ: Yes, definitely. That first sentence states, “the Moon and other celestial bodies shall be used for peaceful purposes.” Any time they say the Moon, it always has “and other celestial bodies.” And it’s going to be largely robotic for the time being; we’re not going to be putting Space Force Astronauts in Space. You know, if Russian satellites or Chinese satellites are creeping around geosynchronous orbits and interfering with U.S. or allied assets, I wouldn’t be surprised if the Space Force interdicts, intercedes, and conducts countermeasures to those activities.

HULR: One of the concerns of space regulation involves space resources. Do you believe that asteroid strip mining should be protected under space legislation? Or could it lead to ill-fated aggression between nations, as well as a terrible environmental toll?

CJ: All we have is Article 2 saying that “national appropriation is forbidden” in that “no activities will rise to the level of national appropriation or justify national appropriation.” Consequently, I think the use of resources for all purposes is permitted and if nothing they will do will rise to the level of a permitted national appropriation—meaning a new territory, the 51st state of the United States on the Moon, on an asteroid, or on Mars. That is impossible under Space Law. I always say ‘the use of space, including the Moon and other celestial bodies, is in the very title of the treaty.’ The Treaty and Principles Governing the Activities of Space in the Exploration and Use of outer space, Moon, and other celestial bodies. The second thing is: ‘in long-standing principles of international law, and mainly the Lotus principle’—the Lotus Principle means that what is not strictly prohibited is permitted. If there’s no prohibition saying a state cannot do something, clearly written in black-letter law—an exclusive black-letter law—you’re allowed to go and do it. There’s no clear prohibition on the use of space resources.