Introductory Remarks by Tracy Reynolds

Good morning, and welcome to “Written in the Stars: Future Governance Models for Interplanetary Civilization.” My name is Tracy Reynolds. I am the outgoing vice chair for the Space Law Interest Group and moderator of today’s panel.

Before we turn to our esteemed panelists, please keep in mind that we are using this forum as a Chatham House Rules-type event where you can ask questions freely and we can answer freely, with the understanding that our answers in substance may be attributable, but the individuals who say them are not. Again, thank you for coming today, and please keep in mind that those of us on the panel that work for the federal government are here in our personal capacity.

I am a commander in the United States Navy and a judge advocate, so profession of arms and profession of law, and everything that comes out of my mouth is mine and should not be viewed as indicative of the Department of the Navy or the Department of Defense.

Thank you for letting me get through those preliminaries. I would like to turn your attention to our panelists today. As we saw in that wonderful preliminary video, science fiction exists, but humanity is encroaching upon the stars evermore with each passing day. Public and private space actors alike advertise these ambitious goals to land humans on the Mars. SpaceX’s Starlink terms of service explicitly require parties to recognize Mars as a free planet, and as an interplanetary future poises itself to become our present reality, the Outer Space Treaty, the Artemis Accords, and other models of international space law and governance appear at best a starting point.

We do not have an international arbiter to tell us what the case law is for outer space, and we certainly do not have enough state practice to be able to determine customary international law. That is why legal practitioners, academics, and decisionmakers can turn to narratives like what you saw in our introductory video to help us think about the third- and fourth-order effects of these types of legal decisions and policy without actually hurting anyone.

I turn you to the app to get the full overview of each one of our panelists’ expansive and interesting biographies. Today we have joining us Caitlin Poling of the U.S. Department of State’s Office of Space Affairs, part of the U.S. delegation to the UN Committee on the Peaceful Uses of Outer Space; Mr. David Anderman, the former General Counsel of SpaceX and Chief Operating Officer and General Counsel of Lucasfilm; Professor Benedict Kingsbury, Vice Dean and Director of the Institute for International Law and Justice at New York University; and Dr. Haris Durrani, author, legal scholar, historian, and incoming Prize Fellow at Harvard University.

Caitlin, would you like to begin by sharing insights into your work and your thoughts as the U.S. Department of State’s Office of Space Affairs and part of the U.S. delegation to the UN Committee on the Peaceful Uses of Outer Space (COPUOS)?

Remarks by Caitlin Poling

Sure. Thank you, Tracy, for that kind introduction, and to ASIL for the invitation to be with you all today.

As Tracy said, I am Caitlin Poling, foreign affairs officer in the Office of Space Affairs at the Department of State, where I also serve on the U.S. delegation to UN COPUOS, or the Committee on the Peaceful Uses of Outer Space. My office is the State Department’s lead for civil and commercial space diplomacy.

That work is guided by the 2020 National Space Policy from President Trump’s first administration, which calls upon us to encourage and uphold the rights of nations to use space responsibly and peacefully; and to lead, encourage, and expand international cooperation; and create a safe, stable, and secure environment for space activities.

Now, I will preface my remarks with a disclaimer that I am not a lawyer. I just argue with them at the UN. I have also not seen Dune or The Expanse. I know it makes me a bad space nerd. I am really sorry. I know. I know. I did suggest that clip from Space Force, though, so maybe that gets me some street cred.

I am not sure how familiar you all in the room are with the current framework of international space law. I am happy to share this slide today to give you an overview of the alphabet soup that is the multilateral galaxy, and I will preface this overview by saying that per Executive Order 14199, Secretary Rubio is conducting a 180-day review of all of our multilateral membership for the United States and all of the treaties and conventions to which the United States is a party. That is just a disclaimer.

But you will see here on this chart the multilateral organizations that cover space. The sun is our UN overarching structure for which the specialized technical bodies are our planets. Our reporting bodies are moons to our planets. I will explain that.

The Conference on Disarmament in Geneva is a multilateral disarmament negotiating body that covers space arms control, among other issues. They are a moon to the UN General Assembly or the First Committee in New York. That First Committee covers disarmament and international security. Its agenda and annual resolutions focus on space security, including norms, rules, and principles of responsible behavior in outer space.

The ITU, or International Telecommunications Union, covers international cooperation in telecommunications. It allocates global radio spectrum and also geostationary orbit. It also develops technical standards.

ITSO, which is the International Telecommunications Satellite Organization, works to ensure that satellite communications are accessible to all nations globally.

ICAO does not regulate outer space as it does aviation, but it does play a role in promoting international cooperation regarding space travel and its impact on aviation and vice versa.

And then finally, UN COPUOS, which is the body that I work on, promotes international cooperation in the peaceful exploration and use of outer space, and there we deal with scientific and technical issues like space debris, space flight safety, the use of space-based assets for disaster management, as well as legal issues such as the legal aspects of space traffic management or space resource activities. Then we report up to the UN Fourth Committee in New York. I go up for that as well.

The United States, as you may know, was one of the founding eighteen member states of COPUOS in 1958, and since then we have used this body to build international support for U.S. space policies and our vision for expanding human presence in space. In what seemed like science fiction at the time, the launch of Sputnik by the Soviet Union, followed by the United States going to space, a lot of members of the international community were concerned about an arms race in outer space.

As a result, COPUOS drafted the Outer Space Treaty of 1967, which is the foundation for all outer space law. We have 115 countries that are now parties.

The OST has about thirteen key articles, and I will not go through all of them, but I just wanted to highlight some key pieces. It claims that all exploration and use of outer space must be carried out for the benefit and interest of all countries. It posits the freedom of exploration and use of outer space by all states without discrimination, as well as the freedom of scientific investigation. It notes that the exploration and use of outer space must be carried out in accordance with international law. The Moon and other celestial bodies must be used exclusively for peaceful purposes. A lot of the things that happen in Space Force are not in compliance with the Outer Space Treaty. States are responsible for national activities in outer space.

The important thing here is whether or not they are conducted by government agencies or by private companies. States have to provide what is called continuing supervision and authorization of activities by its non-government entities as well as retain jurisdiction and control over objects that we register.

Also, we have to conduct all activities with due regard to the corresponding interests of other state parties and consult other state parties if we anticipate causing potentially harmful interference.

Those are all requirements. The Outer Space Treaty prohibits national appropriation, so sovereign claims, the stationing of weapons of mass destruction in outer space, including nuclear weapons, and then military maneuvers, weapons tests, or bases, installations, or fortifications on the Moon or other celestial bodies.

After we created the Outer Space Treaty in 1967, there were still a number of questions that remained and some things that could use more specificity. There are three further treaties that detail those principles more specifically: the 1968 Rescue and Return Agreement, which states any member who is a party to this agreement has to take all possible steps to rescue or render assistance to personnel of spacecraft who have landed within that state’s territory, whether by accident, distress, emergency, unintended landing; the Liability Convention of 1972 means that the launch state is responsible for compensation for damage caused by their space objects on the surface of the Earth or to aircraft in flight; and the Registration Convention of 1974 states that states have to provide the UN with details about the orbit of each of its space objects on registry.

My office works with the interagency as well as commercial partners to keep the U.S. registrations up to date, and those are hosted by the UN Office for Outer Space Affairs, which is the Secretariat for COPUOS in Vienna.

Where are we now? As we promised, looking at the Space Force clip, we see that Chinese rover or, honestly, space tank, it looks like rolling over that American flag planted so famously by Neil Armstrong and Buzz Aldrin back in 1969. The reaction on Earth, just completely shock, anger, let us bomb somebody.

But we are actually already thinking about outer space heritage, like the historically significant landing sites, artifacts, spacecraft, or other evidence of activity on celestial bodies. That is one of the principles of the Artemis Accords, which are a series of non-binding principles on the transparent, safe, and responsible civil space exploration which were initiated under Trump’s first administration.

We now have fifty-four signatories of the Accords, which is almost half of the member states of UN COPUOS when you look at the numbers. Not all of them are members of COPUOS. We are working on that.

The Accords lay out a shared vision of principles for implementing the obligations of the Outer Space Treaty, the Registration Convention, and other multilateral agreements as well as travel to the Moon and beyond. The Accords are forward-looking. They try to commit signatories to taking all responsible efforts to provide necessary assistance to personnel in distress in space because the Rescue and Return Convention applies only on Earth. It encourages the use of common interoperable standards for space-based infrastructure. Say we have both Chinese and American assets on the Moon and say something breaks down, then you are able to call upon one another to make sure that those are interoperable pieces. That is ultimately where we are going to with that.

It also commits signatories to transparency in their national space policies and space exploration plans. We want to avoid those misunderstandings and conflicts like we see in Space Force.

But in addition to being a series of U.S.-led principles, the Accords are guiding our and partner engagement on these discussions we are having at UN COPUOS. We have a newly established action team on Lunar Activities Consultations, which is going to tackle practical challenges about sharing lunar mission information, which is essential to de-conflict activities on the Moon, especially when we have multiple states interested in the same areas of the Moon. A lot of folks are interested in going to the Lunar South Pole to look at the frozen ice deposits there. Also, we might be tackling issues like lunar time, cislunar orbit issues, and more.

The UN COPUOS legal subcommittee has a working group on space resource activities, and we are working on a series of non-binding principles now that will guide the future of space mining and other space resource activities. I will be heading there in two weeks to start on those negotiations of high-level principles.

Then we have ongoing discussions on space situational awareness and space traffic in COPUOS. Given the increased activity and objects in space, it is increasingly important that we prevent collisions and protect U.S. national and commercial interest in orbit, as well as maintain continued access to space. We cannot continue to get to the Moon if we cannot safely transit through those orbits.

If we look to science fiction further, we see a very real problem addressed in “Armageddon” and “Don’t Look Up.” UN COPUOS actually established both the International Asteroid Warning Network, IAWN, and the Space Mission Planning Advisory Group, or SMPAG, to serve as multilateral bodies focused on international cooperation for identifying and tracking asteroids and comets, as well as plans to mitigate these threats.

These groups were actually put into action this year to coordinate when there was the very real scenario this February when we learned of asteroid 2024 YR4 had a 2 percent chance of impacting the Earth in 2032. These are global existential threats, and we really need the international community to come together to address them.

Although we have made some great progress to tackle new space challenges in COPUOS, we have some obstacles too. COPUOS actually operates completely by consensus. We call this the “Spirit of Vienna.” We do not vote, and any votes that are required get pushed to the UN Fourth Committee, which is very rare.

Case in point, last October I cast the first vote related to COPUOS to admit Latvia and Djibouti as members in the UN Fourth Committee since 2015. That is how rarely we push things up to a vote.

As a result, it can take us years to make decisions. It took us about ten years to develop the twenty-one long-term sustainability guidelines of outer space, which are a set of voluntary and nine binding principles about enhancing practice of registration of space objects, safety of space operations, and international cooperation. You can read them all on the COPUOS website. But this was the first time that we had internationally agreed minimum standards of behavior by states engaged in space activities. We are making progress, but it can take some time there.

Tracy Reynolds

Thank you, Caitlin, for your excellent comments. What an interesting overview of both the international legal framework as well as U.S.-specific initiatives to try to bridge that domestic-to-international process.

In the interest of time, I would like to turn to David for his comments. I was wondering, David, if you could pick up where Caitlin left off to talk about some of the interests of private entities as well as the international and domestic legal frameworks within which they might interact.

Remarks by David Anderman

Sure. Hi there. Thank you so much for inviting me. I am excited to be here and talk about this topic. I have been thinking about this pretty much my whole life. I saw Star Wars seventeen times in the movie theater when I was eight years old, and I built model rockets. My sisters like to say I manifested my eight-year-old self into a career.

I studied constitutional law and then ended up as an intellectual property attorney, but then a few years in, I got a call, “Hey, do you want to go interview at Skywalker Ranch?” which is George Lucas’s headquarters for Lucasfilm and the Star Wars empire. Of course, you say yes. It is like saying, “Hey, do you want to go interview at a rocket factory?” Always say yes to that question.

I went to Lucasfilm. I was the junior lawyer. I thought I would be there for three years and go to a startup in Silicon Valley but ended up staying for sixteen years, became first the general counsel and then the chief operating officer. We made a lot of Star Wars movies and TV shows, and I sold the company to Disney in 2012. You have me to thank for all those Disney Star Wars spinoffs and movies, so love them or hate them. I love them personally. I have watched all of them. I do watch all the sci-fi and read all the sci-fi. You have got to start doing that, because it does inform a lot.

What is interesting about having worked for George Lucas is, one, obviously he is a visionary on a lot of different fronts, but he is inspirational for a lot of people who are in both the profession of film and TV but also in the space business. You talk to anyone in both industries, and they will cite Star Wars and George Lucas as inspirations for it. He had a vision for what space was going to be like and living in space, and, of course, you have the themes of the evil empire and the rebels. I do not know if we were showing that clip to show that the Force is going to be the governing principle of everything that happens throughout the galaxy, but he certainly has a clear political view. Famously, episode one started with a discussion about tax policy, so there you go. You see it throughout the films, and so I think that is an important reference for what we are talking about here.

After Disney bought the company and I worked there for a little bit, which was both exciting and painful, I did some start-ups. But then I decided what is next in my career, and I sent a cold email to Elon Musk and said, “Hey, my name is David. I love you, love what you are doing, would love to work for you, and here is what I have done.” He responded, and the next thing you know, I am the general counsel of SpaceX. It did not hurt that George Lucas was my reference for Elon. I think he spent more time talking to George than he spent in my interview. Working at SpaceX and going from fictional space to real space, this is where I got much more of the perspective of what is actually going on and what the rules and regulations are.

What we discovered was that there are not a lot of rules and regulations. The Outer Space Treaty is around sixty-two pages. Not a lot. Elon is on top of it—I think people in Washington, D.C. are familiar with Elon Musk at this point. Elon used to say to me all the time, “David, the only laws that cannot be broken are the laws of physics. Everything else is just a recommendation.” SpaceX as a company, moves faster than anything I have ever seen. I have worked at a lot of different companies, a lot of big companies, and it moves incredibly fast.

Ten years to come up with guidelines? You get two days, okay? It moves very quickly, and it does, to some degree, take advantage of the fact that there is no regulation. There really is none.

There were two reasons that SpaceX hired me. One, I figured out how to deal with crazy, working for George Lucas, then working for Elon Musk. George said to me when I asked him to do my reference, “You know, that is incredible. It is amazing, He is going to go to Mars. It is all these amazing things. But are you sure you want to go work for another nutcase?” And I said, “George, I refer to you as a visionary.” He said, “That is just a code word for nutcase.”

But the real second reason was because I had a lot of direct-to-consumer experience. I was hired to help set up Starlink. SpaceX already knew how to do launch contracts. They already knew how to run the business of space in that sense but had never done direct-to-consumer business. I helped write all of the original contracts.

I am responsible for the Mars Clause. I drafted the Mars Clause. Do you know what the Mars Clause is in the Starlink Terms of Use? Here is what I wrote in the Terms of Use, the governing law section. I will read it to you since you do not know what it is. This is current. I pulled this off the website last night. It says—and I wrote it five years ago—“For services provided to, on, or in orbit around the planet Earth or the Moon, this agreement and any disputes between us arising out of or related to this agreement, including disputes regarding arbitrability, will be governed by and construed in accordance with the laws of”—this, he changed—“the state of Texas”—used to be California—“in the United States. For services provided on Mars or in transit to Mars via starship or other spacecraft, the parties recognize Mars as a free planet and that no Earth-based government has authority or sovereignty over Martian activities. Accordingly, disputes would be settled through self-governing principles established in good faith at the time of Martian settlement.”

Tracy Reynolds

I want to break in on you, David. This is fascinating, by the way. I would love to get you drunk and really hear what the real stories are.

David Anderman

I am going to tell it right now. I do not even need any liquor. I will just spill it right now.

Tracy Reynolds

I think that is really interesting.

As an active duty military legal advisor, I am very interested in decision space. When you say there is no regulation, what I hear is there is decision space, and the governing principles that we use to apply in situations like that are, as Caitlin brought up, due regard. That is an ancient principle that was established in international waters. Two sovereigns come together in an area that is outside the jurisdiction of either one of them. How do they act? They act with due regard. What does that mean? It is based on the facts.

My personal legal opinion on that is that due regard is a rule of conduct, not a rule of result. It is a rule of process. Perhaps Professor Kingsbury might have some thoughts about that from a global administrative legal perspective. But why do we care about that? The Outer Space Treaty already says that there are no sovereign claims in outer space. So why do we even need to have this contractual obligation? Is it just to be “I really mean it”? Do you see that as more of a domestic legal obligation associated with U.S. sovereign principles? Is it more reflective of the international legal regime? Did your visionary tell you to do this when he was actually being more of a nutcase? How did that work out?

David Anderman

We kind of just did it.

Tracy Reynolds

But why?

David Anderman

Because we thought it was an interesting opportunity. Part of it was tongue-in-cheek. Part of it was let us get on Twitter and get people talking about these issues, because one of the other things I did when I was at SpaceX was I started drafting a Mars constitution. What would a constitution for Mars look like? I had a draft of it, and then I actually abandoned it. I want to talk about why I abandoned it. But it led into that. It is the thinking and discussions about how would Earth governments try to manage Mars, and if you watch The Expanse, you see the result of that, which is basically everybody breaks off. No one can be controlled. When you think about it, it is as if King George in England continued to try to manage the affairs across the sea of this upstart American colony.

The idea behind what I wrote in the Mars Clause was that it is futile to assume that Earth governments are going to long have control over Mars. It is at best twenty-four light minutes away. One communication back and forth takes forty-five minutes at best. They are going to be in completely different situations. There are going to be completely different problem sets that they are going to have to find and deal with, and it is going to be about survival. I mean, it really will be about survival.

SpaceX wants to have Elon. When I interviewed with Elon, he told me he wants to die on Mars, just not on impact. What he means by that and why he said this during the meeting, which was a meeting with me, he said, “I want to have a million people on Mars by age 70, so that we have a self-sustaining colony on Mars that no longer needs resources from Earth.” When Mars no longer needs resources from Earth, there is no way that any Earth government is going to control Mars. It is going to immediately declare independence, I believe, within a very short time and will start establishing its own rules.

Now, the big question, I think the more interesting question, is going to be, what are those rules going to look like? I know there are lots of things we could talk about with space and orbit and debris and all these other things.

By the way, when I left SpaceX, I became a space venture capitalist. I run a venture fund called Stellar Ventures, and we have invested in dozens of companies. We do not invest in space debris companies. You know why? The only debris I think people will pay to remove is Chinese satellites, and the military will pay to do that. I do not think they are going to pay to remove debris from space—unless they are taxed. I think it is an overstated problem.

But getting back to what is going to happen on Mars, I think it is going to be very interesting, and here is why I abandoned writing a constitution. It is going to be the only government that ever exists where human individual rights are going to be the baseline principles, because on Mars—I mean, everyone saw Total Recall, right? When the corporations try to turn off the air and starve all the people and what is happening there and those principles—and my son really impressed me with this, because he is an astrophysics major and studying space and really said, look, you have got to make sure that we protect people’s individual rights. You need air, you need water, you need shelter. It is not like the colonists who came to America the first time or any other far-flung colony, where at least—you probably were going to die, but at least there was air, water, and food. That does not exist on Mars. I believe that the Mars-based constitution is going to be individual rights first. Those things are going to have to be guaranteed.

Name me a country on the planet where those human rights to health, clean air, clean water, all of those things—very few countries provide those as fundamental rights. I think it s going to be a very different-looking kind of constitution where those individual rights have to be guaranteed, or no one is going to go.

Tracy Reynolds

David, I admire your optimism. I do not know if you are familiar with Octavia Butler’s Parable of the Sower.

David Anderman

Of course.

Tracy Reynolds

One of my favorites. I am more concerned about companies having more rights than individual people.

Tracy Reynolds

I would like to turn to Professor Kingsbury, if I could. I think you have more than enough to go off of, sir. Over to you.

Remarks by Benedict Kingsbury

I would like to take up especially where David just put us. This imagination that is very prevalent, that there has got to be these places with humans on them, and maybe lots of them. They are going to want to have constitutions. How are they going to make them? My colleagues in constitutional theory, there is something in the International Society of Public Law that is full of comparative constitutional theorists. They love this because there is nothing there yet. We can write it ourselves. We can talk to David about it. We can take account of all the laws of physics and the practicalities, and we can build a really good one, and so they want to draw on all the comparative stuff they have done. The historians want to study all the founding documents and the imaginations, also the “utopias” from Thomas More onward.

The natural law types are thinking back. How did Pufendorf think of the role of commerce and commercial sociability in leading the evolution of this? Or do you first have Federer? You have got to create the thing that is out there beginning. So all of that is imagination.

But I take that up because although it may be that David and Elon Musk are both on Mars quite soon and living there—they will be the first two—but overall, in terms of the ordinary life of humans and lawyers, it is quite a long way away, most of this settlement and the big constitutions.

David Anderman

He wants to go in 2029.

Benedict Kingsbury

I understand that, but going and settling, he probably has to find some return journey at the moment.

There has got to be a long projection, a long tail between maybe something will happen, but the big density of the thing will presumably take a long time.

But it is really important to us to imagine it, and we use The Expanse, say, to help us do that. We use all of these things because it partly helps to understand ourselves. This is the sort of element that is going on at the same time, that lawyers always have a view of history, whatever histories they know or do not know, but they have got something. In law schools, we have quite a bit of legal history. But we also are all about the future, and that is oddly what we are much less good at teaching or even thinking. In fact, most lawyers feel only really reassured if they can find an existing text and then apply it to something pretty well here and now. Anything else, they are starting to feel uneasy. Obviously, David and probably Caitlin are in the exceptional zones of people having to do something else.

So what are we doing there? I think The Expanse helps us to think what we are doing also in the here and now. It is true it is somewhat real now, these things out there that are going to happen. And we can think who has what ideas and why did I do it, but we can also, in The Expanse, what else do we learn from this thinking? You have in that clip that people in the outer belt who are feeling peripheralized, peripherally discriminated against, humiliated, ignored. They start to end up firing asteroids back at Earth, and that is what happens.

Earth at that time is the United Nations, which I think to many current politicians would be a rather amazing prospect, because what you have there, interestingly, the way The Expanse does this is—if you remember the old work of Chakrabarty and so on, the subaltern studies provincializing Europe, that was a radical step. In a way, we now have the provincialization of our whole planet in this thinking, because you begin to see you could be somewhere else. Suddenly, you get the United Nations as a plausible way of just being one bit of a big enterprise.

When we think about what is going on there, we see some pretty standard patterns of the challenge of can we just transpose ordinary human selves into somewhere else, and we are very used to the ideas David just said of, well, you spread people around the Earth, the Polynesian migrations or the settlement of Iceland, people are interested in. But the environment is still basically the same, and I think The Expanse is quite striking because they are all pretty much humans, although a lot of them have modifications in them.

But when we try to make that step, we start to ask ourselves how important is it that we have co-evolved human beings with our own planet; that is, the formation of life and the atmosphere and the ways of being, the kind of gravity we depend on, the air pressure, the sustenance, the forms, and the sociality. It invites us to think how much us and the planet are co-extensive here, and going out brings us to something different. What is that difference; is it modifying us? Is it so different that it is actually becoming something else? If so, how will that affect the political relations, and are they similar to the relations we might have now with other species, say, even though there will not be other species at first? But what is the way to imagine ourselves now coming back?

The other point I wanted to take out of this—I am teaching space law and planetary governance at NYU, which is wildly interesting and just so liberating, which is why it is going everywhere. But another course I am teaching right now is on infrastructure. It is true, even my nearest and dearest in my family fall asleep when I start to talk about it. In fact, I see them quickly dashing off when I am about to have an outburst on infrastructure. But it is wildly interesting. Sorry. And you cannot go away because you are here.

But what is striking is that infrastructure is everywhere. When you see people trying to think about the Moon, about the cislunar space, about space tracking and Mars, just about everything is actually a heavily infrastructural venture, even though it is not really announced that way. Again, law schools do not do much teaching on this. All the stuff about financing infrastructure, you have got to have trade monopolies to get the resources going. What are you going to have? Is it going to be a public, like a utility obligation, if you have a spaceport, if you have the means of human life, the sustenance, say, these vital things? What are going to be the principles for all those infrastructures? Everything about these projects is an infrastructural element, and it depends on it even more than our normal life, because we do not have the other things to fall back on.

I think there needs to be a much more active thinking about infrastructure as lawyers, and here is the point in our tagline—infrastructure is itself a kind of regulation. As we make rules as lawyers, we are all used to the lawmaking process, the administrative law. But when we make infrastructure, we also regulate possibilities of life. Whoever gets to make it and shape it and decide how it is, is in a way doing the same thing as a lawmaker but without the same constraints. They have other constraints, and they overlap with law. I think we need to put that much more at the center. This space issue really brings us to that.

Where I want to finish on that is one of the current discussions which really tries to do this more actively, but it invites all these questions, is the Lunar Development Cooperative. It is the same sort of people who have been doing these special zones and charter cities and so on but now thinking, well, if the Moon has got economic activity on it, there are going to be different people trying to land beside each other in the more valuable places, craters or whatever. The Moon may not turn out to be any of this. Economically, it is not very realistic probably. They have the idea that it could all form an association, and there will be principles for sharing the infrastructure. You have to pay into this based on what you are getting out and so on, and there will be a bunch of rules, and they will be self-created. It will be a voluntaristic thing. In that sense, it is the old agreement form. But they have attempted at least to theorize how the infrastructure will be put there and how it is going to be controlled and to integrate that with a theory of the politics of it. I want us to float that as one of the things I think we can get out of thinking in this path.

Tracy Reynolds

David, do you have a comment?

David Anderman

I think on that last point, I have met with dozens of start-ups that are planning infrastructure for the Moon, and I always say, is that really a fun three, fun four thing? But it is happening soon. I will just say it moves way ahead of where people are thinking about it and that it is going to be commercial. To your point, a lot of it is going to be dictated by companies trying to make money out of providing those services in the lunar and ultimately Mars economy.

Tracy Reynolds

David, do those entities turn to any analogues from the maritime environment? Because as Professor Kingsbury was talking, I could not help but think of undersea cables, because that is something that is a piece of infrastructure where there is a robust body of international law about that might be informative.

David Anderman

They do not think about it.

Tracy Reynolds

They should.

David Anderman

They do not think about it.

Tracy Reynolds

That is too bad.

David Anderman

They are thinking about, I am going to go build a solar collector with a battery system, and it is going to be interoperable. Think about that, because they want to serve as many customers as they can, but they want to be able to charge for it.

Tracy Reynolds

Well, but it is like what you and I are whispering about over here. Let us make new mistakes, because there is a whole body of law associated with critical infrastructure and extreme temperatures, extreme depths, all of that nature.

David Anderman

Yes.

Tracy Reynolds

Can we learn from that and maybe make new mistakes?

David Anderman

For sure. I do not think any of these start-ups are thinking about that. I think they will eventually.

Tracy Reynolds

Caitlin, do you have a comment?

Caitlin Poling

At the multilateral level, as we are talking about governance structures for space resource utilization or even high-level principles, some nations are pointing to deep-sea mining, UNCLOS, as examples for structures. We certainly get very wary of that because we are like, ah, benefits-sharing mechanisms, let us not get too far ahead of that, because this is not financially viable yet to turn a profit. Even if there were fully formed bars of gold on the Moon, it is not financially viable to bring them back to Earth and turn a profit.

David Anderman

There is plan for that. People always ask me, though, does Elon have secret diamond mines on Mars? There is no plan at SpaceX or by Elon Musk to make money off of going to Mars. There is no plan. At best, the plan is that the stuff you do while trying to get there generates money, like cheap launch and launching satellites and making a satellite internet. There is no monetary or fiscal plan for that mission of SpaceX.

Tracy Reynolds

Haris, what are your thoughts?

Remarks by Haris Durrani

Thank you so much. We have a whole literature on techno-politics all about infrastructure as a mode of governance, if you read Gabrielle Hecht on uranium mining in Africa or Timothy Mitchell on economic development in the Middle East.

It is an honor to be here. Thank you so much. I will preface this by saying I am a federal law clerk in the U.S. Court of Appeals for the Federal Circuit, but, of course, anything I say does not represent that court or my judge. I am going to try to speak mostly historically. There will be some present-day implications but mostly historically. My JD-PhD dissertation basically tells a legal history of the early communication satellites in the 1960s with special attention to the role of developing nations and decolonization, which I think is a slept-on aspect of the early formation of space law. It was not just about the U.S.-Soviet Union, but it was during a period of the global Cold War. For example, the irrespective of development language that we see in the space treaty comes directly from Brazil and a series of other developing countries and smaller European countries.

We are here to talk about science fiction, and I am in the unusual position of being a science fiction author but also a historian of science and a legal historian. We tend to think of the future and our imagination of the future as this rich resource, but I think equally important is the past. Benedict was talking about how lawyers tend to be lower-c conservative in our thinking. Everything has to fit into some prior framework. It has to look like it does. Sometimes we do exaggerate that, but at the same time, sometimes rumors of novelty are often exaggerated. The past is an incredibly rich resource, even specifically for the question of our panel, which is the use of science fiction for law.

What I will do for the rest of my remaining few minutes here is give you a few examples of how science fiction has been used throughout the history of space law, and maybe that can give us some import on how we think about today. Most science fiction writers—myself included—are actually pretty skeptical about, first of all, how prescient their work is, and then also on whether science fiction really should be used as a tool for influence, for social governance. I am also a huge Octavia Butler fan. But in the Parable series, she was supposed to write the third book about space travel, but the first two books are the president is saying, “Make America Great Again,” slavery returns, we have a massive carceral state. Whatever future we build has to be built from some kind of understanding of the past and the conditions in which we are in.

If we are going to talk about Dune, Dune itself is a kind of critique of the idea of prescience, of our obsession with visioneering, sometimes as the dangers of that. Sometimes science fiction can be a useful tool. In law schools, going back to legal science in the 1800s, the whole idea of looking at case studies and hypotheticals was born from the idea of the laboratory.

In that sense, Arthur C. Clarke famously thought of the geosynchronous communication satellite system in the 1940s after World War II and then later lamented not having patented the idea. He told a friend of his who was a patent lawyer and science fiction author who then wrote a science fiction story, which was basically just a law school hypothetical of Clarke walking into a patent boutique saying, “Oh, I want to patent my idea,” like do the law. It is basically just a law school exam hypo, but it basically predicts a series of legal disputes over communication satellites and patent law.

I know it can be useful, but I think it can be equally dangerous. For example, the L5 Society was an organization in the 1970s and 1980s, partly inspired by the sort of space colonization visioneering of Gerard O’Neill, and they are largely responsible for the U.S. Senate refusing to ratify the Moon Treaty. I know we can talk about whether or not the Moon Treaty was good or not. A lot of it had to do with the common heritage of mankind agreement. But I think there are many ways in which we might cast a little bit of skepticism over the use of visioneering.

I actually have a book—it is a history of science book—called The Visioneers by Patrick McRay, and he talks about Gerard O’Neill’s L5 Society and the Moon Treaty and says, “As with technology itself, when asking about visioneering’s value, perhaps it’s best to begin with the obvious question: For whom? It would be a mistake to conclude that visioneering is always benign.”

If you look at, for example, Philip Jessup, the lawyer we love to love, he had a book that he co-authored with Howard Tabenfeld on space and the Antarctic analogy, and he proposes a cosmic development corporation based on the East India Company. He says, well, this is good because it creates a legal process, a legal infrastructure, and it will prevent us from having to deal with Wilsonian self-determination from developing nations. That is visioneering. Do we like that?

For me, what is really important to think about is how science fiction and these sort of imaginaries of exploration are used in a practical sense. What is really being talked about? My PhD advisor, Dirk Hartog, has a famous article called “Pigs and Positivism,” where he talks about the difference between law and books and law and reality. Sometimes we have these ideas of what law is, but the way we articulate what the law is has itself its own function.

My dissertation looks at a huge aircraft company building the first communication satellites in geosynchronous orbit, and they actually advocated for a new set of regulations, basically a looser set of regulations, to get around existing common carrier regulations by saying, “We are going to create a totally novel piece of technology.” In their internal memos, they are like, “We are going to exaggerate this to get a looser regulatory regime.”

Even if you look at the formation of the Space Treaty itself, many developing nations wanted to have some kind of equitable sharing regime and even wanted to address resource extraction. And the United States and the Soviet Union both said, “Oh, no, let s kick the can down the road. Let’ us not deal with this now.” Whose speculation are we talking about? Are we talking about developing nations who are speculating about, “Oh, we are going to mine eventually. How are we going to regulate this?” Or is it going to be about the greater powers and corporations who may intentionally want to have a looser regulatory regime? I think it s not. We tend to say the Space Treaty is this old regime that does not work anymore. But I think it was intentionally built to be vague, and it is intentionally meant to allow for all kinds of different activities. I think it is not about necessarily changing what is there, but about changing the conditions in which that history of that law was built.

I was going to briefly mention another example. If you look at the first ITU conference on the regulation of communication satellite frequencies, in 1963, the United States intentionally—they called this “missionary projects,” where they sent their diplomats to countries in the developing world to try to get these countries to buy in to the American regulatory regime, where basically we were going to block off a bunch of frequencies currently used by existing radio systems, ground radio systems, and use them for communication satellites. Internally, the Americans were doing this to make room for our military satellites. But what we told the developing nations is, “We are going to include you in this new project of space exploration.”

Again, how is the language of visioneering used for ways that may be good and may be bad? I am not against corporations per se, but I am talking about how do we measure in what way is the language of space colonization actually helping us?

I am a bit more with Benedict on this, but I am also an engineer as well, and I am skeptical of the technical feasibility of space colonization. In the future, yes, but I think in the near future, not so. I wonder to what degree the premise of this panel, even though a useful starting point, is a way to distract from real issues. I think that in the Starlink contract, that clause is totally legal. There is nothing in the Space Treaty that says you cannot go on and ex nihilo create your own nation. It just says current nations cannot claim sovereignty. That is totally fine.

But I think the interesting question is it is not in a product for space exploration. It is in the terms of service for Starlink, which is about communication satellites, and we can have a whole conversation about Ukraine and who gets to regulate and control these kinds of very important technologies, not just for Starlink but OneWeb and Amazon’s project as well.

David Anderman

But Starlink was very specifically designed to be an interplanetary communication system for communication back from Mars back to Earth.

Haris Durrani

Right. But that is not what it is being used for right now.

David Anderman

Oh, I get it, but it is designed for that. One of the main purposes and to make money to go to Mars.

Haris Durrani

Right.

One last thing I would say on Mars is that dividual rights have been the foundation of the entire of Western liberal democracy. If we are talking about the American settlers, we wanted individual rights, religious freedoms. But also, in many ways, it is very similar because we were starving, and we relied on the Native Americans to provide us food and resources. In many ways, we are not dealing with new problems. These are very old problems that are taking in new guys, and sometimes some stuff is new but not always.

Tracy Reynolds

I appreciate all of these insightful comments from the panelists today, and one thing I always train on is let us make new mistakes, so going and looking at the old mistakes, learning from them, implementing them into a feedback loop so that we can do new and exciting things and screw that up instead.