Res Communis

Interview: Ricky J. Lee

Ricky J. Lee is a Senior Associate at the commercial firm Schweizer Kobras in Sydney, Australia, specialising in commercial law and international law.  He is a Director of the International Institute of Space Law, Secretary of the Organising Committee and Asia-Pacific Regional Organiser of the Manfred Lachs Space Law Moot Court Competition, Member of the Outer Space Committee of the International Bar Association, Editorial Board Member of Convergence, Fellow of the Commercial Law Association of Australia and Member of the International Law Section of the Law Council of Australia. He was awarded the 2005 Distinguished Service Award and the 2002 Diederiks-Verschoor Award by the International Institute of Space Law. Since 2000, he has lectured in various subjects in administrative law, commercial law, comparative law, international law and space law.  He has published extensively on international law, commercial law and constitutional law and has presented legal and technical papers at international conferences and workshops, including the 2002 and 2003 United Nations workshops on space law.

Res Communis:            How did you get into space law?

Lee:            When I was an undergraduate law student at the University of Adelaide in Australia, there was a talk on space law given by a commercial lawyer, Michael Davis. He had recently finished a Master of Space Studies at the International Space University, returned to Adelaide and gave a talk at the Law School. I went to that talk, was fascinated by it, and really never looked back. I introduced myself and, as it turned out, he knew my father. He later gave me the opportunity to do a clerkship, which I took. He then offered me a job, which I also accepted, and that was the start of an amazing journey in space law.

Res Communis:            Did you do space law in the clerkship and in the job?

Lee:            The clerkship involved a research project for a paper he was to present at the 1998 International Astronautical Congress in Melbourne, Australia. He wanted someone to do the background research for him. That was my first professional space law assignment.

Res Communis:            What was the project?

Lee:            If I remember correctly, it had something to do with licensing.  At the time there was a lot of interest in Australia for commercial and private launch corporations mainly from Kistler Aerospace who were going to launch from Woomera the K-1 vehicle and there was the Asia Pacific Space Centre that was going to launch a two-stage rocket from Christmas Island, which an island on the coast of Western Australia. There were also a few overseas funded projects that were going to launch from Queensland. It was a very exciting time for the private launch industry in Australia and the timing was pretty good too.

Res Communis:            What was your first job and what did that entail?

Lee:            When I finished my undergraduate law degree, I actually decided I wanted to do an LL.M. instead of going straight into practicing law. I chose to go to the Australia National University in Canberra since it was one of the better-regarded international law degrees in Australia. About six months before I was going to go, the largest firm in Australia hired me as a graduate commercial lawyer and agreed to pay my education fees, which were substantial. So my first job was in a commercial practice in Canberra where it was mainly in technology contracts and regulations. I did quite a bit of work for the Australian government for research programs and coordination projects with NASA and the U.S. National Oceanographic and Atmospheric Administration (NOAA). I was also acted for a few of the launch operators that I mentioned before. I was very lucky early on in my practice. I was exposed to legal work for the largest launch operator in Australia as well as the only major satellite operator, which was Cable & Wireless Optus. I was very fortunate.

Res Communis:            What is the state of space law in Australia today?

Lee:            Australia probably has one of the world’s most complex and detailed regulatory regimes that exists for space activities. In terms of launch activities and operating satellites, the Space Activities Act 1998 has provided a very detailed and complex framework for launch regulations and launching satellite launches overseas. It is a very complex regime. Folders — like volumes of regulations — are quite substantial in the amount of regulations that exist. In terms of satellite communications, the Radiocommunications Act 1992 of Australia has provided satellite communications regulations for a long time as well. I suppose most of the regulatory framework needed is in place. It is not used as frequently as it was originally envisioned to be used. These laws were created at a time when it was thought that the demand for satellite services and launch services would be exploding. It was also a time when there was a lot of hype about Iridium and other satellite mobile communications networks, so there was perceived to be a lot of potential Low Earth Orbit launch services in Australia, which seems to be a very prime destination for that to take place. Australia has wide-open spaces and a very stable economic and political environment. It also has a very good geographical location and stable climate. The space industry explosion in Australia had died down by the time the regulations and laws came into place.

Res Communis:            Australia ratified the Moon Agreement and joined the relatively small number of nations that did. What is the status of Australia’s ratification now and why did it ratify the Moon Agreement in the first place?

Lee:            Ten years ago, there was serious consideration given to Australia withdrawing from the Moon Agreement. The Moon Agreement allows for withdrawal, so there were very serious discussions at very high levels of government to discuss that possibility. Ultimately it was decided not to withdraw because withdrawal would send the wrong signal among the international community regarding Australia’s compliance with the law.

Res Communis:            How is a treaty ratified in Australian law?

Lee:            Ratifying treaties in Australia are executive acts that do not require legislative oversight. The act of signing and ratifying a treaty is simply done by executive action. In order to ratify the Moon Agreement it did not need to be approved by either the Australian Senate or the House of Representatives. That being said, in order for treaties to be a part of Australia’s domestic law, it has to be legislated upon. The Space Activities Act actually incorporates the terms of all five United Nations treaties into Australian national law.

Res Communis:            Tell us about your current practice, what kind of space law do you do now?

Lee:            Mainly international advisory work. What I mean by advisory work is that a client comes to me whenever there is a legal problem posed. It is a consulting arrangement, more than anything else. It is difficult to maintain a space law practice in Australia because the industry has pretty much tumbled down. There is no commercial operator operating from Australia anymore and there has not been one for the last 6 or 7 years or so. There also has not been any major satellite operators except for Singtel Optus. That means that the amount of space law work in Australia is quite minimal. Most of the work that is done by space lawyers in Australia is imported work where they are simply added on in a consultant role to oversee clients for foreign law firms rather than having clients of their own in Australia.

Res Communis:            What about remote sensing law in Australia?

Lee:            Australia does not actually have any specific laws or regulations dealing with remote sensing.  In Australia, remote sensing is not just satellite remote sensing. There is also aerial remote sensing and a lot of use of remotely sensed data. Australia just went through one of its worst droughts in recorded history. Agriculture especially pastoral agriculture reliable on the knowledge of where water and pasture are located. There is also a mining industry where satellite imagery is used constantly in order to determine where the most appropriate places to explore for ore are located. Australia is certainly a very prolific user of remotely sensed data but there are no regulations in relation to their collection. All we do is consume remotely sensed data. That is why it was felt that there is not a need to regulate. 

Res Communis:            Does Australia have an organization that is analogous to the UK’s Ordnance Survey or the United States’ Geological Survey that uses data for various mapping applications?

Lee:            There is Geoscience Australia and the CSIRO (Commonwealth Scientific Industry Research Organization). Both Geoscience Australia and the CSIRO do obtain data from foreign sources such as NOAA and the passes them on to the private sector or the agriculture sector for use. They are normally regulated by contract in the sense that they are simply regulated based on the negotiated terms of a contract between the data supplier and the data user, rather then by legislative action.

Res Communis:            Tell us about your work in the Manfred Lachs Space Law Moot Court Law competition.

Lee:            My involvement started in 1999, which was my second International Astronautical Congress. It was particularly inspiring to watch the finals of the competition in the Peace Palace in The Hague. I watched two teams, one from France and the other from United States, argue space law before three Justices of the International Court of Justice. I found that quite inspiring, so the next day I volunteered to start an Asia-Pacific round of the competition and, of course by the end of the day, I regretted having done that. So in 2000 the first Asia-Pacific Regional Rounds were held.

Since then it has really taken off in Asia. The Asia-Pacific region is the largest one of the three regions. Every year since 2000 it has had more teams than the other two regions, Europe and North America, combined. The region’s record still stands at about 40 teams; which is about 30 or more than the record for Europe and North America. There are teams participating from China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, New Zealand, Singapore and Thailand, and, of course, Australia. It has grown to be quite an institution in Sydney every year. I am very proud to be associated with it. In 2009, the region is celebrating its 10^th anniversary and for the first time all 3,200 law schools in the Asia-Pacific region that are eligible to participate are being invited. We anticipate that it will be a very large competition in April 2009; we are also very scared that it will be a very large competition.

Res Communis:            Be careful what you wish for. What would you tell a law student today who is interested in making a career in space law, what kind of advice would you give him or her?                                   

Lee:            The first thing I probably would say is, to actually identify the interest they have in space law as either an interest in practice or academia. Space law in practice and space law in academia are two very different species. The practice of space law can be very regulatory, very contractual. Being involved in the mission activities may be very exciting, as a whole. But as a legal advisor, you have to look deep into the details; and, that may not be as good as it sounds. At the same time you do get involved in some of the more exciting work that does happen and that can be practiced by commercial lawyers.

Res Communis.            Would you include government lawyers in that category?

 Lee:            I would, yes. It does not leave much to the imagination. The benefit of being an academic with an interest is space law is that you can let your imagination run wild. You can think about what kind of space law can be created for the most amazing creations of science fiction or lay down a foundation for how a future human civilization can evolve. Academia can be very rewarding work intellectually, but not financially rewarding. So the first thing I would suggest is to work out which aspects of space law in which a student has a particular interest. Then think about what path would actually place them in the best position to pursue a career regarding that interest.  The sad reality is they tend to mix what makes a good space law practitioner, which is a well rounded background in commercial, contract, trade, and international business law, with what makes a good academic, which is a more vital grounding in international space law. Setting up a career in either field can be very different. I am very fortunate I think because my practice background is as a commercial and international transaction lawyer. I can draw on those skills. I would have been a very different lawyer had I not been exposed to those skills. When I was studying at university I never studied commercial law. I had always thought that I would study academics so I never bothered with tax, finance, or commercial law—really boring subjects like that. As it turns out I was very lucky I was able to learn in practice what I did not learn at university.

Res Communis:            What is the most important issue in space law today?

Lee:            The one that has the most far-reaching implications in the long-term would be property rights. I have a bias because my Ph.D. thesis was in property rights. I think as resources on Earth are becoming increasingly scarce, the environment is being destroyed more in order to obtain what is not easily available. As room on Earth runs out, for civilization to expand the next natural destination has to be space: be it the Moon, be it Mars, or be it Venus. To enjoy a hot summer all year round that is where we would have to go! Property rights is going to underpin every aspect of civilization, regardless of whether we are talking about settlement, mining, utilization, agriculture, or industrial production. All of those things require some element of property rights and it is one of the many debated topics that exist in space law today. It also occupies the media attention probably more than other issues.

In the short term, I think the more crucial issue is weaponization in outer space. Article IV of the Outer Space Treaty may be seen as prohibiting it but there is resistance by many states to that view.

Res Communis:            One view is that although Article 4 prohibits major classes of weapons, it is silent as to conventional weapons.

Lee:            I take a different view. To me, Article IV is an obligation that obviously arises under the Outer Space Treaty.  Article 42 of the United Nations Charter proposes an obligation to comply with a Security Council resolution, which to some extent is a regulation on the use of force.   Meanwhile, Article 103 of the Charter requires any obligations under the Charter to override any other obligations or rights that exist in any other treaty, regardless of whether the treaty existed before or after the Charter came into being. That means that the Article IV limitations — and of course, I agree it prohibits deployment of nuclear weapons or weapons of mass destruction in outer space and certainly prohibits the military use of  celestial bodies — those obligations are overridden. So while it may be an expression of the international community to limit weaponization in space, Article IV of the Outer Space Treaty does not have that effect in international law. That is a roundabout way of saying that Article IV may prohibit nuclear weapons and weapons of mass destruction that but it does not have that effect if the United Nations Security Council resolves otherwise. It does not effectively prevent the weaponization of outer space. In the short term, this is probably a more crucial issue that needs to be resolved.

Res Communis.            How ought the law respond to that issue?

Lee:            Unfortunately, there is not a simple way of doing that. It does not matter how the Outer Space Treaty is amended or what a new treaty contains, the Charter will be able to override it. The only way that this can be avoided is to amend the Charter itself or by creating new international law to which the Charter will be subject. It will take a universal effort on the part of the international community to achieve either of these and the reality is that it is not going to happen anytime soon. 

Res Communis.            Do you want to add anything that I did not ask?

 Lee:            I think I find space law fascinating—not because it is “sexy”; not because it is interesting; not because it is different—but because it is an exciting part of the development of civilization. Humanity spent the last 4,000 years thinking about what is next; be it in a cave, be traveling across an ocean. With space law, it is what’s next.  I probably will never be fit enough to be an astronaut or smart enough to be a space engineer, but I was lucky enough to be involved in the law. If space law is my contribution to civilization, then that is my cup of tea.

Res Communis.            That is a good note on which to end. Thank you.