A Conversation With Hufanga 'Okusitino Mahina on International Space Law, Part 2

Copyright © 2013 by Thomas Gangale
@ThomasGangale

MAHINA: Once again many thanks for the elaboration and clarification. Not only is your argument interesting, it is also quite convincing. On the surface of it, I would go along with your reasoning for a logical name change from the specificity surrounding the "Moon Agreement" to the generality governing a "Solar System Treaty," so as to reflect the current state of the art relating to the exploration of "all the celestial bodies within the solar system" and "not just the Moon" [which as you rightly said represents the past and, in part, the future].

If the spacefaring plans for human missions to outer space are basically for "profitable exploitation" of celetial bodies, how, then, would that level of "profitability" be defined in view of Eartly States fiercely competing for the control of alien and material resources, realised through outer-space laws and treaties as means of averaging-out of the opposite inter-celestial-body alien interests?

Like the Moon versus the rest of the celestial bodies in the solar system, how would such laws and treatries be extended to the other solar systems outside of ours, given the fluidity or volatility governing the boundaries within and across the whole of the Universe? How would it be historically like or unlike the patterns of human activities on  the so-called Global Village, Spaceship, Earth? Would it follow more or less similar historical paths on Earth, where technology, politics and economics are pushed through religion, education and, ultimately by force, through military dictation?

Just a thought!


GANGALE: As to the profitability of commercial space ventures, I take it all in with a huge lump of salt. There are a lot of snake oil merchants in the “high frontier,” and they have been around at least since the 1970s, hyping grandiose visions for private enterprise. I see this as largely a psycho-social response to the end of the technocratic race to the Moon between the Soviet Union and the United States; the former lost, and the latter won and went back home to Earth. This was a betrayal of the vision we read about as schoolchildren in the 1960s, and in response, there arose the belief system, “If the government won’t do it, private enterprise will.” Well, it didn’t. Forty years later, the same old schemes such as huge commercial solar collectors beaming microwave energy to Earth, have progressed... from vu-graphs to PowerPoint. Another betrayed dream, and so, another scapegoat. A favorite pastime is blaming space treaties for erecting legal barriers that have prevented these grandiose commercial schemes from coming to fruition. It’s a pathology that is deeply seated in broken childhood dreams, and cults have emerged to exploit this pathology. It’s more than simply sad, because these people actively poison the political climate for government space projects, thereby contributing to slowing the progress of space exploration. Dogma is the devil’s tool, doing more harm than good.

As you will see later this year in my article, “Ta-Va Palangi,” for the launch of our journal, one of my research projects has been the development of the concept of two-dimensional time as an analytical tool for both historical research and operations research. Inter alia, I have used it to track the progress of some of the most talked about commercial human spaceflight ventures. On Richard Branson’s own website in September 2004, he predicted that SpaceShipTwo would have its first operational suborbital flight in 2007. It still hasn’t happened. The private venture that has best kept to its schedule is Elon Musk’s Dragon. In December 2007, his website predicted the first flight to the ISS in November 2009. It was flown in May 2012; thus the schedule timespan more than doubled, from two years to four and a half years, not a thing to brag about. Maybe they spend less money than government programs do, but I don’t see that they are any better at getting the job done on time. Yet they continue to over-promise and under-deliver to the adulation of the delusional.

So, blame the government because you don’t understand the public policy process, blame the space treaties because you don’t understand international law, turn a blind eye to undistinguished track records of your entrepreneurial heroes because you don’t understand project management... and under no circumstances learn anything about economics:

“Experts advocate that mining rare and precious metals in our solar system would be so lucrative that it could solve all economic problems on Earth many times over. For example, in his book Mining the Sky: Untold Riches From The Asteroids, Comets, And Planets (1997), John S. Lewis, a professor of Planetary Science at the University of Arizona’s Lunar and Planetary Laboratory, stressed that mining near- Earth asteroids (and other parts of the solar system) could permanently support quadrillions of people under very ideal conditions. To give an idea of his figures, he estimates that if all platinum wealth in the Asteroid Belt were divided amongst everyone in the world, each person’s share would be $30 billion. He calculated that if all the wealth of all metals in the Asteroid Belt were equally divided amongst everyone, each person’s share would be $100 billion.”

The above paragraph is an excerpt from Page 2 of a book of which I just received a complimentary copy. There’s no elementary economic analysis of the enormous upfront investment (nonrecurring costs), recurring costs, marginal this and that, or the “scissors graph” that is the economic law of any raw materials production (the more you mine, the less it’s worth). If everyone on Earth owned a ton of platinum, the first thing that I would do with mine would be to drag it to the street for the rubbish man to haul away, or perhaps I would attempt to sell it off with the objective of cornering the more lucrative lead market.

In my view, the realistic role of entrepreneurship in space in the short term is in symbiosis with public policy objectives. When the government builds a road, partially justified to the taxpayer as being in the interest of national security, private parties build petrol stations, restaurants, hotels, and gift shops along the way. The airline industry got its start because the government wanted fast mail delivery; the private passenger and cargo markets came later. Looking further into the future, the main benefit from exploiting extraterrestrial resources will be to supply other enterprises in space, with repatriation of profits to Earth as will satisfy a reasonable return on investment. In other words, a few thousand investors on Earth may realize some millions of dollars each, but that is a drop in the ocean of the global economy. It will be the profits that don’t get repatriated to Earth that will make the big difference. Reinvestment in space will fuel the growth of the deep space economy. There will be lots of multi-millionaires in outer space, so many that they will be middle class (also due to the high cost of living, a matter of purchasing power parity), but the larger point is that humankind will have colonized a new ecological niche.

From its beginning, international space law has been fashioned to prevent immoderate claims to the celestial bodies and the sort of fierce competition -- economic, political, military, et cetera -- between nation-states that you mention. John F. Kennedy expressed it well in his 1962 speech at Rice University:

"We set sail on this new sea because there is new knowledge to be gained, and new rights to be won, and they must be won and used for the progress of all people. For space science, like nuclear science and all technology, has no conscience of its own…. I do not say the we should or will go unprotected against the hostile misuse of space any more than we go unprotected against the hostile use of land or sea, but I do say that space can be explored and mastered without feeding the fires of war, without repeating the mistakes that man has made in extending his writ around this globe of ours. There is no strife, no prejudice, no national conflict in outer space as yet. Its hazards are hostile to us all. Its conquest deserves the best of all mankind…."

To me, his words are the vision statement for international space law, which was nascent at that time. There will be competing interests in space, just as there are on Earth, and just as on Earth there is law to mediate these, so must there be law wherever humankind ventures.

Which segues easily to your question regarding law extending to other star systems. In an essay that I need to get around to publishing, I state:

"While humankind’s means of navigating outer space remains restricted to various forms of kinetic reaction (i.e. “rocket” or “impulse”) propulsion, whether chemical, or in the future, nuclear thermal, nuclear ion, or even fusion or matter-antimatter, it is most likely constrained to the Solar System. Faster-than-light propulsion that would take us to other star systems is only a dream in our time. That the Moon is within the reach of humankind is beyond question: we have been there. Arguably, with the landing of Apollo 11 on the Moon, Mars came “within reach,” for the National Aeronautics and Space Administration and its contractors had already been studying human expeditions to Mars for years (Boeing 1968); by 1969, those plans had reached sufficient maturity to be proposed to national leaders as humankind’s next step in the exploration of outer space, to be achieved in the early 1980s. That this step remains untaken has to do with domestic political priorities; the argument that international law is to blame for the retreat from the Moon following the Apollo program is so obviously flawed on so many levels that it invites charges of dishonesty (Gangale 2009, 160-166). Although the prospect of landing humans on Mars remains more remote than I would like, I still expect, perhaps optimistically, that it will occur about the middle of this century. The enabling technologies for Mars expeditions would be applicable to other inner Solar System destinations: near-Earth asteroids, Venus (although not to its surface), and Mercury. Human expeditions to the outer planets in our Solar System probably belong to the 22nd century. While all of the technologies required for such expeditions may not be in hand, the necessary principles of propulsion exist, and from that perspective these celestial bodies can be said to be “within reach.” Thus, I think it would be permissible to consider the celestial bodies of the Solar System as the province of humankind. One conceivable caveat to this would be the discovery of life on another celestial body in our Solar System; here we venture into a bioethical debate, which, although a worthy debate, is beyond the scope of this work. The approximately one thousand planets in other star systems that have been discovered (Paris Observatory 2012) are clearly beyond the reach of humankind and are likely to remain so for several centuries at least; therefore the only logical conclusion is that they are res nullius. It is hardly necessary for the Outer Space Treaty to declare this explicitly…. [I]t is not the province of law to define every boundary of what is humanly possible, for those boundaries are subject to change; however, what is beyond the reach of humankind is obviously beyond the law of humankind in the context of things that may be appropriated."

Regarding the future of politics and economics in the Solar System, this is where I chose to conclude my dissertation and restrict it to questions of law. However, Marilyn Dudley-Flores and I have done work together in this area (see "Forecasting the Political Economy of the Inner Solar System," Astropolitics, December 2012). Although the work I have done on my own is currently on my dissertation’s cutting room floor, I plan to cycle it to a future writing project. In composing a short answer to your question, I will address three factors. First, throughout the past century, the basis of sovereignty has been shifting from the territorial state to the individual, progressing from national self-determination in Woodrow Wilson’s Fourteen Points to the 1945 Nuremberg Principles to the 1948 Declaration of Human Rights and the body of postwar human rights conventions. International space law has developed in this climate of declining territorial sovereignty, so it is comes as little surprise that territorial sovereignty is a concept that is absent in international space law. Secondly, environment shapes culture, and the obvious differences between maritime cultures and continental cultures are as nothing compared to how the space environment will shape culture. Third, technology also shapes culture, and what technology the future will bring is anyone’s guess. In sum, the development of outer space will be historically unlike the patterns of human activities on Earth. We will not “the mistakes that man has made in extending his writ around this globe of ours.” We will make entirely new ones. That is progress, for it is in that process that the “new knowledge to be gained and new rights to be won” will be manifested.

Thomas Gangale in Outer Space! 

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