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Imagine it’s 1957. It’s the middle of the Cold War and fear is everywhere. Senator Joseph McCarthy’s just spent years accusing people of being communists and spies. The Soviet Missile crisis is on the horizon. The United States and the former Soviet Union are locked in an arms race. And there’s a space race, too.

When you look up at the sky in 1957, there is nothing up there but stars, planets, moons, and some space rocks. It’s a vast silent sea–utterly unexplored. The only thing anyone has seen orbiting the Earth is the Moon.

But the US and the Soviet Union are desperately competing to see who will be first to launch a man-made satellite into orbit.

For most people at the time, all of this seemed really abstract–if not fantastical. Aviation was just 50 years old. Going into space was something that only happened in science fiction. Until it wasn’t.

On October 4th, 1957, the former Soviet Union launched a polished metal sphere into low Earth orbit. 

It was just 23 inches in diameter, and had 4 external radio antennae. But just like that–the first leg of the space race was over. The Soviets had beat the Americans. But then the so-called Sputnik Crisis began.

Steve Mirmina, a law professor at Georgetown University, says, “When Sputnik was launched, it caused fear and panic. Not only in the United States, but around the world. A lot of people were really fearful of what is that metal object in the sky and what is it going to do? Is it going to drop weapons? Is it going to deliver weapons? Is it going to threaten us as a race or a nation or as a species? And as a reaction to Sputnik, countries around the world started to get together and say we need to study outer space and make some rules as to what can and cannot occur in outer space.”

The United Nations convened an ad hoc committee of nations. It was known as The Committee on the Peaceful Uses of Outer Space. And its goal was to ensure that space would only be used for peaceful purpose. In 1967 the committee signed its first treaty.

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies

According to Steve Mirmina, it’s better known as, “The Outer Space Treaty. More than 100 countries are party to it so some people refer to it as the Magna Carta of space.”

By 1979 there were 4 more treaties: The Rescue Agreement, the Liability Convention, the Registration Convention, and the Moon Treaty. And no other treaties have been written since. In just over two decades, a whole new body of law was created… one that has big implications today.

Take a bill just passed by Congress called the United States Commercial Space Launch Competitiveness Act of 2015. Or, The Space Act

Joanne Gabrynowicz, a veteran space lawyer, says, “It’s a bill that addresses asteroid mining, space tourism, or what we call human commercial space flight, and remote sensing.”

It’s likely that President Obama will sign this bill into law and when he does it would regulate private companies doing anything from mining asteroids to commercial space flight.

As activities continue to develop, then you begin to fashion what has to be done for that specific activity if it’s going to be different than what’s come before,” says Gabrynowicz.

But what came before?

First, some disclosure: I’m a stone cold nerd. And I’m really into space. Movies about space? I’ve seen most of them. Shelves full of sci-fi novels? Yes. Star Trek? I fracking love it.

Michael Mineiro is an attorney and scholar of international space law. Nerding out was what led him to this field. He was already a big sci-fi fan. And then after law school he went to China on a fellowship. He saw in the news that the Chinese government was starting to get worried about US involvement in space–and the ramifications it would have on China. And he decided…

“To boldly go where no lawyer has gone before. The funny thing about Star Trek is there’s no lawyers on the ship, you ever notice that? They’re so enlightened in the future, there doesn’t seem to be a real need for lawyers in Star Trek.”

So maybe there wasn’t a lawyer on the USS Enterprise. But here on Earth, there are a lot of people interested in the laws that govern outer space. There’s even an institute devoted to it–the International Institute of Space Law–and every year they have a moot court competition for law students. 

This year it  was held at Georgetown University in DC.

It involved a hypothetical case between two made up nations: the Sovereign People’s Independent Democratic Republic or SPIDR and The United Republic of Adventura or URA. According to the case, both nations wanted to mine from an asteroid called Syd-1. After URA accidentally messed with its orbit, Syd-1 crashed into Dropgum, a fishing village in SPIDR.

Point is: there’s a lot of geeking out to do when it comes to space law. And all this geekery is based on other, more terrestrial laws.

“States undertake an activity, after a certain amount of time they become accustomed to that activity, a general consensus that there’s a right way to do things. Eventually that custom is elevated to the point where it has the legitimacy of a norm and then at some point the state’s decide to write down their norms,” says Michael Mineiro.

That’s pretty standard. And space law followed the same path. The only big difference was that the people writing space law were moving really fast–and making up rules for places no one had ever been before.

Chris Johnson works for the Secure World Foundation. It’s an an NGO set up to prevent space from being another domain where war is waged. He says the founding fathers of space law even looked to the Romans.

“They had to come up with these rules and figure out, where does a state’s sovereignty begin from? It actually goes back all the way to Roman law where the states said that they had sovereignty from the heavens all the way down to hell. So you know when the space age began, they thought is this just a higher realm than aviation? And this is where it gets tricky.”

Tricky because suddenly the heavens had no upper limit.

Johnson says, “When you just look out the window and look up, you think well where does state sovereignty end and where does this freedom of outer space, this international commons, where does that begin?

Good question. And that’s the problem with space law. You’re trying to impose rules on celestial bodies. On the infinite void.

“That’s what’s still kind of mind boggling and that’s why I first got into space law. It seemed like science fiction that there’d be something that applies to planets and what we can do on other planets in outer space. That’s just the crazy reality of it,” says Johnson.

Which is why space law began by looking for answers on Earth.

Joanne Gabrynowicz says, “We can look back to other parts of human history. For example, the great age of exploration. They were going to places on Earth that for them which was just as adventurous as space is for us. And we learn from their experiences and then we adapt them to the current reality.”

Take the SPACE Act, which now attempts to legislate private activities in space, at the national level. It deals with liability for American space tourism companies… and rights for US businesses that extract resources from celestial bodies. But some people want an international agreement instead, to ensure that all countries will apply space law the same way.

If the Space Act is signed into law, it could open up a whole new era of space industry–and a whole new era of disagreements about how humans should share outer space. Unlike many other areas of law, space law isn’t set in stone yet. New rules are being written. And the old ones are constantly being tested…

According to Steve Mirmina, “There was a case in Europe where there was somebody who claimed to own the Sun because he bought it on the internet. And there was somebody who got a sunburn. So he sued the guy who owned the sun.”

That particular case was easily solved by turning to the Outer Space treaty–Article 2 states that no one can claim any part of space. So good news for the man who bought the Sun: he couldn’t be sued. But the bad news is he never actually owned the Sun.

Michael Mineiro says what’s truly amazing is that space law is so young it’s still like an unexplored frontier. The final frontier…

“And,” says Michael Mineiro, “the rules we design to today will impact our evolution across the solar system for millennia.”

dividerPRODUCTION NOTES
Space Law 2.0
was reported by Kirsten Jusewicz Haidle and Rebecca Sheir and edited by Annie Murphy with sound design by Shani Aviram. The music in this episode is from Chris Zabriskie, Shanna Sordhal/Andrew Weathers, and Simon Mathewson.

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dividerThis episode of Life of the Law was funded in part by our listeners and by grants from the Open Society Foundation, the Law and Society Association, the Proteus Fund and the National Science Foundation.

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