The Future Is Here
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A Space Lawyer Explains How We'll Forge a Civil Society Off Earth

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Without even looking a century or so ahead when we’ll take a Virgin Galactic flight to spend our summers on Europa, there are many legal issues that are already confronting humanity in space. That’s why space lawyers are plenty busy today examining the particular economic and societal challenges found where Earth ends and space begins.

Henry Hertzfeld, a professor of Space Policy and International Affairs at George Washington University, has taught a space law course for 11 years (before that, his background was in economics—the regular Earth kind). Even though the laws that govern space were drawn up back in the 1960s and 1970s, they’re still very good, he says. “The whole idea is freedom of access and using space for peaceful purposes.”


A series of UN treaties were formulated at a time when only two nations had access to space—the US and the USSR—and since then, over 120 countries have ratified the agreements. Even though the world has changed a lot since the 60s, the documents themselves will likely not change, and that’s a good thing, says Hertzfeld. But consider space’s new political scope: Roughly a dozen countries can launch spacecraft out of our atmosphere, and about 60 countries are operating scientific, strategic, or telecommunication-related tasks off-Earth.

So far, the only humans in space are sent by governments and working on their behalf. That legal landscape could change quickly as commercial interests are developing the capacity to not only enter space, but also do business there. Because money is where things get tricky, even in space. (In fact, one of those issues is that the atmosphere-space boundary is not clearly defined and varies widely due to space weather—but it’s generally about 62 miles up.)


Law & Orbit

Most of what Hertzfeld is currently concerned with, from a legal perspective, are the hundreds of hunks of metal already spinning around up there, and the growing number of satellites going into orbit every year. There are two orbits that are at risk, says Hertzfeld: The geosynchronous orbit, which hosts the 400 biggest and most expensive satellites, and the sun-synchronus polar orbit, which has a lot of junk, including used rocket bodies, nuts and bolts, and things astronauts have dropped. “It’s not too serious yet, but all the projections say that in 10 years it will be problem,” he says.

Of biggest concern is the fact that eventually some of that stuff circling around up there is going to collide in a way that will cause serious damage—or hurt a human. “So far, there has been no accident in space that has had enough damage to warrant a lawsuit,” says Hertzfeld, although there have been a few minor collisions. Another layer of murkiness enters when you consider that some of those were launched by one country but are now operated by another—yet they’re still the responsibility of the country which originally launched them. I joked that it sounded like there needs to be a kind of DMV for spacecraft, which Hertzfeld agreed might not be too far from the truth.

As for human-populated spacecraft, these have their own set of international laws which govern everything from intellectual property to criminal prosecution. Looking out—far, far out—when humans are forming settlements in space, these will likely start under the same set of rules: They will be authorized by one or more governments which are required to provide “continuous supervision” of their space-bound citizens and are therefore responsible for their behavior. Turns out, we actually have precedent for this. Here on Earth, similar international treaties govern settlements on Antarctica, which have gone well for several decades. No one has led an uprising to form a separate government—so far.


Launching Space Startups

In the nearer future, before humans are living there for long periods of time, some businesses will begin making money in space. Hertzfeld believes that the first exclusively space-bound startups will be small operations which service and repair the growing number of satellites and other spacecraft in orbit. “So you’ll have a satellite taking photos of another satellite, or taking fuel to refuel a satellite,” says Hertzfeld. You can already see a version of this with Space X, Boeing and Orbital making cargo trips to the ISS, although those are technically contractors with the US government. But as the technology around heavy lift launches improves, making entering orbit cheaper and more accessible, soon there might be true industry happening in space.


Before I hear from all the interplanetary prospectors looking to get rich on Mars: You probably won’t. “I don’t think in the near-term we will lasso an asteroid and bring one back filled with diamonds or platinum,” says Hertzfeld. Space mining doesn’t yet make much sense, mostly from a logistical perspective, although if we want to start constructing large habitats in orbit or further afield, the economics will change.

The most valuable thing in space at the moment? Water. That’s because finding (or somehow making) water will allow humans to live in space for longer periods of time and also to make essentials like fuel. The second most valuable thing in space is solar energy—or rather, finding a lightweight way to capture it and power spacecraft (or settlements) on a large scale. Long before we’ll be living there, we need to find a way to build solar farms that orbit the planet.


A Tiny Revolution

However, the most interesting area of space law right now isn’t about building giant solar-powered stations, but rather, it’s about very, very small spacecraft. Look at CubeSats, which are teeny tiny—about a liter in volume—and becoming a greater area of interest. Schools and other enthusiasts have even Kickstarted campaigns to launch their own. “You can do a lot with something very small—essentially a smartphone in space—which is not expensive to build,” says Hertzfeld. “That development has grown an awful lot in just a year or two.”


Interestingly, he believes the future scenario here isn’t as much about fleets of tiny drone-like spacecraft that we’ll be able to launch ourselves, but rather the fact that suborbital drones will soon be able to do much of the work of satellites. Think about the internet-delivering capabilities of Google’s Project Loon or even the way a quadcopter can take gorgeous aerial imagery.

In the meantime, we’ve got a lot more to get worked out before we even try living in space full-time. Recently, the legal subcommittee of the UN’s Committee on the Peaceful Uses of Outer Space (COPUOS) convened in Vienna to put together a long-term program to prevent space debris, which will hopefully lead to some technical plan for removing what’s up already there. The reality is that the Earth’s orbit is already getting crowded and messy, even without many humans around.


We think of our fate in space as being mostly in the hands of the scientists who are working together to determine when we might join them there. But as I learned, the global cooperation of those who make and interpret the laws which will govern our behavior there is equally important. Astronauts get all the glory, but the Earthbound lawyers who happen to specialize in space deserve just as much credit.

Image from Star Trek via John Kenneth Muir