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« Throwing Their Hat In The Ring | Main | Clintonesque »

Space Law

The Christian Science Monitor has an article up on space law (pointer from Michael Wallis). Most of it is the usual stuff that many readers will be familiar with, and they miss the most important contemporary development in law and space, namely HR3752, which will make major changes in how spaceflight is regulated in the USA.

There's the usual fluff like this:

"Outer space is a province of all mankind," says Sylvia Ospina, a member of the board of directors at the International Institute of Space Law. "There is not, and should not be, any privatization of outer space. It is a common thing that should belong to all."

Which is unfortunately a view that has significant traction even within spacefaring nations. I'm quite sympathetic to concerns that a land grab by spacefaring nations would leave huge chunks of the solar system in the hands of a few countries, effectively excluding most of mankind from the opportunities available offworld. The solution is simply to require actual working of resources in order to stake a claim, not to declare everything to be owned by the UN. In effect whichever body makes the laws regarding extraterrestrial resources is laying claim to the bodies in question, but there's a substantial difference between a claim which only becomes active when a body is being worked and a claim which effectively forbids working a body without explicit permission.

It's important for the long term future that we work out a method of assigning ownership and jurisdiction for extraterrestrial bodies that is widely accepted as fair. The alternative is to plant the seeds of future conflicts like the range wars which marred Americas westward expansion.

A lot of space geeks look forward to a future in which the high frontier contains libertarian utopias and so forth. Chances are good that some of the earliest settlers offworld will be going with the explicit intention of founding new societies with new ways of living together. This requires ownership of the resources on which the new colonies are founded. The flipside of this is that it is virtually certain that some of the new societies will have much more in common with Jim Jones' People's Temple than they will with Heinlein's visions of the high frontier. You and I may be comfortable with that, but the folks back home are unlikely to be willing to sit back and do nothing as images are beamed back from the lunar farside of human rights violations on a grand scale. If there isn't already a regulatory framework in place which has international credibility before that happens, there will be one after, and it will not be favorable to the free frontier mentality.

No law at all on the high frontier is not a realistic option. The sooner we realize that the sooner we can work to make sure that what law there is stems from rational understanding of economics and human nature. The two main things to watch out for are statist overreaching (with homilies about "the common heritage of all mankind") and corporate entrenchment in the regulations so that only megacorporations can plausibly be players. This second possibility is much more worrisome to me than the first, since I think most people are blind to the ways in which large corporations game the regulations to exclude competitors and create comfortable oligopolies for themselves. One example of how this could be done is simply by requiring a single large up-front lump sum payment to get into the game. The Dinocorps can afford to pay, but the little guy cannot. This sort of thing is relatively straightforward to arrange under the guise of either environmental protection or worker safety.

Posted by Andrew Case at August 05, 2004 01:17 PM
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Once again, a very insightful post. I just read the same article and have to agree with your review. I also agree that space property rights need to be in some way tied to actually getting there...ironically, this would likely favor the newer companies over the Dinocorps out there as you put it. The Dinocorps seem to be great at handling regulation and paperwork, but a little hard pressed to actually build and fly useful hardware.

I'm still of the opinion though that these questions won't get resolved until they have to. Ie, nobody in power is going to give them serious attention until somebody has already returned to the moon on private money, and started using it for economic value.

In fact, while that does put up a pretty high hurdle at the start, I think it (requiring actual physical "working of the land" in order to claim ownership) is likely to be far more beneficial in the long term than the silly approach being lead by Nemitz that seems to believe that all you need to do is make a claim--you don't actually have to back it up by going there and fencing it in.


Posted by Jonathan Goff at August 5, 2004 02:33 PM

The main thing is to get there.

The law will follow.

It always does.

Posted by Michael at August 5, 2004 03:08 PM

On what basis can an international body declare any authority over the entire universe? How could such a position be tenable? To state that everything in space belongs to all is asserting a claim in and of itself. As soon as we have tangible assets on the moon and beyond, I hope the nonsensical OST will be backed away from, just like the ABM treaty was. It's not that difficult to do.

Posted by B.Brewer at August 5, 2004 03:25 PM

To clarify my post a bit.

Make that read "Law will follow".

Not to be confused with "the law" as conjectured by earthbound loonie tunes. Space belongs to all mankind indeed.

I wonder how the inhabatants of Vega VII (or wherever) feel about that concept.

Posted by Michael at August 5, 2004 03:33 PM

True, there is a provision to withdraw from the OST. That's kind of thing is pretty rare, but it can be done.

I had a laugh at this line in the article:

Perhaps the single most important issue in space law - ownership - has already been the focal point of space lawyers for some decades. In 1979 they attempted to resolve the issue with the international Moon Treaty.

Riiiight, by outlawing private ownership. Yes, we've sure seen how well that works. How can someone say that with a straight face in this day and age? Sure, I know there are still some Marxists around, but come on! Government or not, treaty or not, if there is something of value there will be ownership. Yeesh.

Posted by VR at August 5, 2004 03:41 PM

My own $0.02: "You and what fleet of space ships?" So some day I will be sitting on the top of a gravity well and someone down below starts to think they can dictate to me?


Posted by Aleta at August 5, 2004 03:42 PM

"Outer space is a province of all mankind," says Sylvia Ospina, a member of the board of directors at the International Institute of Space Law. "There is not, and should not be, any privatization of outer space. It is a common thing that should belong to all."

This female is a speciesist and a trespasser. I want her removed from my universe immediately.

Posted by Kronak, Emperor and Sole Proprietor of the Universe at August 5, 2004 03:59 PM

"There is not, and should not be, any privatization of outer space. It is a common thing that should belong to all."

I cannot believe Ms. Ospina seriously proposes that 99% of the solar system is held under 'common ownership'.

Posted by Brian at August 5, 2004 04:30 PM

Aleta-You and what fleet of space ships?

Good point. I assume that by the time significant numbers of people in a position to form independent societies in space that there will be a number of governments with space forces or infrastructure that could be pressed into service as a space force.

The answer, I think is to minimize one's size on the radar screen of the would-be interventionists. I seriously doubt that you personally would be doing anything likely to rouse the necessary level of ire among the earthbound. Presumably staking a claim on an asteroid and mining it, even if technically illegal, would not be worth the investment of resources to go and arrest the "criminal." The kind of thing I see as likely to trigger interventionist sentiment sufficient to get earthbound governments to act would be something like the reintroduction of slavery, or perhaps piracy. Or something that BrontoCorp can spin as piracy, and after all, they are valuable campaign contributors...

The last resort of dropping rocks down a gravity well really has to be a last resort, because that's a fight you *have* to win - losing means destruction. OTOH, there's no law that says you have to tell anyone where you are going and which asteroid you are mining, at least no law that can reasonably be enforced if you don't plan on coming back :-)

Posted by Andrew Case at August 5, 2004 04:50 PM

Andrew, did I say dropping rocks? I did not; I was just making an observation. Sitting at the top of a gravity well also means that I can see what's down below easier than they can see up. Among other things. And all the energy is on my side. ;->

Posted by Aleta at August 5, 2004 05:51 PM

Aleta - I think that when it comes to seeing the lack of atmosphere is more to your advantage than the relative location in the gravity well. Having the other guy at the bottom of a gravity well is a plus even if you don't plan on dropping rocks on him (no matter how much he may deserve it (-: ) that I'll readily concede. I think the relative economic advantages are still going to vastly outweigh the physical ones for a loooong time. I hope I'm wrong, but we'll see.

Posted by Andrew Case at August 5, 2004 06:08 PM

One of my many quirks is the firm belief that Terra can never allow Luna to be politically independent. It would be too easy for a Luna based military force to blockade Earth, or has been discussed, drop big rocks.

That is why I believe Mars will host the first political entity independent of Earth, except maybe for some asteroid miners who simply manage to drop off the radar. Literally. ;-)

Posted by Bill White at August 5, 2004 09:02 PM

I posted a reply of sorts to this post, but the TrackBack function seems to be broken with the switch to my new URL:

Posted by T.L. James at August 5, 2004 10:30 PM

It may take a while to root out the Communists and utopians from their havens in the various UN committees, but it will be done. A good way is to co-opt the developing countries by offering them a share of the auction revenue.

I think first come first serve will be the de jure system because there are no enforcement teeth to stop it, but I think it is terrible because investment will be curtailed due to the limited upside of not having a clear property right and being forced to race to get there instead of taking ones time.

We will have to teach people about the tragedy of the commons. Too bad their wasn't a decent economic system in Star Trek and that they didn't come across a culture that held everything in common. Maybe an episode where there was a 50 year experiment where people on one side of a wall were using free market economics and could own real estate and on the other had to work in collectives.


Posted by Sam Dinkin at August 6, 2004 09:21 AM

Sam - A good way is to co-opt the developing countries by offering them a share of the auction revenue.

This is my line of thought on the matter, too. It makes a lot of sense in that it's likely to be the present the lowest entry barrier and have the best chances of achieving a general perception of fairness.

One other point that I think is worth raising: The tragedy of the commons as it is usually understood never actually happened. The usual story is of the common pasture in 16th century England, but pasturage rights were actually strictly controlled, and people were assigned a fixed number of grazing slots. Anyone putting more than his share of sheep or cattle on the commons would be soundly punished and risked losing all his grazing rights. The dynamics usually ascribed to the grazing rights problem did actually take place in the case of various water rights disputes in the western US, though. It's a real problem, but it's been associated in people's minds with the 'history' that never happened.

Posted by Andrew Case at August 6, 2004 09:39 AM

I had a look at Ospina's organization's website. Their logo looks like a star-spangled dunce cap.

Posted by Dick Eagleson at August 6, 2004 10:08 AM

Dr Case's comments on common pasturage sound like the current state of geostationary locations, which are currently making hard cash for some small countries.

Posted by Dan DeLong at August 6, 2004 01:25 PM

On colonies and control: When Lunar/L5/Mars/Asteroid colonies come about, unless they have advanced nanotechnology or other advanced manufacturing technology, they will need to trade with earth. If earth authorities want to assert control, they likely would do it by blocking transport of vital supplies - much cheaper than going in with guns. By the same token, piracy would likely become a serious issue. Piracy control would likely be the foot in the door for government involvement.

A note on Star Trek: The "money" silliness came about in the '80s (In ST III, Bones knows all about money, in ST IV, Kirk, the man who has been all over the galaxy and back in time a few times, doesn't understand the stuff). On the other hand, do keep in mind that by the "Next Gen" era you can replicate almost anything on a whim. While scarcity would still exist, the day to day operation of the economy would change greatly.

It would have been interesting to see that explored a bit - I might expect something like the current issues with software when the technolology is introduced: Legal battles on replicator pattern piracy, open source versus standard commercial replicator patterns, etc.

Posted by VR at August 6, 2004 02:27 PM

People always assume that space will work differently than the earth. In a lot of ways it won't, since it comes down to human behaviour, and human nature is very similar on the ground as in space.

All I know is that, in space, rocket fuel is the new oil. If you own a resource that can be used to produce rocket fuel, you have resource of potentially great value.

The ownership of any such resource is backed up by the legal system, and if that fails, by force.

The question of whether property or resources can be owned in space is yes- and ultimately, the claim needs to be backed up by force.

The various legal systems of Earth are going to affect space for quite a long while, in much the same way that the legal system of England affected America.

Posted by Ian Woollard at August 6, 2004 04:18 PM

The most basic rule of real estate continues to apply. A thing belongs to those who can reach it and hold onto to it. No amount of feel-good-we-are-all-brothers legislation can change that.

Posted by Eric Pobirs at August 8, 2004 07:59 PM

The most basic rule of real estate continues to apply. A thing belongs to those who can reach it and hold onto to it. No amount of feel-good-we-are-all-brothers legislation can change that.

Posted by Eric Pobirs

RIIIGHT cowboy......

Posted by cymcyn at August 14, 2004 07:34 AM

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