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3.3.2 Long Term Legal
and Political Framework
Limits of the Current International
Law as It Applies to a Long Term Model
- UN Legitimacy? The United Nations encourages
the exploration of Outer Space. Very recently, during UNISPACE
III, this aspect of space activities was underlined. In the development
of the strategy, the United Nations will have a major role. At
all stages the Secretary General should be kept informed. If
we follow the requirements of current space law, the more we
develop space activities, the more decision-makers input will
be needed. Once we have established stations and habitats for
humans on different planets, the role of the UN will diminish
progressively and probably transition into a new form of organization.
- Registration Convention: The basic principles
of the Registration Convention were created to consolidate international
regulation of outer space.
The preamble of this convention states
that "a mandatory system of registering objects launched
into outer space would assist in their identification and would
contribute to the application and development of international
law governing the exploration and use of outer space."
The Registration State retains jurisdiction
and control over an object launched in outer space and over its
personnel. If we follow the Registration Convention, a space
settlement built in free space from materials originating from
the Earth and registered by the launching state is most likely
to remain under the continued supervision and control of the
state concerned. What is the mechanism in the case of an exploration
project initiated on a planet other than Earth?
The links between a state and a space
object or a person will be less and less justified for space
settlements and new civilizations. In the case of a settlement
in outer space, registration will disappear as future generations
will live and grow on different planets and new materials will
be built in outer space.
- Responsibility and Liability: Article
VI of the OST gives the principle of international responsibility
for all national activities outside terrestrial space.
When space activities take place on Mars,
on the Moon, or on another planet, the current international
order will not exist any more, but there might be other requirements
for identification purposes. There may be no national activities
linked with a state party, because a new society could have taken
its place and all the distinct nationalities that we know would
have blended to create a new community.
Concerning the principle of liability
of the launching state, this concept also will disappear in the
long-term. Until recently, most of the space activities had a
link with Earth through registration and launch. In the case
of an extra-terrestrial settlement, we will not link the liability
to the launching states as the launch may occur from an asteroid!
- Statute of the Astronaut: Article V
of the Astronauts Agreement and Articles 10 and 12 of the Moon
Agreement were established to provide, search and rescue for
astronauts in the event of accident, distress, or emergency landing.
In the Outer Space Treaty, astronauts
are considered envoys of mankind. The idea was that "envoy"
astronauts should enjoy jurisdictional immunity. This notion,
which contained a humanitarian character, was not followed up
in subsequent treaties. In the first phase of a settlement on
a different planet (before a definitive settlement) we will have
to look at separate rules that could apply to "new categories"
of astronauts (e.g. commander, visitors, research scientists,
etc.). In the second phase, when future generations will be settled
in free space, no specific status will be justified any more.
The term "astronaut" implies
the notion of navigation (persons who sail among the stars).
The Soviet Union favored the term "cosmonaut" (persons
who navigate the Universe). As these notions imply navigation,
they seem to be obsolete. "In the future, the use of a general
term such as 'persons' would seem far more appropriate"
(Cheng, 1997).
International law, as it exists today,
does not answer the questions that will arise at the time of
settlement away from Earth. We have to think about the evolution
of space law. We can prepare this step by looking at the governance
of future settlements.
Governance of Future Settlements
Is Earth to determine the shape or nature
of governance in space?
Space is a different environment from
any that we have known before. Thus laws governing the behavior
of people and societies in space must take those differences
into account.
Problems will arise from the attempt
to apply old or unsatisfactory social systems on a new environment.
Previous governing entities will no longer have any moral right
to rule the settlement and will not possess any methods of enforcement.
The 1991 Biosphere 2 experiment, which placed 8 people in isolation
for a planned period of 2 years, showed that one part of the
group wanted to strictly follow orders issued by mission control
while the other part was leaning towards more self-determination.
Even though current policy and law structures
(refer to 3.3.1) are applicable
to the precursor mission and the immediate future, it is likely
that new structures might appear necessary in case of a space
settlement, such as described in the project's long-term outlook
(see section 2.6.4).
Space colonies will soon feel the need to gain independence from
Earth and create their own structures in order to be able to
manage their settlement. They will be facing a new environment.
They will want to develop new ways of responding to new constraints.
They will have new drivers for their political and social organizations.
They might want to get rid of structures that no longer serve
a purpose; and, as an autonomous community, they might want to
create ways to establish and protect their own freedom.
"All of the work done to date
constitutes little more than a preface to the task of working
out a scheme of governance for space societies."
Ragosta & Reynolds
Space settlements do have the following
characteristics in the initial stages: small population, common
goals, crowding, isolation from Earth and unusual environments,
being hostile or not. These settlements bear some similarities
with certain groups on Earth.
As an analogy, experiences with Antarctic
bases or other isolated environments where significant numbers
of people must work together have demonstrated that some organizational
methods, such as hierarchical or military models, do not work
well in such circumstances. On a base in Antarctica, the key
persons are not the leader or the eminent scientist, but the
cook and the radio operator.
Norms will be needed for populations
to survive and expand. Changes in behavior and society might
lead to changes in policy making. New settlements will have their
own culture, their own ethics and their own ways to provide order
to the society. A governance might rise from a new world, creating
innovative means to address new conflicts should they arise.
"Clearly some other forms of
governance should, and probably will, emerge, either by design,
evolution, or revolution once larger, permanent settlements arise."
J. Dator
What would be better: establishing restrictions
on government activity or dictating affirmative statements of
rights? It is difficult to draft principles for the governance
of societies that do not yet exist, not knowing fully which problems
or conflicts such a society might have to deal with. Space settlements
may become ideal political experimentation laboratories. If failure
does happen it would have to be the result of the underlying
philosophy of the political model.
Actual complaints against organizations
fall mainly into three categories: too much bureaucracy, not
enough democracy, and too much repression. Should some form of
democracy be chosen, it should find a way to guarantee the civil
and political freedom of space inhabitants. Settlements should
seek to achieve a balance between community safety and individual
survival within a unique environment. That interdependence will
come from society members' creativity and best efforts to achieve
this goal. An ideal organization should be based on structure,
and the structure should be based on functions and on requirements.
"Destiny is not a matter of chance,
it is a matter of choice. It is not a thing to be waited for,
it is a thing to be achieved."
William Jennings Bryan
Instead of elected governments, small
groups may prefer to reach decisions via consensus. But what
about larger groups? The project's long-term outlook pictures
a spaceship that would house "at least one thousand people."
What kind of governance and regulatory system should they choose
to achieve common goals and ensure the well being of the entire
community? Several possibilities arise, and the settlement will
have to assess which one of these is best for their future: Gradual
or immediate independence? Democracy or some other model like
communism or technocracy? Leadership by authority, by ability,
or by function? People's will? Self-government as a sovereign
nation? No regulation of the group's population or birth control?
Status of individual property?
What is to become of space law as we
know it? Space law was established tacitly implying its connection
with Earth (i.e. nationality of astronauts, registration state,
launching state, etc.). It is not possible to extrapolate today
which regulatory system the new settlements might want to implement
when the link with Earth is severed, if it ever is.
We must not forget the possible effects
of new technology development in areas such as biology, electronic
communications, and artificial intelligence. One can imagine
that these technologies might be widely used to provide control
in a society. One can even think of a growing use of electronic
direct democracy deriving from the slow disappearance of state
systems. These technologies will be in full growth. The means
to regulate them will be created accordingly.
This new set of rules will form what is to be one of the legal
areas of greatest importance.
"Prediction is very hard, especially
when it's about the future."
Yogi Berra
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