Existing Space Law Concepts and Legislation Proposals
Copyright © 2005 J.J. Hurtak, Ph.D.
With “outer space” daily becoming less of an abstract notion and more of a cultural reality, the utilization of “near space” must be addressed on a practical level. In the wake of successful Mars fly-overs and landings, humanity must consider the government and management of regions no longer reachable only in imagination, but reachable and exploitable by man and his various technologies. An equitable and binding code of behavior, applicable to all who venture into these realms, is the concern addressed in our lead article.
Space Law requirements have been proposed by the United Nations for the human settlement, scientific discovery, and industrial explorations on the terrestrial moon and on Mars. Brought to the United Nations General Assembly by the Committee on Peaceful Uses of Outer Space (COPUOS), currently composed of 61 members, nation-states have enacted five treaties to provide and enforce procedures in the human experience of outer space:
1. (1967) The Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (commonly known as the Outer Space Treaty) seeks to keep outer space free for exploration by all States while protecting celestial bodies from national sovereignty. The Treaty permits private enterprises to use space for peaceful purposes if their activities and results are made public. The responsibility for all launches is borne by the State.
2. (1967) Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the Rescue Agreement) details assistance and retrieval procedures.
3. (1971) The Convention on International Liability for Damage Caused by Space Objects (the Liability Convention) attaches liability to the launching State.
4. (1974) The Convention on the Registration of Objects Launched into Outer Space (the Registration Convention) requires the UN to maintain a central register of specific information for each space object, available on inquiry.
5. (1979) The controversial Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the Moon Treaty) designates space as the “common heritage of mankind,” not merely the “province of mankind” as written in the Outer Space Treaty.
Outer space qualifies as res communis (the property of all) under Article 1 of the Outer Space Treaty, rather than as res nullius, the principle that these resources belong to no one and are to be doled out on a first-come, first-served basis. The Moon Treaty agrees, placing limitations on national sovereignty: “The moon is not subject to national appro-priation,” and “the placement of personnel, space vehicles, equipment, facilities, stations and installation on or below the surface of the Moon… shall not create a right of ownership.”
Article 11 of the Moon Treaty directs the establishment of an international regime, whose purposes are: the orderly and safe development of the natural resources of the moon; the rational management of those resources; the expansion of opportunities in the use of those resources; and an equitable sharing by all States-Parties in the benefits derived from those resources. The “common heritage of mankind” would thus require an international consortium to monitor and hold accountable actions with potential consequence towards any other State.
Only nine nations have ratified the Moon Treaty (Australia, Austria, Chile, Mexico, Morocco , the Netherlands, Pakistan, Philippines, and Uruguay), while over 90 have signed the Outer Space Treaty. By UN agreement, five signatures are sufficient to validate a treaty as an international instrument, but there is concern at the refusal of the USA and Russia/USSR to sign—the two nations most likely at present to engage significantly in space exploration.
Obviously, it is the criteria for exploitation of natural resources found on the moon, Mars and other celestial bodies that is of the greatest practical interest. In the foreseeable future, Mars and perhaps its two satellites will be the only sources of usable resources for space researchers or colonists, until we are able to reach the nearest earth-asteroid for mining. By not signing the Moon Treaty, the USA and Russia/USSR tried to set a precedent for the possible future commercialization of space that most likely will occur in the 21st Century.
Most scientists also do not want to recognize the Moon Treaty for fear that it would inadvertently prevent our expansion into space if no economic benefits can be derived. The Moon Treaty, however, does not place a moratorium on exploitation of natural resources, but insists upon the establishment of an international regime to monitor and control such exploitation. In fact, mining could be begun on an experimental basis even while clearer rules are established and eventually made law. But what is at question here, if taken literally, is the “common heritage of mankind” clause which indicates that if exploitation does commence, all nations should have a share in the proceeds.
In addition to the five treaties instituted by COPUOS, five other resolutions have been signed that are shaping the parameters of international space law. These five resolutions, regarded by member states as guidelines rather than as legally binding obligations, address such concerns as the broadcasting of signals via artificial earth satellites into areas that may be politically or socially opposed to the information being broadcast; the regulation of satellite communications and orbital slots; the use of nuclear power sources in outer space (drawn up in 1992 after a Soviet nuclear-powered satellite broke up in air-space over Canada); the need to ensure international cooperation in outer space; and remote sensing of the earth from space, with principles designed to take developing countries into particular consideration.1
Monitoring through remote sensing is a priority for most Mars orbital missions. Besides being used to evaluate and select landing sites, this operation can furnish a complete geological mapping of the surface and subsurface of Mars, while analyzing mineralogical features at the same time.
With the potential discovery before us of new resources, it is the commercialization of outer space and its celestial bodies that must be addressed. As Space Station Freedom (SSF), a multi-purposed facility to be stationed in low-earth orbit is developed and the Mars program is expanded in the 21st Century, more and more private companies will want to become involved in space development. Mineralogical discoveries on a distant planet or asteroid will enhance this growth tremendously. Numerous companies in at least 20 countries are already involved in commercial space enterprises, ranging from satellite communications and remote sensing to microgravity manufacturing research and development. Service corporations such as insurance companies and promotion agencies have also become involved. In the near future, over a dozen countries will be able to launch their own satellites and, as satellites continue to crowd low space orbits, the rights of satellite power and their purpose in space will become more and more contentious.
The first real manufacturing in space took place on August 30, 1984, when Charles Walker, a McDonnell Douglas Astronautics Company engineer and scientist, processed pharmaceuticals onboard the Space Shuttle Discovery. He used a procedure known as continuous flow electrophoresis which is a process of separating molecules by means of an electrical field. It had already been determined that a better separation of molecules takes place in a gravity-free environment. In the electrophoretic procedure in space, molecular separation increased by a factor of 700 and purity levels quadrupled. One of the earliest electrophoresis products may be urokinase which is an enzyme that can be taken from male urine or separated from human kidney cells and used as an anticoagulant. Current urokinase production costs in Earth laboratories are prohibitive, where a single dose can cost $1,500. An experiment conducted in 1975 on the joint Apollo-Soyuz space mission successfully separated the enzyme from the kidney cell cultures at six times the efficiency achieved to date on Earth. One analysis suggests that full-scale production of urokinase on the Shuttle or Spacelab could lower the cost to $100 per dose.2
In July 1985, polystyrene spheres went on sale as the first commercial product to have been manufactured in space. Produced onboard the Space Shuttle Challenger, where astronauts found that space manufacturing eliminates distortions in shape and size caused by gravity.3 Soon other products—advanced metals, alloys, semiconductor materials, pharmaceuticals, bubble free glass and ceramics, polymers and organic chemistry—may carry the label “Made in Space.” Space-produced gallium arsenide crystals (a product of Fairchild Industries), for example, have already become key elements in solar power systems in space and on earth, and have uses also in lasers, computer chips, fiber-optics systems and antennas.
As more products are developed in space and we witness the construction of artificial structures on Mars, whether in the fashion of Buckminster Fuller or Arthur C. Clarke, I suggest that a new type of “astro-law” will have to be established to match the scope of private enterprise activities. Astro-law will address the finer issues of liability insurance in the integration of public and private services in outer space. Astro-law will also have to define criminal jurisdiction in cases where there has been a deliberate violation of common properties.
International law may set the framework for outer space law, but when it comes to governing a large number of individuals in space, with manufacturing and mining occurring in remote areas, a different set of laws for regulating relationships will be needed. As colonies or bases are established on the moon, Mars or the La Grangian points, we must avoid dispute resolution and administration taking on its own form of self-regulation and self-governance without adherence to an international legal system. The best system might be that which has already been proposed, an “international regime,” with individual groups or colonies having some local say, as exists in the canton system of Switzerland. Theorists like Karen Cramer of the Space Policy Institute (George Washington University, Washington DC) would like to see a Lunar Users Union (LUU) or, for purposes of this paper a Mars Users Union (MUU) where those on Mars become the major decision-makers and hence not as restrictive as an international consortium from Earth.
Like the international regime, the MUU would grant rights to private enterprises and states for commercial mining and exploration and would function mainly to ensure non-interference amongst groups wishing to pursue similar interests.
Although in some cases certain terrestrial laws may no longer be applicable in space, we should realize that our laws have evolved for the protection of citizens over a 2,000 year period and that they should serve as the initial basis for any new territories. Our laws might be the one connection that these space adventurers take with them as they travel into even greater reaches of outer space. Even when self-sufficient colonies exist, the basis of the laws that we have evolved on earth should be the basis for life in space, to ensure the protection of earth citizens, wherever they travel to these colonies, and to ensure only minimum or necessary exploitation of Mars, the asteroids, or eventually other planets.
A legal framework is necessary for international cooperation in space with respect to how territorial jurisdictions will apply to temporary or permanent installations on Mars and other celestial bodies. Once precedent has been set in connection with initial, unique missions, the need for generic legal guidelines pertaining to jurisdiction and control of multinational activities can be foreseen.
A balance will be needed between Earth-based law and space law when considering off -earth production and resource removal. Preconditions might be outlined, directing dominant powers to recognize Third World interests and form cooperative alliances, providing certain availability of new technologies, data, and resources within reasonable economic limits.
Finally, international agreements will have to be worked out with scientific and logistic flexibility maintained, so that adjustments can be made for the missions to and in the Mars environment. Technical design facilities must control re-entry, retrieval and disposal techniques in all commercial payloads. Natural decay mechanisms cannot be relied on for removal. With such agreements, the necessary balance for the exploration and use of outer space and the protection of this shared universal resource may be maintained for future generations.
Space law is now only in its infancy. New branches of the discipline will probably develop into astro-law as it applies to outer space and astro-law relating to celestial bodies. So far, space law has really been earth law, but regardless of its applicability, international space law should stem from humanistic philosophies evolved from rules and forums developed here on earth.
Future Mars missions, with perhaps a joint manned mission (US-CIS-ESA) to land on the surface of Mars in the early part of the next century, will have a major impact on the development of space law in its natural environment. As people begin to remain away from the earth for extended periods and finally establish permanent residences off planet, the earth-based courts might be received by the colonists in the same way that American colonists perceived the English Privy Council—with increasing antagonism toward a distant overseer.
No doubt ecospace will be a distinctive economic/social zone. If proper laws and permits are allowed with reasonable economic and technical rewards, the commercialization and development of outer space will undoubtedly expand in the future. It is anticipated that international law will also adapt and expand to meet the challenges presented by the space frontier, in much the same fashion as US product liability principles have followed the growth of commercial aviation on earth.
Mars offers a significant opportunity to establish cooperation in exo-industrializa-tion and exo -commercialization as humanity establishes both a data bank of knowledge in the planetary sciences and a unique environment for testing new technologies. Ultimately, we as the extraterrestrials will have transformed Mars from being the traditional planetary symbol of “war” into a planet of “peace,” and we, as travelers, will take our place as homo universalis. §
1Multimedia Space Educators’ Handbook, NASA Johnson Space Center, Houston, Texas 77058.
2 OMB / NASA Report Number S677. See also research in 1975-1978, Edgewater Hospital, Dr. M.S. Mazel, Chicago, Il.23. Multimedia Space Educators’ Handbook, NASA Johnson Space Center, Houston, Texas 77058
3 Chemical process developed by NASA and Lehigh University under the direction of Professor John W. Vanderhoff.