In honor of yet another billionaire rocketing themselves into outer space using blood money, I've written a short summary of my recently published law review article, which argues that current international law forbids private companies from claiming ownership over space objects. In other words, I argue that billionaires cannot actually start putting dibs on lunar craters and Martian mountains for their low-g mansions. In essence, the argument is that private parties are also subject to the international agreements between states which declare that space is a global commons that belongs to humankind, not individual countries and not individual businesses.
International space law is grounded in the Outer Space Treaty, an agreement signed by more than a hundred nations. Drafted in the 1950s, the Outer Space Treaty’s animating principle is that space should be preserved as the “province of all [hu]mankind.” Based on both the text of the treaty as well as subsequent international agreements, this means that space is essentially a global commons, collectively owned by all humankind and to which no one may restrict access. This would make space analogous to a public park in that a group of people can make use of the space but not claim it permanently or prevent others from using it. This is already how countries who have signed the treaty regard space. For instance, when America landed on the moon, it did not seek to claim the surface as a colony.
Recall however, that this legal framework was established in the 50s before the era of private space corporations. At the time, nation states (and only a few) were capable of accessing space. Today however, concentration of wealth has created a class of billionaires who want to manifest destiny the galaxy. This rise of commercial private space corporations stresses the existing international space law framework because private corporations are not signatories to international treaties and are not widely understood to be directly bound by the responsibilities and duties within them. This interpretation is dangerous because it would allow private corporations to be irresponsible and destructive in space, as they have been on earth, but it is also incorrect.
Unlike the domestic law of a nation, international law is usually understood to only apply to those parties who explicitly agree to be bound by it, for instance by signing a treaty. One exception to this rule is customary international law, which are universal and apply to all members of the community of states, including new states who have never formally signed onto an agreement. In entering space, private corporations enter a vacuum of sovereignty, much like new states enter a vacuum of sovereignty when they first come into existence. Therefore, just as new states are obliged to follow certain international laws, the legal responsibility to maintain space as a global commons also attaches to private corporations who enter space.
The upshot of all this, legally speaking, is that corporations would not be able to claim wide swaths of space or half the moon as their private property, as they are dying to do. Taking this legal stance is important because practice and usage shape the law. Though I argue that international space law, as it currently stands, forbids private corporations from claiming the moon for their own, this can change. If companies begin to pitch tents branded with their logo on Mars and start to make plans to divert the orbit of mineral rich asteroids, they will erode the existing international law framework, bend it in their favor.
Happy to provide the full law review article to anyone who wants a copy, just find me on twitter. The professor whose class I originally wrote the paper for was “not convinced,” but you can read it for yourself and decide.
Here's a link to the article on law review site: http://djilp.org/filling-the-vacuum-adapting-international-space-law-to-meet-the-pressures-created-by-private-space-enterprises/
Institutions facing protests or challenges to their policies and practices will often hold a listening session. Sometimes, this is a signal that institutional leadership genuinely wants to hear concerns. Sometimes, however, institutions hold listening sessions merely as propaganda, so that they can claim to be doing something to address concerns without committing to actions that challenge their power.
Here is a checklist of questions to help see the difference. Tl;dr table at the bottom.
A DIY Guide to Institutional Change for Racial Equity
To achieve racial equity, every institution, without exception, needs to change. Eradicating systemic racism requires overhauling our society’s individual components. Though there has been a national moment of reckoning over the persistence of racism and anti-Blackness in particular, increased awareness of the problem does not automatically result in improved conditions. Real change is possible but requires us to first imagine and then intentionally work to create a society in which Black lives matter and the concerns of other marginalized folx are taken seriously. This requires more than individual commitment to anti-racism. We also need to change our institutions so that they can help us work toward anti-racism instead of acting as tools to reinforce and uphold existing hierarchies. This applies on the large scale, to our justice system and electoral system, but it also extends to the everyday institutions such as our places of work and our schools. These smaller institutions also need to change and crucially, anyone who is committed to racial equity can and should work to create that change. This guide is intended to assist those seeking to engage in racial equity work at the institutions they are already part of.
Why work to change institutions?
Our lives are shaped by institutions. Some of us are supported by them, granted opportunities, afforded credibility. Others are crushed by them. Companies, political parties, universities, and unions are all institutions. Thus, most of our waking hours are spent enveloped by institutions. Institutions are inescapable because society expresses and transmits its values through them. Inequity within an institution is reflected in the positions it takes, the roles it fills, the fights it lends weight to. Institutions are amplifiers so shifting an institution, ensuring its commitment to anti-racism, has ripple effects beyond the institution itself.
We also already shape the institutions we are part of. We reinforce the status quo when we acquiesce to it. We change institutional norms when we speak out. Institutions seem monolithic but they are made up of individuals. Being part of an institution means being connected to other people within it and those human connections can bring change. Indeed, building community is one of the most important things we can do to create a more just world. Great change is possible when people come together in solidarity and existing institutions provide a ready framework through which we can find and construct community with each other. Not everyone can influence the education system as a whole but anyone who is part of a school or a university can work to change it. Not everyone can shift the needle on underrepresentation within their industry, but anyone can work to ensure that their company does a better job recruiting and retaining women of color.
Can institutions change?
If the world is different from the world a hundred years ago, a millennia ago, it is because our institutions changed. But institutions are difficult to shift. Institutions, like societies, only change when enough people decide they must. Even with the repeated calls for racial justice and the frequent reminders of its necessity, there may not be enough collective will to make changes at a particular institution.
Thus, approach the project of institutional reform knowing that failure is possible. But even failure to attain a specific agenda can make a difference. Fighting for change models behavior for those who come after, making it more likely they will pick up the fight. Demanding that an institution do better is also a way to convince people who are not yet committed to the same goals. The myth of the "marketplace of ideas" obscures that there is nothing so convincing as watching others wholeheartedly fight for justice. Finally, you learn by doing and you build community in adversity, both of which make you stronger.
This is not and cannot be a comprehensive guide. Each institution is different and so the path to anti-racism and ensuring it values Black lives in particular must be individually tailored. Instead, what follows is an attempt to define principles for discovering and implementing that individually tailored solution. The guide assumes the reader does not need to be convinced that racial equity is necessary, but rather needs a framework for how to think about changing an institution from the inside. It assumes there is some resistance to taking sufficient steps to ensure racial equity and that the reader will need to organize to create pressure for action.
My experience is shaped by time in educational institutions, government, and non-profits, organizations that profess a higher calling, an altruistic purpose. It is therefore sometimes easier to harness the stories that the institution tells about itself to change it. Finally, the advice that follows is arranged in chronological steps to make them easier to understand but that does not mean anyone needs to follow them in rigid order.
A DIY Guide to Institutional Change for Racial Equity
A Note About the Form and Function of Institutions
The power of an institution lies in its ability to coordinate individual behaviors for a collective purpose. Institutions accomplish this by creating a culture that propagates, entrenches, and transmits norms by making them seem like “common sense.” To take a simple case, picture a high school class. When a bell rings, the teacher stops talking and the students gather their books to scatter to the next class. For someone who has never sat in a classroom like this, the flurry of activities accompanying the bell would be mystifying.
The key to understanding how institutions transmit norms is to realize that the socialized response to the ringing of the bell with this particular set of activities is the result of normative choices. The average high school student attends six or seven classes each day. Surely, for some students, spending all day on one topic is more effective. So why not teach one topic a day? Even this assumes a system in which knowledge is divided into separate topics rather than woven together in an interdisciplinary way. So why have different classes at all? Neither the students nor the teacher think about these normative questions when they go about their day but that doesn’t mean their choices don’t have normative consequences.
The purpose of this example is to illustrate how institutions shape individual behavior. Institutional culture makes following a normatively bounded path natural and sensible, which hides the fact that there are choices being made.
Obscuring normative choices makes it easier for institutions to resist change because rejecting things that don’t fit the institutional culture will appear to be common sense. People internalize the values of an institution and can act as its immune system against change without recognizing what they're doing. This isn't always a bad thing. Institutions have value. The problem is that institutional cultures are shaped by our society, which is infected with structural inequality and systemic racism. That inequality is reflected, reproduced and magnified by our institutions.
Practically speaking, what does this mean? When working to change an institution, its ability to transmit norms is a blessing and a curse. On the one hand, there will be knee-jerk defensiveness to change because it will be seen as an attack on the integrity of the institution. People will say they want to be anti-racist and genuinely believe it but nevertheless act to reinforce existing norms and thus thwart their own professed goal. On the other hand, if racial equity itself is institutionalized, if the conscious effort to center the experiences of marginalized people is normalized, it has a chance to last.
Step 0 - Just get started
The only real requirement of making institutional change is to get started. Taking action is the best teacher. Books and guides like this one can be helpful but real knowledge comes from trying and doing. You will make mistakes, but nothing will change if nobody pushes for it. One point of caution is to avoid thinking about this process of making institutional change as "leading" change. Instead, the goal is to facilitate a movement that collectively demands it. Not only is a group harder to ignore, this will also give the efforts longevity, which is crucial when tackling systemic and deeply ingrained issues such as racial inequity.
A DIY Guide to Institutional Change for Racial Equity
Step 1 - Evaluate starting conditions
To change an institution, you must understand it. It's hard to plan for something different without knowing how the institution currently functions. Let's talk about the necessary information and how to get it.
1 - A. Decide whether the institution is worth saving.
It won't always be. Sometimes the only way for an institution to be truly anti-racist is for it to cease to exist.
As a corollary, is there critical mass? While a big part of the work of creating institutional change is convincing people of the necessity for change, protect yourself by honestly evaluating whether there are enough people to share responsibility.
2 - B. Understand the power structure.
This is more involved than finding the org chart or reading the official bylaws. Always be aware of the important difference between formal authority and actual authority. The person signing checks may not decide what amount goes on the line. Misunderstanding who holds power (and therefore who can enact change), risks misdirecting energy. The person who announces a policy change may not be the one who has control over it. Organizations tend to scapegoat its least powerful members. It is far easier for an institution to punish the person implementing policies than to restructure itself or for leadership to examine their own culpability. For instance, consider a case in which a group of workers bring attention to racially coded HR policies. Institutional leadership might respond by firing or otherwise sanctioning the HR department even though the policies originated higher in the organizational structure and reflect deeper structural issues. Some tips:
1- C. Develop a clear problem statement.
Having a clear problem statement is important for convincing others and for organizing advocacy. The solution becomes easier to imagine if the problem is stated clearly. Of course, the root cause of racial inequity is racism. But it is good to have a problem statement specific to the organization. This will help guide decision making on what changes to push for. Specificity can also help convince people to join the effort. Even if someone is not committed to the project of racial equity, a good problem statement should still ring true. The work you did to understand the power structure should be helpful. In almost all occasions, you'll find mal-distribution of power is part of the problem.
Take, as an example, an organization doing a poor job recruiting people of color. After examining how the organization recruits, the problem statement might be something like, "We fail to hire candidates of color because our informal recruitment procedures prioritize pre-existing networks that exclude underrepresented populations." This is a simplified example but notice how the problem statement suggests a solution. Though problem statements shouldn't necessarily be tailored to engage this population, note that even people who are not primarily interested in racial equity might agree that an informal recruitment process based on pre-existing networks is exclusionary. One note of caution is that multiple problem statements may be needed. In this case, though the recruitment process is the most direct cause, perhaps it has remained informal despite past opposition due to deeper flaws, such as a leadership team that ignores feedback, particularly from people of color.
1 - D. Strategies for understanding your institution:
A DIY Guide to Institutional Change for Racial Equity
Step 2 - Set Expectations
The fight for institutional change is a meat grinder. It wears passionate people down. Setting expectations for the challenges ahead won't guarantee success but can keep people in the fight longer.
2 - A. Understand that this will not have been the first time someone has demanded change.
Institutions have experience resisting change and inherent immune systems. As discussed above, ensuring continuity over time is one of the key functions of an institution. The history of past efforts is often buried, even if they happened very recently. Dig that history up by talking to senior members as well as those who have left. There may be almost disturbing parallels between previous fights for institutional change and current demands. In researching recommendations on diversity and inclusion efforts, a committee at my law school discovered a longer, more comprehensive report a decade old that documented the same problems and offered the same solutions. Don't let this discourage you. Just because past efforts stalled doesn't mean yours inevitably will. Everything is impossible until it's not. Try to let past efforts inspire instead. The shared struggle is a tie that binds you to those who came before and picking up where they left off is something to be proud of.
2 - B. Most of the time, organizing is incredibly tedious.
90% of revolution is logistics. Real life doesn't follow narrative conventions and there are no musical montages to speed through the monotonous work. Depending on how things shake out, there may be moments that stir the soul, moments that test your mettle, moments that make the breath catch in your throat. But there are guaranteed to be times of frustration and boredom. Most of organizing is setting up meetings, prepping for meetings, running meetings, following up with people about meetings. Often, the greatest good anyone can do is the logistical and administrative work of keeping people on task and moving everyone along to the next step. This work usually goes unseen and unrewarded and is usually done by marginalized folx. Make a conscious effort to keep an eye on where the burden of keeping the machine running falls and value this work.
2 - C. Expect conflict.
Even if an institution wants to work to become anti-racist, not everything will be smooth sailing. The patterns and assumptions that help to create inequitable and oppressive systems will not go gently. Don't look to pick a fight, but plan for it.
2 - D. Expect, invite discomfort.
Fighting to create an anti-racist institution will be uncomfortable.
2 - E. There's a good chance of failure.
I recommend approaching the project of institutional change with an awareness that failure is possible. This is not an argument to accept half measures or not aspire to structural change. I try to think like a realist and an optimist at the same time. Think like an optimist because if you cannot imagine structural change, it will be more difficult to achieve. But think like a realist as a way of protecting yourself. Recognizing you might fail is a good way to conserve energy in the long term. And as mentioned in the intro, even failure to achieve a specific agenda has knock on benefits.
A DIY Guide to Institutional Change for Racial Equity
Step 3 - Build a Coalition and Get Buy in on Goals
The work of institutional change requires a team. No one can do it alone. Find others who share a commitment to racial equity and are willing to share the burden. A team is necessary to brainstorm ideas, but it is also necessary because this work is tiring. People will need to tap in and out as their motivation ebbs and flows. Respect and account for that in planning. Normalize letting people voice their exhaustion and take a step back. That will result in less burnout in the long run.
3 - A. Build a coalition.
If institutions are made up of the people within them, there is no real substitute for having a wide coalition of people demanding change together. How to gather this coalition depends on the size of an organization, and your place within it. Sometimes, it will mean sending an email to the organization wide listserv to spur a conversation about race and inequality, then following up with those who respond positively. Sometimes, it will mean having a dozen one on one conversations. Sometimes, it will mean tapping into existing organizational structures such as unions or affinity groups. A preliminary goal can start a broad conversation about how the institution should pursue racial equity. At this initial stage, it isn't necessary for everyone to agree on the same solutions or even for everyone to be committed to structural change to the same degree. However, you do want to look for openness to engaging in conversation and the recognition that racism is . . . bad. Now let's talk about some concrete ways to collect a coalition.
3 - B. Find a core team or a personal council.
Try to pull together a handful of people to speak honestly and openly with, to bounce ideas off of and to vent to. Creating institutional change is first an exercise in creating a community of people who care enough to demand it. Help build spaces where people feel safe to generate ideas and think critically about the ways the institution does and does not support equity and inclusion. This might be the same group as the coalition, but a smaller caucus or caucuses may be useful for in depth discussions.
3 - C. Decide if you need a "champion" and find one.
Sometimes, it can be helpful to have the support of someone from institutional leadership. They can bring talking points up to others in positions of authority in a way that won’t trigger defensiveness. They can bring back information about how the leadership team is responding. They can help strategize how to bring proposals forward. They can help normalize asking questions about racial equity or raising issues of bias and institutional change. Some things to consider in choosing this person:
3 - D. Define goals through consensus decision making.
Arguably, everything until this point is prep work. Goal set early because it provides a guide for making strategic decisions and provides a vision. Try to use consensus decision making to encourage buy in and build a community of people committed to the project of changing the institution for the better. Creating common understandings of the problem and common goals are good steps toward creating that community.
Refer back to the problem statement to help define a goal. Sometimes, as when the power to make decisions is too concentrated and unaccountable, the goal may be clear. Sometimes, as when there is an especially hostile workplace culture reinforced by external forces, the goal won't be so clear. For those not part of those communities, take your cues from marginalized folx. Don’t expect them to take on all the work of defining the goals but also don’t presume to know what they want. This is a VERY hard line to walk and coalitions are made or broken at this step. Again, there are no shortcuts. I can only advise defaulting to compassion and empathy. Even if you don’t belong to a marginalized group, this is your fight too. When in doubt, make sure to do some thinking before bringing anything to partners. But be ready and willing to be told to go back to the drawing board.
Consensus decision making requires openness and trust. When first beginning a push for institutional change, you may not have either, but consensus decision making might help to build both. There are whole guides to making decisions by consensus, more than can be outlined here. The key is people should go into the process with a commitment to working towards a solution that is beneficial to everyone. Usually, decision making occurs through debate or by fiat. Usually, people advocate for a position and they ‘win’ or ‘lose’ depending on whether the final decision reflects their preferences. Consensus decision making is different. While people may have preferred outcomes, all parties should listen actively and work to create a solution everyone has a stake in. Instead of being for or against a position, everyone is invested in supporting each other. Consensus does not mean either unanimity or compromise. Requiring unanimity often means choosing the smallest change everyone can agree on. Compromise seeks to cobble together what are often incompatible extremes. Consensus decision making goes further by trying to combine everyone's most important concerns and best ideas into a coherent whole.
3 - E. If necessary, start small to teach people collective action and consensus is possible.
Often, the biggest barrier to collective action and consensus decision making is the belief that it is impossible. For people who are taught decisions must be made from a position of authority and in a political system whose founders were afraid of the "masses," it is difficult to imagine a large group with different personalities and interests coming together to reach consensus. In truth, consensus work will always be frustrating, but it becomes easier upon understanding it is possible. If the coalition is accustomed to hierarchical decision making and is not confident in its ability to make concrete change, start small. Experience is the best teacher in this regard. For instance, work on a demand letter together or push for a small, concrete change, something that is already likely to attract broad agreement before moving to more difficult, transformative demands.