As civilians prepare to venture into space, are earthly problems like property disputes, health and safety nightmares, and crime sure to follow? Enter the ‘space lawyers’, reports Edward Helmore.
In October 2018, a 1,600ft-wide asteroid named Bennu will pass Earth, close enough for Nasa to land a spacecraft on it. Five years later, the craft will return to Earth carrying rock samples that could tell us exactly how planets are formed. But the mission, dubbed OSIRIS-REx, has another purpose: to lay the groundwork for the development of an asteroid-mining industry. Nasa has competition, though. Last year, a group of private investors (among them Google executives Larry Page and Eric Schmidt) formed a company called Planetary Resources, with the intention of mining asteroids for valuable minerals. But before Nasa, or anybody else, starts mining on Bennu, the Moon, or any other celestial body, a few questions need to be answered. Does anyone actually have the right to profit from space rocks? And if something should go wrong up there, far from Earth-bound laws, who is responsible? This is where “space lawyers” come in.
Space is still the new frontier, and like any frontier it’s a potentially lawless environment. But since the Soviets launched Sputnik in 1957 there’s been an ongoing effort to draft treaties, establish jurisdiction and evolve a body of space law.
As the private sector – particularly Richard Branson’s Virgin Galactic – looks toward commercial activity in space, from tourism to exploration, the ensuing legal minefield will be tough to navigate. And if there’s one person who knows what they’re talking about in this rapidly expanding area of law, it’s likely to be Joanne Gabrynowicz, professor of space law at the University of Mississippi, editor-in-chief of the Journal of Space Law (“a journal devoted to space law and the legal problems arising out of human activities in outer space”) and official observer for the International Institute of Space Law to the UN Committee on the Peaceful Uses of Outer Space Legal Subcommittee.
On any given week, Gabrynowicz can be found far from home. Last week, it was Virginia, a centre for the growing privatised space sector in the United States; this week it’s Beijing for the 64th International Astronautical Congress.
More than 20 years ago, Gabrynowicz left a legal career in Manhattan to teach space law at the University of North Dakota. She’s now the leading expert in a field that’s expanding as the number of countries and private firms looking for new ways to utilise the vast wilderness of space grows. But what of the legal aspects of space mining? Apollo astronauts gathering a few moon rocks (842lb of lunar material, to be exact) is one thing, but space mining is another.
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“A signatory to the Outer Space Treaty cannot by law appropriate territory and Nasa is a national entity of a nation that is a signatory to the treaty,” explains Gabrynowicz. “So the question becomes, what is that asteroid? Is it a territory or something else, a scientific specimen?” A private firm such as Planetary Resources or Deep Space Industries (which plans to mine space rock for trinkets) is not directly bound by the Outer Space Treaty. But that simply poses more questions.
Since property rights in space are untested, what happens if two companies go after the same asteroid? Is it first come, first served?
And what about liability if a lassoed asteroid crashes into Earth? Who is going to be in charge of health and safety? “It’s going to be a very long time before these hypothetical questions become real, concrete issues,” admits the professor. “We’re going to have to look at other bodies of law and see how they connect.”
Other questions, though, are much closer to becoming concrete. What to do about the problem of space junk, aka orbital debris? Or even legal disputes between astronauts on board the international space station?
China and India are planning to become major players in a field dominated by Russia and the US for the past 50 years. In the private sector, the field is crowded. There’s Elon Musk, co-founder of PayPal, creator of the Tesla electric sports car and now, the rocket developer SpaceX; Microsoft’s Paul Allen is building a space cargo delivery system called Stratolaunch Systems (slogan: “any orbit, anytime”); Branson, whose space tourism rocket-plane is backed by Allen and recently passed a crucial test; US real estate mogul Robert Bigelow, who has ploughed more than $200 million into a scheme to mass-produce commercial space station modules; and Amazon founder Jeff Bezos, who has bought 165,000 acres of west Texas to build a launch and test facility for his space company Blue Origin.
All of which creates plenty of work for lawyers like Gabrynowicz. The University of Mississippi, which recently expanded its space law department, is not the only place of learning to spot an opportunity; in 2010, The University of Sunderland began a first-year module on law and the legal system beyond Earth’s atmosphere.
Without a sensible legal framework, space law can get bizarre. Last year, a Quebec man named Sylvio Langvein walked into a courthouse in Canada and filed a suit declaring himself owner of the planets in our solar system, four of Jupiter’s moons, and the interplanetary space between. The judge dismissed Langvein’s claim, calling it an abuse of the Canadian legal system. Over the years, people have tried to sell plots on the Moon, register the planets in our solar system as their personal archipelago and so on. In 1980, Dennis Hope of San Francisco registered the Moon at the county office, gave himself the title of “The Head Cheese” and sent the US, USSR and the UN a $55,000 bill for littering.
In 2006, Virgiliu Pop, a law researcher at the Romanian Space Agency, published Unreal Estate: The Men Who Sold the Moon, a book he described as “a serious analysis of a trivial subject”. “Every now and then, someone thinks no one has claimed the Moon before, and then rushes to claim it,” Pop told Wired magazine. “Humankind has a short collective memory, so the claimant is able to create some buzz before the story dies out – to be followed by a similar story, years later.” The colonisation of space is not short of volunteers. Mars One, a Dutch foundation with the rather ambious aim of establishing a permanent human settlement on the red planet, recently received more than 200,000 applications for the one-way trip.
Permanent settlements in space suggest questions of jurisdiction. What happens if, on a long missions, a child is born? “Citizenship of a child in space will be based on the law of the parents’ own nation and the law that governs the place of the child’s birth,” says Gabrynowicz
Or if a crime is committed? “Under the International Space Station Intergovernmental Agreement, each state is granted jurisdiction over their respective nationals. But if the state of the accused party refuses to concur in granting jurisdiction to the aggrieved state, then the aggrieved state can assert jurisdiction.”
Meanwhile, any large-scale aggression in space would presuppose the collapse of the Outer Space Treaty. Since space is, as Gabrynowicz puts it, “a global commons governed by international law”, then international criminal law also applies. Under those circumstances, crimes like genocide, crimes against humanity, war crimes and so forth would fall under the jurisdiction of the International Criminal Court.
And what about casual crime? In an article titled “Jurisdiction in Outer Space: Challenges of Private Individuals in Space” in the winter 2007 issue of the Journal of Space Law, PJ Blount argued that of the various places a mugging might take place, the most likely would be on the Moon.
“It is the most likely place where two humans might meet each other,” Blount wrote. “If a person from state X were to mug a person from state Y on the moon, it is feasible that no state could assert jurisdiction. The crime certainly occurs outside the territory of any state…”
One issue came to light earlier this year when the state of New Mexico came close to losing Virgin Galactic and its custom-built, Norman Foster-designed Spaceport 150. The state legislature dragged its feet on granting indemnity to the plane’s manufacturer and parts suppliers in the event of a mishap. Without it, the makers of each and every screw and rivet would have been held responsible if the worst happened. But with other states vying for commercial space business, the issue was settled.
That said, it’s still not clear when Virgin Galactic will take off. The last announced date, 2014, now seems premature; Branson’s spacecraft has yet to be certified by US authorities, and passengers will have to read through a thick binder of legal documents and sign off on pages of waivers before they’ll be allowed anywhere near the vehicle.
With degrees in history, literature and law, Gabrynowicz brings formidable learning to her chosen field. “I’m always interested to see how things were done in the past to imagine how they might be done in the future,” she says. In particular, she was interested in how the British legal system had migrated to the US. This led her to think, what happens if humans go to the Moon or to Mars? What kind of legal system will they take with them?
As it turns out, space law has little in common with maritime law and even less with, say, agreements over the exploitation of Antarctica, in which nations secured the continent’s neutrality by agreeing to suspend claims on it. Instead, space law traces its philosophical underpinnings to the Russian and Soviet rocket scientist and pioneer of astronautical theory Konstantin Tsiolkovsky, and to Sputnik, the catalyst for drawing up a treaty.
“Sputnik scared the bejeebers out of the world,” Gabrynowicz explains.
The satellite was a benign experiment. It was the rocket that mattered – it could just as easily have been carrying a nuclear weapon. “It forced the US and the Soviets to look over the abyss and they saw both would be able to fight a nuclear war in or from space.” So the US went to the UN to propose a treaty – the Outer Space Treaty – that functions as a constitution for space and explicitly prohibits the placement of nuclear weapons and weapons of mass destruction in space.
To differentiate from the Soviets, Eisenhower was adamant that the US space programme would be a civil programme. He looked to Tsiolkovsky, hero to both Sergei Korolev, father of the Soviet space programme, and Wernher von Braun, father of the German and US programmes, for inspiration.
“Tsiolkovsky said space is a human activity, not a national activity,” says Gabrynowicz. “So we go into space as part of humankind.”
And that, in short, is why astronauts are considered envoys of mankind and why at blast-off the announcer says the mission is “for all mankind”. Since space law was originally drawn up for state civilian or military actors, not the private sector, it’s largely untested.
Space disputes have tended to be settled at a diplomatic level, not in the public realm (though the US government has vigorously prosecuted anyone thought to have improperly obtained moon rocks).
That could change, however, as more space junk begins to litter the skies. As much as 1,400 tons of man-made material has come plummeting down so far, including a Soviet nuclear-powered satellite that crashed in northern Canada in 1978, but to date, the only death related to objects falling from space was that of a Cuban cow in the early Sixties.
More troubling is the amount of junk floating around in orbit. While satellites or anything blasted aloft must be registered according to the UN charter, much space debris is now unidentifiable flotsam and jetsam.
A complete, broken satellite is one thing – it’s the responsibility of the entity that registered it – but once an object is broken up into pieces, it’s hard, if not impossible, to tell who the pieces belong to. “The engineers are saying that if you can identify the big pieces and collect them before they break up, that will help the debris problem more than trying to clear it up,” explains Gabrynowicz.
So space junk collection might present a viable business model for an eco-minded, billionaire entrepreneur? That idea has been talked about, says the professor, before adding that, inevitably, “There are considerable diplomatic and legal constraints.”