Why Canada needs a New Regulatory Regime for Space Law: Interview with Windsor Alumnus, Aram Daniel Kerkonian
Windsor Law LTEC Lab
J.D. Candidate 2020
After graduating from Windsor Law in 2014, Mr. Aram Daniel Kerkonian clerked for the Superior Court of Justice (Ontario), completed his Master of Laws (LLM) from the Institute of Air and Space Law at McGill University, and is now a Doctor of Civil Law candidate at the Institute of Air and Space Law at McGill University. I had the opportunity to meet with Mr. Kerkonian at a picturesque café in Montreal, where we discussed what his doctoral research encompasses, his transition into the field of space law, and his time at Windsor Law.
Before delving into the questions, Mr. Kerkonian offered a quick overview of space law:
Space law has been around for more than fifty years, following closely behind the Soviet launch of Sputnik. The first, and foundational, international space treaty was the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space [Outer Space Treaty], with four more treaties following in quick succession. Although international space law has endured and remained relevant over more than five decades, its resiliency is currently being tested by humankind’s significant technological advances and focus on commercial activities. The transition from public to private, coupled with the significant reduction in cost of accessing space, is testing the legal framework developed during the Cold War that was meant to ensure all of humankind would benefit from this new frontier.
What are the specifics of your doctoral research?
My doctoral research focuses on the Canadian space regulatory framework, specifically as it applies to private companies. To best understand what I study, it is worth noting that international space law (the specific principles that countries have agreed to) establishes the broad, overarching goals of the international community. These overarching goals, however, are implemented domestically in a manner that suits the interests of the individual country. For example, Canada, the United States and France may all have national laws related to a specific space activity (such as broadcasting or telecommunication), but the content of each specific law may be different depending on each State’s distinct priorities. At the end of the day, however, all of the laws will uphold the same broad principles that are outlined in the international space treaties.
Given this context, I focus specifically on Canada’s laws related to space and investigate whether they are appropriate given the changing global landscape. Over the last two decades, public space activities (i.e. NASA, the Canadian Space Agency, Roscosmos) have given way to private space activities (i.e. SpaceX, OneWorld, Planetary Resources), as budding entrepreneurs find new and novel ways of making money in space. However, by virtue of a unique principle in international space law, governments must regulate these private space activities, thereby creating a need for a regulatory framework.
Broadly, my analysis considers whether Canada’s current regulatory framework promotes industry growth, is competitive on the global stage and whether it benefits Canadians and humankind, generally.
What is it that you want to change about the current Canadian regulatory framework related to space law?
The Outer Space Treaty requires States to “authorise and continually supervise” private space activities. Canada, like many other countries, satisfies this obligation by requiring anyone who wishes to conduct space activities to first acquire a license. The catch, however, is that licenses can only be handed out if there is existing legislation that authorises such licenses and Canada currently only has four such laws. My research suggests that if you want to do anything other than radiocommunications, telecommunications, broadcasting or remote sensing (which currently have dedicated legislation), the existing regulatory framework is deficient. As technologies continue to develop and new activities become possible, Canada will be unable to appropriately “authorise and continually supervise” emerging activities in a timely manner and so we risk falling behind other jurisdictions that have a more robust regulatory framework.
For example, if an innovative young Canadian entrepreneur decided she wanted to start mining for rare-Earth metals on asteroids (an activity some estimate will be worth $1 trillion dollars within the next 50 years), they would not be able to get a licence from the government to proceed with such “space mining” activities since Canada does not have a Space Mining Act that would authorise such an activity. By the time Canada does create such a law, other non-Canadians may beat her to it or the Canadian entrepreneur may decide to go to another jurisdiction that can license her activities. Although space mining is still a few years away, indigenous launch capabilities such as building a rocket and launching from Canadian soil, is very much a reality with multiple companies developing the technology even though the regulatory framework remains non-existent.
I want to change this by creating a single, comprehensive space law that would allow the government to license any space activity, thereby satisfying its international obligations and promoting the development of Canadian innovations. A single law overseeing all space activities would give the government regulatory breadth in sanctioning new activities as they become feasible as well as provide clarity and consistency to the regulatory framework.
Would the ultimate goal be to have a comprehensive space law that not just Canada would adhere to, but internationally?
Yes, in an ideal world, you would want all space-faring nations to follow the same set of rules. The alternative would be to have national regulatory frameworks that, although not identical, fit the overall broad principles of international space law (namely, that space be used for the benefit and in the interest of all countries). Therefore, from a Canadian perspective, the goal would be to create a regulatory framework that is good for both Canadians and humankind. The difficulty, of course, is that each country wants to promote its jurisdiction as a great place to do business and, in turn, wants to make sure that its businesses are profiting from their expensive and often risky space activities. Although Canada is no different, achieving a balance between creating a pro-business environment while maintaining an international reputation of humanitarianism is difficult. Indeed, some countries that are less interested in upholding humanitarian principles may seek to create extensively permissible regulatory frameworks that encourage business to relocate to their jurisdictions (raising potential questions of forum shopping). The regulatory laws would have to be fair for companies to balance the interests of humanity while still being able to be profitable for the company. Finding this balance and comprehensive ground rules will help solve the problem of jurisdiction shopping.
How did your interest in space law develop?
Mid-way through law school I realised that I wanted to pursue public international law in an academic capacity so I could write and teach on the subject. Given the number of people also interested in this field, I knew I would have to find a niche. Amidst deciding on a topic to write for my international environmental law term paper, I came across two sentences in the text book about space debris as an environmental concern (the fear being that space debris grows so significant that it limits our ability to access space). I looked into the topic some more and discovered that there were only a handful of places in the world to study space law and so after completing my articles as a judicial law clerk at the Ontario Superior Court of Justice in Windsor, I packed my bags and moved to Montreal. My love for space law has only grown since that fateful lecture back in 2013.
What advice would you give to students who want to pursue a career in space law?
As most people would advise, the most important thing is to do what you love because when you are following your passion, you are putting in the most effort and seeing the best results. So my advice is to take whatever courses you find interesting, do well academically and demonstrate that you have the critical thinking skills necessary to tackle complicated challenges. Once you have done that, pursue at least an LLM to more deeply study the subject matter and really decide what it is about space law that you love. Once you have figured that out, building a fulfilling career path is much easier.
In terms of careers, I think you have a number of options. Pursuing graduate studies and then teaching is a worthwhile avenue if you are interested in thinking outside the box and inspiring the next generation. Alternatively, working for governments as they try to develop and improve their regulatory policies, laws and regulations is a great way to serve society. Private practice is also an option, especially since disputes between space operators will only grow and having a background in space law will give you an advantage over traditional corporate or litigation lawyers. There is also the option of offering your expertise in the form of consultative services: in my experience, a lot of new and innovate space companies have the technological wherewithal to develop their products but are not aware of the legal complexities involved and would benefit from the advice of a consultant.
How has your time at Windsor Law shaped your professional endeavours?
I genuinely believe Windsor Law’s overall atmosphere of collegiality rather than competitiveness instilled in me the benefits of working with people to solve complex issues, as much of my work since then has been a collaborative effort. There were also plenty of opportunities at Windsor Law to develop the skills I needed to succeed today. For example, as an editor for the Windsor Review of Legal and Social Issues for all three years, I realised the importance of legal research and writing. My mooting experiences in the Zuber, Hicks Morley and Jessup developed the skills necessary to communicate complex ideas in pressure situations. The Jessup Moot in particular, confirmed my interest in public international law, as I found it to be a particularly challenging and rewarding experience. I give much-deserved credit to Dean Christopher Waters [then, Professor Waters], who coached my Jessup team and for his guidance throughout my time at Windsor Law, which has had a lasting impact on my career. I fondly look back at my three years at Windsor Law as a fulfilling and stimulating time, given its nurturing atmosphere.
Do you have any general advice for law students with regards to navigating career paths after law school?
Spend your time in law school developing critical thinking and other transferable skills and figure out what it is about the law that brings you pleasure. Once you have done that, you are prepared to pursue the kind of career that is going to be rewarding. I think this is even more important today as the constant development of technology is going to eliminate certain positions while simultaneously creating new ones: do not think that you have to commit to traditional career paths because ten or fifteen years from now the legal profession will likely look very different.
The other thing I will say is that just because you have a law degree, it doesn’t mean you have to work as a lawyer or even do work related to the law. Your legal degree signifies that you have the ability to think critically, expansively and effectively; it does not signify you can only read contracts or argue the nuances of a tort. You can find a million different ways to put your transferable skills to work, so long as you do what makes you happy.