Erika Nesvold: Thank you Andrés. We're gonna wait one second till I can count to three on this stage. Well maybe I'll get started while we wait for Amanda, who I have been told has arrived.

So as Andrés mentioned my name is Erika Nesvold. I'm an astrophysicist and the developer for a video game called Universe Sandbox, which is an astronomy simulator. But in my spare and unpaid time, I'm the cofounder of a nonprofit that we started just at the end of last year called The JustSpace Alliance which I started with Lucianne Walkowicz who unfortunately couldn't be with us today. Hello Amanda.

Amanda Nguyen: Hi!

Nesvold: Nice to see you. Come join us. Oh you know, you're going to talk next. I should let you stand.

Alright, so. The panel that I'll be talking about right now we've titled "Law & Order, or Game of Thrones?" because it's always good to get in the pop culture. We'll be talking about the legal landscape of space exploration and space settlement. Which sounds like the last panel sort of got into. One thing I'm really interested in talking about is how we codify our values about how we want to use space and who we want to be in space into a legal framework that can protect all of us.

On the panel we have Henry Hertzfeld, who's the Director of the Space Policy Institute at George Washington University. And Yuliya Panfil, who's the Director of the New America Future of Property Rights program.

But first, we'll be hearing from Amanda Nguyen, who is a board member of the JustSpace Alliance and the CEO and cofounder of Rise, which is a nonprofit organization that is dedicated to protecting the civil rights of rape and sexual assault survivors So Amanda's going to start us off with a brief talk, sort of a provocation to get us started, and then we'll have a conversation.


Amanda Nguyen: Hello everyone. How's everyone doing today? [silence] Wow. I know the coffee hasn't hit yet but it's 3:00 PM. How are you guys doing today? [some response] Awesome. I'm a super nerd so I always like being in New America. Not saying you guys are nerds but I do have to say rest in peace Daenerys Targaryen, the queen of my heart. I actually just joined this panel specifically because you named it that, Law & Order vs. Game of Thrones.

So, most people know me for my activism. By day I'm an activist, by night I'm a nerd. No, I'm always a nerd. But my background's in astrophysics. So I specifically do exoplanets. I worked on Kepler at the Harvard Center for Astrophysics and then at NASA headquarters. I think Alex MacDonald is speaking here? Which is really awesome. Alex! Also a fellow nerd.

But, I had life happen to me. So I'll just start off with the legal side. My dream is still to be an astronaut. And I think that both astronauts and activists have one very important common trait and it's that you have to be pathologically optimistic in both things. One, to get on a rocket and be shot into space, and the other to try to convince people like Congress (sorry, if any of you are on there) to work…work.

But I fell into my activism because I needed civil rights. So, one of the most pivotal conversations that I had was after I was raped, I went to the hospital, had a rape kit procedure done—it's evidence collection—and found a broken criminal justice system. And I remember walking into the Boston Area Rape Crisis Center; there weren't enough seats for us in the waiting room. And I thought to myself if I have the resources that I do, then what is everybody else going through? And at this time I…you know, I still wanted to be astronaut, and one of my mentors, Leland Melvin, he's an astronaut. You might know him from a very viral photo of his official astronaut photo with two dogs. But I'll never forget it. He said, "Amanda, space is gonna be there. It's gonna be there after you. So if you want to go fight for rights and change law, then you should go do that."

And I really took that to heart. But in my activism work, space has always propped up. So, long story short I decided to rewrite the law and pass the Sexual Assault Survivor Bill of Rights unanimously through Congress; became the twenty-first bill in US history to do so on an on-the-record vote in both chambers of Congress. And then after president Obama signed that, we've passed now a totals of twenty-seven laws in the past twenty-six months. Which I'm really proud of.

But everywhere we go, our ice breaker has always been space. Because space inherently is a shared sky, you know. And so, the work that we do now, which is focused on bringing the activism to a global sphere, actually has really direct overlay with space. Actually just yesterday, I was with the NASA administrator at the Australian embassy, where they shared a story about Apoloo 11. During Apollo 11, the images from the moon were not clear. And the California satellite receptors got the images upside down. And so NASA reached out to Australia, which happened to have the right-side-up image, and together that was the collaboration, between NASA and Australia, to let the rest of the world see what was happening on our moon. I think that everyone who was alive at that moment remembers right where they were when they saw that image. And the stories that come from space exploration, that come from science fiction, are so important. And the law is just another way of telling a story. It's a story of who we are. Our principles, our values, and our shared humanity.

And I would be remiss if I didn't mention the overview effect. Everywhere we go, when we're talking about human rights, and when we open up with space to break the ice, every single country has their own culture and has their own stories about the stars. But the thread that runs through this fabric has always been about what it means when justice does not depend on geography. And as we're looking at the legal landscape of our future, you know, we have a chance to not reimagine, but to imagine what it looks like when we step forward with thought, and we step forward having an orbital perspective.

I'm talking to a crowd that is predisposed to know about the overview effect, but for those who don't know, many astronauts when they go into space for the first time experience this cognitive psychological experience whereby everything that's ever lived or died is on this pale blue dot. And so it fundamentally transforms them. Some might call it an existential crisis. But others call it the overview effect, where astronauts leave Earth as technicians but return to Earth as humanitarians. And this idea that we are all together is I think very profound. It's what drives my activism, and is something that I look forward to discussing on this panel today. So thank you.


Erika Nesvold: Thank you very much Amanda. So I just want to start off our dis­cus­sion of legal sys­tems in space by talk­ing about prop­er­ty rights. For a cou­ple of rea­sons. One is that we have some experts in prop­er­ty rights on the pan­el. One is that it seems to be where a lot of today’s con­ver­sa­tions are when we talk about legal sys­tems in space, because we’re in these ear­ly days of peo­ple who are plan­ning to do research, extrac­tion, or want to use ter­ri­to­ry in space, but we don’t yet have a real­ly con­sis­tent way to talk about who has the rights to do that or at least not every­one under­stands what the sys­tem in place is. And the third rea­son I want to start off by talk­ing about that is because as Armstrong so elo­quent­ly explained in the first pan­el, so much else comes out of land and who has the right to land and who has access to land. So many oth­er poten­tial injus­tices.

So to start off with, I’m hop­ing I can ask Henry to give us a quick primer on the cur­rent sta­tus of prop­er­ty rights in space. I know you can prob­a­bly talk for some time on this. But I know that the Outer Space Treaty always comes up in these con­ver­sa­tions and maybe some of our audi­ence has­n’t heard about it. So maybe you can give us a quick back­ground.

Henry Hertzfeld: Actually I think it’s more appro­pri­ate not to talk about spe­cif­ic prop­er­ty rights but to talk a lit­tle bit about the Outer Space Treaty and the frame­work of space law. Goes back, of course the Outer Space Treaty was draft­ed in the 1960s. There was prece­dent before that, and it came into effect in force in 1967.

So it’s been around for a long time, and it is basi­cal­ly a set of prin­ci­ples. It’s been writ­ten by states, and it applies to human activ­i­ty and use and explo­ration of space. And it is nation­al­ly ori­ent­ed. But we have inter­na­tion­al regime. And the prin­ci­ples do include things like inter­na­tion­al coop­er­a­tion. Space is for the ben­e­fit of all mankind, the province of all mankind; these are words in the first arti­cle of the Outer Space Treaty.

But the inter­est­ing one in this case real­ly is Article II. Article I says no nation may appro­pri­ate any celes­tial body by any means, includ­ing sov­er­eign­ty, or by any means of use. It’s an inter­est­ing arti­cle. When you look at the Travaux pré­para­toires, which is the French name for basi­cal­ly the con­ver­sa­tions lead­ing up to the treaty, the main focus of that, and I’m refer­ring back to our first con­ver­sa­tion, was not to repeat the idea, the province of colo­nial­ism from ear­li­er times. So the space in an essence is an area where there is no sov­er­eign­ty. The land and land rights real­ly are not there.

That does­n’t mean there aren’t prop­er­ty rights in space. Anything that any nation, any body, puts into space is their prop­er­ty. Not only that, there’s no way to not be respon­si­ble or liable for that prop­er­ty. You can sell it. But that does­n’t real­ly absolve you from being a launch­ing state.

Article VI of the Outer Space Treaty is also very impor­tant. It says that essen­tial­ly states have an inter­na­tion­al respon­si­bil­i­ty for their activ­i­ties in space. And there’s a line in there that includes not only gov­ern­men­tal nation­al activ­i­ties but those of non-governmental, cor­po­rate, or indi­vid­ual activ­i­ties as well. It’s the only indus­try, the only sec­tor that I’m aware of where states have tak­en not only the respon­si­bil­i­ty but In Article VII the lia­bil­i­ty, finan­cial respon­si­bil­i­ty, for what they do.

They’re also required to autho­rize and con­tin­u­al­ly super­vise the activ­i­ties of their cit­i­zens. So that when we wor­ry about cor­po­rate activ­i­ty, when we wor­ry about indi­vid­ual activ­i­ty, they need to get, under the cur­rent regime, a license—permission—from the gov­ern­ment. And real­ly the ele­ments that we focus on for that per­mis­sion are safe­ty in space, and then the finan­cial respon­si­bil­i­ty. And safe­ty can include not inter­fer­ing with oth­ers’ activ­i­ties in space. It calls for inter­na­tion­al col­lab­o­ra­tions in oth­er parts of the treaties. So that today space is not an area with­out law.

The oth­er side of the coin is that the treaties are not self-enforcing. Nations have to pass the laws to enforce these treaties. As point­ed out ear­li­er, nations have dif­fer­ent cul­tures. They look at things dif­fer­ent­ly. And they some­times inter­pret these treaties slight­ly dif­fer­ent­ly. But still we have a frame­work. We have some­thing to start with, reflects through the pol­i­tics and val­ues of the 1960s, but the ideals that are there of using space for peace­ful pur­pos­es. And one of the main things, a sort of side-issue to this con­ver­sa­tion, not to have nuclear weapons of mass destruc­tion placed on celes­tial bod­ies or in orbit. I think that’s impor­tant.

But it is an envi­ron­ment of coop­er­a­tion. We have some prece­dents in the world that are maybe bet­ter exam­ples than New Amsterdam. Antarctica is one. And then we have the International Space Station. And behind that, you have an inter­na­tion­al agree­ment among those nations par­tic­i­pat­ing. And a code of con­duct. So we’ve thought about a lot of these prob­lems. Have we solved all of them for­ev­er, no. But we have been able to coop­er­ate inter­na­tion­al­ly and to devel­op a regime up there of explo­ration and sci­ence.

I per­son­al­ly am not wor­ried about set­tle­ments. I think they’re so far in the future that we can’t pre­dict what they’ll look like. We can’t even pre­dict— We can’t even keep human beings, par­tic­u­lar­ly a lot of human beings, alive in space or have real set­tle­ments, the way we envi­sion a colony or a set­tle­ment. I don’t think the lack of sov­er­eign­ty is going to hurt any of this. We can have inter­na­tion­al agree­ments that guar­an­tee some sort of a right to use parts of space with­out the sov­er­eign­ty, the own­er­ship, the bor­ders, and so on.

Anyway, I think that this is set up dif­fer­ent­ly than some of the explo­rations of the past. But, it’s frag­ile. It does­n’t mean that it will actu­al­ly work out that way. But we don’t know how it will work out, and that’s going to be the chal­lenge for par­tic­u­lar­ly the young peo­ple here as we learn more and can do more in space, and devel­op new tech­nolo­gies.

Nesvold: So you men­tioned that you don’t fore­see a lot of these issues being a prob­lem because you think it’s so tech­no­log­i­cal­ly and maybe phys­i­o­log­i­cal­ly dif­fi­cult to live in space that this should­n’t be a prob­lem—

Hetzfeld: No.

Nesvold: —in the near term. But, I cer­tain­ly hear that argu­ment when­ev­er any sort of space ethics are dis­cussed, is why do we need to wor­ry about it now? One thing I think that I val­ue about con­ver­sa­tions about space is that peo­ple are so enthu­si­as­tic about space that you can often use that enthu­si­asm to talk about issues that we’re hav­ing on Earth. So to that end, Yuliya, maybe could you tell us why do prop­er­ty rights mat­ter here on Earth today? Some of the issues we’re hav­ing. And then how you can fore­see that mat­ter­ing space, assum­ing we ever solve our tech­ni­cal chal­lenges.

Yuliya Panfil: Sure. Thank you and thanks to my co-panelists. So, I have to say at the out­set that I’m a lit­tle bit of an inter­lop­er into the out­er space dis­cus­sion because my pri­ma­ry area of work and study is land rights and prop­er­ty rights here on Earth. And again, I guess to some extent most of us are inter­lop­ers into out­er space.

So, why do land and prop­er­ty rights mat­ter here on Earth. Broadly, I would buck­et that into a few dif­fer­ent rea­sons. One is for the rea­son of con­ser­va­tion. So in order to take care of a resource, you have to val­ue it to some degree, right. So assign­ing rights, whether they’re pri­vate rights—private property—or com­mu­nal rites, whether they’re own­er­ship rights or use right rights, or oth­er types of rights, devel­ops a sys­tem where­by peo­ple can coop­er­ate to con­serve valu­able resources.

Another one, which was touched on ear­li­er is cul­tur­al rea­sons. For many peo­ple around the world land is not just the place where you put your house, right. It’s your unit of belong­ing in a soci­ety. It’s the unit through which you mea­sure your cul­ture and your soci­ety’s his­to­ry.

And then the third, prob­a­bly the one that’s clear­est in a way in the American…modern American cap­i­tal­ist con­text is as a means of wealth cre­ation, right, the clas­sic for­mu­la of land plus labor equals wealth. So when you apply labor to land, you are able to reap a prof­it. Property rights are impor­tant in that sense because peo­ple will invest in a resource only if they are secure in their own­er­ship or future use of that resource, right. So, the exam­ple here on Earth— A lot of my work in the past has been with cocoa farm­ers, for exam­ple. A farmer won’t plant a tree on land that they have inse­cure rights over because in the ten years that it might take the tree to grow, that farmer may be kicked off their land and then their invest­ment will be all for naught, right.

So in a sense, giv­ing peo­ple com­fort that they will not be kicked off of their land or ter­ri­to­ry encour­ages them to invest in it. Another easy exam­ple is rent­ing ver­sus own­ing, right. The types of upgrades that home­own­ers make to their homes are quite dif­fer­ent than those that renters will make, because a home­own­er knows that they will be stay­ing in that home long-term.

So that’s just, you know… I mean, there’s a pletho­ra of rea­sons for which prop­er­ty rights are impor­tant. Those are a few of them.

But to kind of take it back up to space, this idea of being assured that…or secure in our invest­ment, I think that this is some­thing that’s play­ing out right now with pri­vate cor­po­ra­tions and the US Space Act of 2015, right/ So the US Space Act of 2015 grants prop­er­ty rights to min­ing com­pa­nies and oth­er com­pa­nies over resources the day may extract from space. So, in a way this is a dial­ing fore­ward of the con­cept of secur­ing your prop­er­ty rights. Realistically, a com­pa­ny is not going to finance an extreme­ly expen­sive mis­sion to a dif­fer­ent plan­et or an aster­oid if they won’t be assured that what­ev­er they would want to extract there is going…that they would have a legal claim to it.

No that’s not me argu­ing in favor of the 2015 Space Act. I think that there’s sev­er­al prob­lem­at­ic aspects to it. But I think that that’s sort of the dial­ing for­ward of the why prop­er­ty rights is impor­tant” lens that in part led to the nego­ti­a­tion and pas­sage of that act.

Hetzfeld: Let me com­ment for a minute on that. I was involved in that act. And basi­cal­ly you’re right. There were two com­pa­nies in the United States that were plan­ning toward rais­ing mon­ey to mine an aster­oid, to take some­thing from space, on the belief that it was valu­able. The fact that resource [are] in space, we know. Whether they’re valu­able or not we don’t. Both com­pa­nies have gone out of busi­ness. But, they need­ed an assur­ance from the United States gov­ern­ment, because they were both US com­pa­nies, that if they did and they need­ed to get invest­ment that they our gov­ern­ment would not say, Oh no, it belongs to us.”

And Congress…there were rep­re­sen­ta­tives from both par­ties that spon­sored the bill. And even­tu­al­ly, after sev­er­al years in the mak­ing with an ear­li­er bill that did­n’t go through. But it was a baby step. And it did­n’t say any­thing about extrac­tion. That’s where I want­ed to be clear. It gave the right of com­pa­nies or indi­vid­u­als to own resources that they obtain in space. They did not define in that act what obtain­ing is, what a claim is, or a lot of under­ly­ing reg­u­la­to­ry issues that would have to be addressed in the future.

Today I think there’s a real­iza­tion that even try­ing to find things on the moon, doing the R&D, as we go gov­ern­ments are going to be doing that as well as gov­ern­ments con­tract­ing or part­ner­ing with com­pa­nies, we’re talk­ing sev­en to ten years from now. And whether there is any val­ue in them or not believe me is a very seri­ous ques­tion. And there may or may not be. I can’t answer that. I don’t think any­body can. There are a lot of pro­pos­als out there.

Even water. It’s not pure, no mat­ter where it is in space. Is it cheap­er to do that or is it cheap­er to launch a block of ice up there if you want to have water up there? I don’t know the answer to that. And that is what we are doing. We are in a research and explo­ration mode. But, we have—the United States, Luxembourg has a law, some oth­er nations are think­ing about it, as to whether— And, par­en­thet­i­cal­ly, we think that the a prop­er inter­pre­ta­tion of the Outer Space Treaty and our treaty oblig­a­tions. There are devel­op­ing nations and oth­ers for dif­fer­ent rea­sons that don’t think that is with­in the oblig­a­tions. So there’s going to be a lot of dis­cus­sion in the future, this is not a set­tled issue inter­na­tion­al­ly.

But we’re giv­ing our com­pa­nies the oppor­tu­ni­ty to give it a try. That’s real­ly all we’re doing.

Nesvold: So there’s anoth­er aspect of this I want to talk about. Yuliya men­tioned this clas­sic equa­tion of land plus labor as wealth. That’s how you get wealth out of the ter­ri­to­ry that you own, you apply labor to it. But as much as land rights and prop­er­ty rights are being dis­cussed by a lot of pol­i­cy and law peo­ple, there does­n’t seem to be too much dis­cus­sion of labor rights. And per­haps that’s because the Outer Space Treaty directs the gov­ern­ments to super­vise the activ­i­ties and pre­sum­ably pro­tect the rights of labor­ers.

But Amanda, this is actu­al­ly a lead­ing to a ques­tion for you, which is that aside from prop­er­ty rights, as some­one who has a back­ground in fight­ing for legal pro­tec­tions for peo­ple, what sort of oth­er con­cerns you have about space that you feel we should have more of a legal struc­ture to pro­tect peo­ple for?

Nguyen: Well, fun­da­men­tal­ly in my opin­ion, the law isn’t moral­i­ty, right. I make a liv­ing out of reform­ing the law. And a lot of peo­ple often ask me you know, Why is the law a cer­tain way for a cer­tain group of peo­ple?” Most of the laws I’ve writ­ten are for the United States, and so in par­tic­u­lar for me the laws’s a gen­der. That gen­der is not female.

And when we we’re talk­ing about insti­tu­tions and we’re talk­ing about space—space law—or the abil­i­ty to, again, think of the way that we’re going to reg­u­late our­selves, of course this gives us the oppor­tu­ni­ty and chance to think about well, who are those peo­ple? The labor­ers. And what kind of insti­tu­tions are we try­ing to set up. Space has so much pow­er not only in the legal sense but also in the diplo­mat­ic sense. You know, for me pan­das and space are the two things that get every­body hap­py. Space has so much soft pow­er in it, you know.

It was real­ly fun­ny yes­ter­day at the Australian ambas­sador’s res­i­dence. The NASA admin­is­tra­tor straight up said that he was there because Australia invit­ed a sen­a­tor from the Appropriations Committee, and so they brought an astro­naut to—between the admin­is­tra­tor and the astronaut—in their remarks about mate­ship” they call it, between the United States and Australia, the rea­son why the Appropriations Committee should give more resources to NASA. But in this sense, too, we see a dif­fer­ent form of inter­na­tion­al coop­er­a­tion in the International Space Station. You’ve men­tioned this before, where it’s about sur­vival. There there are cer­tain needs that come first. But one of those needs in my opin­ion are the needs of labor­ers and peo­ple. So it is impor­tant as we think about archi­tect­ing the future that every­one is includ­ed in that future.

Nesvold: The Outer Space Treaty, you two had an excel­lent con­ver­sa­tion back­stage that maybe we can repli­cate about the Outer Space Treaty, which is Yuliya I think I read a piece of yours recent­ly sug­gest­ing that we per­haps need to revis­it the Outer Space Treater or replace it. Can you talk a lit­tle bit about your thoughts on that?

Panfil: Yeah. And I think that we were being a bit provoca­tive pos­ing the ques­tion Do we need a new Outer Space Treaty?” And I think that… Actually I think that this was some­thing that was men­tioned in your pod­cast. Which is excel­lent. Please lis­ten to it. But you know, it’s that when you read a treaty the first thing you should look at is the date. The date on which it was rat­i­fied. Because real­ly, I believe that treaties are a prod­uct of their time. And as Henry men­tioned at the time, the Outer Space Treaty was nego­ti­at­ed in the 60s. The major issue that was at the fore­front of the glob­al col­lec­tive’s mind was the pos­si­bil­i­ty of nuclear war between the USSR and the United States, and this kind of two-nations space race.

So, from my read­ing the two most crit­i­cal things that the Outer Space Treaty does is it says we can’t put nukes up in space. And it says that no coun­try can appro­pri­ate a celes­tial body. So it lim­its sov­er­eign­ty claims in out­er space.

But oth­er than, that it’s quite broad and vague. And that’s part­ly by design, because at the time it was nego­ti­at­ed we real­ly did­n’t have the capa­bil­i­ty for space explo­ration. Not even think­ing about set­tle­ment or aster­oid min­ing or any of these things. It was I think almost incon­ceiv­able that a— [record­ing skips] —have a dis­pro­por­tion­ate amount of say over how space is gov­erned.

Hetzfeld: I’m going dis­agree a lit­tle bit with you.

Nesvold: [inaudi­ble com­ment]

Hetzfeld: Yeah I know. The treaty of course is a com­pro­mise. Yes it is vague. Most treaties are. They are inter­na­tion­al com­pro­mis­es. When I men­tioned the words non­govern­men­tal enti­ties” in there that actu­al­ly was not in the US pro­pos­al but it was in the Soviet one because they did­n’t have pri­vate com­pa­nies, we did have some tele­com satel­lites that were heav­i­ly reg­u­lat­ed but built by pri­vate com­pa­nies up there. And we agreed to that com­pro­mise.

Are the treaties business-friendly? Not par­tic­u­lar­ly. Are we head­ed into a more cor­po­rate envi­ron­ment in space? Most like­ly. But I do believe that the words are there that we can inter­pret with­out chang­ing any­thing.

Think about a new treaty. The pro­pos­al’s has been around for a long time. It’s pret­ty much been put to bed by the lawyers. We’re not in a treating-writing era right now. We’d have to get an agree­ment, polit­i­cal­ly, with Russia, with China, and with a num­ber of oth­er coun­tries. It’s not going to be easy. Even if we could do it, it’d be twen­ty years in the mak­ing. We talk about cor­po­rate invest­ment. What do com­pa­nies want? Predictability, sta­bil­i­ty, and fair­ness. You don’t have it when you’re talk­ing about changes of the sort that could go on in dis­cus­sions for a long time. I think it’s the first way of dis­cour­ag­ing invest­ment, actu­al­ly.

But inter­pret­ing them in a bet­ter way for allow­ing not only US but oth­er nations and their com­pa­nies as well to par­tic­i­pate, I think that is pos­si­ble and I think there’s a lot we can do. One thing you might say, we amend the treaties. That too, because of UN rules, is a very dif­fi­cult process. And if you— They nev­er have been amend­ed. If you passed an amend­ment, not every nation would agree to it. But only the nations that did would that change be effec­tive for. So it would cre­ate a mess at the moment, and I think we’re bet­ter off deal­ing with the vague­ness but with some good ideals to at least work toward, and then try to imple­ment rea­son­able solu­tions for today’s world.

Nesvold: Thank you both for excel­lent­ly recap­ping that. Anthony, what’s our time? Okay. I’d like to take this oppor­tu­ni­ty to open up to ques­tions. So we have a ques­tion here if you could just wait for the micro­phone and then intro­duce your­self.


Nelson Jacobsen: Hello. Nelson Jacobsen with the Help Earth Foundation. That problem that's striking me the most right now is our current administration has refused to sign the Outer Space Treaty. Yeah. I tweeted it. It's on my timeline. On top of that, we have a bill going through Congress to defund and decharter America out of the UN. So, outside of this existing Outer Space Treaty which we desperately need, we need to make sure that America would stay in it because the issue is if people are going up to space, one of the other things I haven't heard talked about is they could bring something back to space. And that's why I've always thought that the governmental side has been there. Because…think of the Valdez. Something happens in a private company, well, someone goes and mines something. They bring it back and outer space contamination. You know, we don't have any of these things even remotely being set up yet. So in a sense we've socialized the cost of going to space and now we want people to privatize some of the wealth extraction. But we'll need a treaty of how it's gonna to happen, right?

Hetzfeld: We ratified the Outer Space Treaty in 1967.

[Jacobsen doesn't use the microphone for next two comments. They may be incomplete/paraphrased.]

Jacobsen: He didn't sign it in 2018, it was up for renewal.

Hetzfeld: There's no renewal on that.

Jacobsen: Well, he's trying to get out of [indistinct]

Nesvold: Anthony. There's a hand raised right behind this gentleman.

Hetzfeld: But let me— Can I—?

Nesvold: Yeah, no problem. Just making sure—

Hetzfeld: I just wanted to say one other thing. About two years ago, Senator Cruz called a hearing in the Senate as to whether we should withdraw from the treaty. A number of lawyers testified. The answer was unanimously no. From both sides, convervative, liberal, and so on. And that has been put to sleep as well as a possibility. So that we do abide by our treaty obligations. There are actually five space treaties on the board. Four of them—the Outer Space Treaty, the Agreement on Rescue and Return of Astronauts, the Liability Convention, the Registration Convention—we were original parties to. The only one we haven't ratified is the Moon Agreement, nor have many other nations. It's only been ratified or signed by about twenty, twenty-one nations.

Nesvold: And none of the major space-faring nations.

Hetzfeld: Um, and none of the ma— Well, there are a couple of exceptions to that. But it is really a failed trea— That Moon Agreement is a failed treaty. The others are not.

Nesvold: Let's just get to the next question?

Parvathy Prem: Hi. Parvathy Prem, I'm a planetary scientist. This is great. So, this is kind of related to Amanda's point about who the law is for. But I'd be curious to hear all four of your thoughts on who do you think should be making these laws. How much a role do you think different actors should have? Should it be mostly up to the scientists? Should companies or countries that have space exploration capabilities right now have more of a say? Or if space belongs to all of us should all of us in some way have voice in that?

Nesvold: That's a great question. I'll start off the answer which is not from a legal background at all, which is that in general I think that as many parties as should be involved in all these discussions. That includes countries that don't have the capability to go to space. That includes people who have no interest in traveling to space. If we're gonna expand our civilization beyond the Earth, we should have input from all of our civilizations.

Hetzfeld: There's a group called COPUOS, Committee on Peaceful Uses of Outer Space. It's part of the United Nations. It has a couple of sub-committees. It meets three times a year in Vienna. I just came back from a meeting of a plenary group there in late June. That's the group that drafted the first treaties. At that time in the 60s there were eighteen nations, members of it. Today there are ninety-two nations. And they do meet, and talk about these problems.

I said we're not in a treaty-signing mode these days. But we have agreed on a number of what we call soft law. Non-binding guidelines, both for orbital debris; guidelines for long-term sustainability in space to try to maintain the orbits so that everybody can benefit and use from them.

For the scientists there's a group called COSPAR. A long time ago they wrote a number of rules on planetary protection, the contamination issue. And we do try to follow those. But they are not hard law, they are not treaty law.

Panfil: So, I see [Jesse Cate?] sitting in the audience and it's reminding me of the workshop that we were at a few weeks ago on Elinor Ostrom and the commons. And I think that speaking about what we can bring in from our experience here on Earth to outer space, Ostrom speaks about a polycentric approach to governing space. And to your point, I think that there need to be as many people at the table when we're deciding how to govern this new realm as possible. For the practical reason that there are so many different interests implicated. Of course we need the governments at the table, and of course we need inter-governmental organizations at the table. But we also need private companies at the table, because that's going to be who is going to be driving a lot of the exploration and exploitation in space. But also need civil society at the table to prevent exactly the type of nightmare scenario that was kind of debated during the first panel.

Nguyen: I couldn't agree more. Space may be unlimited but it still is a commons that could be a tragedy. And when you're talking about orbital debris, we're talking about what countries own to one another, especially countries that already have developed space programs versus countries who are starting to have their own space programs. I think it's really important to have everyone at the table.

Hetzfeld: I'm going to again take a slightly different point on this. Space is really not one thing. It is not a commons. And there are parts of space we may want to treat that way, but in generally saying space is a global commons I think is a very misleading statement. And in the treaties we talk about common interests. We talk about solving common problems.

But that's different. And Ostrom's examples are all very very small examples. Like water…a certain region in California. And the problem is enforcement. I don't even like the word "governance," I prefer "managing." Because governance implies somebody is out there and is gonna come after you. We don't have that international situation in space at this point in time. I don't think we're going to have it for a while but that doesn't mean we can't come to agreements with other nations about how to handle problems. And I think we will do that.

The treaties only call for diplomatic negotiations. That's insufficient to solve problems, particularly as we move to corporate…possible issues involving companies. Two satellites collide; if they're government satellites they can negotiate it. If they're private ones, we need a different system. And we don't have that in place right now. And I think we need not only the incentives that we're giving, but also some form of enforceable arbitration or court decisions on international issues in space. And space is global.

Nesvold: I think we have time for one more question. There's one in back there.

Zachary Kronisch: Hi, Zachary Kronisch, Institute for Security and Conflict Studies. The treaty is designed as you said to address the threat of nuclear conflict. But today's conflicts are much less likely to be nuclear in nature, especially as they regard to the space domain. So much of our infrastructure and critical communications technologies and so on are in space. So, in terms of the likelihood of seeing conflict that relates to space…between say great nations and so on, great power competition, how do you see that playing out vis-à-vis or preventing that, via treaty or some other vehicle?

Hetzfeld: Space assets could be involved in any contested environment we may have. But we're not really talking about fighting wars in space. The wars are here. The differences are among nations here. Space assets, as I said, could be involved.

I want to make one other thing clear. In the treaty… They were written carefully in those years. As you can imagine, neither the United States nor the Soviet Union was going to sign an agreement that wouldn't let them launch a nuclear weapon into outer space and come back down and destroy something in one or the other nations. That's not outlawed in the Outer Space Treaty. The only thing that is is placing nuclear weapons in orbit or on a celestial body. So, it's not really warfare in space that we're talking about.

Nesvold: I'd like to mention that once we're a civilization that has expanded to other bodies and is much more adept at moving around in space and moving other things in space, we don't really need nukes anymore to hurt each other. It's as easy as dropping a rock that may be brought in for mining onto the Earth to do a lot of damage. And in particular if you're talking about violent conflict, space settlements for some time will be extremely fragile—you just have to let the air out to kill everybody. So I think that while at the moment maybe it seems like we have more cyber conflict than violent conflict, I would say number one that's maybe not true; we're still pretty good at violence. And number two I think that that might change as we move to different environments.

I think we're going to wrap it up. I'd like to thank my panelists. Thank you very much. And now we're gonna move to the third and last panel of the day.

Further Reference

There Will Be Crime in Space by Erika Nesvold, at Slate/Future Tense

How Will We Govern Ourselves in Space? event page


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