Space 'Piracy' and Private Space Law
Captain Jack Sputnik stars in The Pirates of LEO 2: Kessler's Revenge
Okay I lied. This isn’t actually about space pirates, at least not in the ordinary sense of dudes robbing other dudes. Or even in the Mark Watney sense. It’s about a more generic understanding of piracy as ‘undesirable activity’. Specifically, it’s about the need for public international legal restrictions in space, because of the inherent nature of space, and how analogies from private international law aren’t sufficiently adequate to constitute a comprehensive normative system that guides conduct and prevents miscreants from doing, well, pirate shit.
This article was spurred by this paper (Salter (2017) ‘Ordering the Cosmos: Private Law and Celestial Property Rights’). I saw a response to Chris Johnson on Twitter by the author suggesting a possible out from all (or at least some of) the thorny issues of asserting sovereignty in space through a private law regime, and I was intrigued. And it is an intriguing paper. I like a number of the ideas in it, but I also disagree with a lot. This is me trying to express both.
But I am nothing if not a lazy bastard so instead of writing a peer-reviewed paper with robust citations, I’m going to shoot my mouth off on the internet.
My main point is that the picture he paints of commercial space is a little too simple, and fails to account for a few (in my mind, very important) legal perspectives. It attempts to transpose the Lex Mercatoria we’ve developed here on Earth into space without sufficient regard for the unique circumstances of space.
Now I assume that the points I’m going to bring up weren’t lost on the author, but they aren’t accounted for either, so I would be remiss not to bring them up. They form the basis of my comments below. Exploring the possibility of a private law approach to space law is prescient, now more than ever (cough cough SLS is in shambles cough), so I don’t outright disagree with Salter’s basic thesis.
I just have some thoughts is all. Okay, here we go.
Salter’s Main Thesis
Salter’s main thesis is actually fairly multifaceted, so I’ll try to sum it up as competently as I can, but you should really read his paper (if for no other reason than this article is about my thoughts, not his).
There’s a lot of agonising over Article II of the Outer Space Treaty (OST) which declares that no part of space should be subjected to national appropriation or declarations of national sovereignty. At the time, the relevant legislation was the US SPACE Act of 2015, which basically gave US citizens the right to bring back stuff from space as their property. Today, it’s relevant once again by the Artemis Accords, which are of course spurred by the US and relate specifically to the moon but have potential applications beyond just Luna.
Obviously, under public international law, giving your citizens property rights presumes that you, as the sovereign national state, have the power to give property rights. That kind of counts as national appropriation. However, the default response at the international law level is not to go ‘MOM THE AMERICANS ARE CHEATING AGAIN’, but rather to assume that somehow, they’re still complying with international law. The SPACE Act has wording to that effect, and specifically states that it shouldn’t be interpreted in contravention of any of the space treaties (except the Moon Agreement, but we don’t really talk about that one).
So it’s a bit of a mess, and anyone approaching this from a public international law perspective is going to either get pissed off or laugh and walk away out of frustration. Hence, as Salter says, why bother with that shit? Why not just refer to the other international law, which is decently analogous and allow us to avoid a lot of hand-wringing.
In short, Lex Mercatoria was a ad hoc set of rules that merchants used among themselves that eventually came to become a default set of standards that traders used to deal with each other. It results from an evolutionary, almost-Darwinian, process - bad rules died out, good rules gained popularity. Neutral arbitrators, motivated to impartiality by paycheques, appeared to adjudicate disputes, and rulings were binding purely because everyone wanted to get on with their lives.
It was a quick and dirty way of getting things done. No lofty ideals or commandments coming down from on high - just a bunch of dudes who wanted to make money in the easiest way possible, and their approach to dispute resolution reflected that. It provided certainty, a reasonable degree of structure, and to an extent constrained behaviour according to a normative standard, because if you acted like a dick, no one would trade with you. Incentives within the system are aligned, which in turn benefits both the participants and society as a whole.
Salter says that this sort of approach to law making, which is as he puts it is about order rather than organisation, is more efficient and effective. Bureaucracy inherently sucks. Hence, the space industry would stand to benefit from a private international law approach.
The part I like most is Salter’s conclusion where he fends off potential arguments. I don’t know why I like it, but it’s probably because it’s something I’d do. Anyway, here’s what he opens up this last section with:
“A private law regime for space commerce is feasible: property claims to celestial resources, along with rules for adjudicating conflicts over these claims, can be self-enforcing. Thus, property rights and rules do not require protection or enforcement by sovereign states. A private law regime for space commerce is also desirable: as a spontaneous order, it is stable enough to ground commercial actors’ expectations and flexible enough to meet the particulars of new contractual arrangements. The legal regime renders the pursuit of self-interest by commercial parties both information- and incentive-compatible with social wellbeing.”
He then concedes that although a mixed approach would be good, good luck getting the international community to agree on anything. Remember, he said this in 2017. These days he couldn’t be more bang on the money. I actually smiled a little to myself reading this before quietly mouthing to myself that we’re so fucked.
Second, adopting a private space law regime doesn’t involve national agencies abdicating their roles, merely reorienting them. For example, they can still enforce certain standards like with regard to debris mitigation, to force upon the market certain incentives that it might not otherwise have. Third is the generic argument against economic efficiency, and he brings up the specific point of wealth inequality. Which of course he notes that really has nothing to do with the space legal regime, but rather national authorities and tax agencies.
Lastly, he notes a similar point to the one I’ve been making about ML regulation being too limited to apply for AI in general: we shouldn’t make rules in advance for situations we cannot possibly foresee or understand.
Okay time to talk about pirates
So the first thing I’d like to bring up is that these days, the Lex Mercatoria is encoded in most national legislation as commercial rules. The picture of it being just a bunch of rules that everyone follows because they’re great isn’t exactly true anymore. Yes, that’s how they originated, but today everyone follows the rules because they’re actual law.
Anyway, piracy: what is it? In the broadest possible sense, it’s doing anti-social shit that no one else likes - essentially, acting as a rogue agent.
So let’s just think about piracy in its original context. Sea piracy has existed for as long as humanity has sailed the waves, and the heyday of maritime trade coincided with the Golden Age of Piracy. Lex Mercatoria by its very definition was not meant to manage pirates, it was meant to manage relationships between traders. Essentially, if you were a good boy, you got to manage yourself. If you were a bad boy, the Royal Navy would show up and send you to the bottom of the ocean.
Clearly, even with the efficacy and efficiency of Lex Mercatoria, there was still a need for the sort of coercive monopoly on force enjoyed generally by states wielding militaries.
With that is my first point: the need to stop bad faith actors. Space isn’t like any realm we’ve dealt with before: the unique nature of space means that you can’t just transpose earlier ideas wholesale without adaptation. There’s no margin of error in space. There’s no time to whittle down bad rules and raise up good ones, because a bad rule could end up with the ISS being sliced in half. Not a good look.
The prisoner’s dilemma example that Salter brings up is obviously simplified for the sake of argument, but it does illustrate a key flaw with private law regimes like Lex Mercatoria with regard to their applicability in space: they assume a closed-off system with a limited number of players. Consider Lex Mercatoria itself: it manages relationships between commercial entities, and finds the most efficient way for them to deal with one another. But space isn’t closed-off; it’s not even limited to the actors in the space industry. It affects literally every single human on Earth.
Corollary to this is that despite the growing size of the commercial space industry, I’d say that the overwhelming majority of space activity is still government. Pretty much all of space surveillance is run by the military, and something like 80% of the earth observation industry is fuelled by government contracts.
This means that a mixed approach, blending private and public international law, isn’t just desirable; it’s necessary. There’s no tiptoeing around it. It might be hard as hell, but realistically a private law system simply won’t bother to regulate a lot of the activities and impacts (or as economists might call them, externalities) that are endemic to space. Also, if the main players are still government entities, it doesn’t make a whole lot of sense to let the minority stakeholders in the market dictate rules (which themselves might not be applicable to government actors) for everyone else.
This kind of bleeds into my second point, which Salter himself addresses: the need to nonetheless involve public law at the national level. Just as how Lex Mercatoria is encoded in national legislation, so too will national cooperation be necessary for a private space law regime to work. Except there’s no way to get this sort of en masse cooperation without public international law.
We see this now with the Flags of Convenience problem: profit-making entities just pack up and leave for countries with skint regulation, because it’s easier. So we get public international law to deal with it through treaties and such, because that constrains state behaviour, and then we end up back at the original point of consternation: what happens when a (major) state party decides to just unilaterally rewrite the meanings of treaty obligations?
I think the commercial space industry could benefit from a private law regime, but that really isn’t the point. The main issues at the heart of the whole SPACE Act and the Artemis Accords debates are public law matters, not private. Sure, it’s a specific fix to permit property ownership in space without recourse to discussions of the imposition of state sovereignty, but that’s besides the point: the main issue is that if we can suddenly just decide ‘lmao fuck Article II of the OST’ then doesn’t the rest of this thing fall apart too?
Salter’s second rebuttal on national agencies falls apart if the national agencies don’t play ball. Making sure they play ball is a public international law issue, and cannot be solved by private international law.
Third, and this is just my personal observation here, is that the commercial space industry is a profit-making industry. That means that their incentives are aligned with whatever makes them money. And there’s nothing wrong with that. But it does mean that the market will frequently not care about a lot of things, like the massive junkyard out beyond GEO or the 8,000 tons of nonsense floating about in LEO. The current debris mitigation guidelines are an example of Salter’s second rebuttal in action, and clearly, shit’s not working. God help us if we cede even more control over regulations.
As my co-founder put it the other day, “oh sure, self-regulation TOTALLY works. Look at the oil industry. Worked great for them, didn’t it?”.
Well shit this was long-winded
Okay time to wrap it up. This was way too long. It’s gotten boring now.
Point is that space is a unique environment, and we’ve got to be aware of precisely what makes it unique. Aristotle said that an educated man develops analogies only so far as they make sense within the context (I’m paraphrasing, obviously). Are there lessons we can draw from private international law in considering the future of space law? Definitely. Innovation is being driven by NewSpace. The first people on Mars are likely to have gotten there by the grace of a certain company we all know and love (or love to hate, but that’s not my fight to pick).
Does that mean that we should let them figure out all the rules by themselves? Fuck no. For one, space doesn’t lend itself to a trial-and-error process of evolutionary legal development. Get it wrong once and we could really, really damage the space environment. And probably kill some people too.
Second, space is a pretty massive, well, space. A blended approach is necessary, simply because the market won’t bother with creating rules for the vast majority of relevant contexts.
And third, at the very heart of this entire thing is a public international law issue: how to make states actually comply with their treaty obligations and not just rewrite definitions. Saying that the fix for that is private international law is like saying ‘hey I broke this one window with a ball, so instead let’s shift 2 feet over and look out this other window without fixing the first window.’
It’s missing the point, and also, the fucking window is still broken. Someone should go fix it.