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 that they may extract from space. So, in a way this is a dial­ing for­ward 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. 

Now 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 resources [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 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 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 owe 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 gen­er­al 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