Hitting the Books: Why Lawyers Will Be Essential to Tomorrow’s Orbital Economy

The skies above us could soon be filled with constellations of commercial space stations occupying low Earth orbit as human settlers fix the moon with a view to Mars, if today’s robber barons have their way. But unfortunately this won’t result in the same freewheeling Wild West we saw in the 1800s, as tomorrow’s interplanetary settlers will take their lawyers with them.

In their new book The End of Astronauts: Why Robots Are the Future of Explorationrenowned astrophysicist and science editor, Donald Goldsmith, and Martin Rees, the UK’s Astronomer Royaladvocating for sending robotic explorers – with their lack of heavy supplies such as life support systems – into the void for human explorers. But what happens after these synthetic astronauts discover an exploitable resource or a rich moron declares himself Emperor of Mars? In the excerpt below, Goldsmith and Rees discuss the challenges facing our emerging exoplanetary legal system.

a heavily pixelated spacesuit on a gray background and the book title above it

taken from The End of Astronauts: Why Robots Are the Future of Exploration by Donald Goldsmith and Martin Rees, published by Harvard University Press. © 2022 by Donald Goldsmith and Martin Rees.

Nearly all legal systems have grown organically, the result of a long experience arising from changes in the political, cultural, environmental and other conditions of a society. The first sprouts of space law deserve the attention of those who may participate in the myriad activities planned for the coming decades, and perhaps also those who want to envision how a Justinian law code could emerge in the realm of space. .

Those who travel on spacecraft, and to some extent those who will live on another celestial body, find themselves in situations analogous to those aboard naval ships, whose laws set precedents to deal with crimes or extremely antisocial behavior. These laws typically grant a single officer or group of officers the power to judge and impose penalties, possibly pending review in the event of return to a higher court. This model seems likely to reappear during the first long-distance travel within the solar system and in the first settlements on other celestial bodies, before the usual structure of legal systems for larger societies comes on the scene.

However, as on Earth, most law is civil law, not criminal law. A far greater challenge than dealing with criminal acts lies in formulating an appropriate code of civil law applicable to disputes, both domestic and international, arising from space activities by nations, corporations or individuals. For half a century, a small number of interested parties have developed the new specialty of ‘space law’, some of which already have the potential for immediate application. What happens when a piece of space debris launched by a particular country or company falls on an unsuspecting group of people or their property? What happens when astronauts from different countries lay claim to parts of the moon or an asteroid? And most importantly in its potential importance, if not in its likelihood, who will speak for Earth if we received a message from another civilization?

Conferences on these topics have generated more interest than answers. Human exploration of the moon brought related topics to widespread attention and argument. In the 1980s, the United Nations seemed like the natural arena to eradicate them, and those discussions eventually led to the results described in this chapter. Today, it is suspected, hardly anyone knows the documents the United Nations produced, let alone plans to support countries that adhere to the guidelines in those documents.

Our hopes of achieving a rational means of defining and limiting activities beyond our home planet require more elaborate agreements, plus a means of enforcing them. Non-lawyers reading existing and proposed agreements on the use of space should be aware that lawyers typically define words pertaining to specialized situations as “artistic terms,” ​​giving them a different meaning than a regular reading would suggest.

For example, the word “recovery” in normal discourse refers to recovering the value of something that has been lost, such as lost wages resulting from an injury. In more specialized uses, “resource recovery” refers to the recycling of material that would otherwise go to waste. However, in the vocabulary of mining operations, “recovery” has nothing to do with losing what was once possessed; instead, it refers to the extraction of ore from the ground or the seabed. The soft nature of the word contrasts with the more accurate term ‘exploitation’, which often implies disapproval, although in legal matters it often has only a neutral meaning. For example, in 1982 the United Nations Convention on the Law of the Sea established an International Seabed Authority (ISA) to set rules for much of the seabed that lies outside the jurisdiction of a nation. To date, 168 countries have signed the treaty, but the United States has not. According to the ISA website, the Mining Code “refers to the entirety of the comprehensive set of rules, regulations and procedures issued by ISA to regulate the prospection, exploration and exploitation of marine minerals in the international seabed area.” In mining circles, no one blinks with plans to exploit a particular location by mining the mineral resources. However, discussions of space law tend to avoid the term ‘exploitation’ in favor of ‘recovery’.

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