Below the Radar Transcript
Episode 50: Far Out: Outer Space Law — with Michael Byers
Speakers: Rachel Wong, Am Johal, Michael Byers
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Rachel Wong 0:06
Hello listeners, I'm Rachel Wong with Below the Radar, a knowledge mobilization podcast. Below the Radar is created by SFU's Vancity Office of Community Engagement, and is recorded on the territories of the Musqueam. Squamish and Tsleil-Waututh peoples.
Rachel Wong 0:22
On this episode of Below the Radar, our host Am Johal is joined by Michael Byers, an author and professor of political science at UBC. He is also the Co Director of The Outer Space Institute, a transdisciplinary international network for space studies. Michael's work focuses on international law, climate change, the Arctic and outer space, he sits down with Am to chat about Arctic sovereignty, international cooperation, space law and issues in outer space.
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Am Johal 0:57
Welcome Michael Byers on Below the Radar.
Michael Byers 0:59
It's great to be here. Thank you,
Am Johal 1:01
Michael, we're here to speak with you about space law but before I get started on that front, your background is in global politics and international law and you started out doing your academic work, writing about international law. I’m wondering if you can start out telling us a little bit more about that.
Michael Byers 1:18
Well, I've always been interested in how powerful actors are constrained and redirected by rules and institutions by legal systems. It's almost a magical element of human rights and democracy that we can constrain the powerful with rules. And we can actually persuade the powerful to make rules that constrain their actions later in time. So that's where I went with my career, first of all, going to law school at McGill, and then going to Cambridge University to do a PhD on the role of power in the formation of something called customary international law. And that took me into a career as a professor first at Duke University, and for the last 15 years at UBC. And in the course of my research on the interaction between law and power, I periodically take up major case studies. So I focus on a particular area of interaction between law and power. So I've looked at armed conflict, I've looked at human rights, I've looked at the Arctic oceans, and now I've started working on outer space. I'm particularly interested in frontiers because there are opportunities to make a new reality, things aren't yet decided on a frontier.
Am Johal 2:37
When you were studying in the UK, you sort of fell upon getting involved in the Pinochet case.
Michael Byers 2:43
I did. I literally fell into that case, in that there was a very distinguished senior professor of international law at Oxford named Ian Brownlie, who was asked to represent the human rights organizations in the Pinochet case, and I quite literally carried his briefcase into those proceedings before the House of Lords.
Am Johal 3:05
And more recently, since you've been back in Canada, teaching at UBC, you've written a book, Intent for a Nation. You've been looking at questions of Canadian sovereignty, and also, more recently work in the Arctic and climate change specifically.
Michael Byers 3:21
Yes, I'm, I'm always both perplexed and concerned about how little influence Canada has had on major world issues over the course of the last several decades, since Lloyd Axworthy, was foreign minister, and led the creation of the International Criminal Court in The Land Mines Convention. We've really been sitting on our hands for two decades now and I find this disturbing because the world needs progressive middle powers to show leadership to contribute to making the world a better place and Canada is one of those countries that, that could be stepping up and we haven't been doing so. But at the same time, I also see it as an opportunity. We haven't been showing much leadership. Well, let's, let's get working. Let's make up for these two decades of absence and roll up our sleeves and get to work in cooperation with other Western democracies and developing countries. You'll want to ensure that the powerful are constrained and that their people have a better world in which to live.
Am Johal 4:29
Now, you mentioned that you have a particular academic interest in frontiers in power and just sort of looking at on paper to move from what you've studied to all of a sudden studying Outer Space Law and issues that come up with power. I'm wondering if you can talk a little bit about how you sort of fell into this area to some degree and in some sense, it follows what you're doing but it can be a bit of a stretch to understand how it comes together.
Michael Byers 4:54
Well, it's not a stretch when you study the Arctic and find out that the media narrative considering the Arctic is entirely wrong. The media portray the Arctic as a, as a new Cold War, a place of impending conflict between Western countries and Russia. And they warn of the entry of China into the region and that's a complete illusion. There's no reality to that. The interesting thing about the Arctic from our governance perspective is that Western countries and Russia cooperate very closely in institutions like the Arctic Council, and China is playing a very cooperative role joining Russia and the Western countries in an agreement to have a moratorium on fishing in the central Arctic Ocean because of the threat of climate change and the scientific uncertainty resulting from that. You know, people got really excited two years ago, when the Chinese sent a research icebreaker through the Northwest Passage. I had to spend a week persuading journalists that this was not an invasion of Canadian territory, because the Chinese government had actually sought Canada's permission, and invited a group of Canadian scientists on board for the transit. And I discovered the exact same thing happens in space. So right now, there are three Americans in one Italian on the International Space Station, along with two Russian cosmonauts, and all of them got there, on top of a Soyuz rocket, and they're all coming down in Soyuz capsules. There is seamless cooperation in space, and it extends to other areas in space. So since 1979, we've had an international organization based in Montreal, called Cospas-Sarsat, that coordinates the use of satellites for search and rescue purposes and since 1979, has saved over 45,000 lives. Now, both Russia and China are part of that organization and I could go on and on. And I've, as an academic, I've theorized about why there must be so much cooperation in the Arctic and in space. Part of it has to do that these are cold, dark, dangerous places and so human lives are often at risk. And so there's a humanitarian impulse to some of this cooperation. But it's also the drive for knowledge for science. The International Space Station is the world's greatest laboratory. It exists in microgravity, it's the most expensive piece of equipment that humankind has ever built. And we work hand in glove with the Russians in that scientific enterprise. So there's a lot going on here that I think can illuminate cooperation elsewhere in the world, where there's a lot more going on, there's a lot more density of interaction in the South China Sea, for instance, or the Middle East. But when you start pulling back the layers of the onion, you find intense cooperation in every region of the world. It's just that there's a lot of dispute and chaos on the surface that is focused upon by the media, by pundits, and therefore by politicians.
Am Johal 5:00
For a lot of people, the notion of space law would seem conceptual, and abstract, and at the same time, fascinating. But of course, it has a history, people have had to walk through different types of conflict that function in outer space, and probably has to do with military and other types of things. But the things like satellites and other things that happen and requires a kind of coordination and adjudication of different issues that arise but wondering if you can sort of talk a little bit about where space law emerges from historically and kind of the issues that arise now?
Michael Byers 8:19
Space law was required the moment that the Soviet Union launched Sputnik into orbit, because international law was created as soon as that satellite started to go around the Earth, because every other country accepted the right of that satellite to pass over their territory. So it wasn't really like airspace, it was treated as something new as a place of open access to anyone. The very next year in 1958, the United Nations created the Committee on the Peaceful Uses of Outer Space and the Soviet Union and the United States and other countries began working together to create space law. And this effort culminated in the 1967 Outer Space Treaty, free access to space, prohibition on nuclear weapons in space, duty to rescue astronauts in distress, an obligation to ensure that every spacecraft, every satellite is registered with a national government with absolute liability attaching into any damage cost and that body of law remains in force. It's been augmented by a number of other treaties and a whole lot of what we call soft law, international guidelines, the most recent of which were adopted just a few months ago in Vienna by this United Nations Committee on the Peaceful Uses of Outer Space with regards to the problem of space debris, of space junk building up in orbit. So there's a very robust and extensive body of law and again, it's followed very closely by most countries most of the time.
Am Johal 10:01
Now when it comes to certain, where does the jurisdiction of outer space law begin? Like if people are raising questions like geoengineering, for example, putting stuff out into the air in the atmosphere, at some point, there's a line at which things are decided within existing international guidelines within outer space, where does it begin?
Michael Byers 10:24
Well, there is no agreement on that and the reason there's no agreement is that it doesn't matter. At some point, aerodynamic lift ends and airplanes can't fly and a little bit higher than that, you can get the lower range of an elliptical orbit. And if you can orbit, you're in space and if you can fly, you're in an aircraft and in some parts of the world that's higher and lower than another part. So for instance, the atmosphere is thinner at the poles than it is at the equator. The only development that's posing any problem in this regard is Richard Branson, and Virgin Galactica, which is essentially proposing to fly people to the upper limits of the atmosphere, so they can experience a minute or two of what they think is weightlessness, and see the darkness of space, and pay Richard Branson a heck of a lot of money for that opportunity. Are they going to space?
Michael Byers 11:20
Well perhaps and you know, if there were to be some kind of accident involving an aeroplane or a spacecraft from another country, you could get the lawyers involved. But you really have to look hard for scenarios where this distinction between you know, where is the line would actually matter?
Am Johal 11:37
It seems to me the way that you're describing it, space law kind of comes out of a spirit of international cooperation but certainly issues arise that need to be adjudicated from time to time, things like asteroid mining, or other points of conflict that might arise and what are the kinds of emerging issues that come up in the way that different nation states or international organizations are looking at the formation of this law, because clearly, there's a lot of different perspectives?
Michael Byers 12:06
Hmm. Well, there's the here and now problem, which is space debris in low Earth orbit and then there's the problem for the next generation, which is asteroid mining. And then beyond that, the problem for the generation after that, which is the settlement of Mars. So let's start with space debris and low Earth orbit. We've launched over 5000 satellites since 1957, as a species, and there's a lot of leftover rocket stages and defunct satellites in low Earth orbit, you know, between 350 kilometers up and 1000 kilometers up from the surface of the earth, an orbit that's extremely valuable for Earth imaging for some kinds of communication. It's where the international space station is located. And as a result of several collisions, we now have several million pieces of debris, most of it small, the size of a paint flick, but a pamphlet 54,000 kilometers an hour can do a lot of damage to an operational satellite or to an astronauts spacesuit. And there's a concern that at some point, the amount of material in low Earth orbit will trigger a coalitional cascade, essentially, where one collision leads to another collision and to another collision as the surface area of all this material increases, thus increasing the likelihood of collisions. And there are two issues that are really problematic in regards to low Earth orbit. One is the use of ground based missiles as anti satellite weapons and so far, it's only been testing, right. But a number of countries have tested missiles against their own satellites and every time they do they create 10s of 1000s of pieces of debris and the most recent test was in March 2019 by India. And I'm now worried that Pakistan will do the exact same thing because this is posturing. This is standing up and showing your neighbor that you have the same technological capabilities that they do. And India's test was prompted by a Chinese test roughly a decade ago, right? And so getting a handle on the use of ground based missiles as anti satellite weapons is something that international lawyers are trying really hard to do. The second challenge in low Earth orbit involves the launch of 1000s of broadband satellites and the first one to do this is SpaceX, the company owned largely by Elon Musk. They've already launched 120 satellites into low Earth orbit to provide broadband. They're planning to launch at least 12,000 more and just by doing that, they're going to increase the amount of material in low Earth orbit fivefold. And it's entirely possible that other companies Telesat, OneWeb who are planning to do the same thing will add to that substantially and that creates all kinds
Michael Byers 15:00
of collisional risks, unless you have clear binding rules on deorbiting satellites after their lifespan, putting on collision avoidance technology, essentially self driving technology on satellites. I mean, we can do this, we have the technology, but putting all this technology on satellites costs money. And so we need regulation to avoid a kind of corporate free-for all, a race to the bottom rather than a race to the top. And this is one of the issues I'm working on right now, including by organizing a workshop to bring international experts together. And then there's asteroid mining and the settlement of Mars.
Am Johal 15:00
People historically viewed the space race as something that came out of, you know, American and Soviet challenges and in competition, but we're in a very different context now, where nation states companies are going out and competing in this way. It's a very different atmosphere now. How would you, if you get out, out of the American and Russian kind of presence in space, what are other countries and actors doing in outer space?
Michael Byers 16:05
Well, don't forget that in 1975, two American astronauts shook hands with two Soviet cosmonauts in orbit. It was the Apollo Soyuz program and they spent almost a day together and got along very well. It was a cooperative exercise between NASA and the Soviet space agency. So we've been cooperating with Russia, even during the Cold War, and much more since that what's happening though, in space is the entry of very capable commercial actors and this is a result of the lowering of launch costs think SpaceX and their reusable rockets, and the miniaturization of technology. So an earth imaging satellite that 20 years ago would have been the size of a school bus, can now be the size of a shoe box. And companies like Planet, which is a startup from San Francisco, has gone from not existing as a company to having hundreds of Earth imaging satellites in service today, providing daily updates of images for farmers, for forestry, for fishermen, for people engaged in disaster relief. Space is now a half trillion dollar a year industry and it's projected to grow faster than any other industrial sector over the course of the next decade. And it's the commercial actors are coming in and realizing the incredible amount of applications, right, every one of us is walking around with space in our pocket, because space is in our cell phone, right? GPS is on our cell phone and we rely on those same satellites for the very precise timing involved in electronic banking for instance, and every time we get on an airplane, right, we're relying on GPS again, and that's just one manifestation of the literally hundreds of uses of space that every single one of us in a developed country makes every day.
Am Johal 17:53
Now the terraforming of Mars or even visiting Mars was where satellites went or was in the sci-fi work of Kim Stanley Robinson and others, and how would you characterize the work happening relating to Mars today?
Michael Byers 18:08
Well, we don't see any serious plans to terraform Mars to actually change its environment but I am working with an astrophysicist at UBC named Aaron Boley because we're worried that asteroid mining could change asteroids in potentially dangerous ways. And asteroid mining might only be a decade or two away. In fact, there are two spacecraft returning from two separate asteroids with samples bringing them back to Earth right now. One American spacecraft, one Japanese spacecraft, so this is real. But if you remove mass from an asteroid, you will change its trajectory and so we're worried that inadvertently a mining company could cause an earth impact scenario and we all know what happened to the dinosaurs. Another less dramatic risk involves the difficulty of mining in space without creating debris that itself drifts off into space, you're mining an object that has a very low escape velocity, very low gravity. And so we foresee that you could have debris streams like a tail of a comet behind these mined asteroids. And the asteroids that we're going to mine will be near Earth asteroids that pass not only close to Earth, but between the distance between the Earth and the Moon, so really close, and some of them will pass through geostationary orbit. And so we could inadvertently create debris streams that would take out now some of the most valuable and important satellites that we have around this planet. Earth imaging, communication satellites, geostationary orbit is almost priceless because a satellite remains in a fixed location over a particular point on earth and we could ruin all that with uninformed, unregulated asteroid mining. Mars is a more distant project.
Michael Byers 20:00
I'm convinced that we will have permanent settlements on Mars, people will have to live underground because of the radiation and we'll probably have much shortened lifespans, but people will go, some people will go, and we will actually settle another planet. And of course, we'll be engaging in some modification on the environment, we'll be making water and fuel out of ice, we will be using the minerals of that planet to manufacture on Mars, we'll be building communities, and at some point, we may attempt to create an atmosphere. But people need to realize that Mars is an intensely hostile place, right? It's not a it's not an alternative to Earth. We have evolved over millions of years to live in this particular place and we've been really lucky to have an atmosphere, to have a magnetic field, to have a climate that is right around the transition between ice to liquid water. I mean, we've really lucked out, and we wouldn't exist if we couldn't have evolved in this environment and to suggest that we can go and do the same thing somewhere else is dreaming. We will settle Mars for science but we've got to deal with climate change and other problems here on Earth.
Am Johal 21:15
You're currently working on a book on space law, when will it be coming out?
Michael Byers 21:20
Oh, I don't like to talk about the book. Um, I do have a contract with Cambridge University Press for a book on space law and space policy and I'm ready to in small pieces, which means I'm writing articles right now. But also learning and part of the challenge is, I'm having to learn a lot of science, a lot of physics, a lot of math, I actually can understand some equations now. I need to do so because I'm actually co authoring articles that have equations because I'm co authoring with an astrophysicist. So I've said to Aaron, like, you have to explain what we say in this part of the article that's got my name on it, because I don't really fully understand. And so I'm learning. And that's fantastic. I love just as an intellectual, I love engaging with other disciplines and expanding my mind.
Am Johal 22:08
And you have a new institute as well out at UBC.
Michael Byers 22:12
We have, Aaron Boley and I have created the Outer Space Institute, although it's not formally at UBC, because it's not a traditional institute. It's a network of early and mid-career experts in all dimensions of space, from physics, to engineering, to policy, to law, to arts, to music, and this network is global. So Aaron and I are currently the co directors but I can imagine stepping down from that role in a couple of years and having a co director in the global south or in China or in Russia.
Am Johal 22:47
In the work that you've been doing since you started focusing on outer space. What are you most excited about?
Michael Byers 22:54
I co-authored a piece several months ago with a philosopher named Kent Peacock and the title of the article is, Did Climate Change Destroy The Aliens? We published it in the Bulletin of the Atomic Scientists, which is read by far more people than I had ever imagined. And it's a thought exercise about the challenges of, of long term survival of any intelligent species. And we address the Fermi Paradox, which is the decades old question. Given the fact that we live in an infinite universe where everything will happen, sometimes multiple times, we statistically cannot be the only intelligent species, there should in fact be many species who are more advanced than us. So the question is, well, where are they? And one of the answers to “Where are they?” is that every intelligent species eventually destroys itself through some kind of pollution, in our case, greenhouse gas emissions causing climate change and so we actually end the article on an optimistic note, but it's trying to put where we are as a species into a universal context. That really was exciting, that stretched my mind to a place that I'd never been before.
Am Johal 24:14
Michael, thank you so much for joining us on Below the Radar.
Michael Byers 24:17
Always a pleasure to talk to you Am and thank you for doing this.
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Outro 24:22
Thank you again to Michael Byers for joining us on Below the Radar. You can find out more about his work at The Outer Space Institute in the episode description below. In our next episode, we'll be chatting with carla bergman, an independent scholar, filmmaker and producer. Stay in the loop with Below the Radar by following us on Twitter and Facebook. Be sure to subscribe wherever you find your podcasts including Apple Podcasts, SoundCloud, Overcast, Player, FM and many more. And be sure to leave us a review. As always, thank you to the team that puts this podcast together, including myself, Rachel Wong, Paige Smith. Fiorella Pinillos and Kathy Feng. Davis Steele is the composer of our theme music and thank you for listening. Tune in next time for a brand new episode of Below the Radar.
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