7.11.2006
Space Tourism is Nonsense
One of the best things about summer is you can catch up with stuff.For example, I finally had a chance to listen to the MP3 of a broadcast of The Space Show, aired on May 26th, 2006, in which our lovable host, Dr. David Livingston, interviewed renowned space lawyer Dr. George S. Robinson. Just two PhD's chatting about space law and business.
My idea of a space show.
George Robinson, who majored in biology and chemistry, holds an LL.B. from the University of Virginia School of Law, and an LL.M. and the first Doctor of Civil Laws degrees from McGill University's Institute of Air and Space Law, served as legal counsel at the Smithsonian, international relations specialist at NASA, and legal counsel at the FAA, authored more than 100 articles and books on space law, space commerce and lots of other topics, and is "currently is working on his next book addressing the establishment of a unique jurisprudence to accommodate individual personhood of transhumans functioning in space," offered some surprising and let's just say unique insights.
Among other things, he called space tourism "nonsense," and warned space businessfolks to be wary of unscrupulous government regulators. He called the Outer Space Treaty wishful thinking and said treaties, like all laws, are made to be broken.
In case you missed it, here are some highlights.
On commercial space business
To get into space business you "really have to be smart" in terms of not just traditional concerns of securing risk capital but in protecting products from private competitors and insuring that the multitude of insuring financial and investment and tech transfer regulations, for example, both domestic and international are satisfied. Many folks starting out in this business don't recognize that and the last thing many want to do is consult a lawyer. The entrepreneur has to protect from "frequently unscrupulous competition." This comes from government regulators -- domestic and foreign governments -- and "the cabals that are established between and among those regulators, the politicians and the major national and international corps."
"Legal theft is not unheard of" "and protection by and from governments is not altogether the order of the day."
Governments have vested interests in major corporations, political considerations, international diplomatic considerations and "everything is an expendable chip whether it's related to space or not."
"Frankly, I have found over the years there are folks in the federal government who work with space activities who are not above favoritism and particularly with major corporations who might find that a startup or mid-level entrepreneur's product or service is competitive with what they're doing."
"And I've found also over the years, and a lot of folks starting up don't understand this, that what major businesses will do, in space commercialization as in anything else, if they see an up-and-coming product or service that might be competitive with something they have already established and are making a lot of money from they'll simply take it themselves whether it's secured by property rights, patented or what have you, and use it themselves or take it and put it on the shelf and simply say 'we don't think your patent covers what we're doing with the same product or the same service... and if you don't like it you have your legal resources,'" -- knowing full well that most start-ups and mid-level companies "simply do not have the money to contest this type of behavior." This is not limited to the space commerce, it happens across the board with major corporations.
"Unfortunately, there are people both in and out of the government who find that most of their commercial epiphanies come from greed."
Sometimes it's too late, and a product is put out into the market unprotected. A good place to start to protect yourself and your investors is talk to legal counsel.
On non-disclosure agreements
George has drafted, formulated and used a number of NDA's over the years. The more valuable product or service appears to be, the less secure you are in your NDA provisions. In the space industry, very few people read NDA's and some of the biggest violators are members of Congress, and the federal government. A lot of folks who are not working in contracts offices don't even know what an NDA is. NDA's can be helpful. There are honest people in the business, too. But if there is a problem, legal fees and court costs, etc. raise a practical issue of whether you can enforce.
On property rights
In the treaties there is no right of any nation to assert sovereign ownership over space or its resources and that's problematic to me. There are an awful lot of resources in our solar system, galaxy, universe. To say you can't own property is very misleading. It's going to happen anyhow and it does happen in terms of some of our exploitation. So much of this is open, if you want to do it and you have the capacity, just do it because I don't know any body who is going to be sending tanks up there to stop you.
"I never believed that the OST of 1967 was a self-executing treaty. It's a statement of wishes from good intent negotiated principally by the former Soviet Union and the US, neither of which knew what the other's capacities were in space." There is a lot of flexibility there.
"I think it's amorphous enough that whoever does it first is going to have a lot of say on what constitutes private ownership of property and what's acceptable."
On the Moon Treaty
"I have never been a strong proponent of the moon treaty. I think it was negotiated by ideological amateurs."
I think in the long run most people have seen that [the Moon Treaty] was really a problem thatdisenfranchisedd the world of economic capital from investing risk capital of a large nature for obtaining space resources and using them.
I don't think the common heritage provisions in the Moon Treaty and OST are self-executing, they require each nation that signs to implement those provisions. Implementing has been attempted in this country but "seems to always come to a screeching halt... because of military obstacles." The whole concept of property and space resources needs to be settled in court. In a case involving a UScorporationn, it may go before a commission or the World Court; it might end up in the Supreme Court.
At a minimum you have to assert control. Drilling a hole doesn't constitute assertion of ownership.
On the legal system
The outfit with the most money can win.
On who owns the Moon
No one owns the moon at this time.
On VSE and the US establishing habitats on the Moon and Mars
There are different treaty provisions and authoritative interpretations that apply. Even though you can't own the land on the Moon or Mars you can control certain use of it that might be reasonable but you also have to make it available by reasonable visitation other space-faring nations. That's not going to cut it if it's a military station not just a benign colony. Other provisions are in the Rescue and Return Treaty; Liability Treaty.
On withdrawing from or renegotiating OST
"Why withdraw from something that you are not required by law to do or not do?" These provisions are wishful thinking. You need very specific implementing positive law for, by and large, each of these provisions. Under rebus sic stantibus, if the circumstances have changed the law is no longer applicable. The facts have changed.
"It may take a lot longer to amend the OST than makes it worthwhile, I'd rather negotiate a whole new treaty at the appropriate time that covers a lot of things. Treaties are made to be broken like any other laws; it's a question of to what extent you want to enforce them."
On whether George's view is unique
It's not unique, it's very practical; based on a lot of experience.
On the future of humans in space
The only future of humans is off this planet. Earth is temporary. I don't think Stephen Hawking needs to tell me it's only temporary. It is absolutely critical that our species and its descendants get off this planet, this is an integral part of biological evolution or biotechnical evolution; this species is not going to last on the planet. "This is the ninth month. We're being born. Now." In terms of getting that done, we have some very far-thinking and good people. And then we have some people who are ripping the whole effort off for personal gain.
On space tourism
I am not a proponent of space tourism. I think it's nonsense. The human body at this point is infinitely too fragile for long duration and permanent habitation in space. We don't have the ability, significantly unenhanced, to survive microgravity, radiation; it just isn't gonna happen without substantial alteration, which we are developing the capacity for.
Transhumanism and posthumanism is a lot further along than most people realize.
The real problem is, you can't tell people here on earth they're never going to get off and the planet is doomed. Survival is the reason for environmentally stabilizing the planet -- that is so we can use our resources to get the ensuing generations, "the envoys of mankind" off the planet permanently. And I think that will be in some veryspohisicatedd human-robotic entities. Space tourism? 99.999% of the people in the world ain't ever going to get there.
On future envoys
You're not going to put everybody on earth who wants to go to space in space. You're going to have envoys. And you've got to understand what those envoys are. They are going to be sufficiently changed that their independent personhood will subject them to a totally different accountability under a totally different set of legal regimes and jurisprudence that we haven't anticipated yet.
We need to have a manned program but it cannot be for long duration and permanence habitation of space without significant alteration. We are capable of this and have a done a lot on that respect. (Recording cuts off here.)
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If you get a chance, listen to the whole thing. I don't quite always agree with George, but he is a seasoned, smart lawyer who never minds speaking his mind. Which is to be admired. And I am sure looking forward to George's new book. (Hopefully ready by next summer...? ;)
