Sean Carroll's Mindscape: Science, Society, Philosophy, Culture, Arts, and Ideas - 213 | Timiebi Aganaba on Law and Governance in Space

Episode Date: October 3, 2022

With communication satellites, weather satellites, GPS, and much more, what happens in space is already important to our lives here on Earth. And the importance of space is only going to grow as we increase the presence of humans, whether in Earth orbit or beyond. So the questions of what laws govern activity in space, and how nations and institutions should practice good governance more generally, are becoming increasingly urgent. Timiebi Aganaba is an academic and space lawyer who has experience experience in a wide variety of context and countries. We talk about the current status of space law and how to guarantee good governance going forward. Support Mindscape on Patreon. Timiebi Aganaba received Ph.D. and LL.M. degrees from the Institute of Air and Space Law at McGill University. She is currently an assistant professor in the School for the Future of Innovation in Society at Arizona State University, with a courtesy appointment at the Sandra Day O'Connor College of Law. She is also an affiliate faculty with the Interplanetary Initiative and a senior global futures scientist with the Global Futures Lab at ASU. She served as Executive Director of the World Space Week Association, and currently serves on advisory boards for the UN Space Generation Advisory Council, the Board of World View Enterprises, and the SETI Institute. She was the recipient of a Space Leaders Award from the International Astronautical Federation and her doctorate received the George and Ann Robinson Award for advanced research capabilities. Web site ASU web page SpaceTV profile World Space Week

Hello, everyone. Welcome to the Mindscape Podcast. I'm your host, Sean Carroll. Space, as you may have heard, is the final frontier, but frontiers are tricky places. Frontiers are celebrated in stories as places where there is a bit of lawlessness, a bit of jockeying for position, not necessarily clear on what the rules are all the time. So do we want space to be like that? Both thinking about space right now, there's a lot going on in space. There's a lot of satellites out there doing weather and communications and so forth. And there's also the future of space. So we might send more human beings into space, both space stations, but also the moon, Mars, and beyond. So today's guest is Timiebe Aganaba, who is a space lawyer. She's actually much more than that. Timiabe has worked in government, in law practice, in consulting, and now as an academic at Arizona State University. She's originally from Nigeria and has also worked in the UK, France, Canada, before. finally coming to the USA. And she's an expert in exactly these questions of space governance as well as space law. Governance, if we think of working together, right? There are both strict

rules that are encoded in laws, but then there are also norms and expectations that we have. And space, in some sense, we might want to be sort of a common resource to all of us, a common good, as the economists would say. But, of course, other people want to claim little bits of it for themselves. So how do we balance these things? This is a question for corporations as well as for nations and non-government organizations and so forth. And it is a frontier. It very much is. The rules are not settled. There are space treaties. The United Nations has tried to set up some basic rules, but the rules are in flux. We're not sure where it's going. And this is a good time to think about these things with burgeoning private exploration of space. Timiebbe, one of her previous

Jobs was executive director of the World Space Week Association, and World Space Week is October 4 to 10 every year. So we're releasing this podcast at the beginning of a new World Space Week to celebrate exactly that. So with that, let's go. Timiebe Aganaba, welcome to the Mindscape podcast. It is my honor and pleasure to be here. We're very happy to have you here. Space, the final frontier, et cetera, is a very exciting topic that we don't actually, it's ironically more down to earth than many of the topics that we talk about here on the podcast. I mean, you're involved with law and things like that. But in the talk I heard you give, you drew a distinction between space law and space governance. What is the

difference there? Yeah, that's a really interesting question because, I mean, I did my PhD in space law. My first job was as a lawyer at the Nigerian Space Agency. So over the course of my 15-year career, you see a lot about space law. And I will go into that as to what it is. But over the past five years or so, we're starting to shift on language to space governance. Because law has a defined meaning, kind of like it's instruments, right? That are binding, that people agree to, that if you breach them, there's some kind of accountability, et cetera. But governance is everything else that deals with how people operate and why they do what they do.

So, for instance, we could have a general principle or we could have a guideline, right, that is not a law, but everyone follows it and everyone. and everyone does it because it's in their best interest for a particular, you know, activity, we talk about the intentionality of actors. And sometimes there's nothing forcing people to do a certain thing, but maybe because of the way they interact with each other, the way they get along. So that's kind of governance as well, right? So what inspires and motivates people to do certain things? And that's where I think the trend is going now because we know that it's not so much about saying just because something is legal or illegal, people do or don't do it.

There are other factors at bay, and that's what I study. Good. So if I can just oversimplify it a little bit to get into my head, I mean law, we have a set of laws and you obey them or you don't. Whereas governance is maybe a bit more about thinking things through in a hopefully collectively good kind of way, without quite such hard and fast boundaries between yes and no. Exactly. And of course, there's no proper definition of governance. And lots of people are going to have different ways. Everyone's heard of corporate governance. So that would be like, how do companies organize themselves?

Like, do you have a board of directors? Do you have stakeholder decision making? There are things like that on a formal level. But that's not what I'm talking about when I talk about governance. I'm talking about the interrelations and the interactions between stakeholders when they decide what they should and should not do. Is there a bit of issue that we don't know who is in charge when it comes to space and therefore laws are going to be harder to be the guiding principles? Well, it's not, of course, when it comes to what countries abound by, because if you're talking about space law, historically, it's just been states.

States have been the biggest actors in space. And of course, a state is sovereign. There is no authority that is higher than the United States government, right? There is no authority higher than the Nigerian government. So states have to choose to be bound. There's no authority above the state that can make the state do something or the other. People have said, well, what about the United Nations? And we've all heard about the Security Council.

The Security Council is that group of megastates that can kind of put sanctions on other countries and say, you can do this or you can do that. That is still not, I mean, it's obviously a mechanism that guides the behavior of states, but it's not like the police that like, you know, states have to do it. Yeah. So yeah. So maybe it's a reflection of the reality that we are hoping that a whole bunch of different kinds of actors can get together to act the right way when it gets,

when it comes to space. Yeah. And of course, I mean, at the United Nations, there is a committee called the Committee on the peaceful uses of out of space where there's up to 100 states that are members of that. committee and they basically, you know, the first space law instruments were negotiated there and states go every year to Geneva and, or Vienna, sorry, and, you know, discuss developments in space. So there is an international mechanism. So when people say space is like the Wild, Wild West, that's not true. There's a whole system of governance around thinking about this. The question is

just, is the existing system that was established in the 60s and 70s, fit for the kinds of activities we're seeing today since the explosion of companies like SpaceX. Yeah, good. Okay, good. So that was very, very helpful. But I want to get like a lot of background in here because I think that probably different people have different ideas that pop right into their heads when you talk about space law or space governance. One question is, are we mostly thinking about satellites in orbit around the Earth right now, communication satellites, weather satellites and what have you, and how to deal with those and space debris and so forth, or are we mostly thinking about someday we'll have settlements on Mars and we've got

to figure out how to govern them? Yes. Now, those are two very distinct things that people talk about. The things in the news, stuff like space settlements and things like that, I mean, there are a few people who think about the implications of that kind of stuff. And it is not that much science fiction because, for an example, SpaceX, in their, I mean, they could say it was a joke, but in their terms of service for their Starlink satellites, for their communication satellites, they put a clause in there about how they would regulate Mars. And that Mars, I mean, and so you can say it's a joke, but that was a legal instrument that went out. I bet it was not a joke. To millions of people, right? So, you know, the funny thing about law is that you don't know what things are going to crystallize.

You know what I mean? And there are some things in law, for instance, an international law where if you don't object, you are bound. Right? So people can come up with all kinds of crazy things and you don't even end up. So even though that's far out, but it's still there. But of course, what we are talking about is since the rise of mega constellations, which is basically companies and entities establishing these constellations of thousands of satellites. Yeah.

Right? Because satellites have now become super small and cheaper to launch. And instead of one massive $1 billion satellite, you can launch like 100 small ones. And so this is the trend now. So when you look at the fact that if you look at the United Nations register of objects that have been launched since 1950, there are about 11,000 objects on there. Okay. And just SpaceX alone today have licenses for 40,000 satellites.

Right? So one company has more licenses to launch satellites that have been on the register of launch space objects since the 1950s. So that goes to show where we're going, right? And so, yes, how do we regulate these megac constellations? How do we think about what are the implications of all of the, a sudden low Earth orbit, that is the orbit close to Earth, being populated by thousands and thousands of satellites.

So that is the priority right now. That makes perfect sense. From a regulatory and governance standpoint. And then secondly, space situational awareness and space traffic management. How do we know what is going on in that environment? And what are the right-of-way rules? Like, if two satellites are coming close together, who has to move. we don't have things like that because we only had 11,000 satellites in space.

Well, also, not to be too much of a physicist, but, you know, I once took a boating lesson and I was told to, you know, move to the right in the right-of-way rules. But in space, there's no such thing as to the right. There's up and down, and I don't even know how we're going to resolve the symmetry of the situation here. Yeah, I mean, I mean, we did it with aviation, right? I mean, it's just, it's just, no one really, it's been difficult because people, we have the concept of the freedom of outer space. Yeah.

Right. And this concept that space is like the high ground. And so whoever dominates in space has some kind, it's kind of like nuclear, right? Like it's some kind of superpower. And so, you know, having an international authority or having or states giving up their rights. has been something that has been hard for, you know, some of these superpower states to get their head around. But what has happened with increased commercialization is it's just not going to function if we don't have rules of the road. And let me just, so I understand better, the implications of these 40,000 satellites that SpaceX has a license to put up there.

Are they just completely passive and moving in fixed orbits or do they have little tiny rocket engines on them so they could adjust? Yeah, so I mean, when you look at when these small satellites first came, like when the innovations first happened, you know, many of them people kind of thought was space junk already because they only last, they last like a year or something. And there was no propulsion. There was no, what did you call it, navigation system or anything like that? So people are like, this is just like a disaster waiting to happen with all these tiny little satellites running around unmaneuverable. But the technology is advancing, right? Because this is becoming mainstream. So I'm sure SpaceX satellites are maneuverable.

I mean, I don't want to speak about the technology or how it works because I have no clue. But with everything going on, I think no one is going to be designing satellites right now that you can't really maneuver. Mind you, you saw in the news there was all this stuff recently about this Chinese satellite that was coming crashing down to Earth and things or rocket bodies that like there's a threat of them. So some people are choosing to abide by best practices, but there's nothing forcing them to. And the risk is still pretty minimal of any damage like happening to say a human or property at the moment. But clearly we know the risk is going to increase. Well, I read a number that was, I forget exactly what it was for. Maybe you'll have a better number.

But the chance that if you're up there in a space station or whatever, that you will be impacted by a passing piece of paste junk to something like 1 in 300, which is on the one hand small, but on the other hand, pretty big. And it's only going to get worse, right? Like 1 in 300 chances happen kind of often. Yeah. I mean, for me, I don't think it's about the past. I think it's about the future.

Yeah. Right? It's about you look at the trend and you look at where we're going. And, yeah, SpaceX had licenses for 40,000. Rwanda has licenses for 300,000. Okay. Just the start, right? You know.

Yeah. Yeah. And speaking of Rwanda, I did want to talk about even before getting too much into the private corporations, the good old nation states and their role here. I mean, how many countries have active space programs? Yeah, at least, the last I looked, at least 70. Wow. Right.

And they are, you know, when people think of a spacefaring country, they obviously think of America, China, Russia, and America's space budget is like $50 billion. dollars. So they find it hard to imagine the Philippines with a space budget of $12 million is also a space country. Right. And I worked, I started my career at the Nigerian space agency and the budget was $100 million. So there's no one can define what is a space. I mean, you can say space fairing nation means I have a rocket and I can launch. Very few countries have that.

Or spacefaring means I can launch anti-satellite missiles, which is the technology to be able to blow up, basically space weapons. Maybe only three or four have that, right? But are you a spacefaring country if you know how to use environmental data that comes from satellites and you can make applications? The UK, when they did their study of their space market, they put satellite TV channels as space. Some people could argue that's not space. So that's what I was going to.

Is a GPS device space? I was going to ask what the Philippines is. Right? Because if you want to make your space industry bigger, then you can add those secondary layers, right? to say this device, this application is part of the space industry, whereas others might say, no, that's not space industry. So do countries like the Philippines and Nigeria have satellites or do they use satellites? Nigeria had five.

Okay. And they were launched by somebody that they paid to launch them? Yeah. The first satellite was, you know, procured from China. Nigeria was actually China's first international client. We set, Nigeria set their international business. So it was, it was very interesting. That was when I was working at the Nigerian Space Agency.

And it's just, you know, fascinating because from there, China just went up with respect to the number of developing countries that they helped develop their space programs. And, you know, what was really interesting about that experience was that first satellite failed in orbit. And so Nigerians were so upset because they were like, another white elephant project that you guys are like, you know, we don't even know anything about space and you're going to buy satellites from the Chinese and they're getting lost in space. You know, there's so much misunderstanding around space technology, the risks, what it does, what it is. And for me, I think the unique thing about starting my career in a developing country is I have

a bit of a unique lens in the way I look at space. The first being never underestimate the fact that people care or even think space is remotely relevant or interesting because space people really are like, manifest destiny. Like, we are explorers. And I'm like, like, you guys get out of your echo chamber or whatever because just step out there. No one has even got a clue that GPS is from satellites. And that's one of the number one applications of space. Or that if you use the ATM machine, your transactions happen because of satellites.

People don't know these things. Do you think that developing countries should pour more money than they are into space? Don't trap me on this one. I don't believe in spending money for the sake of it. You have to be able to articulate. and you have to be able to justify, right? And there are studies that kind of say, for every one dollar you spend on space,

this is what you get back. What I believe is clear about space is it's marketing and inspirational potential, right? So, you know, the moonshot ideas. I think the word moonshot came from even space, right? The whole, you set a goal that is clear, that is audacious and big. you set resources to achieve that goal. Space is just really good for that. You say to your people,

we need the best and the brightest to do this thing that sounds so unachievable. And by putting your efforts towards that, you're always constantly thinking about how do we bring this back to Earth? How do we apply this in other areas in other sectors? So if Nigeria said, we want to go to the moon, I don't particularly care about the moon, but I know the first thing, thing you need, aerospace engineering programs in universities. Right, right. Right. Primary school students that have even heard of astronomy. So those are the kind of things that I like about space. I do like that. You know, I, we just had the 10th anniversary of discovering the Higgs boson at CERN at the Large Hadron Collider. And one of the analogies that was frequently brought up as to why we should do this,

we should spend $10 billion to find the Higgs boson is because it's inspirational, much like the space program was. And on the one hand, I think that's true. But on the other hand, nothing is quite like the space program was. Like that was, that was, and maybe is. You know, it's inspirational in a very tangible, different way than finding a new elementary particle is. Right, right.

And then people have to remember the context, context matters. We were in the context of a Cold War, right? In the context of this race for the world, the hearts and minds of the world, right? It's a very different context. And so, you know, it's, if you don't have these contextual things, then it's not, people have to recognize then that a lot of the inspiration with space comes from mythology, things that are concepts that are not even real. right and so it's that mythical nature of space and um you know ego and all these things that made it successful and i'm not saying that those are the same qualities i want to imbibe um moving forward because i don't think it works today so today the narrative is all about things like

what are the biggest problems that we're facing and what can space do to help solve them. This is jumping way ahead of where I wanted to be, but are you sympathetic to the idea that we should spread human life onto other planets as part of a safety mechanism to make sure nothing bad happens to the only intelligent life we know about in the universe? Absolutely not. Okay. You know, I don't.

I don't. I think Earth is very resilient. and I think that that energy should be placed on making sure that whatever it is you're trying to avoid by going out doesn't happen. Okay. Just want to check. Okay. You know, that's what I think. I have completely nothing against the people who want to go out and explore and do all those things.

I mean, I am a cosmopolitan, right? I've lived in five different countries because, I know that every time I've moved countries, I've developed myself, I've gained a new perspective. So why not go to Mars? Why not do all those things? Yeah, sure. Right, got it. I think I understand.

That's a very good distinction to draw. But before we move on, I just want to get, you mentioned that there's lots of countries that have space agencies, but it's also pretty top-heavy, right? Like, who are the major players in literally launching rockets and satellites into space? Yeah. Okay. So the ones that everyone has heard about, Russia, China, the U.S. Then you have India, the UK, Canada, right?

Italy, Germany, France. You know, European countries, a lot of them have space programs. And then, you know, Japan. So all of the major countries, all of them, have space programs. But interestingly, the majority of countries, are from a developing ones that have space programs, right? And I don't want to say developing. I don't know what developing means, but emerging.

Or middle countries like the United Arab Emirates or Saudi Arabia, Egypt, like these countries all have space programs too. And it's very diverse. I mean, the United Arab Emirates allocated $800 million to space last year. And, you know, I just saw this proposals for this lunar. a colony kind of like space tourism activity in Dubai that is based on space, which is going to cost $5 billion. Again, do we call that space industry?

Right. I mean, they might say so because it's part of the inspiration about like having this massive lunar colony that shows that space activity that shows what life on the moon could look like. I mean, is that space or is that entertainment or is that education? I don't know how you want to frame it. But it does point in the direction of why it behooves us to get our ducks in a row vis-a-vis governance and space law and things like that. It's going to be a mess if we don't figure out what the rules are ahead of time.

Yeah, because the environment is completely diversified. I mean, we – so can you can imagine when the laws were created, we had two actors capable of them in space, only two. Today we have 80 countries, we have private companies, We have universities, right? Like students are sending things up there on their own. So it's completely diversified. And so if and completely connected to Earth.

So if we don't think about governance as it evolves. And as part of that, the key issue of governance is sustainability. Right? because that's the one thing we did not have when we were developing all the other governance regimes in the history of the world. Right. Was to think from the beginning that human impacts, every activity, human impacts it, and it impacts the ecosystems, the people around, the social justice issues.

So sustainability needs to be built in from the start. And space is one of the unique places that if we, are serious, we can really use it as a model. Oh, explain what you mean by that? People believe there's going to be a massive economy in space. That means infrastructure, right? If we find resources up there, that means space mining, right? If they believe in these settlements, all those things need governing rules that haven't

been developed yet. So are we just going to develop them in the same way we've developed all the other rules? Or do we say, okay, let's look at how mining is regulated. And let's look at all the environmental impact from mining. Let's look at the social justice issues, the human rights violations and all that. And let's see how we can avoid that if we are going to have this new economy in space. And I guess the worry is that while we're trying to think about this, someone just rushes out there and does things. So, I mean, maybe this is a good chance to talk about the private initiatives in space.

I mean, we all know about SpaceX, and you mentioned the constellations of satellites, but there's other players in this field. Yeah, I mean, there's new, there's a lot of activities now around, you know, how you do address the sustainability issues. So how do you do on orbit, I forgot what it's called, like fixing satellite, satellite servicing? Right? So, you know, instead of just sending a satellite up there and then when the fuel is gone, it's gone. Can we actually do refueling? So you have orbit fab who are like a refueling company. And then you have like Astroscale who are a deorbiting company, like to bring your satellite down. So there are all kinds of activities around the sustainability thing. And then, I mean, those are the ones that I am, you know, most familiar with. But. And then there are ideas kind of around energy.

So how do we figure out how to use the energy, right, of the sun? What do they call it, space powered solar powered energy or whatever? So there are some ideas around things like that. Yeah. And are those, well, I was going to say are these companies generally playing by the rules, but maybe you should first tell us what the rules are. I know there's some UN treaties, but are there accepted statutes of space law that everyone agrees to? Yeah.

So, I mean, we have, like, what everyone knows about is the general constitution-like document, which is the out-of-space treaty that basically gives the overarching principles about how states should operate. And companies are kind of off the hook because unlike, Areas of international law generally, space activities of private companies are directly attributable to the state. Okay. So states are responsible for any activity. Oh. So it's very complex for a state, right? And even things like liability, like the liability provisions, the liability convention that covers, if there's any damage that is covered by space activity.

It's got nothing to do with the private company that has the activity. It's purely the state. How do you figure out what state is responsible for what a company does? Yeah. So the launching state, first of all, you have to figure out who is the launching state. Okay. And there's four criteria for launching state. The country who physically launches the activity or who procures the launch of activity

or whose facility, you know, so you look for a launching state. There's also a state of registry, which is the state that puts on the United Nations register that this satellite is from our country. And they should know all that because those people would have to have gotten a license from the country. So the country should know all the satellites or space objects that are registered under its registry. And is that part of the space free or some of the law that you have to register to put a satellite in orbit? Yeah, so the registration convention, which is the law that applies to satellite, which maybe only has 70 or 80 signatories out of the over 100 that have signed the Outer Space Treaty, so not everyone is a signatory to the registration convention, says that you have to register as soon as practicable. So you could say probably a lot of spy satellites have not been registered.

Because it's not practical. This is the thing about law, right? Like you have these strong obligations and then they'll like put if possible. And have the companies generally been obeying the rules that do exist? Yes, I would say so. I mean, because they will only require. to do what their license requires. Okay.

Right? So, and just this week, you know, stuff has come out, the FCC, Federal Communications Commission and now saying that before there was like a rule of something like 25 years that your satellite can just hang around there and now it's like five years. Oh, okay. You know, so it all comes down at the end of the day. The way private companies abound is through, like, the licensing procedure.

Now, what's really interesting is not all activities have a licensing procedure yet. Okay. So, for instance, if you want to do space mining, where'd you go to get a license? I don't know. You know, like, if you want to launch an Earth-observing satellite, a satellite that has a camera that looks on Earth, you go to NOAA, the Oceanic Administration, office and you get a license. If there's going to be a camera on there, there's like a different kind of license, because I mean, not a camera, like a video, because I remember once someone wanted

to do video from space. Sure. So then they had to think about, well, is the video the same as the camera? Do corporations have spy satellites of their own? So corporations, I mean, they're not going to call it spy satellites, but they, corporations, I mean, the Iraq war was called the for a space war because that war was like completely enabled like for the first time totally by satellite technology.

But I'm just wondering if And some interesting things happen. Like there's like rules called shutter control. So like these companies are bound by like because space is a national security thing if the government kind of turned, the government want to know everyone that has bought

imagery from you. And I think during one of these wars, the U.S. government ended up getting like a sole contract. So they, this don't sell it. We will give you a contract to buy out all the data so that you won't sell it to anyone else. They do things like that. Sure. Yeah. It's good to be the government. Do you think that being one of these spacefaring companies is lucrative right now? Or are they based, or are they more interested in getting prepared for the future? The margins are pretty small. Yeah. It's expensive to do space.

Yeah, the margins are pretty small, but some people can see an outsized competitive advantage through marketing, for instance. Like, because for some reason, if you say you're a space company, people think that's innovative. Like, if you see, during COVID, it was crazy with all the SPACs, right, with all the investment. That just saying you're a space company, like, no one cares about the returns. What are you actually doing? It was just like, we just got a ton of money in the space industry because it's like space. You know, and so, you know, I'm doing my MBA right now because I'm just like, you know what?

I can't be one of those people that's like a space person that doesn't know like what a financial statement means and like, you know, what return on investment means. And, you know, because you talk to all these space people that are just like, I've been watching Star Trek since I was two. Yeah. Yeah. You know? That'd be me. Yeah. Yeah.

And I'm like, yeah, that doesn't mean you can run a space company. No, not enough. So, I mean, are they, are, is the income that the space companies do get? Is it mostly from government contracts or are they, you know, hiring themselves out to other companies who want some space info? Yeah. So, I mean, there is a myth that space commercialization is just now because we've had. had telecommunication satellite since the 19s. Right.

Right. And so that has been where most of the money has come from. So like television, you know, broadcasting through satellite, telophony. Even Earth observation is like a new market. Sure. Right? Like when the Lansat environmental satellite came out in the U.S., they tried to commercialize it and just no one was buying,

so they ended up making it free. and then tons of people were using Lansett data. And then really it's only in the last 10, 15 years where we've also added data analytics to that business model. Because people are like, I don't know what to do with all this data. I can't even read it. And there are markets, for instance, like, oh, it's skipping me radar, right, that Canada is famous for.

you know, how many people can read radar data? It's not even optical, right? It's like, so now you have analytics. People are like, okay, I don't care that it's satellite. I care that I have the information. That big location-based services was a big one where companies were basically just being like, we can tell you how much revenue your competitor is making by watching the car parks. Right.

Like the parking lots. and, you know, extrapolating by how many cars are there, how much revenue your competitor is making. So these are the kind of new activities that came up commercially over the last, like, 10, 20 years. And I guess it's a good place to segue into rather than what the law is and what companies are doing right now, but maybe what the principles should be behind doing this kind of thing. I mean, there's probably some utopian view that space is a common good that we should all be sharing, and then there's probably some down-to-earth views that, no, I want my bit of it. Yeah, this is called Lex Ferranda.

Lex Lata is what the law is. Lex Ferranda is what the law should be. Oh, I like that. The first thing is there's a lot of confusion about these two principles because people merge the two. And at the end of the day, you can only rely on what law is. and you can dream about what law should be. And so I have three things that I focus on when I think about the Lex Ferenda. And the first one is that no regulation in every other area of international law

pretty much leads to exploitation, right, over exploitation. So we like to say, well, space is like the high seas, right? Anyone can go and fish and, you know, the fish doesn't belong to anyone. But there are so many regulations about fish stocks. Yeah. Right. And so, you know, the capitalists who are kind of like, well, you know, we should be able to go do what we want. It doesn't make sense in the long term.

The second, so that means the first thing is, yes, we need more laws. And I'm not just saying that just because I'm a lawyer. The second thing is we have to look at space, and this is what I presented at the Santa Fe Institute, as a complex system that is adaptive. Because, you know, we don't, like, it's very complex as you're adding all these actors and all these activities that no one fully understands. whatever regime you have has to be adaptive to new information, but from the equity standpoint, know that adaptiveness is kind of a tool for the powerful and the strong. Right? Like when you're weak, you're like, you don't really want to hear someone say,

oh, we've set rules for everyone to follow in this game, but, you know, we can change it. whenever we want. Right. That's a tool for, you know, the powerful. So the first thing to do is recognize that it is a complex adaptive system, which means by recognizing it that way, we have to consider equity and the social dimensions and who is affected by this concept.

And then my third Lexferenda point is benefit sharing. So like you say, people think that space. The general opinion is that space is for the benefit and interest of all countries and for all humanity because it doesn't belong to anyone. But the challenge is if you have all these ideas of commercialization and like settlements, how can you do that without property rights and without ownership rights? Right. It just doesn't, modern society doesn't work without people being able to say, this is mine, don't come here or I can get the police to like put you in jail. So, you know, my only answer, I can't answer how we fix that because that's like a humanity problem, is that we should just negotiate a benefit sharing regime.

How will we offset this idea that space is for humanity while allowing people who have the strength and the resources to capitalize and do all that, but be able to give back? And I have no idea why it's so challenging for people to think about this in the space content. because everywhere else you have benefit sharing, even if, like, if you decide to, you know, go mine in Guatemala, you know, you have to pay royalties, right? Like, every mining company has corporate social responsibility requirements. They have to, like, build schools and, like, give their workers' houses and things like that. You know, the last time I said this, though, when I was like, I used the example of Guatemala, you know, the human rights people. are like funny, they don't even do that.

They're supposed to do that. But they're supposed to do that. In space, we don't even want to say, we don't even want to say they're not doing that. They're supposed to do that. Like, we're like, why should we do that? So the idea would be, this is interesting. I've never heard this one before. So the idea would be that if some country, the U.S. or whoever else, Nigeria, I don't know,

sets up a settlement on the moon and starts, I don't know, mining it, successfully in a commercially productive way, you would want there to be a mechanism by which the benefits of that were shared, not just amongst the people who did it, but more widely. And I get it that they're going to say, why should I, that's going to stop commerce, if I have to give my proceeds away. But, you know, I was sitting on a flight. I was on a plane with somebody. I talk about space everywhere.

And I was, you know, badgering the guy next to me telling him about this benefit-sharing problem. And he told me about Section 37 of the Toronto Planning Act that basically talked about community benefits. So if somebody wants to build like a high-rise building in Toronto in Canada, and they get a license that they can build four stories. And then they figure out, oh my God, this place is amazing. Lots of people will want to come here. So we want to build 10 stories. They have to offset those extra stories through community benefit arrangements to say, how will the local environment, because obviously the density is going to increase.

There's going to be more people than if you just had four levels rather than 10. So there's more people to serve. There's more people that are going to be upset or hurt or whatever. So there's like these groups in Toronto that are like benefit sharing groups that sit and they say, or maybe we should have more parks. Maybe you guys can give us a school. That's the kind of thing that I think would make sense. Like if you are, maybe we can say, okay, you can have X amount of these minerals.

But anything over that. right? What are you going to do to help the rest of the world? And they're really scared that you're going to say you have to give money. But I've not seen any evidence that anyone is going to say, okay, you spent a billion dollars building technology to get to the moon, all that hard work to mind the resources, and you have to give us everything. I don't think anyone's going to say that. I think what people are going to say is we see the hard work that you've done. But guess what? If that thing is worth a trillion dollars, you cannot keep it all because it's not yours. Right. Belongs to humanity. So what are you going to do to humanity for humanity? How do you imagine? That's where corporate social responsibility came from.

What's the best way to potentially get this into action? Would it be like a United Nations kind of thing or an international treaty? So I put this on Facebook in a space law group, so it's not like a journal article. But I was thinking, you know, I was the executive director of the World Space Week Association, which basically the UN in 1999 established a declaration that said that we should celebrate space for one week, October 4th to October 10th every year is World Space Week. Okay. So I was the executive director of the organization that was established to,

bring that into effect. So basically, when I was executive director in 2016, I think I had 19 national coordinators around the world, right? And they would be in charge of different countries. And then people would do different kinds of events in those countries to celebrate world space. So all this was just from a UN declaration that was just a statement. So, and that's not a law. and a lot of these people who are doing these events of volunteers.

But I feel like even just a simple statement like that could set up, there should be an organization like the World Space Week Association that is for benefit sharing. And the first thing that people are going to say is who are the beneficiaries? Because the difference with the Toronto Planning Act is it's obviously the citizens of that. municipality in Toronto. But in space, you're saying humanity. So who has in law, we call it standing?

Right. I think it's fair enough to say anyone who self-identifies as being a beneficiary. So like this is the club, right? This is the club. This is the space benefits club. Do you think you're a beneficiary? Join the club. And the benefits that we get through this club,

Maybe things like companies send their swag here or they do educational programs, that online courses, anything like that. This is just where you go to get the benefits. And maybe it's sort of the flip side of that SpaceX Starlink footnote in the contract that you mentioned where they say, this won't apply on Mars because they want to, you know, do whatever they want on Mars. If you establish, I'm just spitballing here, tell me if I'm crazy. if you establish something like this

just conjecturally, aspirationally right now where there's not trillions of dollars flowing in and people are willing to say, yes, that's a good idea, then when the trillions of dollars start flowing in, you can say, well, you know, we agreed to this in the past, so let's try to stick to it.

Yeah, I mean, I'm the only person who's ever said this. So I'm not, I haven't thought about it fully. But my model comes from, so I'm on the board of the space generating, Advisory Advisory Council, which I don't know if you've heard of them, is the biggest youth group, space advocacy program for youth in the world. And that same 1999 declaration established this Space Generation Advisory Council. And this is now the biggest youth group in the world.

I mean, Amazon, when they did their, not Amazon, Blue Origin, when they did their flights of the billionaires, gave Space Generation, Generation Advisory Council $1 million. That's something. So what I'm saying is this small thing that wasn't a law that was just a declaration that we should have this youth organization became an incorporated company like nonprofit organization that has the big maybe five to seven thousand students and young people that are part of it and got one million dollars. from one company. Why not do that for a space benefit organization? All right.

Well, we'll see. I think that once we appear on this podcast, it'll take off. I think this will do it. Everyone will agree. A lot of influential listeners. But this is almost too good. You know, it's sort of the utopian, let's see what we should do kind of attitude. But let's think about like the challenges we have right now up there in space.

You already mentioned space junk and space debris. I mean, there's also the actual possibility of conflict, military conflict or something like that. We have a space force now. I don't know what space force does, but I think we have one. Yeah. Yeah. So, I mean, so that is one of the focuses right now on talking about what is responsible, what is responsible behavior in space? Everyone's talking about what are the norms of behavior?

Because right now it's like, I mean, for me, it seems. pretty clear what is responsible behavior or not, but actually responsible is depends on who you talk to you. It's tricky. Yeah. Like I mean if if a satellite is coming close to yours is that an act of war. So no one knows what this means. If you jam someone's signals such that it that satellite doesn't work temporarily, is that the basis of an attack, a military attack. I don't know. So we need to clarify the whether the laws of war apply in the space context.

And now that we're talking about things like space forces, the U.S. didn't, they say that they were responding to the actions of our adversaries and setting up the space force. but others would say by them declaring a space force and it being the most biggest news is them making they actually made everyone else have to have a space force that's how this galician works yeah right so um so it's definitely definitely a priority right now and and the interesting thing is that the the U.S. this year just did that whole thing of, you know, saying there should be a ban on these anti-satellite tests, right? Being able to blow up satellites. But it's just interesting when countries say things like this, when they've already spent years developing that technology

and like years doing what they like. And now, because other countries want to do it too, they're like, this is bad. The idea now is what we're saying is, and you can tell that they don't think it's bad because no one is saying that we shouldn't do it at all. People are kind of saying we shouldn't do it if it causes space debris. It's not like an outright ban, like don't do it at all, but it's things like making declarations that you will not be the first to blow up someone's satellite, not that you will not blow up someone's satellite. So people still want to maintain that Article 2 and Article 51 of the UN Charter's right to self-defense. Sure.

Right? Because if you completely give up the ability to test weapons that can be used in space, then if this really is going to be the place that is going to be like a trillion-dollar economy is going to happen, I mean, no one is going to rely on just peaceful negotiations. Goodwill. And I didn't actually follow it very carefully, but wasn't there a recent incident where a satellite was intentionally blown up? Was it China? I don't even know.

Yeah, I think the last one was probably India. Yeah. But China's done it. And when China did it in 2008, that was just crazy because it caused a bunch of debris. What people didn't see was the U.S. action and response was rather interesting. I think maybe like a week or a month later, the U.S. blew up its satellite that they said, oh, look, it's tumbling out of control. But look, we blew it up and there was no space debris caused. So if you're just looking, then you can, because the U.S. are going to say, see, we blew up a satellite, but we didn't cause all this debris.

others could look at it and be like they were making a signal and a statement. Yeah. Not just about space debris, but like you can't threaten us. We can blow things up to your capability. Because not only can we blow things up, we can blow things up and not have a diplomatic chaos around it. How did they manage to blow something up without getting space debris? So it's all about, I guess it's all about calculating where you're going to do it. Oh, okay. So it was close enough to the.

atmosphere that any debris just blew up or what or burned up. Yeah. All right. I'm learning things. This is great. Yeah. And then it's interesting because I love the case of India. Um, because when India started, it was the model for space for earth, space for sustainable development. None of this ego driven crap. It was like, we are developing space to monitor our fisheries, to help our firemen, fishermen, and then what, 2016, they had the first mission to the moon, Chandra mission that cost something like $50 million, like nothing. And then last year they had an anti-sablight test. So all that to say is that space is still seen by most people as flexing.

Right. The rules aren't there yet, so we can use it for symbolic. demonstrations. Yeah. Yeah. And yeah. I mean, if you looked at Twitter, the Indians did have a lot of pride around there, that test. Yeah. I mean, the United States had a lot of pride when we put people on the moon. Yeah. Yeah. And it does, it comes back to this, the safety issue, right? Once all this debris is just, the amount of debris is just increasing. And I mean, maybe I should ask, how much is the very concept of safe travel through space, something that is very important as far as space law is concerned. Let me make one confession, which is that, of course, I knew about the two space shuttle

disasters, the Challenger in Columbia, but I hadn't ever heard in my little American bubble of the Soyuz 11 disaster. Do you know about this one? The only time, officially speaking, when people died in space rather than coming back or going. Soya's 11 visited the first Russian space station in 1971, and there was some explosion, and all three cosmonauts died on their way back. And they landed. They didn't even know.

They lost communications. The spacecraft landed, and then the rescue team knocked on the door, and they were all dead. I didn't, I had never heard of that. No, I didn't know that. Yeah. So people have died in outer space.

That's what I was trying to check. But presumably the first time this happens on a commercial flight or a mission to Mars or something like that, this is going to be a very, very big news story. Is this something we worry about in space governance circles? Yeah, I mean, when the first space tourism companies like Virgin were establishing, and there's this class of people called space flight participants. That is the legal status of these space tourists. And the big thing was in the experimental licenses that the states gave to these companies, the standard was basically informed consent.

So it was basically saying to the people, like, these companies will not be liable in the event of if you die. because you have to have informed consent and know what risk that you're getting into. So, and I think there's like a number of years that you give the companies. So they say, okay, you have this protection for X amount of years,

and then we'll re-look at the situation. So that's kind of like how they work that. And then obviously with that, there's enough data that you can now get the insurance market in, if possible. But of course, they need a lot of data to be able to do anything. No one wants, like, completely ignorant about the risks factor. But the interesting thing is I'm actually on the board of a company called Worldview Enterprises, which is a stratospheric balloon company.

Okay. That is a tourism company that is going to take people to the edge of space. So it's not going to be in microgravity, but it's going to go to the edge of space. So you'll be able to see the co-attroft space because they kind of realize that enough people want to go to space, but don't want to sit on a rocket and take that kind of risk. But I think they sold a couple of thousands of tickets to go to the edge of space. So people are definitely interested, but I don't think people are interested in that level of risk. And of course, they can't afford it. Would you buy a ticket?

For World View Enterprises? I already got my ticket. I already deserve my ticket. I figured so, yes. Do you have a date or is it still? So the first flight, so what's really cool about this is that they are actually the spaceports that you will be leaving from are from the wonders of the world. So from the Serengeti from the Great Barrier Reef in Australia.

So I'm going from the Great Wall of China. Wow. And the first ones are going to be from the Grand Canyon in Arizona. And that should be by the grace of God, you know, in the next couple of years. Okay. You mean, that's right next to where you live. And you had to go all the way to China to make this. Well, I'm not going to go on the first one.

Fair enough. I'm not that brave. Let someone else work out the bugs, yes. Yeah. I guess the other thing to talk about as far as space governance is concerned is just the protection of the environment, out there in space, which I'm sure is a huge deal. But first, remind us, for those of us who have forgotten or don't know, about the tardigrade incident, which I know it was kind of fun.

So the big, the closest thing we really have to environmental law is Article 9 of the Outer Space Treaty, which kind of says you can't do activities that have harmful contamination. And if you do, you have to consult. So there's a duty to consult. tour. And, you know, but Article 9, you know, with this harmful contamination, it was more about biological contamination. Like, you know, if you take a specific bug into space from Earth, will it confuse the science? Because people might think that it was a Martian bug when it's really something that you took from Earth. So environmental protection has mostly been around planetary

protection. There has been a trend recently that I don't know if you heard about the Viasat case. So Vyazat took the FCC to court and basically said that they should have applied the NEPA Act, which is the National Environmental Protection Act, to SpaceX satellites, that they should have done environmental impact assessments on those satellites. So people are trying to say, we need to have more environmental law concepts, but it's classically been based on planetary protection. And what happened was this this nonprofit organization, you know, Arch Mission Foundation, basically put tardigrades, these kind of resilient bugs, onto the spacecraft of the Bershehrat mission, which is an Israeli mission.

And it ended up crashing on the moon. And then they basically came out and said that they never told anyone that they put these tardigrades on the moon. So it was really interesting for us international lawyers. because, yeah, NASA's response was there was no breach of it in national law, right? And it's just like, but how can you, how can there have been no wrong by putting these bugs onto someone else's mission that no one knew about? And then they crashed on the moon. Did they know that this craft was going to crash on the moon? Was that intentional?

Nobody knew that it was going to crack. I mean, it was a risk, but it wasn't meant to crash. Wasn't meant to crash, yeah. It wasn't meant to crash. But then the guy came out, Nova is his name, basically saying, yeah, we were kind of just testing environment international law. And we didn't do anything wrong. So, you know, that is the thing about the innovative spirit. It's just kind of like break it and then find out, you know, what happens later.

And nothing happened. There was no implication of that. And I guess the idea is that tardigrades are famously. sturdy, right? Like maybe they could survive on the moon. Yeah, I mean, they're going to say there was no actual risk because the moon is not really protective because pretty much people say there's nothing on the moon in terms of life. And secondly, they like put it in some kind of resin and it's like trapped. So the idea is that it's not like they were just freely floating tardigres that were like alive.

So there's no risk. We didn't actually do anything. But it's just interesting when people do these tests to just figure out the boundaries of the law. And I mean, the US, NASA are also doing it with these contracts for space resources that they're using to represent legal precedents that it's not illegal to do an in orbit transfer of resources. So they awarded a company, a contract for $1. Right? So these guys have got a contract from NASA to buy a lunar soil for $1 or $10 or something like that. And NASA are going to use that on the international realm to say this is legal precedent that it is not that you can do an in-orbit transfer.

Which is something crazy. So, but why is that an in-orbit transfer? Did they do it in-order? Because the company will take the soil and then they will put it somewhere and they will tell NASA, we have now given you through this contract, we've given you this soil. It now belongs to you. That's a legal transfer of ownership. It's never been done in space.

And these are all just trying to establish the precedence. This is not because anyone cares about this particular transaction. Yeah, it's legal precedent, which can be scary. And for me, from an international law perspective, sounds a little bit monopolistic. Because, I mean, me and African company would never have been able to get a contract for $1 because I need money to go there. Right? To build the spacecraft, to be able to launch it and get there and figure out the technology to do this. So I can't even be in that discussion about the legal precedent because you gave someone a contract for $1.

I mean, realistically, there will be a mess, right? I mean, people are just going to go to the moon and claim it or claim parts of it. That's almost inevitable. Yeah, maybe. I mean, if we look at history, yes. Yeah. If we look at history, the difference is, I think one of the unique things about spaces is the only place where it's freaking hard to get to. Yeah.

You know, so it, it, so the challenge is kind of less. Because at the end of the day, if one of these people just decide, well, we're going, I mean, how are you going to actually stop them? Right. I don't know. So, yeah. So that's why a lot of people would kind of just be like, you know what, I'm not even going to be in this fight. And the thing could just happen by basis of people just being like, this is not even my. fight. But I'm here to tell developing countries it is your fight. Because they've decided that by

2040, space is going to be worth a trillion dollars. ASU right now is leading a mission to the first metallic asteroid, the Psyche mission, which they say is worth like 10 trillion dollars if you actually figure out how many resources are there. So Africa, it is your fight. Because don't come and tell me in 30 years time that you've been left behind and then you want handouts. because I'm telling you right now, the space economy is coming, and if you're not at the table right now before the rules are being developed,

you will get left behind and no one's going to give you nothing. I guess the other difference is that, unlike other parts of the world, there's nobody living there, right? So we're not going to have exactly a replay of colonialism or stuff like that, but probably some of the same issues

are going to come up because, you know, as you're implying, the rich get richer by all this kind of thing, right? I mean, they're going to be able to get those. What we say is there's no colonialism in space, but colonialism exists. Ah, okay. So colonialism is the practices, whereas colonialism is the mindset. So all that is, because of course the first thing they'll say is why are you guys talking about colonialism? There's no indigenous people there.

Right. But colonialism is just as dangerous. A mindset of manifest destiny, domination, even without practices, is harmful. Do you think that if a private corporation based in, let us say, the United States, establishes a base on the moon, the United States will claim that as part of their territory? No, they won't claim it as part of their territory. But what I love about these countries is that, The flag is the first thing we did.

The flag is the symbol of territory. And the flag is what they used to say, we are not claiming territory. Boom, flag. That's what I love about these countries. They're going to say something and they're going to use the very symbol that is just like, okay, And then what is? Right. So they say, they say the Artemis Accords says you can establish a safety zone, right?

You can't own this land, but you can establish a safety zone around your property. Oh, okay. So I was going to ask next. Yeah. Right. But it doesn't, they love to say, but it doesn't mean keep out zone. So, I mean, you. You know, and so what it, but when I talk to people, they say what it means is that it's a consultation zone.

So like a notification and consultation zone. So there's rules. You know, if you're going to be like 50, 50 yards from my spot, we got to have a discussion. Yeah. But you use the word safety zone and then you tell people, why do you think that means a keep out zone? Of course they're going to think it means a keep out zone. Right? And then they love to say, well, when people heard this, they just started speculating before we actually explain to them.

And I'm like, so why did you just say it and not explain straight away when you said, oh, people can have safety zones, but it's not really a zone. It's like just, no, they said safety zone, silence for like three months. Yeah. They let people speculate and think all these crazy things. And then they come out and say, what are you guys talking about? I guess, I mean, maybe one... I'm not against the U.S.'s position, by the way. Yeah, no, I do get it. Maybe the last thing to get on the table is, you know, how realistic all this talk is.

Like you said, it's very hard to get to space. It's dangerous, right? The actuarial tables do not look good if you think about the dangers associated with going to space. And we already have, you know, things here on Earth. We have the bottom of the ocean. We have Antarctica that are pretty hard to get resources from, et cetera, even though they might be there. So, I mean, is this something we're realistically talking about for your or my lifetime? People getting resources from space and bringing them back down here?

Not bringing them back down here. But everyone is talking about in-situ resource utilization. Okay. Finding resources in space to help us be able to stay in space and not have to take things from Earth to space. So, I mean, already 14 countries have said their plans, right? Wow. The U.S. Artemis program that just launched, you know, last week is essentially the whole

point of it is to establish a permanent presence in space. So by virtue of the fact that, I mean, the International Space Station was the first permanent presence in space. but now we're going to have them in stationary locations. And so, I mean, if you look at Antarctica where people have that, no one has decided to live in Antarctica permanently. They still see it as like, they have territories there and they have scientific outposts. So the question is, is space just going to be like that,

where it's like a bunch of people have like scientific outposts. So maybe, I mean, I think NASA's plan is 1,000. The U.S.'s plan is 1,000 people a year living in space. Living in space. Oh, okay. I didn't know that. Something like that. Living in, that's satellites?

Is that on the moon or on satellites? Yeah. Yeah. Yeah. Something like that. Or I think maybe the UAE might be the only country that actually has in its strategy, actually about people living and working in space. So some countries do have it.

But it may not be like when we imagine like cities and spaces. it may be like these outposts like in Antarctica. That I can foresee very easily. Would you go? Absolutely not. I'm not going anywhere near a rocket. So balloons you're okay with. Rockets are a little dangerous.

Yeah. I think that's fair. All right. I always like to end on an optimistic note. And I mean, I think you've portrayed, you've given us a lot of reason to be optimistic anyway. But, I mean, one of the things I like best about everything that is implicit in what you say is just how international and human and global the whole thing is.

I mean, maybe you just want to put that into your own words or add something else, but this is ultimately a project for all humankind, not just for this or that company or country. Yeah, I mean, I'm sounding like a cliche and broken record now, but I almost always end my talks with the words of Joey Esrich and Ed Finn from the Center for Science and the Imagination at Arizona State University. and they basically say space does not a void, but a canvas for the human imagination. So all the questions about policy, politics, logistics are merely scaffolding for a deeper

set of questions about who we are and who we want to become as a species. So we explore the universe not just because we are curious, but because we're. of what that curiosity will do to us and how we will grow to match our expanding sphere of understanding. For me, that quote just says it all, right? Space is a construct. Space is a product of the imagination. It doesn't have any concrete, tangible thing. Because if you say to an aerospace engineer, what is space? they might tell you about rockets. If you say to someone who is a data specialist, they will tell you spaces about the vantage point from Earth.

If you talked to an indigenous person, they will tell you spaces about the stars and our relationship to how we navigate. So it's a construct. And that's why, as somebody in the School for the Future of Innovation in Society, I look at space as really, not really a technological challenge, but a sociological one. Cannot improve on that.

Timmy Aganaba. Thanks so much for being on the Mindscape podcast. Thank you.