Hitting the Books: Why lawyers will be essential to tomorrow’s orbital economy

If today’s robber barons had a way, the sky overhead could soon be filled with the constellations of commercial space stations occupying low earth orbit as human colonists positioned the Moon facing Mars. But that won’t result in the same free-roaming Wild West we saw in the 19th century, unfortunately the interplanetary settlers of tomorrow will bring their lawyers with them.

In his new books, The End of the Astronauts: Why Robots Are the Future of Discoveryrenowned astrophysicist and science editor Donald Goldsmith and Martin Rees from the UK astronomer royalThey advocate sending robot scouts into the void before human explorers – devoid of heavy necessities such as life support systems. But what happens after these synthetic astronauts discover an exploitable resource or a rich idiot declares himself Emperor of Mars? In the excerpt below, Goldsmith and Rees discuss the challenges facing our burgeoning exoplanetary legal system.

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

Almost all legal systems have grown organically as a result of long experience with changes in a society’s political, cultural, environmental and other conditions. The first sprouts of space law deserve the attention of those who may be involved in the myriad activities envisioned for the coming decades, and perhaps those who wish to imagine how a Justinian code of law might emerge in the space realm.

Those traveling in spaceships, and those who will to some extent live on another celestial body, occupy similar situations to those on navy ships, which have peer-reviewed laws to handle crimes or extreme antisocial behavior. These laws typically authorize a single officer or group of officers to prosecute and punish, possibly awaiting review if extradited to a higher court. This pattern seems likely to re-emerge on the first long-distance journeys through the solar system and the first settlements on other celestial bodies before the usual structure of court systems for larger societies takes the stage.

However, as on Earth, most laws are civil law, not criminal law. A much greater challenge than dealing with criminal acts is formulating an appropriate civil law rule to apply to national or international disputes arising from space-borne activities by nations, companies, or individuals. Over half a century, a small cadre of interested parties has developed new “space law” expertise, some of which already has the potential to apply. What if a space debris launched by a particular country or company lands on an unsuspecting group of people or their property? What if astronauts from different countries claim parts of the moon or an asteroid? And most importantly, in its potential, if not its probability: If we receive a message from another civilization, who will speak for Earth?

Conferences on such topics aroused more interest than answers. The human exploration of the moon has brought related topics to wider attention and discussion. Throughout the 1980s, the United Nations seemed like the natural arena to unleash them, and these discussions eventually produced the results described in this section. Today, it is suspected that almost no one knows about the documents produced by the United Nations, let alone its plans to support countries that follow the guidelines in those documents.

Our hopes of achieving a rational tool to identify and limit activities beyond our home planet will require broader agreements, as well as a tool to implement them. Non-lawyers reading existing and proposed agreements on the use of the field should be aware that attorneys typically define special circumstances words as “art terms” and give them different meanings than a simple reading would suggest.

For example, the word “recovery” in regular discourse refers to regaining the value of something lost, such as lost wages from an injury. In more specific usage, “resource recovery” refers to the action of recycling material that would otherwise be waste. But in the lexicon of mining operations, “recovery” has nothing to do with losing what was once owned; instead, it refers to the extraction of ore from the ground or seafloor. The polite nature of the word often contrasts with the more accurate term “exploitation,” which implies disapproval, but it usually has only a neutral meaning in legal matters. For example, in 1982 the United Nations Convention on the Law of the Sea established an International Seabed Agency (ISA) to set rules for much of the seabed outside the jurisdiction of any nation. So far, 168 countries have signed the convention, but the United States has not. According to the ISA’s website, the Mining Code “refers to the comprehensive set of rules, regulations and procedures published by ISA to regulate the exploration, exploration and exploitation of marine minerals in the international seabed Area.” In mining circles, no one squints at plans to exploit a particular place by extracting mineral resources. However, space law debates tend to avoid the term “exploitation” in favor of “rescue”.