Let's Talk Space Law! It's Law, but From OUTER SPACE!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:05 Matt: The Expanse really is what happens when you do not regulate space mining, it seems like.

0:00:08 Thomas: Hello

0:00:18 Michelle: Everyone focused on the wrong thing. We sent five people into space who had no training. They weren't crew. They couldn't fly a spaceship. We brought them all back safely. It's a huge step.

0:00:42 Thomas: And welcome to Opening Arguments. This is episode 1173. I'm your host, Thomas Smith, and we're doing something fun today, a little bit different. It's space law. Space law. It's law, but in space. And when you think about it, there's a lot of interesting questions about space law, like who owns what? Who owns the moon? If you get there and you just, a la Eddie Izzard, you just plant a flag on the moon, do you own it? How much of it? All of it, none of it. Well, you got to study sidereal property to know who owns the moon, maybe. How far up does, where is space? Where does anybody know? Where's space? Where does it start? Where does they get off? Some of these questions and other different ones are space law things that are real. And they're really interesting. I love space. And joining us to talk far more seriously about this very interesting topic is Professor Michelle Hanlon. So take a break from this planet for a moment, sort of. It's really interesting, and I'm excited to talk to Professor Michelle Hanlon about it. So we'll take our usual break, which you can avoid at patreon.com/law. Sign up, avoid the ads, support conversations like this one, and get that warm, fuzzy feeling. All right, after this break, we'll be on with Professor Michelle hanlon.

0:01:55 Matt: Our guest today is a space lawyer, which I think might be a first.

0:01:56 Ad: [Ad break 1 — ad music]

0:01:59 Matt: She's the executive director of the Center for Air and Space Law at the University of Mississippi School of Law, and the co-founder of For All Moon Kind, which we're going to be happy to talk about. So welcome, Professor Michelle Hanlon. Thanks for joining us.

0:02:10 Michelle: Thank you so much for having me.

0:02:11 Thomas: You're not in space currently, though.

0:02:13 Michelle: I wish.

0:02:14 Matt: Yeah, me too.

0:02:15 Thomas: Gotta go visit a client, you know?

0:02:15 Michelle: I want to do due diligence. I always say, send me.

0:02:20 Matt: You're right. You got to see the place.

0:02:22 Thomas: Well, you gotta have a few hit songs first, I guess, before they'll send you up.

0:02:26 Matt: That's right. I just could not wait to get off this planet for a little while and talk to somebody who's not practicing earth law. So I will just tell you straight up. Yeah.

0:02:34 Thomas: We're burned out on this whole earth law thing.

0:02:37 Matt: It really seems like you're the person to talk to for so much of this, but before we get going, I want to ask you a very important question because I know the open answer to this. Who is the Star Trek captain who could help us out right the most right now?

0:02:47 Michelle: Oh, Kirk. Hands down. No question.

0:02:50 Matt: Kirk, really?

0:02:51 Michelle: Absolutely.

0:02:51 Thomas: Oh, wow.

0:02:52 Matt: Getting into some fights and it's controversial.

0:02:54 Michelle: I think he's the most human of them all, right? Right?

0:02:56 Matt: That is true.

0:02:56 Michelle: He's the best model that we have. All the others are just a little too perfect. And let's be honest, humans, we're going to take all of our foibles with us wherever we go.

0:03:05 Matt: It's very true. And that really was the point. Star Trek has always been a very human show, but he really was a very important person. And I think it's very important the original human captain. I'm a Cisco guy myself, that cold logic and Shakespearean delivery. Delivery. Well, then again, if you want Shakespearean delivery, you've got Picard, of course.

0:03:17 Thomas: If we need a guy to punch a lizard and then kiss a girl inappropriately, Captain Kirk is our man.

0:03:22 Matt: Our ambassador.

0:03:23 Thomas: He's the captain for today's administration, I'd say.

0:03:26 Matt: That's true. I'm with you there though, I think. Can't go wrong with James T. Kirk. That'S something I've been thinking about a lot, actually. I've been, and I'm not a huge Trekkie, but just sort of out of nostalgia, I started rewatching Deep Space Nine recently. And I was just wondering about sort of the effect on all of us of a certain age who grew up with Star Trek of any generation and how that's sort of molded. Is that one thing that got you into space law?

0:03:47 Michelle: So I had a kind of unusual upbringing. My parents were both in the U .S. Foreign Service, and so I actually lived overseas my entire life until I came to the United States for boarding school. And one of the things that was shipped out to us as Americans living in places like like Madagascar and Dakar and Hong Kong were Star Trek episodes on Reel-to-Reels. And so I grew up thinking, you know, there was no other American television available to us. And So I literally lived Star Trek and my dad's Polish, my mom's Chinese, and I lived in all these places. So the bridge of the original Star Trek was very much my life. And I didn't know it was unusual until I got to, you Know, my uppity boarding school in Connecticut and realized, wow, everyone looks looks kind of the same here.

0:04:34 Michelle: Exactly. But no, it was absolutely the backdrop. I think the reason I have rose -tinted glasses firmly planted on my face, because that is sort of the utopia that I would like to live in.

0:04:31 Matt: Wow no vulcans

0:04:47 Michelle: Because it's not like the really weird utopia where I was eating just crystals and stuff, but it's just people are real and they look different and they're diverse and they have arguments, but we're all humans all together against, well, with and against the the rest of the universe.

0:04:42 Matt: Me too

0:05:01 Michelle: And I think for me, that's the most important part is that humanity finally understands that we're in this together.

0:05:00 Matt: Sure and the focus on exploration over profit which is certainly not where we're heading right now doesn't seem like

0:05:11 Michelle: We need to get there somehow. Now we were exploration over profit in Star Trek because we annihilated ourselves. So hopefully if we can get to that.

0:05:18 Thomas: Oh, okay. Well, then we're on the right path. Yeah. Right on schedule.

0:05:20 Michelle: Yeah. Well, yeah, that'S true. But this is actually one of the really wondrous things about space and space law is that I, again, wear very rose tinted glasses and I'm sure your viewership is rolling their eyes, or audioship, what do you call it?

0:05:37 Thomas: Listenership. Yeah.

0:05:37 Michelle: People who are listening in are rolling their eyes. But Frank White wrote a book called The Overview Effect and talked about what it's like to, how it changes you physiologically to see the Earth from space. And we've had about, depending on where you count where space begins, and believe it or not, space law does not have a demarcation of where air ends and where space begin. But depending on what you do, draw that line, about 680 or about 710 humans have been to space.

0:06:07 Michelle: That's not very many of us. Well, and I

0:06:07 Matt: Have to be more people that have been to space than are space lawyers at this point how many space lawyers are there

0:06:15 Michelle: Would be the first person to say, hey, I'm happy to punch those numbers up if you want to pay.

0:06:19 Thomas: Yeah. I can't believe there's no official demarcation line. I would feel like that would be task one of the Federation of Space Lawyers, you know, when you guys meet in the Galactic Senate or whatever. Yeah.

0:06:29 Michelle: But we're lawyers, right? Who wants a definitive rule? Who would pay for us to argue about things if there was a bright line rule?

0:06:37 Thomas: Fair point.

0:06:33 Matt: Sure yeah I did hear that when was it Katy Perry you're just talking about who went to space I can't even remember katie perry there we go because there was an argument about whether she was even in space, right? Because of that question.

0:06:41 Thomas: No, it's Katy Perry.

0:06:48 Michelle: Absolutely. Many people will use the von Karman line, I think 100 kilometers. And there is no international definition. Two or three countries have said, you know, for the purposes of our space law, we will use that number. The U .S. Defense Department uses that number, but it's not U .N. policy to accept that. And so the Outer Space Treaty, which is our Magna Carta, actually doesn't delimit space at all. We have no idea where airspace ends and where space begins. And of course, it's vitally important because you have sovereignty over your airspace, but you cannot have sovereignty in space.

0:07:22 Michelle: And so as we're looking at very high altitude vehicles, are they violating your air space or are they in space? Can you shoot it down or can you not?

0:07:32 Thomas: What's

0:07:30 Matt: So is that going to be a UN question at some point?

0:07:35 Michelle: You know, it's been a UN question since 1958. There's been a working group on the delimitation of space since the beginning of the UN Committee on the Peaceful Uses of Outer Space. And it says a lot about the international community that we haven't come up with an answer yet.

0:07:50 Thomas: That one line based on scientifically, if you know offhand? Is it like some amount of like atmosphere that gets down to or something?

0:07:54 Michelle: It has something to do with the amount of oxygen able to power your rocket.

0:08:00 Thomas: Ah, interesting.

0:08:00 Michelle: So when you go from using the oxygen to not needing the oxygen.

0:08:04 Matt: That's a good place to start when you're talking about the framework from 58, because the last time that we, as a globe, updated space law was 67, right? The Outer Space Treaty. Is that the last one?

0:08:15 Michelle: Well, the Outer Space Treaty was the first of five treaties that were negotiated in that time period. The last widely ratified one was the Registration Agreement. So you have the Outerspace Treaty, which is the Magna Carta, the Return and Rescue Agreement, which basically says if it's mine and it lands back on Earth, it's still mine. The Liability Convention, which talks about damage. And then the Registration Convention, which was an attempt to sort of keep track of everything that we send to space. And there was a fifth one, the Moon Agreement, which Was completely negotiated, but didn't come into effect until 1979, but now only has 17 signatories. So it does not bind the United States, Russia, or China who have not signed it.

0:08:53 Thomas: The main people have gone to the moon.

0:08:53 Matt: It seems like that. Yeah, wow. Wow.

0:08:56 Michelle: Yeah, exactly. So the people who have gone to the moon did not sign the Moon agreement.

0:09:00 Thomas: Something funny about that. I want to sign it too. I might as well have a say.

0:09:04 Michelle: But you got to think about why, because so we Right now, we sort of have this gray area about, can you own property in space? Can you not? Because we know we can't claim sovereign territory in space. That's one of the vital things about the Outer Space Treaty. But then the Obama administration signed a law which said, okay, you can't own territory in space. But you know what? If you scoop the territory up and put it in a shovel, then you can own it.

0:09:29 Michelle: And that's how we interpret, the United States interprets the Outer Space Treaty. But the Moon Agreement is very clear that even if you scoop it up and put it into your own shovel, you can't own it and so that's why sort of the big three haven't signed it.

0:09:42 Thomas: They're after our samples.

0:09:44 Matt: One reason I really want to talk to you is that you've been very outspoken in the last few years about the need for a new international framework as we're moving ahead so quickly with exploration and mining and obviously the privatization. I think you've written recently something like 83 % of our space program is now privatized, something like that.

0:10:01 Michelle: 83 % of last year's launches globally were by SpaceX.

0:10:05 Matt: Wow. That's too many, I think.

0:10:08 Michelle: They need some competition. That's very clear. Yeah.

0:10:11 Matt: I think so. I don't want to put a pin on that, but I was thinking though, I guess maybe you can explain that the framework that we have right now and what you think the best replacement would be.

0:10:18 Michelle: So we have this, as we were talking about, these four treaties that have been widely ratified. And you have to understand that they were negotiated in the 60s, where in the midst of a Cold War, where nobody trusts anybody else. And they're basically disarmament treaties, right? We didn't want war to overflow into space because it was really terrifying to think about space war. Fundamentally, they leave the freedom of exploration and use of space out there. You can do anything you want in space. There are very few few limits on it. The only limits are you cannot put nuclear weapons or weapons of mass destruction anywhere in space and bring

0:10:51 Thomas: Don't pick up any gooey eggs. That's the main, I hope we put that in there. Leave them where they are. Yeah.

0:10:57 Michelle: Them, definitely don't bring them back. And then that you have to conduct your activities in space with due regard for the activities of others. And you know what, that framework works really well when there's only two or three players in space, right? But now you have many, many more, many countries, and as you mentioned, many private companies. Interestingly, Interestingly, we have an Article 6 in the Outer Space Treaty, which says the nation is responsible for the national activities, even if they are conducted by non -governmental entities. And so this is the way private companies sort of get caught up into having to act in conformity with the Outerspace Treaty. So, like I said, you know what? It worked really well for a while. But in 1967, it was a really weird dichotomy because on the one hand, everybody thought we were going to have hotels in space within like five years. But on the other hand, we had no idea. Think about being Neil Armstrong and stepping off that ladder. You literally have no idea if you're going to sink into your chin or what's going to happen to you. So we had No Idea. And now we're starting to understand. And now, we're realizing, OK, well, we need to use the moon, right? Because there might be resources on the moon. I don't think we're going to get our next trillionaire in space or first trillionaire using resources on the Moon. We're going need to look to asteroids for that, right, all those things. Rare earth metals that are rare here on earth are abundant in space. We just have to figure out how to reach them. And the moon is our proving ground. And so now all of a sudden, we're like, what do we want on the moon? We want water. Okay, where is all the water? You know what? The easiest water to get to is in the South Pole. So now all of a sudden guess what? Everybody's going to the South Pole and we have no rules of the road. We have no stoplights, no right turn on red, no stop

0:12:40 Thomas: Space,

0:12:40 Michelle: Signs. We have no idea how to behave with each other under this regime that says freedom of exploration and use.

0:12:48 Matt: The moon really is going to have to be more of a launching pad, right, than a resource site. We're going to go on to future missions, presumably, and develop space hotels or bases or whatever we're doing. Is there any kind of international cooperation for that?

0:12:59 Michelle: Right now, we have something in the United States called the Wolf Amendment, which disallows any activity with China at all. And so it's going to be very hard to have international cooperation.

0:13:09 Thomas: Just like specifically what?

0:13:11 Michelle: I mean, this is why China is not involved in the space station. The US, the International Space Station, they built their own. The reasons for the Wolf Amendment were because of human rights abuses and because of all the technology.

0:13:22 Thomas: Espionage, corporate espionage.

0:13:23 Michelle: Thank you, espionage. Yeah. And so those are very real and legitimate considerations. But as long as we have that concept sort of governing our relationships here on Earth, it's going to be very hard to work in unity in space.

0:13:36 Thomas: Well, have there been any actual conflicts where this is, is this all like, hey, we better get get something going because who knows if a problem is going to happen or have there been some real cases where there's been conflict that we can't resolve?

0:13:47 Michelle: We're seeing sort of, I don't want to say informal conflict, we're seeing low Earth orbit getting crowded and we're saying countries start to complain about each other. China has complained about Starlink getting too close to its space station. Of course, the United States complained about the Russian ASAT test in 2021. We are now seeing concerns that that both Russia and China have launched satellites that seem to be following U .S. satellites. So in low Earth orbit, this has become sort of something to think about. We have not had any conflicts on the moon as yet, but, and this is something that's really important to recognize. I always say it's a race, and I get a lot of people, again, rolling their eyes, especially, you know, rose -colored glasses, but it's race. But it is, because our Outer Space Treaty says you must have due regard for the activities of others, right? Right. So if you get there first, people have to have due regard for you. And that gives you a huge first mover advantage. I'm here and due regard means you can't come that close to me. So I'm sorry, all this water is going to be mine because if you gets too close, you're going to ruin my equipment.

0:14:49 Matt: There's just no way to know if two different countries or different companies right now are planning to put a base on the moon in the same place if one of them is Chinese. Wow. That

0:14:56 Michelle: We have no exchange of information like that right now.

0:14:59 Matt: Seems inconvenient, potentially. But what about in the you were talking about, where do they take those complaints?

0:15:04 Michelle: To the United Nations, when we think about that, it was in December 2021, just shortly after the ASET test, that China sent a formal note for Val to the United Nations and said, you know, dear United Nations, under Article 5 of the Outer Space Treaty, which is the protection of astronauts, we would like to report a phenomena in space that is potentially harmful to humans in space. And that phenomena was Starlink. Two Starlink satellites had passed. The Chinese felt way too close to their Tiangong, their space station, to which the United States responded, hey, you you know what, we were tracking and they were not that close. And China, by the way, you know what, instead of going to the playground referee, why don't you just pick up the phone and call us and we can work this out without bringing everybody in the international community. And one of the biggest issues we're facing today is what we call space traffic management, because the United States in our constant benevolence has been like, we will provide you with all the information you need in space, just like we were happy to provide everybody with with GPS. But of course, no nation, no sovereign nation wants to rely on the United States for everything. So everybody has their own space traffic management models. And the problem is, you can't really see what's going on in space. And so it's all sort of physics and math. And I'd love physicists and mathematicians, and both my sons are engineers, but everybody, even with math, has a different opinion. Andso we've had situations where people have called up, India called up Russia and said, hey, you're 400 meters away from us. And Russia said, no, oh, you know, we're 600 meters away according to our calculations.

0:16:40 Michelle: So, you know, be quiet. We're fine. And so it's these very small little fundamental things you'd think we've taken care of, but we haven't.

0:16:41 Thomas: I mean,

0:16:46 Matt: And you're saying, when you say we, you're talking about any American company like Starlink or SpaceX that's under US jurisdiction, including not just the US government. That's one thing that the 67 Treaty just didn't account for. Is that right?

0:16:58 Michelle: Well, it was an interesting negotiation because Russia, the Soviet Union, did not want to even contemplate private activity in space. It was a very communist regime. Socialism was king. And I guess that's an oxymoron. But they felt like it should always be the government working. And the United States pushed back very hard. Andso the Soviet Union agreed, okay, we will contemplate private activity in space, but the nation has to be internationally responsible for anything that happens. And so we have this sort of odd article that says each country has a responsibility to make sure that their private entities act in conformity with the treaty.

0:17:37 Thomas: It kind of makes sense to me. I don't know. It seems reasonable. Yeah.

0:17:40 Matt: Yeah. So we are responsible for Elon Musk at the end of the day.

0:17:44 Thomas: Well, I mean good.

0:17:45 Matt: Yeah. Somebody should be.

0:17:45 Thomas: Can we set some limits on that guy? I hate Starlink. It's ruining the sky. I feel like the satellites is where most of the conflict is right now, right? I mean there's so many of them. It is just getting more and more crowded.

0:17:55 Michelle: You're absolutely right. And this is for somebody who is really focused on protecting cultural heritage in outer space, starting with the lunar landing sites. It's very frustrating because everybody's focused on the low Earth orbit, as well we should be. We need to figure out rules of the road for low Earth Orbit. You know, we figured it out on the high seas. If two ships, I understand, my son was in the Navy, I understand that there are rules of the road on the hi -seas. If you see a ship in a certain position, and it's this size or that size, one of them has the right -of -way. We need to figure something like that out for space.

0:18:27 Thomas: We need these satellites to zipper. That's going to be tough. We can't get people to do it on the freeway So it's going to be pretty tricky out there.

0:18:33 Michelle: But I mean, but that's even one thing. So for example, you don't like Starlink. I happen to love Starlink. Starlink is a new generation satellite that is very, very movable and it uses AI to make sure it maneuvers out of other places and it's built to be maneuverable. And so it's much safer in orbit than some of these older, clunkier satellites, which just are in orbit and they can't move out of the way. We need more agility on orbit. That Article 6, that authorization, that supervision, that responsibility, it's a huge burden, especially in a country like like the United States, which is the foundation for so much innovation, because ultimately the U .S. government is protecting the taxpayer. I'm team Elon. I will just come out and say it. But I will say when he complains about the FAA and not getting his licenses fast enough, the taxpayer will pay if something that you do goes wrong. And that's not to suggest that it will, but I'm kind of glad we have somebody looking out for the taxpayer."

0:19:32 Thomas: This episode is brought to you by Quince. Always love when I can talk to you about Quince because I wear Quince wearing some right now wearing my Quince shorts. Why do I always say I'm wearing my Quince shorts? Because I'm always wearing my Quince shorts and I'm a straightforward guy that's as simple as that. And Quince has the kind of stuff you'll actually wear on repeat like breathable flow knit polos, crisp cotton shirts, and comfortable lightweight pants that somehow work for both weekend hangs and dressed up dinners. And here's the absolute best part. Everything with Quince is half the cost of similar brands. And how is that possible? Well, they cut out the middlemen. Who likes middlemen? I don't think anyone. Quints sure doesn't because they cut outside middlemen and give you luxury pieces without the markups. And quints only works with factories that use safe, ethical, and responsible manufacturing practices and premium fabrics and finishes. We're fully in the throes of summer. It's July. And so I'm wearing my quints shorts more than I... I'll go ahead and own it every day. Pretty much every day, but here's the thing. I got a bunch of different pairs of them, so it's not as weird as it sounds. And they've got stuff you'll want to wear every day. It's so comfy, it lasts. That's my favorite part. Doesn't just disintegrate after going through the washer like some other stuff does that I won't name. And it's affordable. So what's not to like? So stick to the staples that last with elevated essentials from Quince. Go to quince .com slash OA for free shipping on your order and 365 day returns. That's Q -U -I -N -C -E dot com slash O -A to get free shipping and 365 day returns. Quince dot com slash O .A.

0:21:09 Ad: [Ad break 2 — ad music]

0:21:09 Matt: Recently commented a few days ago with your concerns, which I share, share about privatizing as much as we have, especially with one company. You just mentioned it now. Is there some way that we could prevent that or deal with this now? Because we're already seeing, I mean, we have the world's richest man threatening to not allow astronauts to return from the International Space Station, if I've got that right, using his vehicle. That's a very real threat.

0:21:28 Michelle: It is indeed. And I do think competition is important, not just so that we're not in this position where 83 % of launches are reliant on one company, but also because competition breeds innovation and it drives costs down. So we need competition. One thing we can do is the government can spend a little bit more money trying to support competition like Blue Origin, but think about it from the government standpoint. So I don't know if you've ever looked at the entire volume of procurement regulations.

0:21:50 Thomas: Can't say that I have.

0:22:00 Michelle: It's colossal. It is probably 12 feet of paper. Ever since George George Washington started purchasing arms. We've been very concerned about competition and making sure that there is no favoritism and making sure that we're protecting the taxpayer. So it puts the government in a really difficult place when SpaceX consistently comes in with the highest success rate and the lowest costs. How do you tell the taxpayer, well, we're going to pay $180 million more because we think we need competition? Well, now we have that use case. Now we can sort of point that out. But as we were building our commercial space industry, it made no sense to do that.

0:22:05 Thomas: How did this happen in the 60s and the 70s? You know, we didn't have Elon Musk then. Seems like we accomplished some pretty cool things. What's the difference?

0:22:44 Michelle: It was a very different model. So first of all, the NASA budget was some colossally huge percentage of the federal budget. And make no mistake, people were not happy with NASA either in the 60s. I mean, there were all sorts of protests, civil rights protests. You know, why are you putting a whitey on the moon when there are people hungry down here? But it was a different model, people built to NASA's specs. NASA said, I want this rocket and it shall do this and it shall look like that.

0:23:11 Michelle: And Northrop Grumman and Boeing built exactly what they wanted. And that was very expensive. And we saw, you know, sort of this growth in this procurement process where only the big companies could pay the lawyers to walk through all these regulations. And then that model shifted, I would say sort of under the push into Obama. And we started saying, well, wouldn't it be smarter? The commercial industry for services instead. There's also a unique decision point that we need a commercial space industry. We've recognized now for probably two decades that space is the future and space isthe future of the economy. You know, the way the aircraft, the airplane just came and changed the world, space is going to do that same thing. And so we've shifted the way we procure things. Andso now NASA procures services, not spacecraft. So now NASA wants to go to the moon. Moon. They don't say, hey, astrobotic, build me this. They say, Hey, we would like a ride to the moon. Who wants to take us? And that's what we have the commercial lunar payload program, the CLPS program. And that is how we have seen intuitive machines and firefly get to the moon.

0:24:22 Matt: It's funny. I was thinking of pushing back when you're talking about how we need competition today, because I was just thinking of just what Thomas was saying about the great accomplishments of NASA as a U .S. project. But of course, even then, we were importing the a competition from Nazi Germany to create our best work. So I guess it's not that much different when it comes down to it.

0:24:37 Michelle: Thank you for pointing that out because I don't think that is raised enough. And I am not suggesting that we wouldn't have gotten to the Moon without Adolf Hitler, but we do have to recognize that. And it is how he started, right? The foibles of humanity. There are a lot of things We have to think about it. And this is also something we need to think about with China. We recognize that rocket technology was built on some horrific labor practices, if not a lot more horrible things. And we turned a blind eye to that in order to beat the Soviet Union.

0:25:06 Matt: I'm just going to say to get Wernher von Braun here, we had to turn a blind eye to what he had done in Germany to build the Saturn V. So yeah, I guess that all comes around.

0:25:13 Thomas: But we were utilizing his expertise within NASA, right?

0:25:17 Matt: Right. Sure.

0:25:17 Thomas: I mean, it's still a little bit different than, I mean I kind of, I guess agnostic on this question, but I just it seems weird to me for one I've always supported a bigger budget for NASA I don't really it seems pretty tiny now and for two I just feel like every other place we've looked to privatize stuff it doesn't seem to go very well I'm not sure why it would go better in this

0:25:36 Michelle: And we've already proven it can go better with SpaceX. You know, the NASA space shuttle versus Dragon and the Falcon 9, the cost savings are incredible. In many ways, SpaceX is single -handedly responsible for the growth of the entire space industry because it was able to reduce the cost of launch exponentially. And so more and more people can go to space and do things that plus what is it Moore's law, like technology keeps getting smaller and smaller. So what you needed to use to have need to have the satellite the size of a bus for today, you can fit that same technology onto, you know, a small satellite or a cube satellite, which also makes it much much cheaper to launch. But no, I think that was a win in terms of assessing privatization. And now we're seeing the downside of that, the con. What I can't tell you is how is it that SpaceX beat everybody else by so much? ULA was a joint venture between, I should know this, I'm embarrassed, let's just say

0:25:47 Thomas: Instance

0:26:36 Michelle: Northrop and Boeing, right? All of that engineering knowledge, and yet it's SpaceX that was able to figure out how to do this more effectively and more cheaply.

0:26:45 Matt: I do take the point you're making about how we're going to have a private space industry. It has to exist to some degree. And one focus of that is going to be mining and extraction. And that's something the government probably isn't going to do. You've written a bit about this, about how you're going end up with a wild west in space if we don't do something about it pretty soon here. What is the worst case scenario here if we don't start to regulate?

0:27:03 Thomas: Firefly the show fire there now we're talking my language love that

0:27:06 Michelle: Yeah, I do.

0:27:06 Matt: Or the Expanse, honestly. Have you guys seen the Exbanse?

0:27:09 Thomas: Course but uh yeah I gotta say if we're talking Western I think Firefly

0:27:10 Matt: One of my favorites, yeah. Well, that's true. That's true, but the Exvanse really is what happens when you do not regulate space mining, it seems like.

0:27:13 Thomas: Has it yeah Yeah. Yeah.

0:27:13 Michelle: Yes, the fireflies are better. Yeah, yeah. It's really interesting to think about. And people always ask me, what's the first law you would apply? And I have to say, look, I have no idea. I've never been to space. I'm never been To the Moon. If we learned nothing from the Revolutionary War, it's that you have to let the community that's there figure out how to govern themselves, hopefully within a framework that includes human rights and so forth. And so, you know, one of the things, my view is, okay, worst case scenario, we have multiple private and sovereign parties landing on the lunar South Pole, and they end up either landing on top of each other, because we have had no communication about where anybody's going, or, you know, both lay claim, both are beside some huge vein of ice, and both make a claim to it. How do we resolve that conflict? Don't forget, you we are going to have piracy as well. I mean, we can't see the far side of the moon. What happens if somebody has built a mine there and then somebody else comes along and takes it? This book, Delta V, talks about somebody coming in and actually taking over somebody else's asteroid mining mission and taking those profits. So those are the kinds of conflicts we need to worry about. And those seem far off, but they're really not when

0:28:31 Michelle: We think about both China and the United States plan on having lunar installations by 2030.

0:28:37 Matt: Well you mentioned before when we were talking about Loith Arbit about the international referee, and just because this is a field of law that I know next to nothing about, I'm sure most of our listeners don't know anything about. Who is that referee? How does that actually work?

0:28:48 Michelle: The ICJ, the International Court of Justice, yeah, there are no enforceability clauses in any of the treaties. The Liability Convention sets up a very sort of, it's not complex, but for space, it seems a little silly. You will go through diplomatic channels. And if you can't resolve that through diplomatic panels, then you will create a panel and then the panel will make a decision within a year. And then you can or cannot agree with what the panel did. It's very public international law, right? Sure, well, you can go to court. That's fine. Have fun. Okay, the court said that. Great.

0:29:22 Michelle: Well, you know, that was a fun exercise for you and a waste of your taxpayers' money. We're not going to pay attention.

0:29:26 Thomas: If Netanyahu steps on the moon, someone has to arrest him. But I don't know if that's ever going to happen.

0:29:31 Matt: Sure. Yeah, so what's the alternative? How do we fix this?

0:29:35 Michelle: So we prevent conflict. We avoid it. We do things like tell each other where we're going. And the good news is the steps are being made towards assuring that. So the United United States sort of jumpstarted everything with the Artemis Accords, which were developed under Trump 1. They're a set of principles that say, this is how we are going to interpret the Outer Space Treaty. And this is how we are going to behave with respect to each other. And in that section 11, they talk a little bit about safety zones. We recognize that we need to set up some sort of due process zones or due regard zones, or we're not going to call it property because we're Not allowed to have property in space, but we are Going to start structuring something. Thing. And so that actually caused a lot of consternation, mostly from Russia, a little bit from China. But now the UN Committee on the Peaceful Uses of Outer Space actually has two groups. One's a working group on space resource utilization, and the other is an action team on lunar activity consultation. It's called ATLAC. Not to be confused with AFLAC, ATLAC. And that is supposed to be an information sharing platform. And I'll be back in Vienna in about a week and a half where they're going to talk about what that might look like a little bit more. And so hopefully that will be up and ready. And at the very least, you can have people say, oh, this is where we're going. And maybe you can have arguments about it, or, you know, negotiate

0:30:55 Michelle: That even before we get there.

0:30:55 Matt: And that is what I found so fascinating about space law, is that we know there are all these things that are going to happen, and a whole bunch of things we don't know that are gonna happen, that we have to make laws for now. And just looking at the Journal of Space Law, which your center puts out, I think it's the oldest space law journal.

0:31:12 Michelle: Yes, it is.

0:31:12 Matt: I started browsing it the other day, and I just couldn't stop. But things like just in the current issue you about the impact of special relativity on the operation of law in the context of deep space missions. That's incredible. That is such a cool thing to talk about. We won't live to see any of that, but we've got to start thinking about it now. But this, of course, the stuff you're talking about is very grounded in things that are going to be happening in the next couple of decades.

0:31:33 Thomas: I just had a bar question on the mailbox rule. Imagine that. But with time dilation, you know. No, I accepted your contract, your offer. But I was near a big old star.

0:31:37 Matt: On the moon. Yeah, that's right.

0:31:44 Thomas: So it happened a while ago.

0:31:47 Matt: And time was going twice as fast. Yeah.

0:31:49 Matt: I'm an immigration attorney. So I've been wondering what happens if you're born in unincorporated territory on the moon or in mars or in space and you have to come back and immigrate back to earth yeah

0:31:57 Thomas: I feel like a lot has to go wrong for that to happen. Or maybe not.

0:32:00 Matt: It's gonna happen I don't know

0:32:00 Thomas: I don't know. Yeah.

0:32:00 Michelle: Yeah, this This is what we know. If you send an object into space, you've retained jurisdiction and control over that object. So easy peasy. If you're born on a U .S. space station, then you are probably American. And you know, you probably how that would work immigration wise. I don't know if you'reborn on a cruise ship, what happens? But then the next question is, okay, what if something is made? Because we know we're not going to go to the moon with bricks and mortar, right? We're going to be making things from resources that are in situ. So So they aren't U .S. objects, but they're made with U .s. objects presumably, right? So if you are born in a habitat that was created from lunar resources, then do you go to, yeah, mankind, see?

0:32:42 Thomas: Ooh. Citizen of the moon.

0:32:46 Matt: Yeah that actually brings us to your organization for all mankind which as you mentioned before you're trying to preserve cultural heritage which is there more cultural heritage besides the landing sites on the moon or is that what you're working

0:32:47 Thomas: For all moon kind.

0:32:59 Michelle: So there are more than 115 sites on the moon that have evidence of human activity on them. So it's just not Apollo and Luna, it's Chang 'e and Chandrayaan and a bunch of failed stages of rockets and so forth.

0:33:10 Thomas: Plus, I don't know how bad that one guy's golf game was. Like, if you had a bad day out there, there's going to be a lot of divots, you know?

0:33:15 Michelle: I know. No, and I understand his buddy said he shanked them both.

0:33:20 Thomas: Well, the spacesuit doesn't allow the mobility that you need for a proper turn, you know. I'll talk about it in my lecture series on moon golf.

0:33:21 Michelle: So, yeah, yeah. Yes, the golf ball is incredible heritage, right? Because people think about the lunar landing sites and they think about a bunch of metal and, oh, it's so inspiring to see, you know, the Eagle. And I see it very differently because the Apollo missions were amongst the most well recorded events in history. We all know we can hear Neil in the back of our head saying one small step, but it's the the things that weren't captured that I find really fascinating. And it's not even the golf ball. There's a story, it is Apollo 15, I think, one of the first sets of wheels, human-driven wheels on the moon. And the mission control is watching every move. And so they were supposed to get back to the lunar module because they were running out, they were concerned they were running out of air. And they said, okay, you're done collecting today, go, do not stop again. And blanking on the name of the astronaut was like, oh, wow, that's a really cool rock over there. So he had his partner block the camera. And then he said, oh, geez, my safety belt needs to be adjusted. So I'm going to stop and adjust my seatbelt. So we stopped, got out, picked up the rock, and then they went on. And nobody knew that till they landed back on Earth. And the scientists were like, what the heck is this rock? And it's now called the seatbelt rock. But think about all the things like, do you really believe that not every single one of those men carved their initials into the regolith? I mean, wouldn't you do that? Of course you would. Those are the stories that I'm interested in, is understanding the humanity piece of it. And I also, it's so important to think these aren't just artifacts. They're not just relics. This isn't like I'm like some space archaeologists and I really care about preserving history. This is so much about the future and recognizing that we don't get to the moon without the entirety of human history to get us there. Sure, it was an Apollo program, 400,000 Americans. But you know what? Copernicus did the math. And before that, Egyptians and Iranians and Chinese were looking at the stars. And Before that, you know, somebody picked up sand and made it really hot and made glass. You don't get to the moon without glass.

0:35:35 Michelle: Even before that, somebody in Tanzania stood up on two feet and freed up our hands. And we don't get to the moon unless we did that. So this achievement encompasses sort of, it's the glory of the human species. And that's what we need to protect.

0:35:48 Matt: This is so interesting to me because one of my favorite kinds of guests that we talked to here are people who have just seen a need and are going to do something about that need. And we have UNESCO already for world heritage sites, and they at no time thought about the possibility of extraplanetary heritage sites. That's just not a thing.

0:36:03 Michelle: So the problem is, UNESCO, you can only nominate a site within your territory.

0:36:09 Thomas: We need that moon baby to do it.

0:36:11 Michelle: Yeah, as well. I had the General Counsel of the European Space Agency was like advocating for a treaty on protecting cultural heritage in outer space. And he said, it'd be easier for you to get every nation on Earth to nominate something on the moon than it will be to get another treaty. But that would essentially be what we need to do. And so I approached UNESCO five or six years ago, and they were just like, no, yeah, we can barely do it here on Earth without getting into conflict. So we don't even want to be involved. But interestingly, they did say, oh, but if you figure it out, you know, we can apply those same rules to the high seas, which are non -sovereign. So yeah, you keep us posted.

0:36:44 Matt: Oh, interesting. So

0:36:49 Thomas: This show is brought to you by HIMS. Look, some things can be uncomfortable to talk to the doctor about. What is comfortable to talk with the doctor, Pat, actually? There's not really much where it's like, I can't wait to talk to my doctor about X, you know? Like, what is that thing? But some things are more uncomfortable than others, and something like ED is one of those things. But that's why HIMS is so great, because you can avoid those awkward in-office visits for things like ED and take care of the process 100% online. Through HIMS, you can access personalized prescription treatments and they offer access to ED treatment options that cost 95% less than brand names. All you have to do is fill out an intake form on their site and connect with a medical provider who can determine if treatment is right for you. No insurance is needed and one low price covers everything from treatments to ongoing care. If prescribed, your medication ships discreetly to your door for free. With hundreds of thousands of subscribers, HIMS can help you find the ED option that works for you. So start your free online visit today at HIMS .com slash opening. Find ED treatment that's up to 95% less than brand names at HIMS .com slash opening HIMS dot com slash opening actual price will depend on product and subscription plan. Featured products include compounded drug products, which the FDA does not approve or verify for safety, effectiveness, or quality. Prescription required. See website for details, restrictions, and important safety information. HIMS .com slash opening.

0:38:23 Ad: [Ad break 3 — ad music]

0:38:24 Matt: Tell us a little about For All Mankind. What are you up to?

0:38:26 Michelle: So we are really excited because in our six years of existence, we've been a permanent observer to the UN Committee on the Peaceful Uses of Outer Space. And we've made tremendous leaps and bounds from, you know, we didn't make up this idea of protecting heritage on the moon. NASA has guidelines, voluntary guidelines that they promulgated in 2011. But we recognize the need for international collaboration. It's not going to be good for anybody if every nation is like, Like, oh, this is heritage, you know, my first Mexican footstep on the moon. No, this has heritage, and so we really need to make sure that heritage doesn't get weaponized or made used to claim territory. The Chinese, for example, have used some shipwrecks in the South China Seas to claim territory all the way out there. Well, that's our ship, so clearly our territorial waters should go beyond what you think.

0:39:16 Matt: That's not how it works.

0:39:17 Thomas: Yeah, it doesn't seem like it.

0:39:18 Michelle: Yeah, but it'd be very easy, as we've seen the lack of enforcement provision, to say that for the moon, right? Right. Oh, this is Chang 'e 6. And it's really, really valuable to us. So please don't come in within 50 mile radius of it. That will be what we would consider to be due regard. So we don't we don't want that. I just saw not only, you know, it started as very much a knee jerk, patriotic reaction. I grew up overseas. That flag means so much to me every day. I saw the Marine security guards protecting us. And, you Know, the idea that somebody could go up and tear down that flag just just really irked me. But now it's very different because now I've drunk my own Kool -Aid, to be honest.

0:39:58 Michelle: I really believe that we can find agreement only through heritage because that's something we agree about on earth. Even though UNESCO doesn't know how to deal with heritage that's found beyond sovereign bounds, everybody has signed the UNESCO World Heritage Convention. Every country has statements about how important it is to protect history as a piece of humanity, not under national terms. And I think that's the first place we're going to find agreement in space.

0:40:22 Matt: What is For All Mankind doing in that direction?

0:40:24 Michelle: So we are advocating. We have advocated at the national level. We worked with Senator Gary Peters and got the One Small Step to Protect Human Heritage in Space Act back in 2020, signed by President Trump. We were instrumental in getting a section in the Artemis Accords, which is those principles that the U.S. developed in conjunction with several partners. Now 54 nations have signed on to the Artemis Accords and Section 9 recognizes that we have cultural So it's the first multilateral agreement ever to recognize that there is something called human heritage in outer space. And we've been advocating at the UN level as well. And for the first time, we've got two nations, Poland and the United Kingdom, have agreed that perhaps cultural heritage ought to underpin anything we do within the ATLAC. I was talking to you about that action team on lunar activity consultation. And so we're making huge inroads in respect of getting the international community to understand, first, the hardest part. First, we have human heritage in space, and now we're moving on to, okay, this is how we can protect it. When we first went to the UN in 2018, the delegate from Greece was like, we've only been on the moon for 50 years, you know, heritage needs 5 ,000 years.

0:41:38 Michelle: So it's really sort of changing perceptions about what heritage means and what its importance is, right?

0:41:44 Matt: I just had a really visceral reaction when you were describing somebody going after the Apollo landing site. I'm with you there. That seems like a really good place to start to get international cooperation on rethinking, or at least updating all of this.

0:41:54 Michelle: I am that annoying person that doesn't stop talking on the sidelines. And I've approached the Russian delegation, the Iranian delegation, the Chinese delegation, Venezuelan delegation. Not one delegation has said to me, that's a really dumb idea or that's about. In fact, only one or two people have ever said to me that was a really dumb idea. They shall remain unnamed, but they know who they are.

0:42:17 Matt: Yeah, it's really interesting contrast here, though, because I share your idealism completely about what the space can be and what it should be and how it can be a new era for human cooperation, how it should have been that way since the 60s. And I think Thomas and I both have some skepticism about privatization of space and where that goes and trying to balance those things. Do you think that is something that we can continue to balance the international goodwill exploration with rampant commercialization, space tourism, space mining. Do you see those working in harmony?

0:42:46 Michelle: I do see them working in harmony. I mean, I think the vision of freeing up the government to do the deep exploration, the stuff that's really cool and expensive, you know, I love the idea of sending a submarine to Europa. You know, like, how cool is that to build a spacecraft, to build an airplane, to get to Europa?

0:43:04 Matt: Awesome.

0:43:05 Michelle: But there's no financial value there. I do think that that is the role of the government, to continue that kind of activity. The commercialization aspect I just see is very different. I see that as a logical progression of the world's economy. We came so far and built so much on aviation. Doing the same with space is just the next step. Yeah. When you think about aviation, how did it start? Well, when it first became commercial, first it was mail. And then somebody said, hey, I have an idea. Let's offer lunch on an airplane. So a bunch of rich people would go up in an airplane for two or three hours, have lunch and land. Well, what does that sound like to you? Maybe like a pop star going up for 10 seconds and landing. That's how we get the price down, is we get really rich people to go to space for 10 seconds more power to them and then maybe in my lifetime it'll be affordable for me

0:43:48 Matt: That's a very good point. I've read before that just a cross -country flight used to be just incredibly expensive, unbelievably expensive. That makes a lot of sense because I would love to buy a ticket to space before I die. I'm hoping within the next 15 or 20 years, that's something affordable. Maybe. Are we getting there?

0:44:08 Michelle: I agree I don't know what is affordable to you but for me it would be well under a hundred thousand dollars

0:44:15 Matt: Yes, thinking like a flight to Europe.

0:44:15 Michelle: So um if yeah yeah I'm gonna go out on a limb and say yes in two decades you will be able to fly into space for the price of a ticket to europe

0:44:26 Matt: Maybe you don't have to train in a swimming pool or anything. You you can just jump on.

0:44:29 Michelle: No I mean I think and as much as katie Perry was maligned for that trip. I think everyone focused on the wrong thing. We sent five people into space who had no training. They weren't crew. They couldn't fly a spaceship. We brought them all back safely. It's a huge step. That's what we should be applauding.

0:44:47 Thomas: Since Bruce Willis and the other heroes in Armageddon did that. Not since then have we had such an accomplishment.

0:44:52 Matt: It's true. Is there anything we haven't talked about that you wanted to get into?

0:44:57 Michelle: The one thing that I think people really forget about is just how much we depend on space as a society, as a global society, but in particular as an American society, trying to encourage people to embrace space and to recognize you don't need to be an engineer to be involved in space. There's so many space -adjacent jobs and opportunities, and there's so much way to harness the resources of space. I talk a lot about the moon, and I know people's eyes glaze over all the time. I was out in rural Virginia a month ago needing to help my parents replace the roof on their home, and yeah, I had like five or or six bids from rural contractors. And one of them came in with a satellite photo of the roof with all the measurements and his entire bid was based on satellite data.

0:45:40 Michelle: And I'm thinking, wait, wait, you're in rural Virginia. So like, wait what? And he was innovative enough to realize I don't need to get up on your roof and measure with a tape measure. I can do this with satellite data and it's cheaper and it'S safer and itS faster. And this is the way we all have to start start thinking about space.

0:45:58 Matt: I'm just going to ask you a question. I've always wondered. I don't have the answer to. What happens right now? And I guess let's say unincorporated territory in the moon. What happened if, let's just say these are people from private companies, that there's a murder on the moon, which will happen eventually in human history if you run things out. Who is the jurisdiction there? Where does it go?

0:46:14 Michelle: So, I mean, that's going to be your personal jurisdiction, right? So where are you from? What we've seen, and there have the, you know, I don't know if you remember, there's a big crime on Space Station when the astronaut was accused of accessing her partner's bank accounts fraudulently. And so Space Station actually has rules, the laws of whichever segment you're in apply.

0:46:34 Michelle: And for example, if somebody had gone over to the Russian segment and caused an altercation there, then you would be bound by Russian law. What's going to be interesting in terms of jurisdiction is that Article 6, right? The government, the state is liable for any national activities, even of their non -governmental entities. And so if you're an American and you go and assault somebody from Finland, is it the Finnish government? Under the law, the Finnish government goes and sues the U .S. government. And that's one of the first things we need to to do in terms of space law is separate that, because we can't have, especially when we think about having space hotels, we can'T have every slip and fall turn into a diplomatic incident.

0:47:20 Matt: Well, and also even in that example, Finland doesn't presently have space programs as far as I know, so they wouldn't be able to extradite you, because typically with extradition, the person is retrieved by the country that wants you, right?

0:47:30 Michelle: Exactly. Yeah.

0:47:31 Matt: So how does that even... I mean, I hadn't even thought about space extraditation. I guess we'll have space courts soon enough. Is there any talk about space court full on?

0:47:38 Michelle: UAE in particular is trying to create a space arbitration, sort of become the headquarters for space arbitvation. There are some space arbitation rules that were promulgated maybe a decade ago. There's sort of a feeling, sortof, I don't think it's really gelled yet at at all because nothing really happens until something happens. But we've had such success with the Montreal and Warsaw Conventions in creating at least the same law about liability. And the idea is definitely amongst lawyers that we ought to have a dedicated space court because nobody wants to be explaining these same issues over and over to different judges who don't have the expertise.

0:48:15 Matt: I was a little surprised when you said the ICJ has jurisdiction at the moment, because that seems a little too broad. So yeah, no, there's so much more I'd want to ask you, I'm sure I could come up with, but I really appreciate you coming on. This is so much more fun than talking about anything else we've been talking about in the last couple of months, I got to tell you.

0:48:29 Michelle: I don't know. I haven't listened to it yet, but on the Boeing I'm really looking forward to listening to that.

0:48:36 Thomas: Yeah. Boy, that was interesting. Interesting.

0:48:36 Michelle: So the most important thing for me is to make people realize that this is our accessible future and to start thinking about humans in space instead of states in space and thinking of space as a place, not as a legal regime and really moving us into the next step towards being a truly multi -planetary species. Sure.

0:48:48 Matt: Great.

0:48:57 Thomas: Well, if folks want to find out more about your work or anything that you want to send our listeners to, feel free to do that right now.

0:49:06 Michelle: I mean, everybody in space needs lawyers. So we have the only air and space law LLM program in the United States here at Ole Miss. For those of you who aren't lawyers, in August 2026, we are going to be launching our Master of Science of Air and Space Law. So you can get your master's degree. Agree. Yeah, exactly. Masters of the universe. There we go. So you don't even have to be a lawyer to learn about all this really fantastic stuff. So we're at mlhandlin .olemiss .edu. It's the easiest way to find me. And I look forward to everybody asking questions.

0:49:27 Thomas: Oh, it's not master of the universe. No. Okay. Cool.

0:49:47 Thomas: Excellent. Well thank you so much for taking the time. We really appreciate it.

0:49:49 Matt: That was fun.

0:49:50 Michelle: Thank you so much. Appreciate it.

0:50:10 Thomas: Yeah. If we need a guy to punch a lizard and then kiss a girl inappropriately, Captain Kirk is our man. They're after our samples. We need that moon baby to do it.