Space Law: The Work Behind an Emerging Practice

Kyle McEntee:

We're joined today by Michelle Hanlon, a leader in the field of space law, which is relatively new because humanity hasn't had the ability to be in the air, let alone space, for all that long. With our new technical abilities, however, comes the need for order, which laws and norms shape. Whether we're talking who can extract natural resources, who is responsible for flying trash, who you sue and where, when things come crashing down, or honestly, the list is pretty endless. In sum, I think this is really about an environment that nobody quite controls, but many want to.

If you had to explain your job to a fifth grader, how would you describe it?

Michelle Hanlon:

My job is to protect the humans of the future that are going to live and work in space. I do that by making sure that we keep the laws as flexible and open as possible, that we keep an open mind about what's going to happen as we get to space, and that we really, really work hard to protect the memory of humanity in everything we do.

Kyle McEntee:

So the first treaties on space were in the 1960s. We landed on the moon in 1969. Has the pace of change been steady or do you feel like it's accelerated?

Michelle Hanlon:

So the pace of space technology has accelerated significantly since the turn of the century. I think everyone can sort of recognize that we reached the moon in 1969, we went back a few more times. The last time we've been on the moon was 1972.

So we had 30 years of sort of laying fallow, thinking about, well, you know, then 2000, we had the space station, and we've had now a human in space ever since. So for 26 years straight, which is pretty cool. Then we suffered the two shuttle disasters and started to think about different ways to go to space and really opened the gates to innovation and enterprise in a way that we hadn't before, because the US government really turned to thinking, okay, maybe we should put this in the hands of commerce and commercial space and not rely on the government on NASA to come up with all these ideas.

And so that was a really transformational moment in the space industry using, again, this is government funding. So this is government funding initially to say, okay, here's some money, go figure out how to do this. And then with that opening up that innovation, you have more and more companies coming in, you have more and more great ideas.

And then we got the reusable rocket and all of a sudden the price of launch has plummeted. And so you just opened up a whole new generation of minds thinking, oh, well, if I put this in space, then I can do these other things. And so that's where we're really seeing an acceleration.

Kyle McEntee:

Your early career in law wasn't in space law. You spent about 25 years working in M&A, mergers and acquisitions, before your pivot to space law. But you've built this second legal career out of your interest in this environment that's just beyond our grasp or maybe right within our grasp.

That said, I don't think there's a ton of space law jobs out there, at least not yet. There are companies like SpaceX and governmental roles like through NASA or Space Force. But I do think the work you're involved in is laying the groundwork for a practice kind of like maritime or admiralty law. And that governments and advocates are doing this by trying to build a sensible legal platform to address conflict. So as you play this role in space laws development, you're doing so through two jobs. One is the executive director of the Center for Air and Space Law at the University of Mississippi, and a second at a space nonprofit for All Moonkind, which is a really fun name. How do these roles complement one another?

Michelle Hanlon:

So first, thank you for giving it the real name, because a lot of people automatically go to For All Mankind and then ask me about the Apple TV show. It is Moonkind, and for a reason, because we believe the moon is the cradle of our space faring civilization. So all the humans who end up in space will originally be Moonkind.

The two roles complement each other really well, because as the CEO of For All Moonkind, I'm a permanent observer to the United Nations Committee on the Peaceful Uses of Outer Space, where international space law is made every year. And that helps inform how I teach my students about what is going on in international law and how that translates down into, like what you said, where are you going to get those jobs? What does it mean?

Not all of my students are going to become diplomats or attorneys for the State Department. They're not going to go to the UN three times a year. But what happens at the UN more and more and more is impacting what companies do in the United States. And so we can't ignore it. And I am lucky to be able to help frame it as an observer, and then also boil it down and see, okay, this is why SpaceX should care. And forget SpaceX. This is why Firefly should care. There's a lot of much smaller companies out there also pursuing space dreams.

Kyle McEntee:

Yeah, we've talked about water rights on the show a handful of times. And often the context there is, from the water rights flows a viable economy. And from that flows growth and jobs. I really feel like that's what's going on here. Does that sound right to you?

Michelle Hanlon:

Absolutely. And, you know, I talk to people all the time who are like, I don't care about space. You know, you're some science fiction freak. This doesn't mean anything to me. It's not going to affect me. And I'm like, no, it is going to affect you. Because even if you don't want to go to the moon and don't have no interest in going to a space hotel, it's going to be there and it's going to be part of our economy.

When we think about flight, how much it changed the world, brought us together, closer together. It created industries in places where you couldn't have had them before.

That is what we're going to see with space. And I can't tell you exactly what the backbone is going to be, but I can tell you it is going to be the backbone of our future economy. And so everybody, even if you are a baker in a small town, four towns down from me here in Mississippi, you are going to be affected by the fact that we are going to have people living and working in space.

Kyle McEntee:

GPS works through satellites, which are up in space. What are the laws currently that are dictating the terms of that satellite's position, you know, floating above us?

Michelle Hanlon:

So this is why space law is so much fun, because there's not a lot of it. You talked about the few treaties that were negotiated in the 60s. And the main treaty, the Outer Space Treaty, is only 17 articles long. It's two and a half pages. And so think about, as lawyers, think about all of the regulations you deal with, whether you are going to build a car or build a spaceship or whatever. The fundamental precept of outer space is the freedom of exploration and use. You can do anything you want in space. And so since the first communication satellites went up in the 60s, we've been thinking about, oh, well, how do we ration out orbits? More important even, frequencies, radio frequencies, because you get a lot of harmful interference. You see that back in the old days when you had radios. And so for communication satellites and for any satellites that need frequency, we actually have a great system on orbit. It's called the International Telecommunications Union. It gives nations access to certain orbits and certain frequencies. And then the nations boil that down to their individual companies or agencies themselves. In terms of satellites for telecommunications, we're pretty set. It's for other things, more novel things, where we're starting to get a little bit more, you know, what about remote sensing satellites? What about these satellite constellations? You know, there are 10,000 Starlink satellites in space right now. And Elon Musk just applied for a million slots for data centers. Amazon Leo, once I think they put in for 12,000. China just applied for 200,000. So it's starting to get a little crowded up there. And there are no regulations detailing what to do when space gets too full.

Kyle McEntee:

In contrast to the United States, where there are regulations for keeping the airwaves at least sensibly clean, right?

Michelle Hanlon:

Exactly. Yeah, that's a great parallel. And the ITU, the International Telecommunications Union, just has not been prepared for this growth in satellite constellations. And I think they're meeting in a couple years, and that's going to be the first time that they address this directly. And so I think that's one of the reasons we're seeing all of a sudden, oh, Rwanda wants 200,000 satellites and China wants another 200,000, because everyone wants to get their proposals in before those rules come down.

Kyle McEntee:

All right, so we've kind of positioned you so far as a commentator on what is the lay of the land now, although maybe not land, maybe that's the wrong term to use. And then what is it going to be in the future? But what is your role look like day to day? What do you spend your time doing?

Michelle Hanlon:

So when I'm not teaching, I am actually working to think about ways to push the law. And I have two avenues of pushing. One is through the US government, through regulations, through our senators and congresspeople, and the other is internationally through the United Nations.

So for example, today, we have a meeting in April, the legal subcommittee of the United Nations is going to meet for two weeks, and I have the opportunity to prepare a couple presentations for that. But I'm also working with the Polish foreign ministry to prepare a proposal to present to all of the delegates of the United Nations on how we would protect heritage on the moon as we see so many companies and countries ready to go back.

Kyle McEntee:

So it's a pretty niche role you have, although I do think there's like an analogy to all kinds of advocacy work. What you're describing is basically lobbying. Now, what's particularly different, I think, about your role is that you're doing this at a law school. And law schools, I think, tend to be at the forefront when there's no viable commercial model or fundraising's hard, because there's methods of getting money into the center baked into higher ed. So that affords you the ability to work with the Polish government. What does that actually mean, though?

Michelle Hanlon:

So when I say I'm working with the Polish government, I am literally working with them to prepare paperwork that's going to be presented. If you go to the For All Mankind website and you click on the For All Mankind moon registry, we actually have a beautiful catalog of all of the human materials that are on the moon currently, because we thought if we want to protect heritage, we have to know what's up there. It was all in a book, but that wasn't publicly, you know, the book was like $300. And so, you know, who's going to buy that, right? So we put it up on the website and Poland asked us to put that into a different kind of data form so that they could prepare a report for the United Nations. So as a permanent observer, I can throw stuff at these delegates all the time. But it's a nation, a state has to be the one to say, hey, we want this on the record as part of a U.N. decision or U.N. resolution. We are thrilled to be working with Poland on preparing the kind of resolution, the kind of consensus driven statement that would actually protect heritage in outer space.

And what does that even mean? Who cares? You know, nobody's going to overrun Apollo. It's also a way to start governance of space from a place of unity and not a place of exclusion. Let's all agree that these things need to be protected. Let's figure out how to protect them. And then that will form a baseline for how we relate to each other in other aspects, like when we have two opposing lunar minds and so forth.

Kyle McEntee:

What you're doing is you're looking at kind of your field of play and you're assessing what are their motivations, where am I trying to get to, and then designing advocacy pathways to actually accomplish those goals. When you're trying to determine what motivates a governmental actor, how do you begin that assessment?

Michelle Hanlon:

I want to start answering that by pointing out one thing that you sort of touched on, but something I teach my students all the time. Because one of the things I learned is, you know, anybody can read the law. And so I'm not teaching the law, I'm teaching you how to read the law. And the important thing about the law that I want to teach is that it's flexible, it's intended to change, and you should be pushing the bounds of it. And so from my experience as an MNA attorney is, I really loved contracts, and I love the way words work together. And that was just so much fun for me, because I would draft things in ways that worked around the law that exists. And then it dawned on me, okay, wait, why not make the law work around what I want to do instead? And so that's where I have found myself after 25 years of following the law, I'm actually out there changing the law. And you do that by talking to people over a lot of coffee, cornering them at the coffee shop or at the coffee machine, and making them listen to you. And then realizing right away, okay, that person gets it, that person doesn't get it. Now, what are their motivations? They will run from the gamut. I agree with you, Michelle, that's a great idea to, okay, I do like space, and I'm in a Senate that is being torn apart. It's the anniversary of the Apollo 11. Maybe if I work with you to produce a law that will protect the boot prints, then that will bring unity into the Senate. That's exactly what Senator Gary Peters did when I met with his staff to talk about the one small step to protect Human Heritage Act, which did pass the Senate in 2019, but didn't pass the House until 2020.

Kyle McEntee:

The one thing I wanted to get into was, it almost doesn't matter what you develop as a legal platform for what happens on the moon, whoever gets there first, if they've got bombs and they've got guns, it might not matter, they just might do what they want.

Michelle Hanlon:

Yeah, I will say, you know, we do that outer space treaty does say all celestial bodies shall be used exclusively for peaceful purposes.

Kyle McEntee:

Yeah, but that's the thing is power, power corrupts, right?

Michelle Hanlon:

That's why we're in a race right now, because you're right, whoever gets there first is going to have the most power. And it's not going to be immediate, though, we just have to make sure we're there. And so that's really what the race is about now.

There are a lot of mineral resources that we have decided nobody's going to touch until I think 2047. And that moratorium lifts in 2047. And I know there's a lot of hope that we reinstate it, but everything I'm hearing is like, yeah, we can't wait till 2047. So, yeah, you're right. I mean, and there's a lot of space ethicists who are very concerned, you know, because it feels like a very colonial kind of mentality. But as far as we know, there aren't people out there or aliens out there to be subjugated. And so and also space is much harder than any environment on Earth. And so I think we're going to need each other in a way we don't realize.

Kyle McEntee:

In 2017, after you went back to earn your LLM, or a master's level law degree, which for you provided a specialty in space law, you thought you'd be working for one of the commercial space companies like SpaceX. Why do you think that didn't work out?

Michelle Hanlon:

So I have had an interesting career trajectory. I started out in big law, spent a number of years there. And then I was lucky enough to be able to consult from my home.

So I was doing transborder transactions, cross-border transactions, able to do it from home, you know, sort of the early days of being able to telecommute, if you will. So it's not a traditional trajectory. And I thought that I would be able to get, you know, people would just eat me up alive, right, because I have the space background and I have all this contract work. And I think two things worked against me. One is it was a very non-traditional. I didn't have big corporation experience. And second, I'm going to I'm going to say it out loud. It was my age. You know, I was 51 when I graduated with my LLM and going back and saying to a company, hey, I'll come in as, you know, as a peon. I don't care. I just want to be in this environment. And they said, well, that the HR people were concerned that that would put a burden on the actual young people thinking, oh, it's always going to be Michelle who gets promoted because she has all this experience. And that would hurt morale, which I get. But I also, I also think that when I graduated in 2017 with this specialized advanced degree, companies weren't not thinking about changing space law at all. They were much, much more concerned about regulations. They're not looking for space lawyers. They're looking for export controls. They're looking for people who understand admin law, who can make it through the regulatory system. They want people who know procurement law. They want people to read contracts. And so at that point in time, the space aspect wasn't important.

It's only now, nearly a decade later, that companies are realizing, wait a minute, there's no regulations out there. So we want somebody to who understands the lay of the land, the lay of space, the lay of the universe so that we can carve out what we want. How are you going to help form laws that protect you, but also don't hinder competition because that can come back to bite you. And so that that's where I'm starting to see, you know, we're starting to place more of our graduates at companies like ULA and SpaceX and Blue Origin.

Kyle McEntee:

So it's as lobbyists, essentially.

Michelle Hanlon:

It is as lobbyists, but it's also the contract work. So when we think about payload contracts, we don't have a lot of rules about payloads right now. And when I say payload, I'm talking about the stuff that you load onto a spacecraft and that goes and does something cool either on orbit or on the moon or elsewhere. Nobody regulates that in the United States. Nobody regulates that anywhere in the world. We're very concerned about the launch. Make sure you don't pollute. Make sure you don't drop something on somebody. But once you get into space, we're like, oh, OK, whatever. You talked about space trash. There's a lot of debris in orbit. We really, as responsible citizens and lawyers, we really don't want to contribute to that.

And so lawyers, contract lawyers working for SpaceX should be looking at that payload and thinking about, well, do we really want to support that? Maybe we ought to have in our contract something that says you won't do these things. And so that's what I mean. So it's advocacy, but there's also a very operational aspect to it.

Kyle McEntee:

Yeah, so it's kind of like the industry knowledge informs the traditional practice areas.

Michelle Hanlon:

Exactly. And what a unique time to be a space lawyer, because you have the opportunity to form that law. We're not going to get another space treaty anytime soon. There's just too much going on terrestrially for us to agree on anything. Right. But you know what? The industry can come together and create standards. And we've seen it done over and over and over. When industries form, they create their own standards and then Congress is like, oh, seems to be working pretty well. We'll just codify them. And so that's the environment that we're in right now.

Kyle McEntee:

One of the things I struggle with in trying to figure out how do I advise people who want to go to law school or in law school on what are my career opportunities is that so often the people in these really cool sounding jobs came from such privileged background that I'm worried about setting up with false hope because of the world we're in. Do you think that's giving you a leg up in getting to where you are?

Michelle Hanlon:

Absolutely. No question about it. And it's something that I think about a lot. So at Georgetown, we had law firms come to the school to interview us, hundreds of law firms. Right. And you just sort of signed up and they got the interview. I will also say that the education I got was amazing. But I would also go back. I was privileged to attend a private boarding school in high school. Hated it. Hated every minute of it. But the teachers there really taught me how to write, how to think, how to read. And so having that kind of experience where you have teachers that really care and are really passionate and you're thrown into this, that was my first leg up, is being forced to read Dante and actually understand it and talk about it.

Kyle McEntee:

Which is not to say that like people can't get through and break down doors because they absolutely can and they have. But I think that's kind of the tension I struggle with and that I felt like was revealed by you saying I had this background that set me up to do cross-border transactions to even know what that means and why that's difficult. And then how that all together puts you in a position to advocate for the next frontier in space.

Michelle Hanlon:

I think that's true. So that's my path. Students ask me all the time, what should I major in in college, so I go to the right law school? And I always tell them major in something you're passionate about. You know, don't go do something that you just like picking up the book and reading it isn't a chore because A, you're going to get the best grades in that kind of exposure and B, how often do you have four years to do what you really love? And lawyers need, we need people with all sorts of backgrounds in space law in particular, but certainly in the law itself.