In 1963, France sent Félicette the cat to space. Later, she made it onto postage stamps.On the soccer field, it is not always entirely clear what behaviors a good sportsman should take, no matter how earnestly one pursues such laudable behavior. In some instances, rules guide players to sportsman-like behaviors. For example, it is considered unsportsman-like for the offense to cherry pick or to grossly outnumber the defense; therefore soccer’s offside rule was created. But this rule codifies only a narrow aspect of the custom of good sportsmanship in the beautiful game, leaving other aspects of sportsmanship defined by player custom.

In much the same way the offside rule was eventually created to explicitly direct soccer players toward fair behavior on the soccer field, international treaties like the Geneva Conventions are often created to delineate proper behavior from improper/war-like/criminal behavior throughout the world. Despite customs of humane treatment of others during war and traditions of good sportsmanship on the soccer field, neither the soccer community nor the international community have been able to put in writing and agree to a complete set of behaviors which proscribe the proper humane or sportsman-like action to take in every situation. In many areas, unwritten international custom defines the legality of an action. Lack of consensus or consistency of behavior can make it difficult to properly define customary international law.

When it comes to emerging industries like extraterrestrial resource mining, customary international law can seem like attempting to herd cats in zero gravity. Pinning down what is “fair” and “customary” in areas where no man has gone before can seem daunting but it also presents the unique opportunity to shape international custom by establishing them.

Where does international law come from?

There are many sources of law. Historic custom; international treaty; local ordinance; a nation’s constitution, the philosophical, political, and economic arguments made to pass a constitution or a law; even modern interpretations of centuries old legal language. The tapestry of modern law has been woven by an ever changing committee of weavers some of whom contributed yards of work while others merely pointed out the one thread in a corner missed a stitch. Despite this cacophony of legal voices and sources, the law can be divided into two categories: mandatory law and persuasive law. In simple terms, mandatory laws are laws binding. These laws must be followed in a specific situation. Persuasive laws, on the other hand, do not have to be followed but can influence binding law.

International law comes from two sources: international agreements and custom. International agreements bind not only the behavior of nations but also of people through the application of international treaties to a nation’s citizenry. In the United States, the Constitution declares treaties “the supreme Law of the Land,” applying provisions of the Outer Space Treaty to government actions and private citizens alike. Customary international law is often persuasive, but can be binding, depending on the situation and how well established the custom is.

What is customary international law?

In general, customary international law consists of laws which bind all the nations of the world, even where a nation has not actually signed a treaty or enacted a local law to that effect.

The United Nations and its member states, as well as the International Court of Justice, consider some international custom to be a binding source of international law. Many extremely important areas of law have historically been defined by the traditional actions taken and statements made by countries through history. For example, both the laws of war (e.g. the meaning of a declaration of war) and the law of the sea (e.g. salvage rights, acts of piracy) were long defined by customary international law. In the 20^th century, many aspects of both the laws of war and the law of the sea were codified by international agreements like the Geneva andHague Conventions for war and UNCLOS for the sea. Some aspects of the laws of the sea and of war are still governed by custom. The launch of Sputnik in 1957 established the international custom “of free passage in space even when that passage transits over the territory” of another nation.

International custom is not necessarily defined by actions taken by countries. Provisions of international treaties may become part of customary international law and bind countries which have never become a party to that treaty. An international dispute between Germany, Denmark, and the Netherlands explored criteria which can indicate that a treaty’s provisions have become customary international law, binding on other nations regardless of their agreement to the treaty itself. These criteria include the length of time the treaty has been in force, whether non-party states objected to the provisions alleged to have become customary, and the number of countries that have signed the treaty. In other words, both a long established treaty and a treaty signed by a significant number of countries may contain provisions which can be considered customary international law which binds all the nations of the world.

The precise boundaries of customary international space law are difficult to pin down. Scholars like Francis Lyall and Paul Larsen believe that at least some provisions of the 1967 Outer Space Treaty, which has been signed or ratified by more than half of the world’s nations, has become customary international law. Others, like Michael Listner, argue that provisions of the less popular but long standing 1979 Moon Treaty may have become customary. Specifically, arguments have been made that provisions prohibiting private ownership of asteroid and moon resources may be customary international law, potentially complicating profitable extraterrestrial mining operations. On the other hand, law is rarely predictive and is often shaped by the very pioneers that open up new physical, mental, or technological frontiers. Just as the USSR’s launch of the first artificial satellite into orbit established the customary norm that overflights of a sovereign nation are legal if they’re made by orbiting satellites  in space, future space pioneers will likely have the opportunity to influence or establish international custom through the actions they take.

Written by Andrew Rush

R2 is the product of a successful development partnership between automotive giant GM and space exploration behemoth NASA. In addition to flying the first humanoid robot to space, more than 40 patents and patent applications have blossomed from the R2 development program. Like many other private company/government agency relationships, the partnership between GM and NASA was heavily influenced by federal laws that govern the agency involved. GM and NASA entered into a Space Act Agreement (SAA). The structure of the SAA was chosen in part to ensure that GM could protect and retain an interest in the intellectual property they developed while working with NASA on next-generation robots.

For those of you unfamiliar with the R2, the robot was developed at Johnson Space Center in the Dexterous Robotic Laboratory. A principal goal of the project is developing humanoid robots which can autonomously or semi-autonomously operate alongside astronauts. A humanoid form factor was chosen so that the robots can use the same tools as their flesh and blood counterparts. This means that NASA only has to ship one set of tools to the ISS, instead of a human set and a set designed for robotic use. Currently, R2 is operating on the ISS. R2 will initially perform simple tasks like monitoring life support system airflow, freeing human astronauts to carry out more challenging tasks. R2 is equipped with stereoscopic cameras and the ability to be remotely controlled by astronauts on the ISS or from a ground station. This teleoperation has a haptic feedback component, enabling the human operator to “feel” the forces encountered by the robot during operation. Because R2 has a body, including hands, designed to mimic the abilities of a human, teleoperators may one day be able to perform EVAs using R2’s successors, or to perform remote surgeries on sick astronauts. Currently, R2 is not space rated. R2’s electronics would be fried by the radiation and extreme temperature shifts outside the ISS.

Robonaut 2 was jointly developed by NASA and General Motors. The General and NASA began their relationship in 2007 when the two groups signed a space act agreement (SAA). Over the next four years, a pair of R2 robots were developed and constructed under a Space Act Agreement. R2b actually ended up on the ISS, while R2a has been outfitted with a four-wheeled base, enhancing its mobility. NASA is a “title taking”organization which means that under many circumstances, intellectual property rights to technologies developed by large companies under NASA contracts like SAAs must be transferred to NASA. The Bayh-Dole Act insulates small companies working with NASA from this title taking and, depending on the circumstance,

In the future, R2 may be equipped with legs adapted for locomotion in zero gravity. R2 may also receive upgrades enabling it to perform EVAs while attached to the end of the ISS’s robotic arm.

Happy creating!

Written by Andrew Rush