To Form a More Perfect Universe: An Interview with Space Lawyer Joanne Gabrynowicz

"Our issues involving space are seen through the lens of geopolitics on the Earth. Our problems originate on Earth, not in space."

Photo via NASA Goddard Space Flight Center

Half a century since our first "giant leap for mankind," some of science fiction's most outlandish adventures have started to look like rather reasonable. Talk of lunar colonies, asteroid mining , and commercial spaceflight, for example, no longer seem far-fetched.

The second space age has arrived, but until clearer regulations take hold, no one knows what that it will look like in practice. William Gibson once observed, "the future is already here––it's just not evenly distributed," to which we might now also add: it's not evenly regulated, either. Will only spacefaring nations reap the rewards of manna from heaven? Who owns the rights to asteroids? What, legally speaking, is an asteroid anyway?

Space Lawyer Joanne Gabrynowicz, one of the preeminent experts on the limits of our infinite, final frontier, has been grappling with these questions since 1987. Editor emeritus of the Space Law Journal , Director of the International Institute of Space Law, and author of over 50 articles on national and international space law's intricacies, histories and future, Gabrynowicz has frequently been called on to testify as an expert before the UN, the State Department, NASA, and the Hague. Last September, she testified before Congress on the legal aspects of asteroid mining outlined by the ASTEROIDS Act bill introduced in July.

In between teaching in Beijing last fall and heading to Washington in March for a meeting at Department of the Interior, Gabrynowicz spoke to VICE from her home in Mississippi.

VICE: Where did your interest in outer space, and space law in particular, take off?
Joanne Gabrynowicz:
My interest in space came from a number of things, but the most important thing was my passion for history. I began to see analogues between the founding of the United States and what we would need to do to go into space. I want to point out very, very strongly that this analogy between the founding of the US and space law is not a call for United States dominance or Manifest Destiny in space. It's a model of something that worked that I can see applied in modern times in a modified way.

You once said in a speech that "peaceful purposes" originally attracted you to space law.
Remember my age. I grew up during the Cold War, when everybody had the threat of nuclear warfare hanging over them. Space became a place where both the Soviet Union and the United States competed, but they also were competing to show how peaceful they were. In my eyes, space became something that could be an arena for learning how to work with one another. If you look at the space station, for example, it has 16 countries participating. We're learning to work with one another, and that's what attracted me to space.

For a while after the Cold War, not much happened in space. Now we're talking again about entering a second space age or space race as private commercial development has begun serious work on new spacefaring technology. In your perception, how quickly does the law get dated?
The law––and just about any kind of law, not just space law––is by nature a conservative institution. That's "conservative" with a small "c." That's especially true in the Anglo-American legal system, where we rely so much on precedent and analogy. Our system is to have the law respond to needs as they arise rather than to go out and try to write one big comprehensive law that tries to imagine a whole bunch of things that you can't imagine yet because the technology or the experience is not there yet.

Our issues involving space are seen through the lens of geopolitics on the Earth. Our problems originate on Earth, not in space.

Would the high seas or Antarctica, given their status as global commons, serve as useful analogies for asteroid mining?
Well space, like those two, is a global commons. That's crucial. And those global commons have systems about resource extraction that might be analogues for space, but no agreement has been reached about that yet.

It seems that one of the issues still hanging over this whole international conversation is whether the Outer Space Treaty necessarily bans private ownership rights.
The Outer Space Treaty [of 1967] is completely silent. It doesn't disallow them. It doesn't forbid them. The driver for the Outer Space Treaty was to prevent nuclear weapons from going into space, and the minute they had that agreement they stopped and everybody accepted it and went home.

Now, the Moon Treaty [of 1984] sets up the possibility for what's called an International Regime, and this is where the epicenter of the controversy is. It's Article 11 of the Moon Treaty that says––and I'm badly paraphrasing here––that the rules for this international regime will come about when exploitation becomes feasible. Well, the politics of the last 30 years or so was such that we didn't want to do that. We didn't want to negotiate. By "we" I'm meaning the global community, although there certainly has been a resurgence of interest in doing that over the last few years. Our issues involving space are seen through the lens of geopolitics on the Earth. Our problems originate on Earth, not in space.

Looking at both the positives and negatives of this, what kind of material and humanitarian challenges might space exploration solve and which does it raise?
If we go back to the Outer Space Treaty you're going to see a lot of language about humanity and the benefits of all humankind. Let me just pull out a sample phrase: "The benefit of all peoples irrespective of the degree of their economic or scientific development." Now, that's not a legal obligation because it's in the preamble, but that's the standard language.

You know, it's like our preamble. In our Constitution's preamble, we want to create "a more perfect union." In the Outer Space preamble, it's "for the benefit of all peoples." Where it gets difficult is how you interpret that. It is governments––not industry, not companies––that have the responsibility to do this under the Treaty. But, because governments are internationally responsible for the actions of their nationals in space, they should be interpreting how to govern them with this in mind to some degree. And there's a lot of ways that can go.

I've seen some proposals for internationally redistributive models of wealth derived from space, given that there are some estimates that the minerals found in the Asteroid Belt could be worth more than $100 billion for each of the six billion people on earth. Have you seen any space lawyers or activists making calls for something like space justice, similar to what's now being called climate justice?
Yeah, there's a lot of it. And you hear that call coming from developing countries and from nations that are recently technologically advanced, or not technologically advanced at all. That's a perfect example of what I mean by saying that our issues in space are seen through the geopolitics on Earth.

As space activities illuminate economic and technical differences between developing and developed nations, how will non-spacefaring nations be assured the use of outer space or its resources in the coming years as our capabilities develop?
Well that's where I think effective diplomacy comes in. Our diplomats who are responsible for these issues need to be speaking with their counterparts in other countries and saying, "This is what we're doing and why we're doing it. And, no, it's not our intention to exclude the whole world. We understand your needs, we'll address those, and let's talk about it." But that's a need for diplomacy. It's also a need for philosophy.

You've written about how the Outer Space Treaty codified, in many ways, the Cold War's hopes and fears. What might contemporary laws reveal about our current political situation?
I think the current political situation in space is what the whole world is dealing with. We have gone from a dangerous bipolar world of the Cold War to a dynamic, globalized era where the landscape is constantly moving and we're all trying to figure that out right now.

What does a treaty in the era of globalization look like?
It looks like a blank sheet of paper. And this is not just space. This is a lot of areas. Look at what's happening in the environment, how hard it is to get any agreement there.

There is a statement of principles [for space] that have now been adopted by the General Assembly, but they're not legally binding. But they're out there and nations have accepted them in some form. And so I think my successor 200 years from now is going to look back to this time and say, "You know way back then in the early 2000s? That's when the blah-blah system emerged."

It might be called the corporate system ...
Do you know Star Trek? I think one of the brilliant things about Star Trek: Next Generation is they had the Ferengi . And with the Ferengi, the makers of Star Trek were saying, "Hey, there's this other side of things. It's the money-making side. It's not just governments. It's not just scientists. It's not just going where no person has gone before. It's about the profit motive."

Commercial space travel is having its pop cultural moment. What do you think about the Mars One reality show mission? Given its demonstrated unfeasibility, what does our excitement about Mars One say about our willingness to believe in impossibilities instead of trusting hard science? It seems that Mars One, more than it represents going to Mars, represents this moment where science is being devalued at the same time in which it's being turned into a fantasy.
You've got two interesting threads going on there. One is the anti-scientific mood of the moment: " There's no such thing as evolution. There's no such thing as global warming. You can't trust the science it's only opinion." That mood is a problem because science––good science, peer-reviewed science, internationally-shared science, science that is not censored, not politicized—is what we need for so many problems of the human condition. And saying the science is not real or it's irrelevant... I don't even have words for how much of a mistake that is.

But the other thread is the power of aspiration. Don't ever underestimate that. It is real, it is powerful, and it's not the same thing as poo-pooing science. It's the human spirit that has accomplished so many things. It's the human spirit that ended slavery, that gave women the right to vote, that established the United States in order to create a more perfect union.

The Declaration of Independence: that is aspiration. You know, when you read those words carefully, Jefferson refers to the laws of nature and nature's God. Now, this is a man who is accused of being an atheist, but what he was was a deist. And what deism meant was that human beings have an intellect, and if they use that intellect, they can observe the universe and they can figure it out.

Newton was such a big deal because he told us how the planets moved. Before that, it was all darkness and superstition. Newton and the Founders wanted to have a better life. They wanted to use that intellect in the service of aspiration. You've got to have both the science and the aspiration.