[ExI] Who owns the moon? ‘Space lawyers’ increasingly needed for legal issues beyond Earth’s atmosphere

[Eugen Leitl]

http://news.nationalpost.com/2013/09/26/who-owns-the-moon-space-lawyers-increasingly-needed-for-legal-issues-beyond-earths-atmosphere/

Who owns the moon? ‘Space lawyers’ increasingly needed for legal issues
beyond Earth’s atmosphere

Edward Helmore, The Telegraph | 26/09/13 10:40 AM ET

More from The Telegraph

In this Thursday, Sept. 19, 2013 photo, a full moon is seen in Hong Kong. 

AP Photo/Kin CheungIn this Thursday, Sept. 19, 2013 photo, a full moon is
seen in Hong Kong.

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.

“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 U.S. 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; U.S. 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 U.S., U.S.S.R. and the UN a
$55,000 bill for littering.

AP Photo/Reed SaxonSpaceShipTwo, suspended at center beneath its
twin-fuselage mother ship, is seen at a Virgin Galactic hangar at Mojave Air
and Space Port in Mojave, Calif., Wednesday, Sept. 25, 2013.

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 colonization of space is not short of
volunteers. Mars One, a Dutch foundation with the rather ambitious 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.

AP Photo/Paul SakumaElon Musk, whose SpaceX supplies commercial transport
crafts for NASA, has said that he wants to die on Mars.

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, P-J 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 U.S. 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?

Aaron Lynett/National PostNASA vigorously prosecutes people it feels have
obtained moon rocks improperly.

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 U.S.
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 U.S. 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 U.S. space
program would be a civil program. He looked to Tsiolkovsky, hero to both
Sergei Korolev, father of the Soviet space program, and Wernher von Braun,
father of the German and U.S. 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.”

AP Photo/Ted S. WarrenPeter Diamandis, co-chairman of Planetary Resources, an
astroid mining company based in Bellevue, Wash., talks to reporters
Wednesday, May 29, 2013, in Seattle about his company's plans for the world's
first crowd funded space telescope.

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 U.S. 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.

OFF/AFP/Getty ImagesThe Outer Space Treaty was signed after Sputnik was
launched.

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.”

The Sunday Telegraph