The terms “legal and “illegal” are not synonymous with right and wrong. Law schools generally do not teach how these terms are distinct. This is true as much on Earth as it is in outer space.

When a client asks his attorney, “Can I take a certain action?” they usually are asking, “Is there a law out there preventing me from doing this?” However, that should not be the sole measurement by which one decides to take a certain action or not. The calculation should not be “Will I go to jail if I do this?” But rather, the yardstick should be, “Is this the right thing to do?” In other words, just because something is not forbidden, it does not necessarily mean that it is advisable.

Currently, in the field of Space Law, this happens to be a very timely issue. Numerous recent events have demonstrated the quandary of doing what is legal versus doing that which is right. In fact, Space Law has very few explicit legal prohibitions. The Outer Space Treaty (OST)1 contains a few restrictions (e.g., no installation of nuclear weapons in space, no testing of military weapons on celestial bodies, no harmful contamination of other celestial bodies, no national appropriation of outer space) but, overall, it is permissive. It guarantees that space shall be free for exploration and use, and that activities in space shall be con-ducted in accordance with international law. That sums up most of its restrictions. This Foreword suggests to current and future space lawyers that, when a client presents a Space Law question, examination of solely the text of the OST and any national statutes and implementing regulations may not be a complete analysis. Rather, serving one’s client’s interests, as well as those of humankind more broadly, demands a greater duty from an attorney.

This Foreword provides just a few examples of what I call “suboptimal” behavior in outer space. While perhaps not breaking any explicit laws per se, activities as far ranging as intentionally destroying satellites in outer space, launching roadsters or disco balls, or sneaking unauthorized life forms onto spacecraft before launch can all do damage to the space environment. Moreover, they do nothing to foster confidence or exhibit transparency in outer space. After looking at these examples and the relevant applicable law, this Foreword suggests that looking at the law, by itself, should not be the sole criterion for attorneys advising their clients on space activities.

Continue reading The Time Is Always Right to Do What Is Right