There are many questions that will need to be addressed by space law. Some are yet to be determined, some have tentative agreements, some will probably be re-negotiated in the future. Here are some sample questions:
- Can nation X put nuclear warheads in orbit so they can conquer the world?
(1967 Outer Space Treaty forbids weapons of mass destruction in space aimed at Terra. Keeping in mind that the treaty defines "WMD" as nuclear, biological, and chemical weapons. Which means Project Thor is perfectly legal. As are conventional weapons aimed at space targets.)
- There isn't enough room in the Clarke Belt for various nations' communication satellites, who gets to apportion the slots to the countries?
(Currently the International Telecommunication Union)
- Can a private company claim ownership of an asteroid, mine it, and sell the ore?
(The 1967 Outer Space Treaty is somewhat contradictory on the topic, it is being hotly debated because it is suddenly becoming possible.)
- Can a nation claim ownership of an asteroid, moon, or planet?
(Still being debated)
- A nation's sovereign territorial waters extend 22.2 kilometers from the coast. How far up does a nation's sovereign aerospace extend?
(Still being debated)
- Can a nation damage or destroy another nation's satellites or spacecraft without repercussion?
(No. Even if there is no official law, there are plenty of earthbound legal and military remedies. 1967 Outer Space Treaty states that nations are liable for damage caused by their spaceborne objects)
- Can a nation legally dump hazardous material into space and, for instance, contaminate LEO?
(Forbidden by the 1967 Outer Space Treaty)
- Can a spacecraft fly a flag of convenience of Liberia or something like that in order to evade regulations?
(Still being debated)
- Can a nation arm their spacecraft?
(Forbidden by the 1967 Outer Space Treaty)
You can find an overview of established and yet-to-be established space law in Space Law 101. The current hot topic is the legality of private companies mining asteroids.
One of the more plausible pieces of MacGuffinite creating a plausible future with lots of people living in space is extraterrestrial mining. And a vital part of industrializing space is in-situ resource utilization.
But neither is going to happen if it is illegal to mine asteroids and moons.
Last week, the U.S. Congress passed the US Commercial Space Launch Competitiveness Act of 2015 (or the “Space Act”), which will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters (and detractors) are calling this historic, because it is the first time the U.S. government has plainly authorized commercial exploitation of outer space resources. Here is some key language from the bill, which President Obama is expected to sign.
“§ 51303. Asteroid resource and space resource rights
“A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”.
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
There is also Article II, which seems to restrict claims of sovereignty in outer space.Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.The Space Act of 2015 tries to avoid this potential conflict by limiting itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.” The Act also goes on to “disclaim” extraterritorial sovereignty (shouldn’t that be “extraterrestrial” by the way?)
It is the sense of Congress that by the enactment of this Act, the United States does not thereby assert sovereignty or sovereign or exclusive rights or jurisdiction over, or the ownership of, any celestial body.
I think the law’s backers are correct that it does not violate US treaty obligations. All it does is allow private US citizens to “possess, own, transport, use, and sell” extraterrestrial resources without violating U.S. law.
On the other hand, it is also true that other spacefaring countries could allow their citizens to do the same. Indeed, I think their government space agencies could probably also do so, als long as they are not “claiming sovereignty.” Without an explicit international treaty regulating commercial space resource exploitation, it will ultimately be a question of each country’s domestic regulations. Can the U.S. live with that result?
I think it can. In my view, the UN Law of the Sea created a complicated bureaucracy for handling management of the international seabed, way before any commercial exploitation of that seabed was even possible. We don’t know yet what types of exploitation are feasible, and we might as well let this process evolve on its own before demanding a worldwide international treaty on the subject. There will be plenty of time for that.SECTION 13: ORIGINS
One interesting potential source of a very early conflict is the ambiguity of current space law. The Outer Space Treaty specifies, among other things, that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. (Art II)” This does raise two questions. First, it is silent towards ownership claims by entities that are not national governments. Some have argued that other entities would indeed be allowed to claim ownership over celestial bodies or parts thereof, and this interpretation could be supported by the fact that the later Moon Treaty takes a much stronger stance, declaring all celestial bodies to be ‘the Common Heritage of Mankind’, a status that places them under the ward of the UN Secretary-General. The Moon Treaty has not been ratified by any spacefaring power, and is generally considered something of a joke.
However, this provision, combined with the stricture that “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies. (Art I)” raises interesting questions about what will happen the first time something very valuable (probably some form of MacGuffinite) is discovered on celestial body. A reasonably strong argument could be made that the discoverer has no ownership rights over anything that he hasn’t already mined, and some unscrupulous group could easily use this argument to pull up alongside the original discoverer and start helping themselves. Under a strict reading of the Outer Space Treaty, this would be perfectly legal, and so long as the interloper did not interfere with the activities of the discoverer. However, the discoverer might well expand his activities in such a way as to prevent the interloper from accessing the resource, and the interloper could claim that such activities were interfering with his legitimate activities. The storm of legal recriminations would be long and bloody, particularly if the discovery was particularly valuable, and it is possible that the parties on the scene would decide to resort to violence instead of waiting for the lawyers to sort it out.
A similar scenario could be sketched that, while it does not strictly meet the definition of ‘combat’, would provide an interesting story and lead to a clarification of space law. Let’s say that there are two Lunar resorts located quite near each other. Because neither one has any claim to the surrounding land, it would be potentially legal for one of them to, say, mess up the competitor’s ‘ski runs’ or block the view by erecting a solar farm. Escalation could lead to some sort of pseudo-war, or just provide lots of money for the lawyers back on Earth.
It is likely that any occurrence which hinges on the lack of property rights would to significant changes in space law, either with the abolition of the Outer Space Treaty, or to significant amendments which give users some jurisdiction over the surrounding area. The exact form of such a treaty is an interesting subject for speculation. For appearance’s sake, if nothing else, it is unlikely that the major spacefaring powers will simply partition all of space among themselves. Instead, property claims will probably depend on some combination of use and discovery, depending on the impetus for the reform. If it is based on the discovery of some valuable material, then the rule will likely be based primarily on who made the initial discovery of the deposit. Of course, the definition of ‘deposit’ is likely to be a subject of significant legal wrangling, and could easily lead to discoveries being kept quiet until the area was thoroughly mapped to prevent claim jumpers from grabbing portions of it. On the other hand, transit times in space are likely to be long enough that claim-jumping on asteroids is not a viable option.
In a situation where resources are plentiful, and the reform was based on conflicts between users (as opposed to some sort of McGuffinite), property rights are almost certain to go to those who are actually doing things, not to those who merely saw them first. However, ‘use’ is also a very slippery concept in the hands of lawyers. What constitutes ‘use’ and how much property rights do various kinds of ‘uses’ give? Giving a resort a radius that stretches to the local horizon seems reasonable, while 1000 km would be clear overkill. On the other hand, a major lunar colony might well argue for a large area based on the various activities it engages in, and a mining outpost would be primarily concerned with preventing others from profiting off its prospecting work. And it seems silly to allow use claims based on things like navigation beacons. However, even beacons could be a significant problem for such claims. What happens when someone finds a deposit and decides to start mining, but there’s a beacon in what will be the radius? Does the beacon’s owner have to move it? Is it exempted from the claim? What if someone seeds a large area with beacons just to inhibit other claims?
An interesting twist on this is that claims might require a permanent human presence to be valid. This would provide an excuse for human crews in places that normally might not have them, such as mining outposts. It’s even possible that use claims would be based solely on human habitation, and not on any other factors. This could lead to odd situations, like a major lunar colony having a web of small outposts solely for the purpose of maintaining title to the surrounding area. Of course, the meaning of ‘permanent’ in such a situation is another question sure to keep the lawyers busy.
Another issue is what to do with things that, on Earth, are normally property of the government. The most likely examples are the various Apollo landing sites. On Earth, they would be National Parks or something of the sort, but Apollo 11, at least, is likely to be surrounded by a bunch of different hotels, and if one of them was awarded the sole rights to the site, it could lead to serious problems. An obvious solution to the Apollo problem is to award ownership (or control of use rights, which amounts to the same thing) of the site itself to the US Government. However, there is the possibility that various natural features could achieve similar status, and there is no obvious custodian. Some form of primitive planetary government might grow out of such an arrangement, serving as the custodian of record for certain sites, and as the central repository and adjudicator for use claims.In fact, it’s possible that some form of united planetary authority could exist even earlier. At the moment, there are some concerns about damage to historical planetary sites, particularly that of Apollo 11, by various (mostly private) space missions. While the hardware left behind still belongs to the US, and damage to it could be appropriately dealt with using existing legal mechanisms, rovers covering up Neil Armstrong’s footprints is still a worry. The creation of a treaty to protect such sites is not at all out of the realm of possibility, and while damage to natural features is not a present worry, it could become one once space tourism becomes widespread. In that case, the creation of an international regime to protect ‘Space Heritage Sites’ is quite likely. This body could be expanded as property rights become important, reaching the state described above. However, such a body would have the significant drawback of being based on Earth and beholden to Earth-based powers for its authority. As space colonies become more independent of Earth, this could be a source of significant tension.
Footnote: Shortly after this section was originally written, the FAA responded to a request from Bigelow Aerospace with the statement that the agency intends to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis”. This was widely interpreted by the media as an endorsement of property claims, although the reality is more nuanced. In fact, the FAA, which is responsible for licensing private space launches in the US, merely stated that it intends to use said licensing authority to ensure that missions do not interfere with each other. John Schilling described this as the astronautical equivalent of making sure that one fishing boat isn’t fouling another’s nets. However, given time, this could evolve into something that looks more like conventional property rights, particularly if other countries cooperate."
The above section is all about the legalities of Terran based corporations in the near future sending unmanned equipment to harvest from the asteroid belt and drag the values back to Terra.
Things become more like an 1800s US gold rush once you have human prospectors in the far future actually living in the asteroid belt. With all the associated problems of claim jumping, mining rights, and such.
An amusing model is in Terry Pratchett's Discworld novels. These are satirical comedic fantasy novels but they do contain much that is logical and well researched. In the novels there is a race of humanoids called "dwarfs" who are short, live underground, and make a living by mining and manufacturing. Pretty much like the dwarfs in any other fantasy novel you've ever read.
One difference is Discworld dwarf culture, called "Kruk." The illuminating part is that the word literally translates as "Dwarf Mining Law." This shows what an important part mining plays in dwarf culture. Everything from the heightened status of knockermen to how dwarf mine signs prevent the miners from going postal and killing everybody.
But pragmatically Kruk is about the rules concerning who gets paid and who owns what. Dwarfs are nothing if not practical.
It seems to me that a lot of this has analogies with asteroid miners. Now you know where I got the name for this section.FERENGI RULES OF ACQUISITION
(ed note: in Star Trek the Next Generation they needed a recurring adversary alien race to replace the Klingons. Since the Klingons were an allegory for the US/USSR Cold War, the producers looked to what was then a current US controversy. They hit on the 1980s popular opinion that the nation's financial sector was essentially full of greedy barbarians. So the Ferengi became the allegory for that. Note: in the following, "latinum" is the equivalent of gold or other valuable substance.)
The Rules of Acquisition were a numbered series of aphorisms, guidelines, and principles that provided the foundation of business philosophy in Ferengi culture.
OFFICIAL RULES Number Rule 1 Once you have their money, you never give it back. 3 Never spend more for an acquisition than you have to. 6 Never allow family to stand in the way of opportunity. 7 Keep your ears open and your eyes on the mark. 9 Opportunity plus instinct equals profit. 10 Greed is eternal. 16 A deal is a deal. (…until a better one comes along) 17 A contract is a contract is a contract… but only between Ferengi. 18 A Ferengi without profit is no Ferengi at all. 21 Never place friendship above profit. 22 A wise man can hear profit in the wind. 23 Nothing is more important than your health... except for your money. 31 Never make fun of a Ferengi's mother (...insult something he cares about instead) 33 It never hurts to suck up to the boss (alt: It's never too early to suck up to the boss) 34 War is good for business (only from a distance, the closer to the front lines, the less profitable it gets) 35 Peace is good for business (… unless you happen to be an arms merchant) 45 Expand or die. 47 Don't trust a man wearing a better suit than your own. 48 The bigger the smile, the sharper the knife. 57 Good customers are as rare as latinum. Treasure them. 59 Free advice is seldom cheap. 62 Profit is its own reward. The riskier the road, the greater the profit. 74 Knowledge equals profit. 75 Home is where the heart is, but the stars are made of latinum. 76 Every once in a while, declare peace. It confuses the hell out of your enemies. 95 Expand or die. 98 Every man has his price. 102 Nature decays, but latinum lasts forever. 103 Sleep can interfere with... (this rule was interrupted before it could be finished) 109 Dignity and an empty sack is worth the sack. 111 Treat people in your debt like family... exploit them. 112 Never have sex with the boss's sister. 125 You can't make a deal if you're dead. 168 Whisper your way to success. 190 Hear all, trust nothing. 194 It's always good to know about new customers before they walk in your door. 203 New customers are like razor-toothed gree-worms. They can be succulent, but sometimes they bite back. 208 Sometimes the only thing more dangerous than a question is an answer. 211 Employees are the rungs on the ladder of success. Don't hesitate to step on them. 214 Never begin a business negotiation on an empty stomach. 217 You can't free a fish from water. 229 Latinum lasts longer than lust. 239 Never be afraid to mislabel a product. 263 Never allow doubt to tarnish your lust for latinum. 285 No good deed ever goes unpunished. Unknown A man is only worth the sum of his possessions.
UNOFFICIAL RULES Number Rule Number Rule 299 After you've exploited someone, it never hurts to thank them. That way, it's easier to exploit them next time. – Exploitation begins at home. – When the messenger comes to appropriate your profits... kill the messenger. – Time, like latinum, is a highly limited commodity. – Always inspect the merchandise before making a deal. – Why ask, when you can take? – Good things come in small packages – A good lie is easier to believe than the truth. – If that's what's written, then that's what's written.
In science fiction, the most common "code of space" is to never ignore a distress call (succour & rescue rule). And never ever knowingly strand another human being on a remote wilderness planet, no matter if they are your arch enemy.
If the communications officer receives a distress signal they send it to the watch officer, but they never respond to the distress without authorization. Responding binds the ship to render assistance, which is a decision reserved for the captain.
Occasionally you'll encounter a dubious "castaways code." This states that if a fertile crew of mixed male and female are marooned on a habitable wilderness planet, they are obligated to try and create a colony. This was satirized in Poul Anderson's Eve Times Four.
Of course things get really complicated when science fiction authors want to write about the legal climate when aliens are involved. In 1956 Attorney Andrew G. Haley set forth his hypothesis regarding the proposed existence of fundamental legal precepts of theoretically universal application to all intelligences. He coined the term "Metalaw".
Many criticized the concept of metalaw. Some say it relies too much on Immanuel Kant’s Categorical Imperative and "Natural law." These assume that laws are based on morals, and morals have a prior existance in nature. In other words morals are "discovered" by observing nature rather than being "invented" in the mind of man.
Still others criticize metalaw on the grounds that it relies upon subjective or relative (and therefore inadequate) concepts of “good” and “bad.”
In "A Matter of Metalaw" author Lee Correy (aka G. Harry Stine) examined the subjective nature of metalaw. The novel concluded that the first rule of metalaw is "Do Unto Others As They Would Have You Do Unto Them."
In other words, if members of an alien species are all masochists, the moral thing to do is be sadistic and inflict pain and humiliation upon them.
The "golden rule" would have you treating the aliens the way you want to be treated, which is not what the aliens want at all. Assuming that the aliens want the same treatment you want is rank parochialism at best and vile chauvinism at worst.