Space Law

One of the more notable recent events was the launching of a non-government rocket by a company run by Elon Musk to the International Space Station. Apparently Boeing is going to do something similar in the not too distant future. In some ways this is exciting, because one way or another, human ventures into space will increase markedly. I recall in 1969 sitting in front of a TV one morning (I was in Australia) getting direct feed from Parkes to see the first Moon landing in real time. (OK, there was a slight delay due to the speed of light, and probably more due to feed looping, but you know what I mean.) There was real tension because while everyone was reasonably confident that NASA had selected a good site, it was always possible the ground was not as solid as it might appear and it only needed for the lander to roll over and the ending might have been less than happy. Additionally, the landing was not entirely optimal, and fuel consumption was a little higher than anticipated. This may not seem important, but it did at the time. But all ended well. There were several more Moon landings, and apart from Apollo 13, the program was brilliantly successful. The recovered rocks are still yielding scientific information.

Then the program ended. And nothing more happened. We constructed the International Space Station, with reusable shuttles, but somehow this has had limited value. Certainly, it has permitted the testing of the effects of long periods of weightlessness on people and on other life forms. The best part of this was we got international cooperation. Arguably, humanity was going into space and not just various countries. We have sent a battery rovers and space craft through the solar system, and we genuinely know a lot more about our planetary system. When I was a schoolboy, I believe I knew as much about the planets, other than their orbital details, as anyone. That may sound ridiculous, but I believe it to be true because basically nobody knewvery much at all. They guessed on the basis of their observations, and their guesses were largely wrong. So that part of the space program has been a resounding success, but it brings into question, what is the point of acquiring that information if we do nothing with it? If we do, who does? If different parties go to space, what will be the rules they must follow? Who decides? It is much better if we can get this sorted before various parties get there.

There are two schools of thought. One is, we should stay here and leave the rest of the solar system for careful study, or if we do go somewhere, like Mars, again it should be for study, and we should leave it alone. The other school of thought is the solar system is a resource, and we should be free to tap into it. Which brings up the question, who decides? And what happens if someone does something another group decides should not be done? What happens if one government decides to do something, and a private company decides to do something similar in the same place? How are issues such as these to be resolved?

On Earth, we use the courts to resolve many such issues, although for some issues, governments decide, and of course the split between governments and courts varies from country to country. Worse than that, there is often no real logical reason to prefer one route over another, and the decision is made through politics. Again, different countries have different political systems, so two countries might reach very different decisions based properly on the way they conduct their affairs. Often enough, the various countries find that there is an impasse in finding common ground. What then? Carl von Clausewitz’ “war is a continuation of politics by other means” is not where we want to end up.

There is another problem. For a court to resolve something, there has to be law, and law follows from sovereignty, that is, the right to impose the law, AND the means of enforcing it. So, what happens in space? There is no sovereignty, and suppose there were settlers on Mars, why should they not have their own sovereignty? While they might start off as a colony, through needing a lot of support from people on Earth, their laws should not be imposed by people who have no concept of what life is like there. For example, environmental laws to conserve nature on Earth should not be imposed on Mars, where settlers would struggle just to get what they need to stay alive. Additionally, why would Russian settlers on Mars have to obey American laws, or vice versa? We might argue that the United Nations should set the laws for space, but unless all countries interested in exploring space agreed to them, why should they? Why should countries with no interest in space have standing in setting such laws?

Then there is the question of enforcement. The US is creating a “Space Force” so what happens if they try to stop Russians, say, from doing something in space that the US does not like? Settlements on planets are another matter. There, in my opinion, enforcement will have to fall on settlements, if for no other reason than if a crime is committed on Mars, we cannot have the situation where everyone has to wait for possibly a year and a half to get investigators from Earth. And if anyone thinks there will be no crime, I say, think again. The history of colonization is littered with crime. The US had its “wild west”, Australia its bushrangers, and the history of New Zealand has serious crime, the most spectacular being armed hold-ups of gold during the gold rush days. There will also be other opportunities for crime that are a little more sophisticated, such as in my novel “Red Gold”

But there will also be serious commercial disagreements, particularly if some want to use something and others want to preserve it. I believe everyone has the right to their opinion, but there have to be rules and a means of enforcing them to avoid conflict. This procedure should be fully established beforeit is needed. There is plenty of time to argue now, but not in the middle of a dispute, and it is wrong to impose restrictions on an activity when huge sums of money have already been spent.