Lawyers in Space?

A recent Washington Post article highlights what would normally be a humdrum domestic dispute alleging identity theft.  The unusual feature of the dispute is that the party who allegedly accessed a bank account without permission did it from the International Space Station, and thus may have committed the first legally recognized crime in space.

Anywhere humans go, the lawyers can't be far behind.  While Shakespeare probably got a laugh in his play Henry VI when the criminal type Dick the Butcher said, "The first thing we do, let's kill all the laywers," the context was not a sober discussion of how to make a better society.  Dick and his rebel friends were imagining a fantasy world made to their liking, where all the beer barrels would be huge, all the prices low, and naturally, there wouldn't be any lawyers to get people like them into trouble.

Law-abiding citizens need have no fear of ordinate laws, and so it's only right that there are some treaties and international agreements that govern humans and human-made artifacts in space. 

The foundational agreement is something called the Outer Space Treaty, which over 100 countries have signed, including every nation that is currently capable of orbiting hardware in space.  Implemented in 1967, its most prominent theme is that space is for peaceful uses only.  It therefore prohibits keeping nuclear weapons in space.  It also forbids any country from claiming sovereignty over any part of outer space, including any celestial body.  So when the U. S. planted its flag on the moon, it was just a symbolic gesture, not the first step in creating a fifty-first state with zero population.

Right now, there are companies making quite serious plans to do space mining, build space hotels, and engage in other profit-making activity that would involve substantial amounts of investment of both hardware and human capital.  There's a concern that the Outer Space Treaty is silent on the question of individual or corporate ownership of space property, and unless we get more specific on what the rules are, such developments may be stifled.

I don't see any critical problem here, because we have abundant precedents in a similar situation:  the international laws governing ocean-going vessels.  The Disney Company puts millions of dollars into what amounts to floating hotels, and they quite happily manage to cope with the fact that while they own the ship, it travels in international waters and docks at various ports owned by other countries.  Of course, there are hundreds of years of tradition bound up in the law of the sea, and the same isn't true of space law.  But the fact that ocean-going commerce goes on quite smoothly for the most part shows such things can be done, and so that doesn't concern me at all.

What could throw the whole situation into doubt is if somebody finds a fantastically lucrative space-based enterprise.  Diamonds on the moon sounds like something that Edgar Rice Burroughs would cook up, but there are quite serious organizations out there planning to do things like mining asteroids.  And depending on what they find, we might see something like the rush of the Old World explorers to the New World, where they in fact did discover gold.  Like most naive fantasies, that discovery didn't work out quite as nicely as the explorers hoped, what with the abysmal treatment of Native Americans and the disastrous inflation that the introduction of huge amounts of gold caused in the economies of Europe. 

It's hard to imagine something similar happening as a result of a space-based discovery, but stranger things have happened.  The optimist in me, as well as numbers of Silicon Valley types who seem to think that space colonization is not only possible, but inevitable and represents the last best hope of humanity, would like to see the future of space exploration and settlement as another chance for us to get some things right.  After all, something like that was the motivation for many Europeans to make the arduous journey to the New World where unknown hardships awaited them.  Overall I'm glad they did, or else I would not have the opportunity to live in Central Texas today.

But the identity-theft case in the International Space Station reminds us that no matter what idealistic plans we make, we will take all our mental and behavioral baggage with us wherever we go.  That is why we will always need lawyers, whether in San Marcos or a moon base.  Because a certain number of us will misbehave beyond the boundaries that ordinary people around us can deal with, and so the law will have to get involved.  Right now, all the parties to the identity-theft dispute turned out to be U. S. citizens, so U. S. law applies.  But in the future, when space colonies (for lack of a better phrase) may want to set up their own independent governments, things may get considerably more complicated.  And complications mean lawyers.

One thing I haven't mentioned is the question of militarization in space.  President Trump recently announced the establishment of a Space Command, which is apparently a kind of umbrella under which the space activities of the various branches of the military will be gathered.  While the Outer Space Treaty prohibits "weapons of mass destruction" in space, it does nothing to stop nations from testing weapons or placing military personnel in space. 

It is perhaps inevitable that rivalries on the ground will end up being played out in space as well.  But we can hope that for the near future, anyway, the need for lawyers and law in space will be limited to minor issues such as the identity-theft case, and that we can view space as a place where for the time being, people can just get along.  But if they don't, I'm sure

lawyers will find a way to get involved.

Sources:  Deanna Paul's article "Space:  The Final Legal Frontier" appeared on Aug. 31 on the Washington Post website at https://www.washingtonpost.com/technology/2019/08/31/space-final-legal-frontier/.  I also referred to Wikipedia articles on the Outer Space Treaty and "Let's kill all the lawyers." 

The Prospect of Space Prospecting

Isaac Asimov's sci-fi story "Catch That Rabbit," published in 1944, is set in an asteroid mine and portrays what might happen if formerly obedient robots decided to rebel.  These days, Asimov's dream of space mining is a lot closer to reality, with several firms making definite plans to launch exploratory vehicles around 2020 and have full-scale mining up and running later in the decade.  But as an article in October's Scientific American points out, the legal status of space mining is by no means clear. 

It still costs a lot to put anything into space, or to bring it back, for that matter.  So instead of being enticed by visions of extraterrestrial gold and diamonds, space-mining companies have their eyes on more prosaic materials that could be extracted from asteroids:  water for either human consumption or conversion into convenient rocket fuels such as hydrogen and oxygen, iron and refractory materials for construction, and other useful but bulky and heavy stuff that becomes very expensive to lug into space from Earth.  The idea is to extract enough materials from an asteroid to allow space-based operations that are supplied by space resources, rather than having to bring everything along with you.  Such space-based resupply stations will be necessary for any space exploration much beyond what we've attempted so far. 

That is well and good, but there's a little thing called the 1967 Outer Space Treaty standing in the way.  Almost 100 states (including the U. S., Russia, and China) have signed this agreement, which forbids colonization or use of space for military operations.  The key phrase in the treaty bans "national appropriation" of celestial bodies such as asteroids.  That means, for instance, you couldn't just hitch an asteroid to your spacecraft and drag it back home behind you.  Russia, for examples, interprets this phrase as prohibiting space mining.

On the other hand, U. S. companies argue that the international laws of the sea prohibit appropriation of international waters, but allow certain kinds of exploitation such as fishing and offshore drilling, although there's only an analogy between space law and sea law.  The real problem is that the 1967 agreement didn't address space mining in any detail.  Clearly, a new agreement would be nice to negotiate, but something called the Moon Agreement ran into opposition a few years ago and remains mostly unratified.  So countries aren't in the mood to sign away any rights to asteroids right now. 

It's rather disquieting to compare the current situation to, say, the way things were in Europe in the 1400s when expeditions to the New World were just beginning.  Right now, it's hard to imagine that anything going on at an asteroid or two would have significant consequences for the history of the Earth.  But few people were expecting that the voyages of an eccentric guy named Columbus would amount to much either. 

If one imagines a scenario in which space travel becomes highly valued for some reason, then space mining would suddenly take on a new and vital aspect.  There is already among some space-minded people an attitude that says our days on Earth are numbered, not only individually but collectively.  That is to say, just as America served as a place to make a new start for many who found Europe not to their liking for various reasons, the idea of space colonization (the Outer Space Treaty notwithstanding) serves as a kind of secular Paradise for people who have given up on the hope that we can agree to live here on Earth peacably and without trashing it beyond repair. 

So suppose a kind of abandon-ship mentality spreads among the elite and wealthy of many nations, and a keen competition arises to see who can manage to leave the sinking vessel the fastest.  Unless somebody invents a Star-Trek-type warp drive soon, space mining will be a necessary part of any large-scale space travel.  And one can easily imagine the powerful of different nations coming to blows over who gets to mine which asteroid.  After all, it's not that easy to sneak around in space, so covert operations are out.  Everybody would know what everybody else is doing, and things could get really ugly.

Not that they're real attractive right now.  I admit that in the present shape of world politics and affairs, a little thing like space mining is way down the priority list.  But there is still time now to examine the question dispassionately before vested interests get into the act and try to hijack the discussion in their favor.  Presently there are no significant vested interests out in space—no mines, no rockets heading out to do space mining, and only plans to do so yet.  I am generally no fan of the United Nations, but it seems like that would be a good forum in which to breach the subject of space mining and how plans could be coordinated so that if humankind does eventually decide to move into space in a major way, we could at least agree on the means and resources to make it possible and how to share them. 

But achieving a united vision of such prospects requires a type of diplomacy and leadership that is currently in short supply.  It may be that there will be a better time in the future to hash out an international agreement about space mining than now.  But as private space companies make more technical progress, the legal situation will either have to keep up with them or deal with the technology as it happens.  That won't be the first time—I don't think Columbus got a nicely notarized clear title to land he claimed for Spain, at least not from the folks whose land he was claiming.  And if you're thinking of investing in a space-mining company soon, be aware that there might be a few legal problems ahead.

Sources:  "Space Prospecting" by Jesse Dunietz appeared on pp. 14-16 of the October 2017 issue of Scientific American.  I also referred to an article in LiveScience at https://www.livescience.com/19862-asteroid-mining-fiction-present.html that refers to Asimov's story, and to the New World Encyclopedia's article on the Spanish Empire at http://www.newworldencyclopedia.org/entry/Spanish_Empire.