Introduction

RocketCat sez

Yeah, yeah I know. All you staunch pseudo-Libertarian types who have a two-year-old's deep-seated aversions to being told what not to do have this paradisaical vision of space being the New Frontier. Specifically a place where men are men, women are women, and there are no pesky authority figures forbidding you to impulsively do whatever you blasted please at any given moment. A place that you can become a Space Cossack.

Well, Mister Impulse-control-problem man, I've got bad news for you.

I know what you are thinking: "the space frontier is the same as America's pioneer days". Sorry, Charles Stross proved that idea kinda flopped outta the south end of a north-bound bull.

But there is a more fundamental problem: in a place where your space suit popping a seam can kill you in ninety seconds flat, a person who "does not play well with others" will have the life-span of a soldier who is a jerk to everybody in their unit. Not just that they'll arrange airlock accidents for your benefit, but because they'll be somewhat slow and reluctant to come to your aid when you scream for help. Either of which will make you a poor life insurance risk.

Yes, you just chug-a-lugged all that "wild west" dreck about "the only law is the law you make with your trusty six-shooter". Well, I'm sure the thought of your trusty laser pistol will console your dying agonies as your suit leaks air from that spot in the small of you back which is just out of your reach.

And it is really really hard to have a dome raising bee with only one person.


But the point is that Libertarian rule only works in an area where the the population is One. Things get tense where there are two people.

And if you get a small Libertarian community, you will have either

  • [a] Open warfare
  • [b] A cohesive group who will hunt you down like the dangerous non-conformist mad dog you are
  • [c] A community of sheep enslaved by the biggest meanest sociopathic thug who just happens to be quicker on the draw than anyone else. Probably quicker than you, too.

Or [d] A cry by the community to get rid of Libertarian social Darwinism and replace it with the rule of Space Law so as to establish a place where "decent people" can live. Which means it'll suddenly have rules, laws, lawyers, treaties, politicians, and everything else you fled from on Terra.

Laws will happen even quicker if something lucrative is discovered in the region. Then the mega-corporations will show up, smelling profit. They will quickly establish either national or corporate laws in order to protect their income stream. Either of which will outlaw Libertarianism.

But what if by some magic means the corporations are prevented from coming and bringing their laws, so that Libertarianism can flourish? Well, then that region of space will remain a miserable back-water, with you growing a long beard and living the life of a prepper survivalist much like Ted Kaczynski, using powdered regolith for toilet paper. No laws = no civilization nor the benefits thereof.


The bottom line: you ain't gonna have a Rocketpunk Future without Space Law. It's TANSTAAFL, bub.

Issues

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.

SPACE LIABILITY CONVENTION

The Convention on International Liability for Damage Caused by Space Objects, also known as the Space Liability Convention, is a treaty from 1972 that expands on the liability rules created in the Outer Space Treaty of 1967. In 1978, the crash of the nuclear-powered Soviet satellite Cosmos 954 in Canadian territory led to the only claim filed under the Convention. Skylab crashed in Western Australia the following year, and while there were no deaths, injuries, or significant damage, the shire of Esperance did fine the Government of the United States $400 for littering as a result of Skylab's crashing to earth over Australia. NASA never paid the debt. The fine was paid in April 2009, when radio show host Scott Barley of Highway Radio raised the funds from his morning show listeners and paid the fine on behalf of NASA.

Status

The Liability Convention was concluded and opened for signature on 29 March 1972. It entered into force on 1 September 1972. As of 1 January 2013, 89 States have ratified the Liability Convention, 22 have signed but not ratified and three international intergovernmental organizations (the European Space Agency, the European Organisation for the Exploitation of Meteorological Satellites, and the European Telecommunications Satellite Organization) have declared their acceptance of the rights and obligations provided for in the Agreement.

Key provisions

States (countries) bear international responsibility for all space objects that are launched within their territory. This means that regardless of who launches the space object, if it was launched from State A's territory, or from State A's facility, or if State A caused the launch to happen, then State A is fully liable for damages that result from that space object.

Joint launches

If two states work together to launch a space object, then both of those states are jointly and severally liable for the damage that object causes. This means that the injured party can sue either of the two states for the full amount of damage.

Claims between states only

Claims under the Liability Convention must be brought by the state against a state. The Convention was created to supplement existing and future national laws providing compensation to parties injured by space activities. Whereas under most national legal systems an individual or a corporation may bring a lawsuit against another individual or another corporation, under the Liability Convention claims must be brought on the state level only. This means that if an individual is injured by a space object and wishes to seek compensation under the Liability Convention, the individual must arrange for his or her country to make a claim against the country that launched the space object that caused the damage.

From the Wikipedia entry for SPACE LIABILITY CONVENTION
EXTRATERRESTRIAL PATENT INFRINGEMENT

A patent is a territorial right, meaning that it applies only to the territory (including the air space of that territory) in which the patent is granted. For example, a U.S. patent provides the patent owner with a legal means to prevent others from exploiting the invention covered by that patent without his or her permission in the United States only. If the invention is not covered by a patent granted in any other jurisdiction, others are free to make, use or sell the invention in those other jurisdictions.

But, given that a patent is a territorial right, can a patent afford protection of an invention whose commercial exploitation requires that it be made, used or sold in outer space?

This is becoming an increasingly important question as we see human space activity on the rise with ever greater presence and research aboard space stations, more and more satellites and also the opportunity to experience space becoming more attainable for everyone through space tourism with companies such as Virgin Galactic. A growing number of players in the field of space technology means that the uncertainty surrounding unauthorized use of patented inventions in outer space soon needs to be addressed.

Perhaps the question to ask is, whose territory is space? Should infringement be determined according to the jurisdiction above which the space object is at the time of an alleged infringement? It appears not.

The Outer Space Treaty of 1967 (Article 8) states: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object… while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” Therefore, it could be argued that the patent law of the state in which the space object was registered and from which it was launched applies to an invention that is subsequently made, used or sold on that space object.

Interestingly, U.S. patent law has an explicit provision along these lines for inventions in outer space under Title 35, Section 105 of the U.S. Code: “Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.”

This suggests that unauthorized manufacture, use or sale of a patented invention on a space object under the jurisdiction of the United States will be treated as if it were an infringement under U.S. patent law. After all, when a space object is launched into Earth orbit or beyond, the launching state must register the space object and so the jurisdiction of the space object would be retrievable. There even exists a provision for cases where there are two or more launching states of a space object under the U.N. Convention on Registration of Objects Launched into Outer Space, which states: “Where there are two or more launching States in respect of any such object, they shall jointly determine which one of them shall register the object.”

However, the United States seems to be alone in providing an explicit provision for inventions in outer space. Most other jurisdictions do not currently have any such provisions, and there still remains some uncertainty as to whether an inventor can be protected against the unauthorized use of a patented invention in outer space.


The possibility of enforcing patents in outer space will pose a serious challenge for the space sector where the freedom of action in space is important for the future of exploration and discovery. In fact, it will conflict with the fundamental principles for space activities prescribed in Article I of the Outer Space Treaty of 1967: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States… in accordance with international law… There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.”

However, even in 1967, private, nongovernmental space activity was clearly contemplated. The Outer Space Treaty (Article 7) also states: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities. … The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

This suggests that the responsibility for space activities still rests with the state. So when it comes to enforcement of a patent or prevention of patent infringement, does a patentee have to work hand in hand with the relevant state? Alternatively, does the relevant state bear any liability for patent infringement in space onboard one of its registered objects such that the state could be named as a co-defendant in litigation? These issues have never been tested and so, until any attempt is made to enforce such rights against acts occurring in outer space, this remains to be seen.

In any case, how easy is it to detect patent infringement in outer space? How can patentees even prove infringement of their patented inventions if that infringement is use of a patented product or process only occurring in space?

For example, if the patented invention relates to a method for operating a heating module, how can you detect patent infringement unless you are present on the space object on which the method is being performed? If the space object never returns to Earth, or returns to a different territory than that in which it is registered, a customs-type seizure is not possible.

On Earth, a patentee can become aware of infringing activities by third party marketing or sales campaigns or by seizing infringing products for analysis. The same detection is not possible in outer space, which makes enforcement that much more difficult, if not impossible.

From OP-ED | EXTRATERRESTRIAL PATENT INFRINGEMENT by Lisa Williams (2015)
DO EARTH LAWS APPLY TO MARS COLONISTS?

On Tuesday, Elon Musk is expected to outline a plan to send human colonists to Mars.

Colonizing Mars certainly won't be easy, and if it ever happens, that probably won't be until the mid-2020s or 2030s. But if Musk has his way, he'll set up a permanent home for humanity on Mars, and that opens up some intriguing legal questions.

Mars belongs to everybody, according to the Outer Space Treaty, which the United States signed back in 1967. The treaty says nobody can own a celestial body. How might that affect Musk's plans?

Can You Do Whatever You Want In Space?

There's nothing in the space treaties that would stop Musk and his followers from going to Mars, says Frans von der Dunk, who studies space law at the University of Nebraska-Lincoln. Private companies are perfectly free to set out for Mars, build permanent habitats, and start a new society there--just as long as that society follows the rules of the Outer Space Treaty. For example, colonists can't deploy weapons of mass destruction (sorry, Elon), and they can't claim to own the land they're on.

"Their activities on Mars shouldn't interfere with activities of others in space," says von der Dunk.

Who's In Charge?

Although Musk's hypothetical colony wouldn't legally be an American colony, it would still be subject to American laws. That's because even if the Mars mission launches from Kazakhstan or French Guiana, SpaceX is an American company and the colonists would be traveling on an American ship.

Maritime laws provide a good example of the type of legal system we could expect on the red planet. Like international waters, nobody can own Mars, so instead each ship needs to follow the rules of the country whose flag it flies under. And, just like sailors, Mars explorers are still expected to abide by those rules even when they're off the ship.

Things get a little more complicated once you start adding other countries and companies into the Martian mix. On the International Space Station, for example, if an American astronaut were to hit a Russian astronaut over the head, first the U.S. would have the right to determine whether a criminal act was committed. If the U.S. doesn't take action, then he could be tried under Russian jurisdiction.

In addition, any sizeable, long-term colony on Mars is also going to need a local governing system. What form of government might or should take shape there? We'll leave that discussion up to the political scientists.

Does He Need Permission To Colonize Mars?

Currently, if you want to launch a rocket into space, you have to ask the government for permission. Then, depending on your activities in space, you have to apply for a second license to do specific things. For example, if you're launching a telecom satellite, you'll want to talk to the FCC.

However, as of yet "there is no license specifically for dealing with the legal implications of space colonization," says von der Dunk. In fact, it's not even clear which office would be in charge of giving out those licenses. NASA? The FAA? A whole new branch of the government?

As the number of companies wanting to carry tourists into space increases, the government is going to need to figure out a licensing procedure soon.

Why Bother Enforcing Earth Laws On Another Planet?

We're supposed to avoid contaminating the celestial bodies that we explore, according to the Outer Space Treaty. Not only does that mean 'don't spread trash all over the solar system,' but it's generally interpreted to mean 'keep your microbes to yourself,' too.

If Earth microbes take root on Mars or Europa, we may never have the chance to find out if those worlds ever hosted alien life. So the major space agencies have a sort of "gentleman's agreement," says von der Dunk, to decontaminate their spacecraft as much as possible before sending them to other worlds. But human bodies are much harder to decontaminate, since our health depends on our microbes.

There a few sites on Mars that are considered deserving of heavier protection than others--areas where liquid water is thought to exist, for instance. Only the most thoroughly decontaminated vessels are supposed to enter those areas.

Will Elon Musk and his followers be expected to follow those same planetary protection "gentleman's agreements"? The licensing process, mentioned above, could determine whether potential colonizers will be legally bound to avoid spreading their germs all over Mars.

"The U.S. licensing process should make sure that the activities of Elon Musk and others do not violate key principles of planetary protection," says von der Dunk. "The U.S. has the power to make those binding of Elon Musk and whoever flies under his flag."

As companies prepare to mine asteroids and other bodies in the coming years, the government will need to set up a licensing procedure for that as well. It's unclear whether those companies would be held to strict planetary protection guidelines, but asteroid mining licensing could pave the way in making it easier (or harder) to include planetary protection in the guidelines for building settlements on other worlds.

"If the companies want to be seen as good citizens, and consider them fair requirements, it will be an easy thing," says von der Dunk. "But if they find planetary protection totally obstructive or heavy in cost and start protesting this, that will then have to be sorted out--or maybe fought out."

From DO EARTH LAWS APPLY TO MARS COLONISTS? by Sarah Fecht (2016)

Territorial Zones In Space

SECTION 11: OPERATION SHORT OF WAR

Almost all of the above discussion has revolved around a general war scenario, or at least some form of war.  But what happens if there is no war?  What about the missions like patrols, boardings, inspections, and interventions?  In this case, ambiguity is rampant, and thing get much more interesting for the storyteller and much more difficult for the soldier.

The scenario that most readily leads itself to this sort of interesting activity is one in which there are multiple space-going powers on or around a given planet.  This puts competing powers in close proximity, and throws out many of the rules of traditional space warfare.  Furthermore, this scenario is most likely to occur with respect to Earth, which means that there are almost certainly dozens of powers in orbit, adding a complicated legal mess to the situation.  The problem is that many of the concepts that exist on Earth with regards to jurisdiction have far less value in space.  Everything is constantly moving, generally with significant velocities relative to each other.  Defining any sort of “territorial waters” will be incredibly difficult, given that both the object that the “waters” are centered on and everything else is moving.  At a guess, territorial space will only extend as far as the standard safety zone around an object.  What exactly that will be is uncertain, but anything more than a few tens of kilometers is unlikely.  The size of the zone is small enough to not pose a serious impediment to navigation, and the zone itself might vary in size based on the nature of the object it is centered on, and the orbit said object is in.  Current ‘safety boxes’ for spacecraft vary somewhat in size.  The shuttle had a box that was ±5 km along its orbit and ±2 km in the other directions.  That of the ISS is ±.75 km radially by ±25 km in the other two directions.  These suggest that similar sizes may be used for the zones around future spacecraft.

The next question is what exactly gets jurisdiction.  The “territorial zone” is probably only going to exist around manned spacecraft in permanent, assigned orbits.  The logic behind this is simple.  In virtually all cases it prevents overlapping jurisdictional claims, and avoids giving people the ability to game the system.  It also limits jurisdictional claims to those that can be enforced, instead of leaving a complicated web of possible claims that are mostly pointless because nobody is around to enforce them.  This is not to suggest that unmanned craft and those not in permanent orbits would not have safety zones, however.  They simply would not turn the space around them into “territorial waters”.  

The small size of the safety zones (and the fact that it would probably be forbidden to pass through one unless one was headed somewhere inside the zone) makes the idea of routine boardings and inspections suspect.  The author is not an expert in space or admiralty law, but it appears that only under fairly restricted circumstances can craft be boarded.  It is legal for the flag state to conduct inspections anywhere in the world for purposes of safety and documentation (and possibly more, depending on local laws).  For any other vessels (in territorial waters only), the state must be affected by a crime, or it must have a request from the flag state to board.  These change if the vessel in question has docked in the state.  In international waters, suppression of piracy and slavery are about the only reasons involuntary boarding is allowed.

All of this casts doubt on any scenario that involves routine boardings, throwing the rationale for space fighters into doubt again, particularly given the spread of “flag of convenience” registration on the seas today.  If an inspection is required, it is probably better to do so when the vessel is docked at its destination, instead of spending the time and delta-V required to chase it down.  While the issue might occasionally come up, the presence of dedicated ‘boarding gunships’ is unlikely.  The ultimate arbiter of good behavior in this scenario is the threat of warships becoming involved.  While the boarding party might be lost if a vessel makes trouble, the crew of the resisting vessel will be as well, and they would know as much before they made trouble.  In many ways, the same situation is in effect today, and the number of cases where boarding parties are resisted is very small.

It has been suggested that some sort of international authority will be required to regulate orbital space, primarily for purposes of safety.   This authority could ensure optimal use of orbital space, quite possibly along the same lines that the International Telecommunications Union does for satellites in geostationary orbit.  In fact, given that the ITU plays a role in current spaceflight activities by ensuring clear communications, it is entirely possible that such an authority could evolve out of it.  Alternatively, the UN currently maintains a registry of ‘Space Objects’, which includes orbital data, and the registration system could evolve out of that.

The exact nature of the allocation of orbital slots is likely to involve thousands of lawyers and millions of man-hours, as the current system of first-come, first-serve is likely to prove inadequate under the increasing demands placed on space use.  One possibility is the creation of “bands” and the assignment of position within said bands.  A precedent already exists with the aforementioned ITU allocation of geostationary slots, although in this case the bands would be artificially created.  This policy recognizes the fact that for certain tasks, some orbits are more useful than others, such as the orbits used by GPS satellites, which have repeating ground tracks, or the sun-synchronous orbits used by many remote sensing satellites, which ensure consistent sun angles in the data.  Other applications, such as colonies and shipyards, do not have particular requirements, and can be placed in orbits that are not required for anything in particular.  In fact, the most optimal arrangement would be circular orbits with a number of craft sharing the same orbit, one behind the other.  These ‘rings’ allow virtually risk-free sharing of orbits while maximizing the number of slots available.  Certain bands may be designated for special tasks, such as deep-space arrivals and departures, with facilities in appropriate orbits for the various destinations.

It is also possible that the regulatory body would be charged with handling space debris problems, as a corollary to its primary duties.  The current problems with debris are unlikely to persist in a future in which there is significant activity in space.  While minor debris damage (paint flecks and such) are simply a fact of life, larger debris is mostly a result of the way space programs must be conducted.  However, there is no reason to abandon a satellite in the sort of setting under discussion.  Even if it is too old to be worth repairing, it is still a large amount of high-purity metal in orbit.  Instead of abandoning it and risking problems (not to mention tying up a potentially valuable orbital slot), an owner would probably scrap it in orbit or sell it to someone who would do so.  The same applies to upper stages of boosters, but to an even greater degree.  It might well be worth the sacrifice of a small amount of payload to allow the stage to reach a scrapyard, recouping much of the cost of the stage in the process.  Of course, this assumes that expendable rockets are still being used as the primary means of space launch.  If some other method is in wide use, the value of on-orbit material will drop.  However, so will the cost of recovering an older satellite, and novel launch methods will do nothing to alleviate congestion and debris problems.

Smaller, but still dangerous, pieces of debris would of course still exist, and be continuously generated by space activity.  Thus, some system (possibly a laser broom) would have to be constructed to deal with them.  Said system would continue to sweep the debris from orbit as they are generated, keeping the population below where it is today.  Prompt clean-up would eliminate a major potential source of debris, leaving orbital space much cleaner than it is today.  (Except in the case of a major war, as discussed in Section 6).

by Byron Coffey (2016)
IN THE MATTER OF SPACE LAW

“The Moon stays constantly over a slice of Earth bounded by latitude twenty-nine north and the same distance south; if one man owned all that belt of Earth—it’s roughly the tropic zone—then he’d own the Moon, too, wouldn ’t he? By all the theories of real-property ownership that our courts pay attention to. ”—D.D. Harriman, hero of Robert Heinlein ’s classic novel The Man Who Sold the Moon

When we opened the American West, if you can believe Hollywood, the law trailed years behind the settlers, then had to be forced on unwilling cattle barons, rustlers, and thieves at six-gun point. We’re doing things a little more neatly these days. Laws and treaties that will govern the first space settlers are already on the books.

Space law falls into two categories. Many legal issues deal with the impact of space exploitation on our home planet. The work that went into setting up the communications-satellite companies in the mid-Sixties is a good example. In the long run, though, the second category may be more important: How will we govern the space colonies themselves? All through space law, there are far more questions than answers.

However much respect we have for such concepts as “human rights” and “natural law,” it is clear that we cannot hope to carry our legal traditions beyond Earth’s atmosphere. The laws that govern our colonists must grow naturally out of the demands that space itself makes on people who would live in it. Obvious as this principle is, there is little evidence that today’s lawmakers understand it. The international treaties on which space law is based all center on earthly concerns and approach them in traditional ways.

At the root of all space law is the U.N. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies. Known casually as the Outer Space Treaty, it provides that:

  • Space exploration shall be conducted for the benefit of all countries and shall be the province of all mankind.
  • Outer space and celestial bodies cannot be nationalized.
  • Space research must further the interests of international cooperation, understanding, and peace not merely in space but particularly on Earth.
  • Nuclear weapons and other weapons of mass destruction, military bases, installations or fortifications, maneuvers, and weapons testing are all banned from space.
  • Astronauts are envoys of mankind and must be given assistance and protection in their endeavors.
  • States, governments, and international organizations accept certain liabilities for activities and accidents arising from their space explorations.
  • Celestial bodies must not be contaminated with earthly life forms, nor may Earth be contaminated with extraterrestial organisms.
  • Governments must consult one another when a planned experiment might interfere with the activities or interests of countries not involved in the projected undertaking.

These are noble sentiments, and it seems that the diplomats who drafted the treaty sincerely hoped to keep space free of the national bickering that sometimes threatens human survival here on Earth. Yet since the treaty was opened for signing, lawyers, politicians, and military planners have consistently tried to reinterpret it to their economic and military advantage.

“Damnation, nationalism should stop at the stratosphere. ”—Harriman

For example, though the treaty prohibits nationalization of space or celestial bodies, one form of nationalization has already been attempted. In December 1976 eight equatorial countries signed the Declaration of Bogotá, which claims that certain parts of space are not really “space” at all, at least as the Outer Space Treaty means it. The regions in question are the highly desirable equatorial geostationary orbits, positions 35,903 kilometers over the equator, where a satellite will remain above the same point on the planet’s surface at all times. Unlike the rest of space, the declaration would have us believe, these orbits are rare and limited natural resources owned by the countries lying beneath them. It is unlikely that other nations will accept this assertion. Then there is the question of what military activities can be allowed in space. For that matter, just what activities are military? And is there any effective way to prohibit the undesirable ones? These may be the most difficult questions in space law.

The United States itself provides two good examples of the problem. The Outer Space Treaty bars “weapons of mass destruction” from space, and technically we have obeyed that edict. But military navigation satellites are a key part of our ICBM guidance systems. As military planners explain it, only warheads are banned under the treaty, not the means of delivering them.

And what about the space shuttle, recipient of NASA’s almost entire budget? As we tell it, the shuttle is strictly a peaceful research vehicle. But, when Alexei Leonov, head of the Soviet Union’s cosmonaut corps, visited this country several years ago and looked at a shuttle mock-up, he couldn’t understand why we objected to his nation’s killer-satellite program. The shuttle, Leonov pointed out, could be the most efficient satellite destroyer yet devised. In fact, it could carry out virtually any offensive chore a military tactician might want done. Russia has yet to demand that we abandon the shuttle as a potentially offensive space weapon.

One painful lesson becomes clear. There is no practical way to ban from space any activity that a technologically able nation wants to put there. The Outer Space Treaty will be effective only if nations obey it of their own will, policed by an informed public opinion.

Despite its limitations, the treaty paved the way for several very practical agreements. For example, the International Convention on Registration of Objects Launched into Outer Space makes it mandatory to register launchings and report such data as the satellite’s identifying features, orbital data, and general function. Without such reports, it is all too possible to mistake a new, peaceable satellite for an orbital weapon or nuclear missile.

The 1971 Convention on International Liability for Damage Caused by Space Objects was an equally useful accord—or so it seemed. As larger satellites are built, their chances of surviving reentry also increase, escalating the risk that they will cause major damage when they crash back to Earth. Under this convention, spacefaring nations would pay for any destruction caused by their reentering space vehicles.

Until last summer the convention seemed to guarantee that plummeting spacecraft would at least cause their unwitting recipients no permanent financial damage. Then came the fall of Cosmos 954 into the Canadian wilderness last summer. Because the satellite was nuclear-powered and aimed at gathering military intelligence, the Soviet Union was anything but helpful in tracking the object and locating its fragments. Only months later did the USSR agree to pay some of the retrieval costs—a commitment the Russian government has since renounced (eventually the USSR did pay the sumof C$3 million). The United States may well be tested on this point when Skylab 4 tears back into our atmosphere.

Then there is the 1968 Treaty on the Return of Astronauts and the Return of Objects Launched into Outer Space. Under this agreement, any country whose astronauts encounter any trouble must promptly notify the United Nations. Other nations must give endangered astronauts all reasonable help and immediately return downed space crews to their homelands. Unmanned spacecraft must also be returned to the country that launched them, and the launching authority must pay recovery expenses.

Again, this is a truly humanitarian accord—on the surface. Underneath, however, it is not hard to sense the space powers’ fear that astronauts and spacecraft possessing valuable military and economic secrets could be lost, with no legal way to retrieve them.

There are any number of earth-oriented legal problems that no one has even begun to deal with. How do the laws of product and contract liability apply to space efforts? How do insurance regulations, negligence statutes, labor laws, and workmen’s compensation translate into space? And how do domestic rules and standards apply? The Occupational Safety and Health Act alone has been a baffling legal tangle on Earth. Adapting it for space industries will be even more chaotic.

One thorny problem is how we regulate satellites that threaten national sovereignty in nonmilitary ways: orbital transmitters that can broadcast directly into home TV sets and earth-resources satellites whose sophisticated scanners can assess economic resources with unprecedented precision. No country wants its rivals beaming propaganda uncensored into its citizens’ living rooms. And highly accurate mineral surveys and crop predictions could give technologically advanced countries a tremendous economic—and military—advantage over less advanced nations.

Whether countries can really limit the use of satellite technology depends on how effectively they can punish or defend against those who use it and on how well they argue their political and ideological cases. One approach is to sell satellite data openly to any buyer who can pay for it. In this way, NASA has shared information about earth resources, weather patterns, natural disasters, and the like, with Chile, Zaire, Italy, Brazil, Canada, and many other nations. To date, remote sensing has forced international cooperation under the close scrutiny of a free public. Let us hope this continues.

“Do you know what we may find up there? People!"—Harriman

We have had trouble enough trying to deal with the mundane aspects of space exploration. The exotic problems of deeper space and permanent habitats will be even more challenging. A few serious attempts are already being made to prepare for contact with intelligent aliens. The late Andrew G. Haley, a Washington, D.C., attorney and counsel for the prestigious International Astronautical Federation, formulated what he called the Interstellar Golden Rule, which holds that sentient beings must “do unto others as they would have you do unto them.” How well it will be followed remains to be seen.

Closer to home, the possibility of life existing on other planets already poses some grave legal problems. We have the technology to bring Martian soil samples back to Earth for analysis. Yet, if an alien life form escaped from a space probe, it could cause anything from low-grade infections to a biological catastrophe. There is probably no legal way to prevent such an accident from occurring.

Quarantine laws have often been used to imprison people for their political, religious, or social beliefs without their being given a public hearing. Modern statutes have been carefully drafted to prevent this sort of abuse. One provision stipulates that a contagious disease be known and identifiable before possible carriers are quarantined.

There are no laws dealing with unknown diseases. Federal or state agencies that were to quarantine a planetary surface sample would probably be violating the due-process clauses of the U.S. Constitution. In fact, the NASA quarantine regulations for the Apollo lunar samples probably were unconstitutional.

“Outbound contamination,” though not dangerous to man, is no less important under the law. Our own spacecraft have always been rigorously sterilized before launching, but the Soviet Union has not always been so conscientious. Sending bacteria-laden probes to other planets is a clear violation of the Outer Space Treaty, but there is no effective way to enforce this ban. NASA has recently confirmed that terraforming Mars would be entirely practicalif we were willing to do it over hundreds of years. Whatever the benefits, such plans would be an even more flagrant violation of this clause.

“I ’m going to set up a lunar colony and then nurse it along until it’s big enough to stand on its own feet. ”—Harriman

For all the questions that remain unanswered in earth-oriented space law, the principles that will govern space dwellers are even less well developed. Permanent space habitats will raise a vast array of ethical and legal problems that must be solved within the next few decades. There will be many approaches to the social, political, ethical, and legal theory of space exploitation. Until our second or third generation of space citizens, extraterrestrial cultures will be shaped purely by economics and by our technological and physiological capabilities.

Simply enabling men to live in space could raise some of the most difficult ethical questions man has ever faced. Long-term colonists may have to be genetically adapted to survive their synthetic alien environment. Fitting colonists for permanent life in space could require anything from eugenic counseling of their parents to outright genetic engineering. Will such methods be ethically acceptable? Will we be creating, in effect, a new species? Will our first contact with extraterrestrial intelligence come when we meet our own genetically refabricated children? No one has the answers.

Again, the high-pressure environment of a space colony may demand psychotropic drugs to control undesirable behavior, erase traumatic memories and even tailor sexual preferences to suit the colony’s population balance. All such manipulative possibilities raise profound ethical and legal issues.

The classic ethical dilemma of space travel has already come perilously close to reality. The near-deaths of our Apollo 13 crew could easily have become the first case in which an astronaut was sacrificed to permit the survival of his fellow crewmen. You can be sure that, as fuel and oxygen slowly ran out on that aborted mission, each crew member did plenty of worrying about who was most expendable!

One possible approach is to write standards of behavior and performance into the contracts under which space colonists are hired. The legal principles under which these problems would then be handled are well established. But how willing would we be to write or sign a contract that in dire straits called for “survival homicide”?

We must also figure out how to govern space colonies as societies. Many practical legal problems have cropped up, even in these early stages of space law. To date, spacecraft and their crews have been ruled by mission regulations dictated by NASA and by the Soviet space authority.

But how well can this principle be maintained? Research programs will eventually share space habitats with manufacturing facilities. Their practical needs will differ, and the personalities of scientists and business-oriented crewmen may clash. One of the most serious conflicts in the American space program developed when scientists in the astronaut corps suggested that the former test pilots among them were unneeded and possibly undesirable. No one knows how to resolve such problems.

Some space colonies will probably consist of clusters of interconnected modules, each sent into space by different nations, companies, or launching authorities. During the Apollo/Soyuz flight, astronauts followed NASA regulations while in the American capsule, Soviet rules while in the Russian craft. It seems unlikely that such a system could work in a long-term habitat or one that answered to many different launching authorities. Andi then what principles would govern the relationships between the cluster as a whole and Earth societies or other space stations? So far, no one can predict.

The diplomats who signed the 1967 Outer Space Treaty clearly meant for space colonies to benefit the common welfare of mankind. To ensure that their wish is carried out, we need yet another international convention. Space habitats will be places of unique social and political experimentation. We must first guarantee that space stations are governed as the cultural province of the colonists who live in them, then establish space as an economic resource for the common good of earth and space dwellers alike.

From IN THE MATTER OF SPACE LAW by George S. Robinson (1978)
SPACE TRAFFIC CONTROLLERS

     "Da. Engagement zones are expanded," Omer explains "United States, Europa, Bahia, all announce new requiremen five days ago.
     "Sounds like transition-to-war conditions."
     "Maybe. Commonwealth ships have had some problems. Some body soon maybe make a 'mistake' with a Commonwealth ship” Omer pointed out. "Or we get clearance that is wrong and take us into engagement zone. So I got from Kevin Graham new data showing positions of all orbiting objects and load into computer I will make sure clearance and trajectory do not lead us into danger."
     Twenty minutes before noon, clearance came over the up-link Omer checked it and gave me a thumbs-up. I accepted it. We made a straightforward departure with the catapult slinging the Tomahok into the air at a one-gee goose. I climbed out according to flight plan and watched while the air-breathers transitioned I scram-jet mode and finally lipped-over when the mains ignited at 60 kilometers. I wasn't particularly looking for anything happen at that point because we were still in international space over the Indian Ocean.
     The Tomahok was handed-off from Madras Center to Orient Center as we ascended through a hundred kilometers, expected something to happen then. It did.
     "Tomahok, this is LEO Orient Center. Amended clearance."
     It came on the up-link. Omer shook his head. "Bojemoi!" exploded. "Reject it!"
     "LEO Orient Center, this is Tomahok. Negative the amended clearance, sir."
     "Tomahok, what's your reason for refusal?"
     "What's your reason for issuing this amended clearance, sir?"
     "AmSpace Command request through LEO Canambah Center."
     "The amended clearance takes us into the engagement zone of Gran Bahia estacao baixo doze."
     "Tomahok, stand by … Tomahok, amended clearance: De-orbit for Woomera landing. We can't get you through."
     I knew what to do, and I let it all hang out. "LEO Orient Center, Tomahok. Negative the amended clearance. We are initiating no-clearance flight under I-A-R Regulation ninety-one-point-eight. We'll take her up to Ell-Five as filed under our responsibility to detect and avoid."
     Omer reached over and clapped me on the right shoulder.
     There must have been consternation in LEO Orient Center because it took several seconds for the traffic coordinator to acknowledge. "Uh, Tomahok, Center, roger! Service is terminated. Proceed on your own responsibility. Retain your current beacon code."
     I acknowledged and told Omer, "Get ready to thread the needle, Russkie! Let's see if we're good enough to make Ell-Five before somebody burns us with a hell-beamer!"
     There I was, flat on my back at 30,000 meters, nothing between me and the ground but a thin regulation.
     I'd invoked a seldom-used International Aerospace Regulation that harked back to Earth's oceans where a ship captain was an absolute monarch responsible for himself, his ship, and everything in it. It had been carried into the air by a rule that made the; "pilot-in-command" solely responsible for the safety and operation of his aircraft and everything in it, regardless of what traffic coordinators on the ground told him.
     In effect, I'd told the space traffic people I'd fly without their help. Avoiding an engagement zone isn't difficult if you know where it is. Space is mostly empty.

     The various STC Centers would continue tracking our beacon to keep other spacecraft clear of us. Military trackers would do the same in case we broached their engagement zones, which would mean trouble for the Tomahok.
     I'd waived clearance while still under ascent thrust on our original trajectory to a 200-kilometer parking orbit. Our delta-vee margin was excellent

     "Russkie, I hope the League data's good," I told Omer. "Display our current flight path and the projected positions and engagement zones of other sky junk."
     "Blinking blips aren't in League data," Omer reported. The Kazakh became laconic when he was under pressure, probably because he was thinking in Russian and mentally translating into aerospace English with adrenalin pumping.
     I studied the display. A blinking blip indicated a polar orbiting satellite. In parking orbit, we'd broach its engagement zone.
     "There's our problem," I pointed out. "AmSpace Command recon bird. That's why the amended clearance. We'll burn out of parking orbit to miss him. What are the options?"
     Omer punched the keypad. A series of trajectories came on the display. "Take high delta-vee option. It will be obvious we're avoiding the reconsat."
     "But we may run into trouble with this one, Omer," I said, indicating another target with my finger. "It's displaying no code. What is it?"
     Omer queried the computer. "Not in League data. Unknown."
     "It's got to be registered! I'll query Center for identification."
     "Let it be for now. We handle when time comes," the Mad Russian Space Jockey suggested. "We take problems one at a time. Sandy, get us in parking orbit and watch engagement zones. I work on vector for transfer orbit to Ell-Five."

     Our burn out of parking orbit came as re-programmed. While, we were under thrust, we got a sensor alarm. "Targeting lidar!" I snapped. "Aerospace Force has seen us closing on the reconsat,"
     "We go laser-hard," Omer said, reaching for the switch.
     "Negative!" I snapped. "They'll see it, interpret it as a countermeasure, and try to burn us." I indicated another target on the display. "That's annotated as an unspecified military satellite; it's a ten megawatt hell-beamer."
     "Hokay, so we do a little tsig-tsag! Give me controls!"
     I did and continued to check displayed targets. Omer called out his actions. “Tsang plus-x ten meters per sec."
     I got a surface temperature warning signal. "Warning shot without a call. That's not SOP!" The Aerospace Force tapped the data stream from the world STC net and they knew we were the unarmed Tomahok out of Vamori-Free.
     "Maybe you got wrong freq. We did not broach engagement zone of reconsat, and now they see us burn into new trajectory. So we are out of hard place under rock for now. You fly now."
     Low earth orbit zone is tricky to work in. Velocities and closing rates are high. There isn't much time to detect, track, make decisions, and maneuver. It's full of sensitive earth-oriented reconsats that are automated and passive. They can't defend themselves or maneuver. Even though such unmanned skyapies are considered to be expendable scouts, my former colleagues were sensitive about them. Everyone knew where everyone else's were, and nobody bothered them for fear of retaliation. Fortunately, sensitive satellites advertised themselves with "no trespassing" signals.
     Hell-beamers were another matter. They were unmanned with auto defenses. Unless they spotted the proper beacon password— which we didn't have—they'd shoot at anything that broached their engagement zones. We had to stay clear of those. We'd been lucky once.
     Some that looked like hell-beamers weren't; they were decoys or legitimate R&D space telescopes. The sensor signatures were the same. If you wanted to find out if one was indeed a hell-beamer, you had to make a hands-on inspection which was very risky not only because of the auto-defenses but also because some of them were booby-trapped.
     Nobody liked the hell-beamers, especially the League of Free Traders. But the low-powered ones in LEO were no threat to people on the ground. And nobody had been burned in space by them, so they were tolerated as a necessary evil.

     Think of Earth as being at the bottom of a funnel-shaped well whose walls become less steep as you climb away from Earth.
     Paint the walls of the funnel in zones of different colors to represent the various space traffic control center jurisdictions. The ones nearest Earth at the bottom of the funnel are controlled from national centers that are, you hope, in communication with one another and swapping data. The ones further out are watched by seven other centers located in GEO. And the ones in the nearly-flat upper part of the funnel are four in number centered on L-4, the Moon, L-5, and a huge "uncontrolled sector" stretching around lunar orbit from 30-degrees ahead of L-4 to 30-degrees behind L-5 where there wasn't anything then.
     Now spin the funnel so the bottom part representing a distance up to 50,000 kilometers goes around once in 24 hours. Spin the top part from 50,000 kilometers altitude out to a half-million kilometers at the lunar rate of 29.5 days.
     Located on the walls of this madly turning multi-colored funnel are marbles spinning around its surface fast enough so they don't fall down the funnel. Some of them are deadly marbles; come close and you'll burn. Others are big and fragile, but massive enough to destroy your ship if you hit one. Still others are ships like your own, plying space for fun, profit, or military purposes. An unknown number of the last are capable of whanging you with various and sundry weapons.
     Your mission: without coming afoul of any of this, get to the flat tableland on top, then locate and dock to a group of fly-specks called L-5.

     Try it on your computer. Good luck.

     We'd run a gauntlet of low-orbit facilities and were coming up on geosynchronous orbit. Although we were several degrees above equatorial GEO where most of the civilian facilities were, we had to get through the web of military satellites in inclined geosynchronous orbit, weaving paths around the planet like a ball of yarn.
     Omer asked the computer to enhance the very weak returns from these stealthed facilities. We were going to come close to some Japanese and European targets, but not within their engagement zones unless they'd changed them and we didn't know it.

From MANNA by Lee Correy (G. Harry Stine) 1983 ]
SECTION 13: ORIGINS

The question of what actually constitutes ‘Sovereignty’ and what determines what is and isn’t a sovereign state is a complicated one.  There are two major theories.  One of them holds that a state is sovereign if and only if it is recognized by other sovereign states.  The other is that a sovereign state is one that has a population, a government, and territory.  Ultimately, however, the bar that a potential state on a celestial body must clear is very high.  When it comes down to it, sovereignty is defined by the ability to claim a piece of territory and defend it convincingly enough that others recognize it as yours.  Even during the Age of Discovery, when everyone was planting flags on every piece of land they found, control of the territory is ultimately what determined the eventual boundaries of national sovereignty, not what the law said they should be.  The same is likely to apply in space.  Particularly because of the Outer Space Treaty, any sovereignty claims made in space are likely to be either moot due to lack of enforcement, vague due to lack of test, or fought over.  The first case is most likely to apply in cases where someone claims an entire large body, such as the Moon.  Unless they are able to enforce their claim, it is both legally invalid and rather silly.  Such cases (and it should be noted that there are already several people who have claimed the Moon) are not a real precedent in space law.  

The second category is likely to occur before the third.  In this case, a much more limited claim of sovereignty is made, and because of the limited nature of the claim, it goes untested.  The most likely example is a case in which a small colony established for non-economic reasons declares independence and claims title to a small section of the surroundings.  This could be a group of people dedicated to making humanity multi-world, a religious group, or even just a bunch of people who want to set up their own state, and have the money to get into space.  Because they are not economically motivated, the financial impact on Earth is likely to be minimal, and there is no real point sending a large expedition to contest a bit of what the government might well consider tax evasion.  There are interesting questions about things like passports raised by this, but ultimately, it wouldn’t be worth anyone’s trouble to sort out.  Sealand on Earth today almost falls into this category.

The third category is that described above.  Someone stakes a claim to a significant portion of a planetary body, and then fights for it.  The resolution of the question then depends upon the outcome of the conflict.  It should be noted that this puts major powers who are not directly involved in a difficult position.  While supporting the revolt might well harm their rivals, it would also set the precedent that space colonies can be sovereign and independent of a state on Earth, something that is not allowed by the current Outer Space Treaty.  It’s entirely possible that this precedent would damp Earth support for any revolt.

by Byron Coffey (2016)

Corporate Asteroid Mining Law

NEAR FUTURE SPACE MINING LAW

This is about near future asteriod mining: huge corporations sending unmanned drone ships to mine the asteroids and haul the "ores" back to Terra.

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.

WHO MAKES THE RULES FOR OUTER SPACE?

“The United States said commercial entities are going to be doing stuff in outer space and so we have to allow for that to happen,” says Christopher Johnson, a lawyer who works for the nonprofit Secure World Foundation. “And the Soviets said, ‘No we don’t want any commercial activity happening in outer space. It must be forbidden.’ ”

Eventually, they found a middle ground. Yes, capitalism could extend its reach to the heavens above—but only if a government was directly and absolutely responsible for any damage or misbehavior a private company got up to there.

That compromise was enshrined in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. For brevity’s sake, it’s usually just called the Outer Space Treaty, and it’s the primary body of law determining what can and cannot be done in Earth orbit, space, on the moon, other planets, and on asteroids.

But while the rules of empire are pretty neatly spelled out in the treaty—no nukes, no planting a flag and claiming anything in space as your country’s territory—the rules of commerce aren’t quite as clear-cut.


A fundamental tenet of space law—the concept of governments being responsible for the work of non-governmental actors—has few, if any, precedents. There are places on Earth that are governed by laws similar to those that govern space—the sea, for instance. But no country is inherently responsible for whatever its citizens do when they’re out in international waters, says Joanne Gabrynowicz, professor of space law at the University of Mississippi and editor-in-chief of the Journal of Space Law. If that were the case, every pirate would technically be a privateer—their buckles swashed with official state approval.

But you don’t need anything as exotic as the specter of space privateering to see why government responsibility can be a problem. As it currently stands, two private companies operating in space couldn’t even sue each other without the prior approval of their governments, says Michael Listner, an attorney and the principal of Space Law and Policy Solutions, a legal think tank.


The Outer Space Treaty of 1967 did a good job of keeping the space race between the U.S. and the Soviet Union from devolving into something out of a James Bond movie. But it didn’t do a very good job of planning for future races to claim resources found in space.

Article II of the treaty is just 30 words long. It says, “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.” Today, space lawyers are spending an awful lot of time debating what, exactly, that means.

The debate has been spurred by the handful of companies that have announced an interest in mining asteroids or the moon for minerals and other resources. None of these plans are likely to become reality in the next 20 years. In fact, it’s still debatable whether mining an asteroid is technically feasible or would make financial sense at all. But the companies interested in this business plan—including Planetary Resources and Deep Space Industries—want some kind of assurance that, if they do succeed, they will get to profit off what they dig up. That’s a reasonable request…but it’s assurance that the Outer Space Treaty can’t unequivocally offer.

“There’s a spurious argument that, well, the State can’t appropriate, but I can!” Johnson says. “But that’s easily refuted. Property exists as a relationship between citizen and sovereign. You only get property rights based on the State.” We buy and sell property with the help of legal contracts. Those contracts are only real in so much as a state exists to enforce them. At best, say Johnson, Listner, Gabrynowicz, and Tronchetti, you can say that the Outer Space Treaty neither affirms nor denies the right of a private company to mine an asteroid, keep what it mines, and sell those resources for profit. Lawyers, Listner says, are split pretty evenly on whether that means you can do it or you can’t.

Which is where the U.S. Commercial Space Law Competitiveness Act comes in, again. One of the most important things the bill does is say, explicitly, that U.S. companies can own and sell resources they mine. But the new law could become a problem, space lawyers say. Essentially, it’s the U.S. trying to unilaterally settle an open question. “It’s really an ideological and intellectual battle,” Listner says.

Even more troubling, from the perspective of Gabrynowicz and Tronchetti is the fact that the Space Resource and Utilization Act doesn’t set up any system for licensing those mining activities. Given that the Outer Space Treaty obliges countries to maintain control over companies operating in space, that could be seen as the U.S. refusing to follow international law, Gabrynowicz says.

From WHO MAKES THE RULES FOR OUTER SPACE? by Maggie Koerth-Baker (2015)
ASPECTS OF SPACE LAW

Please note the following does not constitute legal advice. Any inaccuracies please let me know!

Legal ownership of space resources

Prior to Sputnik I and the start of the Space Age in 1957, the English legal position concerning the ownership of space had been remarkably clear. The common law set forth the proposition of cuius est solum, eius est usque ad coelum et ad infernos. Lawyers are not supposed to use Latin in these modern times so I ought to provide a translation before my practising certificate is rescinded. This handy phrase means that an owner of a parcel of land owns everything directly above and for that matter below it, to the Heavens themselves or Hell below. This doctrine clearly has its origins in a pre-scientific age when the practical exploitation of the heavens, or rather space, was of no significance.

Exceptions to this rule soon became apparent though, such as the Crown’s rights to certain minerals below a plot of ground and with the advent of air travel by balloon the absurdities that might arise from applying the principle became evident. When aircraft took to the skies, legal exceptions were allowed so that those flying over land could not be sued for trespass and whilst in theory the common law principle extended beyond Earth orbit, it is unlikely anyone will ever successfully claim damages against the owners of a satellite passing over their land using this ancient common law principle.

With the start of the Space Age, the need for a legal regime to manage and regulate this new arena of human endeavour became apparent. The United Nations was the natural focus of efforts to consider these issues at an international level and following work in the early sixties, the Outer Space Treaty was drawn up in 1967. More fully known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, this was and continues to be the major legislative enactment concerning the exploration and exploitation of space and the celestial bodies contained within it (with the exception of course of the Earth).

The Outer Space Treaty is of major importance, not least because as of 2012 it had been ratified by all the space faring nations. Drawn up during one of the most dangerous phases of the Cold War, its major preoccupation is unsurprisingly the peaceful use of space. States are prohibited from installing nuclear weapons or other weapons of mass destruction in orbit or on the Moon or other celestial bodies. We have to be grateful that the Treaty has been successful in this aim to date.

Other provisions are more directly of interest to those studying the law relating to the exploration and exploitation of resources to be found in space (which I will take to include those on celestial bodies, to use the Treaty’s language). According to the Treaty, nation states cannot claim ownership of extraterrestrial resources including land itself. So, the USA could not for example claim an area around the Apollo moon landing sites as thereby falling within USA ownership.

It is thought this prohibition on ownership does not extend to private ownership so a company or even an individual could claim some form of de facto ownership presumably by an act of occupation. Nation states are expected to regulate space activities by their citizens and one of the lesser known aspects of this obligation is that nation states are effectively responsible or liable for the activities in space of their citizens. So, for example, if a British company carries out activities on the Moon this could lead to the U.K. government becoming liable for any acts of that enterprise. In the U.K. these obligations are implemented under the Outer Space Act 1986 which provides for licensing of space activities by the U.K. government.

In comparison, the later Moon Treaty of 1979 has not been as successful in shaping the legal regime of outer space. The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, to give the treaty it’s full name, went further than the previous one in seeking to regulate the use of space resources.

One of the Moon Treaty’s core concepts is that space, the Moon, the planets and all other celestial bodies aside from the Earth are the common heritage of humanity. This doctrine is mentioned in the Outer Space Treaty but is more fully developed here as its general tenor appears to prevent the ownership or exploitation of space resources either by nation states or private organizations or individuals.

The Moon Treaty has yet to be ratified by any of the space faring nations and it is possible to see it as an attempt by non space faring nations, particularly from the developing world, to inhibit the richer space enabled countries from exploiting the resources to be found in outer space for their own gain. Whilst enough countries have ratified it for it to have legal force, the lack of full ratification suggests it would in reality be of dubious enforceability.

The treaty looks forward to a time when the exploitation of, for example, lunar materials might be a practical reality and stipulates that before that takes place an international regime is implemented to regulate such activity. This might involve some form of land registration for lunar territories presumably organised under the auspices of the United Nations.

Commentators have suggested that this approach is resistant to the use or exploitation of space resources particularly from a commercial view. It’s likely that when the use of lunar or other celestial resources becomes a reality the Moon Treaty’s lack of enforceability will lead to it falling away.

STAKING A CLAIM TO SPACE RESOURCES

The US Commercial Space Launch Competitiveness Act, the commercial space bill passed by Congress last month and signed into law by President Obama on the day before Thanksgiving, is about 7,250 words long: not short, but far smaller than, say, the typical appropriations bill or defense authorization bill. Of that, less than 500 words is allocated to the last of four “titles” of the bill, a portion of the bill called “Space Resource Exploration and Utilization.”

But it’s that portion of the bill that has gotten all of the attention in the last several weeks. While many commercial space companies might appreciate other provisions of the bill, like extending the “learning period” limiting safety regulations for commercial spaceflight participants, people can’t seem to stop talking about the section that grants US citizens the rights to space resources they physically extract from asteroids, the Moon, or other solar system bodies beyond Earth.

Specifically, the new law states: “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.”

That language is both broader and less specific than the version of the bill that the House passed in May. The bill, originally focused only on asteroid resources, now includes “space resources” as well, as the section above states. (That might explain the language of “asteroid resources and space resources,” since asteroid resources is an obvious subset of space resources.) The bill defines “space resource” as “an abiotic resource in situ in outer space” that specifically includes water and minerals.

However, the final version of the bill doesn’t include the earlier bill’s “legal framework” section. That would have specifically allowed a US entity involved in asteroid resource extraction to seek relief in the federal courts if another US entity was engaged in harmful interference.

The bill’s language seems, in its final version, fairly basic: if you obtain a space resource, it’s yours to do with as you please, including to sell to someone else. However, to many, that provision appears dangerously close to sovereign claims of territory on celestial bodies that are prohibited by the Outer Space Treaty.

“The act represents a full-frontal attack on settled principles of space law which are based on two basic principles: the right of states to scientific exploration of outer space and its celestial bodies and the prevention of unilateral and unbriddled [sic] commercial exploitation of outer-space resources,” wrote Gbenga Oduntan, a senior lecturer in international commercial law at the University of Kent in the UK, in a column last month published by The Conversation.

Oduntan argued that allowing people or companies to claim space resources violates the Outer Space Treaty, which states that the “exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development.” He also claimed that the law violates the Moon Treaty, an agreement that has not been ratified by most spacefaring nations, including the US, but which he argues is “binding as customary international law.”

Other legal experts, primarily outside of the US, have criticized the bill on similar grounds, even as companies and organizations within the US have praised Congress for including that language in the final bill. The result has been a torrent of attention focused on a small, and primarily long-term (after all, it will be years before any company is in position to obtain space resources), provision of the overall bill.

“It’s interesting that, for all the work we put into the bill, what really resonated with a lot of people was the resources section,” said Eric Stallmer, president of the Commercial Spaceflight Federation (CSF), in an online panel discussion about the bill held by his organization earlier this month.

Some of the criticism of the bill’s space resource language even came from within the US government. At a meeting of the NASA Advisory Council at the Johnson Space Center in Houston at the beginning of the month, NASA administrator Charles Bolden suggested he has questions about that provision of the bill.

“I’m not sure that the US Congress can pass a law that authorizes American citizens to go do something” like claim rights to space resources, he said when a council member asked him about the bill. He went on to add that he was asking for legal input about that language. “It is encouraging the entrepreneurs and others who say they want to go mine asteroids and mine the Moon and the like, so I’m encouraged by their encouragement,” he said.

However, a White House official speaking at the CSF panel discussion endorsed the bill. “If there’s ambiguity about whether companies that make these investments in the extraction of resources in space have the rights to be able to do that,” he said, “that’s going to have a chilling effect on private investment.”

That concern about ambiguity—could a company, in fact, own resources it extracted from asteroids or other bodies, at least in the eyes of US government—was a key driver for the bill. Some companies, and their investors, were concerned that without an explicit endorsement of those rights, future investment could be limited.

“This gives our investors a sense of stability and assurance that their investment can be protected,” said Peter Marquez, vice president for global engagement at Planetary Resources, at the CSF panel.

At the same time, though, members of Congress and their staff have argued that the bill’s language not only conforms to international treaties, but instead simply makes clear what was widely understood before its passage.

“Unfortunately, there have been a number of misconceptions about the intent and legality of Title IV,” said Rep. Brian Babin (R-TX), chairman of the House Science Committee’s space subcommittee, in a speech last week at the 10th Annual Eilene M. Galloway Symposium on Critical Issues of Space Law in Washington.

Babin noted that Article 6 of the Outer Space Treaty allows private individuals and companies to use and explore space, “including the right to remove, the right to take possession, and to use in situ natural resources from celestial bodies,” he said. “The US government has long taken this position while recognizing and aware that this view is not shared by all states or commentators.”

He added that the final version of the law was drafted so that rights are conferred only to resources that are “obtained” from celestial bodies, which he defined as being physically extracted. “It was never our intent that obtainment would allow a company to remotely sense a resource and asset a right of possession,” he said. “Only through physical recovery does this right manifest.”

In a panel later in the symposium, staff members from the House and Senate, representing both parties, said they believed the law’s language merely made explicit what was widely understood. “I don’t think it’s anything new, and I don’t think anyone should be caught off guard by the US’s policy,” said Tom Hammond, staff director of the House’s space subcommittee.

“If a company had gone and done this, and brought these materials back, does anybody think the United States government would have seized them when they landed?” asked Nicholas Cummings, a member of the Senate Commerce Committee staff working for its ranking member, Sen. Bill Nelson (D-FL). “I’m not sure that we established a new right.”

The government may, by and large, not believe that they have established a new right, but the perceptions in the international community will need to be addressed. Mike Gold, director of DC operations and business growth at Bigelow Aerospace, said on the CSF panel that he expects the topic to come up in February at the next meeting of the United Nations Committee on the Peaceful Uses of Outer Space. “There will be an outcry from many nations about the US flaunting the Outer Space Treaty,” he predicted.

“The ball is now in the international court,” said Frans von der Dunk, professor of space law at the University of Nebraska, during a panel session organized by the university in Washington in late October, around the time the final version of the bill had been released. “I see this as kind of an invitation to the international community. If we want to develop an international regime, this is the moment to stand up and try to discuss that.”

Babin, though, warned in his speech about creating any kind of “international body” to regulate space mining. “Doing so is unnecessary and would be counterproductive,” he said, arguing that such a regime could hinder the development of American companies. “The United States continues to lead the world in space exploration, however, other nations would like to impede this progress for their own benefit by placing a burdensome yoke of an international body around the neck of US innovation.”

One thing is certain: Title IV of the US Commercial Space Launch Competitiveness Act might be the first legal word on space mining, but it is unlikely to be the last on a national or international level. “This is the beginning, not the ending, of the discussion that will take place internationally,” Gold said.

From STAKING A CLAIM TO SPACE RESOURCES by Jeff Foust (2015)
INTERNATIONAL LAW DOES NOT PROHIBIT COMMERCIAL ASTEROID MINING

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.”.

This provision has been criticized as violating U.S. obligations under the Outer Space Treaty of 1967. Chief among those obligations is Article I of that treaty:

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.

U.S. IS NOT VIOLATING THE OUTER SPACE TREATY

I’ve received some very good (though pretty much all critical) comments to my original post defending the consistency of the recently enacted U.S. Space Act with the Outer Space Treaty. I will concede that my reading of the statute and treaty is not exactly a cut and dried simple legal issue. But I think too much of the reporting on the Space Act has made it seem like it is a clear violation the other way. (See here, here, and here.)

One thing that few of these articles note is that the U.S. House of Representatives Committee on Science, Space, and Technology did study the question of the Outer Space Treaty when it reported out this legislation. They reasonably concluded that allowing private companies to exploit celestial bodies is not a “national appropriation” within the meaning of the Outer Space Treaty. Indeed, this has long been a position of the United States. For instance, the House Committee noted that in 1980, the U.S. State Department’s Legal Adviser explained that

`The United States has long taken the position that Article 1 of that treaty [Outer Space Treaty] . . . recognizes the right of exploitation. We were and are aware, however, that this view is not shared by all States or commentators, some of whom take the position that the nonappropriation provisions in Article [II] of the 1967 Treaty preclude exploitation of celestial natural resources and the reduction to private property.”

It is also worth noting that State Practice seems to lean in favor of allowing the use of materials from outer space. Again, from the Committee’s discussion:

State practice is consistent with finding that exploration and use of outer space includes the right to remove, take possession, and use in-situ natural resources from celestial bodies. The United States, Russia, and Japan have all removed, taken possession, and used in-situ natural resources. These activities have never been protested by a State party to the treaty or judged in a court of law to be in violation of the Outer Space Treaty.

Indeed, some moon rocks taken by the Russian government have actually already been sold to private parties at Sotheby’s auctions in recent years.

Finally, the Committee cites Article VI of the Outer Space Treaty as recognizing that non-governmental entities can carry on activities in outer space, as long states bear international responsibility for those private activities.

States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.

I will again note that this reading of the Outer Space Treaty is hardly slam-dunk, but I think it is a quite reasonable one that is at least as persuasive as the interpretation offered by the critics. I think it is worth noting that State practice leans in favor of the U.S. here, which is not decisive, of course, but it is helpful nonetheless. I also don’t think the U.S. ever would have committed itself to a flat out ban on commercial exploitation of outer space when it signed the Outer Space Treaty.

In any event, we will see how things spin out. As I noted, it is possible we will one day need an “Authority’ like that created for the international seabed, but not just yet.

THE UNFORTUNATE PROVINCIALISM OF THE SPACE RESOURCES ACT

A glance at a globe reveals the geographical modesty of the United States. Although the United States’ influence in world affairs is significant relative to its area on a map, it shares the planet with 195 other countries and, with the ascendency of China and India, may see its power diluted over the coming decades. The narrow-mindedness of the Space Resource Exploration and Utilization Act of 2015 (a subset of the US Commercial Space Launch Competitiveness Act )1 is reflected in its exclusion of non-US citizens and companies from extraterrestrial resource rights.

The most likely commercial activity beyond Earth orbit in the near future is the mining of asteroids: Deep Space Industries and Planetary Resources (both American companies) have already announced their intentions to do so.2 So long as commercial parties voluntarily stay out of each others’ ways with their asteroid mineral extraction enterprises, property rights in the minerals will go unchallenged.

Some scholars have questioned whether the licensing of off-planet mining violates the 1967 Outer Space Treaty, to which the United States is a signatory.3 Yet even if, for example, Deep Space Industries’ ownership of a few metric tons of asteroid-sourced titanium might be questioned on these grounds, once the company achieves initial and exclusive possession of the minerals, no other party or person would have adequate standing to challenge its ownership without any co-extensive or prior claim. In other words, after an unmolested extraction of asteroid minerals, even if another company could challenge ownership of the minerals by referring to the Outer Space Treaty, it would lack any motivation to do so since, even if it prevailed, it would not result in the challenger owning the minerals either. Any rival American company’s claims to the same asteroid’s minerals would have been sorted out through the Department of Transportation’s licensing framework.

Therefore, it seems likely that the first extraterrestrial property dispute to erupt will be one between a US company enjoying the blessing of the Department of Transportation and a non-US company, with or without asteroid mining authorization from its country of origin. The Space Resource Exploration and Utilization Act sadly lacks any mechanisms for avoiding or resolving this kind of dispute. Without a legal framework for dispute resolution, an inefficient “first to grab” methodology in outer space may become the norm between US-based companies and companies from the rest of the world. The “first to grab” method arguably benefits US companies so long as they outpace the rest of the world, but as other countries’ technological reach catches up, commercial inefficiencies and profit loss would soon be the price for embarking on such a selfish trajectory.

The principal shortfalls of the Space Resource Exploration and Utilization Act are twofold. First, only US citizens or companies can claim ownership rights to asteroid minerals by virtue of the Act.4 Second, Congress missed the opportunity to give recognition to extraterrestrial mineral extractions carried out under the authority of a reciprocating nation’s laws, as it did with commercial exploitation of the deep sea bed.5

The United States should position itself as a world leader in the commercial exploration and recovery of asteroid mineral resources. Instead, it has adopted a narrow and arguably arrogant assumption that only US companies will participate in asteroid mining. As a result, the certainty of property rights that is essential to the enormous capital investments necessary to begin asteroid mining is compromised. A US company’s rights to carry out mining on a particular asteroid are only secure so long as its competitor is another US company. When a non-US company enters the picture, the outcome is uncertain.

Instead, Congress should have authorized the Secretary of Transportation to license non-US citizens and companies and recognize the property rights of licensed companies, whether domestic or otherwise, which explore and extract asteroid minerals in conformity with their licenses. Establishing a rulebook for licensing non-US companies would undoubtedly task the Department of Transportation with a wide set of challenges, and non-US companies may choose to simply avoid seeking authority from the US government before embarking on an asteroid mining venture. But if the US postures itself as a fair, efficient, and unbiased mediator of asteroid mining rights, non-US companies may, in fact, voluntarily participate in a licensing system under American law. The availability of adjudicating property disputes in US courts or before US administrative bodies could be seen as economically attractive if those forums are seen as providing efficient and predictable outcomes, or at least more fair and rule-bound than their own country’s alternatives.

Even if non-US companies elect governance and licensing solely under their own countries’ administrative bodies, Congress should amend the act to give recognition to asteroid mining licenses granted by other nations as it did in the Deep Seabed Hard Mineral Resources Act.6 US companies will not directly benefit from a US law that requires them to abide by rights granted to competing companies by virtue of other nations’ licenses. Indeed, it might be anticipated that some countries’ administrative bodies would simply grant blanket rights to unreasonably large numbers of asteroids—or even the entire asteroid belt—as, for example, equatorial countries have attempted to do with regards to geostationary orbits.7

What would likely develop from this kind of “claim jumping” would be US regulatory responses that limit the Secretary of Transportation’s recognition of non-US asteroid mineral rights to ones that are commercially exploitable or those reduced to actual extractions within a reasonable period of time. The common interest of commercial enterprises in all countries would suggest the development of international customs, if not international treaties, which give effect to these kinds of limitations. Recognized customs drive the development of international law as much as negotiated treaties. If the US is willing to grant recognition to other countries’ licensing authorities, it would put the world on a path to developing these kinds of customs, gradually solidifying into recognized principles. With the narrow reach of the current legislation, however, such customs are must less likely to develop. A long view of asteroid mining merits thoughtful tweaks to the act.

Endnotes

  1. US Commercial Space Launch Competitiveness Act, Pub L. 114-90, 129 Stat. 704 § 101 (2015) [hereinafter, the “Space Act”].
  2. Stephen Dinan, “Congress Oks Space Act, paves way for companies to own resources mined from asteroids”, Washington Times (Nov. 16, 2015).
  3. See Gbenga Oduntan, “Who owns space? US asteroid-mining act is dangerous and potentially illegal”, The Conversation (Nov. 29, 2015) (claiming the Space Act “represents a full-frontal attack on settled principles of space law”). Congress attempted to conform the Space Act to the Outer Space Treaty as evident in the legislation’s statement that Congress sensed “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.” Space Act § 403.
  4. Space Act § 402 (to be codified at 51 U.S.C. § 51303).
  5. See 30 U.S.C. § 1411(c) (prohibiting US citizens and companies from interfering with the recovery of hard mineral resource exploration or recovery of those conducted by the holder of an “equivalent authorization issued by a reciprocating state”). A “reciprocating state” under the Deep Seabed Hard Mineral Resources Act means a foreign nation designated by the Administrator of the National Oceanic and Atmospheric Administration.” 30 U.S.C. § 1403(11).
  6. 30 U.S.C. ch. 26.
  7. Michael J. Finch, “Comment, Limited Space: Allocating the Geostationary Orbit”, 7 Nw. J. Int’l L. & Bus. 788 (1986).
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."

by Byron Coffey (2016)
WHEN ROBOTS TRESPASS

In the not-to-distant future, asteroid mining will likely use autonomous or semi-autonomous robots to extract resources. Conflicts are likely to emerge between competitors. One company’s robot might dig in an area earmarked or claimed by another company. The aggrieved company would seek legal redress in the form of ejecting the intruder and recovering a fair calculation of monetary damages for its occasioned losses. This commentary will explore the inability of existing legal rubrics to fashion a remedy to this kind of dispute.

Robotic autonomy is measured in degrees. I picture programmed machinery which can deployed across a single asteroid or through an asteroid cluster; which can identify possible mineral lodes with little or no Earth-based human intervention. This machinery, or perhaps different models, would also be designed with the ability to tap and extract resources for testing and exploration. It seems probable that as greater numbers of automatic machines are sent to asteroids, they will crowd one another. Conflicts will be unavoidable.

The legal cause of action that comes most readily to mind to remedy a physical intrusion into another person’s spatial areas is trespass. Trespass remedies intrusions into one’s possessory rights to real property, as an owner or a tenant. The shortcoming of the Outer Space Treaty (1967)1 to recognize, or at least fully recognize, traditional real property rights has been exhaustively considered by scholars.2 Those shortcomings were partially—and inadequately—addressed by the Commercial Space Launch Competitiveness Act of 2015.3 Unfortunately, the Act lacks mechanisms for dealing with a dispute between two rival mining ventures in space.

An earlier draft of that Act did contain a legal framework section that would have allowed a company involved in commercial asteroid mineral extraction to seek legal relief when another company interfered with its activities. The final version, though, deleted that framework (see “Staking a claim to space resources”, The Space Review, December 14, 2015). Thus, there is no legal rubric that has been intentionally created to address jostling robots in the asteroid belt. Instead, existing legal doctrines would have to suffice.

Disputes between companies of different nations are especially uncharted. In a dispute between, for example, a Canadian company and a United States company as to whether one company’s robots trespassed on the other company’s asteroid areas, the Outer Space Treaty’s rejection of real property rights in space is implicated. If there can be no legal realty on asteroids, it follows that trespass is an inappropriate theory for the aggrieved firm. Trespass rests on real property rights. The Outer Space Treaty seems to reject the recognition of any real property rights in space.

Once rocks have been extracted from an asteroid, they become personal property (or “movables”). A claim of conversion will lie against the firm that snatches rocks from another firm’s possession. But while the rocks are still attached to the asteroid, they are real property, as much as a dinosaur fossil is real property until it’s unearthed.4 Only upon severance can minerals become personal property. Real property rights in space are uncertain, and quite possibly unachievable under the terms of the Outer Space Treaty, to which the United States is a signatory.

The problem, then, is that because no property rights to the asteroid vest prior to severance, the aggrieved firm is left arguing an injury to an interest that is unrecognized, and quite possibly unrecognizable, pursuant to international treaty. Trespass appears a non-starter, because it depends on the legal existence of real property in outer space. Do the deep recesses of the common law offer any possible solution to this problem?

A similar problem confronted a Mr. Samuel Keeble in 1707.5 Keeble owned a spot of real property known as Minott’s Meadow. There, he constructed an elaborate duck catching contraption known as a duck net as a means to ensnare large numbers of wildfowl. He was a wholesaler of ducks just as an asteroid miner would be a wholesaler of ices or ores. Keeble’s problem arose when Edmund Hickeringill, on three occasions, discharged firearms to scare away the ducks from Keeble’s nets. Hickeringill did so with both feet firmly planted on his own ground and so had not physically entered (trespassed) upon Hickeringill’s property. Keeble had possessory rights in realty, but those rights hadn’t been intruded upon.

Keeble’s problem was twofold: First, Hickeringill has not trespassed on Keeble’s real property. Second, wild ducks (like asteroid minerals) are incapable of private ownership except upon capture. Prior to Keeble capturing any wild ducks (we might say “severing” them from the wilderness), they were owned by no one. Hickeringill had intentionally frightened great quantities of ducks away from the nets, but Keeble couldn’t assert any property rights in the ducks.

Still, the trial court awarded Keeble twenty pounds sterling in damages. Hickeringill appealed, but Chief Justice Holt surveyed the law and concluded, “I am of opinion that this action doth lie.” Keeble won.

The court explained that “if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff.” The court continued: “But, in short, that which is the true reason is that this action is not brought to recover damage for the loss of the fowl, but for the disturbance.” The court could not fashion a remedy for invasion of Keeble’s property, but it could for the malicious damage to his privilege of operating a commercial enterprise.

The unhappy asteroid mining firm might rely on the holding in Keeble v. Hickeringill in suing the rival company with the wandering robot. It could argue an invasion of commercial privilege if not property. It seems to fit, and although Keeble is an awfully old case, it’s still studied in the first week or two of any law school student’s study of property law, and thus will be recalled by even 21st century attorneys.

The problem is that the Keeble holding rests squarely on the maliciousness of Mr. Hickeringill’s shots. Hickeringill had contrived to “wrongfully and unjustly” aggrieve Keeble (a longstanding neighbor-to-neighbor feud can be presumed). Hickeringill acted out of spite rather than earnest economic competitiveness. Autonomous robots do not act out of spite in any traditional sense of the word.

Now conceivably, a robot’s software could be written in such a way so as to impute spite to the company which uploaded the software. Malice can, I think, be coded. Malice-tuned software would be a “smoking gun” for applying the Keeble rule. A human agent with malicious intent, acting on behalf a company, which designs an autonomous robot-actor to act in a spiteful manner towards a competitor would fit nicely within Keeble. The malicious mind upon which Keeble depends is, in this scenario, that of the programmer. Thus, in this scenario, the aggrieved company could recover for invasion of its mining privileges. But without spite originating in a human, a straying robot would be more akin to Hickeringill simply setting up his own commercial duck capturing enterprise of his own, luring some ducks to his own nets, which, as a consequence, spoils some of Keeble’s profits; an act with damage without a remedy.

The maliciousness dilemma with robots is a serious one. Robots are unlikely to be vested with personhood, legally speaking, until their AI approaches or surpasses human levels. In other words, you cannot sue a robot, and you won’t be able to for the foreseeable future. You can only sue a person (whether individual or corporate actor) who directs the robot towards wrongful acts. You cannot sue a robot any more than you can sue an algorithm—or a mousetrap, despite its primitive autonomy and ability to harm. An autonomous robot that chances into another person’s sphere of interests might therefore cause a wrong without an available legal remedy. This is dangerous stuff.

It’s a problem recently explored by philosopher John Danaher.6 He concludes that there is a serious gap when it comes to robot misdeeds. Danaher agrees that “when a robot misbehaves people will look to the human manufacturers and programmers as potential targets for retributive blame.” The attenuation between programming and autonomy will typically hold the programmer (or her company) blameless, leading to a “retribution gap.” A strong human desire for retribution will be unmet when there is no appropriate target for blame. These responsibility gaps are troubling, and problematic.7 A wrong lacking a legal remedy encourages private acts of retribution, which can lack proportionality and predictability; an eye for an eye that ends up blinding both companies’ revenues.

The scenario presented in the opening paragraphs—that of a mining robot which wanders into a competitor firm’s area upon an asteroid—is unmapped territory, legally speaking. Ambiguity in legal rights is never a good thing, especially in the commercial context. Ambiguity represents a business risk that is difficult to quantify. A capital investment with incalculable risks is best avoided entirely. Certainty is preferable to uncertainty.

The law should anticipate asteroid mining conflicts before they arise. One possible solution is strict liability for the acts of autonomous robots. Strict liability would impose legal responsibility without a showing of any wrongful act or spite, or even negligence. It’s a convenient solution because strict liability is already a recognized legal doctrine; it imposes liability without fault in the context, for example, of extremely dangerous activities like storing dynamite. When the shack of dynamite goes off, causing injury to a neighbor, liability can be imposed without having to prove fault. But robots are not inherently dangerous, and imposing strict liability for any act of a robot that causes harm is overbroad, and just as likely to stifle investment in extraterrestrial commercial ventures as uncertainty.

Endnotes

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. I, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (commonly called the OST or Outer Space Treaty).
  2. E.g., Daniel H. Deudney, “High Impacts: Asteroidal Utilization, Collision Avoidance, and the Outer Space Regime”, in Space Policy in the Twenty-First Century 147, 161 (W. Henry Lambright, ed., 2003) (noting: “Overall, outer space is governed communally” and with communal arrangements, “property is frequently subject to depletion, crowding, and collision.”).
  3. US Commercial Space Launch Competitiveness Act (also known as the SPACE Act), Pub L. 114-90. 129 Stat. 704 § 101 (2015). Chapter 513 of the Act purports to grant private property rights to extracted outer space resources for those who comply with the Act. 51 U.S.C. § 51303.
  4. See Black Hills Institute of Geological Research v. South Dakota School of Mines and Technology, 12 F.3d 737 (8th Cir. 1993) (holding that the Tyrannosaurus rex fossil known as “Sue” was real estate when it was discovered partially exposed on the ground).
  5. Keeble v. Hickeringill (1707) 11 East 574; 103 ER 1127.
  6. John Danaher, “Robots, Law and the Retribution Gap,” 18 Ethics and Information Technology 299 (2016).
  7. See Robert Sparrow, “Killer Robots,” 24 Journal of Applied Philosophy 62 (2007) (considering blameworthiness when an autonomous weapon system commits a war atrocity).
From WHEN ROBOTS TRESPASS by Thomas E. Simmons (2017)

Rock Rat Asteroid Mining Law

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 individual 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 the prior section section.

THUD!

      "Dwarfs have always been law-abiding citizens, captain," he said. "They even pay their taxes. Suddenly they think it's okay not to report a possible murder?"
     Carrot could see the steely glint in Vimes's eyes. "Well, the fact is—" he began.
     "Yes?"
     "You see, Hamcrusher is a deep-down dwarf, sir. I mean really deep down. Hates coming to the surface. They say he lives at sub-sub-basement level…"
     "I know all that. So?"
     "So how far down does our jurisdiction go, sir?" said Carrot.
     "What? As far down as we like!"
     "Er, does it say that anywhere, sir? Most of the dwarfs here are from Copperhead and Llamedos and Uberwald," said Carrot. "Those places have surface laws and underground laws. I know it's not the same here but well, it's how they see the world. And of course Hamcrusher's dwarfs are all deep-downers, and you know how ordinary dwarfs think about them."

(ed note: Does the same space law that applies to spaces close to heavily populated asteroids also apply to remote asteroids out in the boondocks? Does the same space law that applies to asteroid belt space apply to underground habitats in asteroid interiors?)


     Captain Carrot had been busy. The city dwarfs liked him. So he'd done what Vimes could not have done, or at least done well, which was take a muddy dwarf necklace to a dwarf home down in New Cobblers and explain to two dwarf parents how it had been found. Things had happened quite fast after that, and another reason for the speed was that the mine was shut. Guards and workers and dwarfs seeking guidance on the path of dwarfdom had turned up to be met with locked doors. Money was owing, and dwarfs got very definite about things like that. A lot of the huge body of dwarf lore was about contracts. You were supposed to get paid.

(ed note: Belter asteroid miners might know diddly-squat about Terran history or geography, but I'm sure they can quote verbatium all the statutes of asteroid mining law and mineral rights)

From THUD! by Terry Pratchett (2005)
THE FIFTH ELEPHANT

DWARF MINING LAW

      He leaned against the display cabinet. "All right, captain. Why am I really going to … Bonk? I don't know a lot about diplomacy, but I do know it's never just about one thing. What's the Low King? Why're our dwarfs scrapping?"
     "Well, sir … Have you heard of kruk?"
     "Dwarf mining law?" said Vimes.
     "Well done, sir. But it's a lot more than that. It's about … how you live. Laws of ownership, marriage laws, inheritance, rules for dealing with disputes of all kinds, that sort of thing. Everything, really. And the Low King … well, you could call him the final court of appeal. He"s advised, of course, but he's got the last word. Still with me?"
     "Makes sense so far. Does he get elected, or born or what?" he said.
     "I suppose you could say he's elected," said Carrot. "But really a lot of senior dwarfs arrange it among themselves. After listening to other dwarfs, of course. Taking soundings, it's called. Traditionally he's from one of the big families. But … er…"
     "Yes?"
     "Things are a little different this year. Tempers are a bit … stretched."
     Ah, thought Vimes.
     "Wrong dwarf won?" he said.

(ed note: on Terra, most cultures are focused on family and community. But on Terra, air is free. In the belt, where the bare minimums for survival are very expensive, the culture might be more like Star Trek's Ferengi; that is, based around greed and profit earning. Little rock-rat children might have to say their Rules of Acquisition before they go to sleep. )

(Alternatively you might have a situation more like Jerry Pournelle's BIRTH OF FIRE where a man's most valuable possession is their word of honor. They might still be focused with a Ferengi-like eye on money and profit, but without all the Ferengi back-stabbing, lying, and cheating. If your word of honor is worthless, you will anger a lot of people and they will be slow and reluctant to come to your aid when you scream for help.)


INTENSE INTEREST IN CONTRACTS IN GENERAL

     The queue of carts wound off down another tunnel, but the coach had stopped in a small cave with a big door. A couple of dwarfs were waiting there. They had axes slung across their backs, although by dwarf standards this counted merely as 'politely dressed' rather than 'heavily armed'. Their attitude, however, was in the international language of people guarding gates everywhere. "Commander Sam Vimes, Ankh-Morpork Ci— Ambassador from Ankh-Morpork," said Vimes, handing one of them his papers. At least it was not hard to assume a lofty air with dwarfs.
     To his surprise, the document was read thoroughly, one dwarf looking over the other one's shoulder and pointing out interesting sub-clauses. The official seal was carefully examined.

(ed note: Like I said, belters can quote verbatium all the statutes of asteroid mining law and mineral rights. Belters will study mining laws and contracts with all the fervor that football and baseball fans study the rules of the game.)


MINING LAW IS THE FOUNDATION

     "The, er, the King wishes to see you," he mumbled.
     Beyond the door was a room of bookshelves, stretching up, stretching away. Here and there a candle merely changed the density of the darkness. There were lots of them, though, punctuating the distance. Vimes wondered how big this room must be.
     "In here is a record of every marriage, every birth, every death, every movement of a dwarf from one mine to another, the succession of the king of each mine, every dwarf's progress through k'zakra, mining claims, the history of famous axes … and other matters of note," said a voice behind him. "And perhaps most importantly, every decision made under dwarf law for fifteen hundred years is written down in this room, look you."
     Vimes turned. A dwarf, short even by dwarf standards, was standing behind him. He seemed to be expecting a reply.
     "Er, every decision?"
     "Oh, yes."
     "Er, were they all good?" said Vimes.
     "The important thing is that they were all made," said the King.

MINESHAFT MEETINGS

(ed note: In both dwarf mines and deep space habitats inhabitable space is at a premium. Both are drastically constrained by available resources, mines because the space has to be carved out of solid rock and habitats because they have to be given life support. So in the absence of large meeting places it will have to be done incrementally.)

     Vimes half turned, like someone just taking in the view. In amongst the human guests the dwarfs moved and clustered. Five or six would come together and talk animatedly. Then one would drift away and join another group. He might be replaced. And sometimes an entire group would spread out like the debris of an explosion, each member heading towards another group.
     Vimes got the impression that there was a kind of structure behind all this, some slow, purposeful dance of information. Mineshaft meetings, he thought. Small groups, because there wouldn't be room for more. And you don't talk too loudly. And then when the group decides, every member is an ambassador for that decision. The word spreads out in circles. It's like running a society on formal gossip.

(ed note: throwing a monkey wrench into this amusing idea is that people living in space probably have access to some species of internet allowing online conferences and virtual meetings.

Keeping in mind that if the participants are on individual asteroids instead of inside the same mine, you could be looking at conversation lag times up to 1 hour and 43 minutes. Asteroid belt has a diameter of about 53 light-minutes, conversation timelag is twice that. Lag time might salvage the amusing idea.)

From THE FIFTH ELEPHANT by Terry Pratchett (1999)
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.)

(As I said above if your belter society is more like Jerry Pournelle's BIRTH OF FIRE where a man's most valuable possession is their word of honor, then they may follow all the Rules of Acquitions concerned with profit {because air ain't free} BUT avoid all the rules concerned with back-stabbing and mistreating familiy and friends. If your word of honor is worthless, you will anger a lot of people and they will be slow and reluctant to come to your aid when you scream for help. Like if your space suit pops a seam in a spot you can't reach with an emergency patch.)

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
NumberRule
1Once you have their money, you never give it back.
3Never spend more for an acquisition than you have to.
6Never allow family to stand in the way of opportunity.
7Keep your ears open and your eyes on the mark.
9Opportunity plus instinct equals profit.
10Greed is eternal.
16A deal is a deal. (…until a better one comes along)
17A contract is a contract is a contract… but only between Ferengi.
18A Ferengi without profit is no Ferengi at all.
21Never place friendship above profit.
22A wise man can hear profit in the wind.
23Nothing is more important than your health... except for your money.
31Never make fun of a Ferengi's mother (...insult something he cares about instead)
33It never hurts to suck up to the boss (alt: It's never too early to suck up to the boss)
34War is good for business (only from a distance, the closer to the front lines, the less profitable it gets)
35Peace is good for business (… unless you happen to be an arms merchant)
45Expand or die.
47Don't trust a man wearing a better suit than your own.
48The bigger the smile, the sharper the knife.
57Good customers are as rare as latinum. Treasure them.
59Free advice is seldom cheap.
62Profit is its own reward. The riskier the road, the greater the profit.
74Knowledge equals profit.
75Home is where the heart is, but the stars are made of latinum.
76Every once in a while, declare peace. It confuses the hell out of your enemies.
95Expand or die.
98Every man has his price.
102Nature decays, but latinum lasts forever.
103Sleep can interfere with... (this rule was interrupted before it could be finished)
109Dignity and an empty sack is worth the sack.
111Treat people in your debt like family... exploit them.
112Never have sex with the boss's sister.
125You can't make a deal if you're dead.
168Whisper your way to success.
190Hear all, trust nothing.
194It's always good to know about new customers before they walk in your door.
203New customers are like razor-toothed gree-worms. They can be succulent, but sometimes they bite back.
208Sometimes the only thing more dangerous than a question is an answer.
211Employees are the rungs on the ladder of success. Don't hesitate to step on them.
214Never begin a business negotiation on an empty stomach.
217You can't free a fish from water.
229Latinum lasts longer than lust.
239Never be afraid to mislabel a product.
263Never allow doubt to tarnish your lust for latinum.
285No good deed ever goes unpunished.
UnknownA man is only worth the sum of his possessions.

UNOFFICIAL RULES
NumberRule
NumberRule
299After 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.

From FERENGI RULES OF ACQUISITION entry in Memory Alpha
DWARF AXE

      'Fakes?' said Vimes. 'They were all fakes?'

     Suddenly the King was holding his mining axe again. "This, milord, is my family's axe. We have owned it for almost nine hundred years, see. Of course, sometimes it needed a new blade. And sometimes it has required a new handle, new designs on the metalwork, a little refreshing of the ornamentation … but is this not the nine-hundred-year-old axe of my family? And because it has changed gently over time, it is still a pretty good axe, y'know. Pretty good. Will you tell me this is a fake too?" He sat back again.

The Fifth Elephant

Sacharissa saw a movement. Boddony had pulled his axe out from under the bench. It was a traditional dwarf axe. One side was a pickaxe, for the extraction of interesting minerals, and the other side was a war axe, because the people who owned the land with the valuable minerals in it can be so unreasonable sometimes.

The Truth

The door opened. The Ideas Taster stepped through, carrying a dwarfish axe. It was a mining axe, with a pick point on one side, in order to go prospecting, and a real axe blade on the other, in case anyone tried to stop you.

The Fifth Elephant

(ed note: In the SPI game Battlefleet Mars, the asteroid miners rebelling from the evil Ares Corporation mounted mining lasers in the cargo bays of their spacecraft to make impromptu warships. Just like dwarf-axes, mining-lasers are dual use.)

Terry Pratchett
AUTOCRAT OF CERES

The Autocrat of Ceres sat in his very plain chair in the very plain compartment, and regarded the two very nervous people before him with regret. He was going to have to kill them.

“I’m very much afraid,” he said, “that I don’t have much choice in the matter. You were each expected to show cause why I should not put you to death. I have seen no such cause shown. Instead I have seen two people who have allowed a petty squabble over mining rights to degenerate into another useless rock war. It is your egos, and not the mining rights, that prevent justice in this case. And the Autocrat’s Law requires me to remove all obstacles to justice. Case closed.” The Autocrat nodded toward his marshals, and they stepped forward.

The plaintiff screamed, the defendant fainted. The marshals were good at what they did. Within seconds, both of the claimants were restrained, sedated, and being taken away, toward the Autocrat’s very plain, very famous, very deadly airlock. The one where pressure suits were not allowed. The place to which human obstacles to justice were quite literally removed.

Justice, as with many other things in the Belt, was in short supply, and when available, was not of the best quality—too rough, too harsh and too rushed. To the Inner System dandies who visited now and again, the Autocrat’s Law seemed barbaric, violent and vengeful. But to the Belters, who had no other source of justice, the Autocrat’s Law represented civilization itself. In all the wide, wild, ungovernable vastness of the Asteroid Belt, they knew there was one place, one name, one law that all could trust. Only the Autocrat’s Law could protect them against themselves. Harsh and final it might be, but so too was it impartial.

For the Belters knew the Belt was huge—ungovernably huge. There could be no law when law enforcement was impossible, and no conventional enforcement was possible when the population density was something less than one crotchety misanthropic old coot per million cubic kilometers. It was easy for other things besides law to get lost in the midst of all that vast expanse.

Things like sanity, order, trust, proportion. Megalomania was an easy disease to catch when a man or a woman could have a world—albeit a very small one—for the effort of landing on it. And if your own world, why not your own law, your own empire? Why not declare the divine right of kings and expand outward, conquering your neighbors as you go?

The Belt had seen a thousand rock wars between independent states, many of which consisted of two rock-happy miners taking potshots at each other. If lunatics wanted to exterminate each other, that was their own affair, but there was a more serious and basic problem. Other people could get drawn in, or get caught in the cross fire. In all likelihood, the Autocrat had saved dozens of lives this day by blotting out the leaders in this pointless fight.

But, obvious as the case had been, the Autocrat had taken pause before rendering his decision. The present Autocrat of Ceres was a most careful person. But so was the previous holder of the post, and the one before that. No other sort of person would ever be appointed.

Not only Ceres, but the entire Belt Community as well depended on the Autocrat’s authority to supply order, discipline, regimentation, at least to Ceres and its surrounding satellites and stations. Anarchy surrounded Ceres on all sides, but even the Belt’s wildest anarchists knew they needed Ceres to be stable, orderly, predictable, to be a place where a trader could buy and sell in safety.

The rules might change elsewhere with every passing day, but at Ceres the Law was always the same. Claims filed in the office of the Autocrat were honored everywhere—for they were backed not only by the Autocrat’s Law and Justice, but his Vengeance.

Nothing but fair dealing was ever done in a Ceres warehouse. None but fair prices were ever paid. No one brought suit frivolously. For the Autocrat himself stood in judgment of all cases.

By the Law, the Autocrat was required, in every case from unlicensed gambling straight up to claim jumping and murder, to find cause why the death penalty should not be exacted against one—or both parties—to the case. If the Autocrat could not—or would not—find such cause, plaintiff and claimant, accuser and defendant died.

The Autocrat’s Law had a long reach. Many defendants were tried in absentia, having chosen to flee rather than face a day in court. But as the saying went, If the Autocrat finds you guilty, he will find you in the flesh. His bounty hunters—and his rewards—found the guilty everywhere. Very few places refused to honor his warrant—and none were places a sane man would flee towards.

Indeed, fear of the Autocrat’s Justice prevented all but the most worthy claimants from coming forth to ask it, and prevented all but the most venal from risking its power. Calls for justice were few and far between when the sword was as sharp as it was double-edged.

From THE RING OF CHARON by Roger MacBride Allen (1990)

The Code Of Space

In the mythic North American frontier was the imagined "code of the west". 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. John Reiher points out that given the reality of the spartan limitation on a ship's delta-V, there is probably little they could do to render assistance besides helpful advice over the radio. If they tried to match postion and vector they'd use up all their delta-V, so now there are two ships in distress. The best they can do is notify the Orbit Guard.

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 by law to try and create a colony. This is the sort of silly law passed by interstellar empires that want to claim every habitable planet they possibly can.

CODE OF THE WEST

Historians of the American West have written about the mythic West; the west of western literature, art and of people's shared memories. The phenomenon is "the Imagined West". The "Code of the West" was an unwritten, socially agreed upon set of informal laws shaping the cowboy culture of the Old West. Over time, the cowboys developed a personal culture of their own, a blend of values that even retained vestiges of chivalry. Such hazardous work in isolated conditions also bred a tradition of self-dependence and individualism, with great value put on personal honesty, exemplified in songs and cowboy poetry. The code also included the Gunfighter, who sometimes followed a form of code duello adopted from the Old South, in order to solve disputes and duels. Extrajudicial justice seen during the frontier days such as lynching, vigilantism and gunfighting, in turn popularized by the Western genre, would later be known in modern times as examples of frontier justice, as the West became a thing of imagination by the late 19th century.

From the Wikipedia entry for AMERICAN FRONTIER
CASTAWAYS CODE 1

(ed note: the subspace starship Procyon is damaged by the mysterious Zeta field. The only survivors are First officer Carlyle Deston, his new wife Barbara "Bobby" Warner, Second officer Theodore Jones, Jones' new wife Bernice "Bun" Burns, Dr. Andrew Adams, and unfortunately a few gangsters.)

Adams laughed. “In context, I regard that as the highest compliment I have ever received. In these circumstances you need not `Doctor’ me. `Adams’ will do very nicely.”

“I’m going to call you `Uncle Andy’,” Barbara said with a grin. “Now, Uncle Andy, in view of what you said, one of your eight doctorates is in medicine.”

“Naturally.”

“Are you any good at obstetrics?”

“In the present instance I feel perfectly safe in saying…”

“Wait a minute!” Deston snapped. “Bobby, you are not…

“I am too! That is, I don’t suppose I am yet, but with him aboard I’m certainly going to. I want to, and if we don’t get back both Bun and I will have to. Castaways’ Code. So there!

Deston started to say something, but Barbara forestalled him. “But for right now, it’s high time we all got some sleep.”

From SUBSPACE EXPLORERS by E. E. "Doc" Smith (1965)
CASTAWAYS CODE 2

(ed note: The biological experimental station on the planet Beltane has the misfortune to be part of the Decline and Fall of the galactic empire. A rogue military unit lands and tries to capture the planet. The scientist retaliate with an experimental germ-warfare weapon which gets out of hand and kills almost everybody on the planet. The only survivors are a group of children, with Vere Collise finding himself the de facto leader since he is the eldest at 18 standard years old. He and fourteen year old Thad are scouting the city to find if anybody else is alive, while the rest of the group hides at a small military outpost/fort.)

      We pushed on, keeping to the road as a guide where we could. I think we needed that road for our spirits, as it was a link not only with what civilization Beltane had possessed, but also with the secure past. But we did not talk much until Thad suddenly burst out, "You think everything—everybody's gone, don't you, Vere?"
     "That is a possibility."
     "The refugees (rogue military unit), too?"
     "Those in the hopper were dead. They may have loosed something they did not know how to control." (the germ-warfare weapon)
     Thad stopped and looked at me directly. "Is it better—really—to know?"
     "We have to."

     Thad's position at Kynvet was not far different from mine, or had been. His parents died as a result of a lab experiment gone wrong, and he had been taken in by the Drax family, who were relatives of his father. So he had no close kin to miss. Yet it did not follow that he could be as detached as I had always felt. After all, he was not of a Service family and so not set apart from the rest of the community.
     "I suppose so," he said reluctantly. "And what do we do, Vere, if it is true—that we're now alone here? Oh, I know we set up the port call (distress beacon). But who knows if that will ever be picked up (with the empire collapsing nobody is going to come to the rescue)."
     "Boat law," I said briefly.
     "Boat law?" he repeated. Then understanding came. "Oh, you mean the space regulations. We start a colony because we are marooned. Only we aren't survivors of a shipwreck."
     "Near enough to follow the law. And we shall be starting with more than many such survivors ever had. We have all that is left here. Always supposing that it is ours now without dispute."
     "The machines won't run forever. A lot of them need more servicing now than we can give. And when everything stops running—"
     "Yes, we'll be on our own. We'll have to do all we can to establish ourselves before all the machines stop."

     But that meant planning for years ahead, and I still shrank from that—until I had to. I think that perhaps Thad liked such thoughts no better because he was quiet. What we said for the remainder of the day was limited to matters of our traveling.

From DARK PIPER by Andre Norton (1968)
CASTAWAYS CODE 3

(ed note: This is Poul Anderson's satire on the concept of a castaway code.

On the passenger liner starship, the emergency alarm sounds. All passengers enter their assigned lifeboat until the all-clear. But one lifeboat has been sabotaged. It ejects into space, and the passenger ship vanishes into the distance. It contains smarmy Third officer John Newhouse, four ladies, and an extraterrestrial. They manage to land on an empty habitable planet, but Newhouse notes the lifeboat's engine is wrecked. After a while Newhouse informs them of the regulation.)

      “Of course,” said Newhouse, annoyed. “I wasn’t forgetting the Kefflachian race either. But, well, anyhow, to continue. We can make what we will of this planet. Right now we’re a community with no definite authority, no clear-cut legal rights, no…"uh…anything. We have work to do. It won’t be backbreaking. We have basic tools, and the boat’s converter will supply all the energy we can ever use. But it will be work. A challenge!” he cried, trumpetlike.
     “You needn’t shout,” said Kamala. “We are not deaf.”
     Newhouse looked disconcerted, smoothed it over, and resumed swiftly: “We have to agree, maybe not on anything as elaborate as a constitution, but on a few rules. The way we start will determine the tradition, the whole structure, of our society in the future. Our descendants can bless us or curse us—”
     “Une pause!” Marie leaped to her feet. “What is that it is that which you say? Whose descendants?”
     Newhouse folded his arms, leaned back against the ladder, and smiled. “Ours. Yours and the other ladies’. And mine.”
     “Ohhh!” quavered Hedwig pinkly.
     Teresina jumped up also. “Now wait a minute, Newhouse!” she yelled, and stopped, appalled at her own boldness.

     “You know the law,” said the officer.
     “What law?” asked Kamala through an otherwise stunned silence.
     “Number 298376, Statutes of the United Commonwealths,” said Newhouse.
     The girl shook her dark head. “I never heard of it, and my father has held a seat in Parliament since—”
     “Popularly known as the Reproductive Act.
     “No, I can’t say—”
     Teresina exchanged glances with Marie. The stewardess shrugged and made a face. Who could keep track of all the laws there were?
     “I imagine it isn’t too familiar to civilians at that,” said Newhouse. “Spacemen are of course very much aware of it, though even in their case the issue seldom arises. But, briefly, the law requires that Terrestrial citizens cast away on any planet where reproduction is at all practical must reproduce, and in such a way as to assure the greatest distribution of all available sound heredity.”
     Teresina shrank back against the comforting bulk of Fred. Newhouse swept a grin across her.
     “But this is outrageous!” screamed Hedwig Trumbull. “Indecent!”
     “Conditions in space don’t always permit the same behavior as at home,” said Newhouse blandly. “The law has several purposes. First, since any band of castaways is sure to be small, inbreeding has to be avoided as much as possible, lest the descendants start degenerating in a century or two. There has to be as much genetic variety made available as circumstances allow: interbreeding in all individual combinations. Second, by enforcing reproduction, the law makes use even of disasters like this one to spread civilization throughout the galaxy. By the time our world is discovered, for instance, there may be quite a flourishing colony. Third, it’s for your own protection. Do you want to be the last survivor, growing old with no one to take care of you?

     “But—prior marriages—” objected Kamala.
     “They’re automatically annulled,” said Newhouse, “though all children born to the castaways are automatically legitimate.
     “Somehow,” complained Arsang, “the logic of this escapes me.
     “Anyway, none of us is married.” Newhouse leered. “Yet.”
     “I will not do it!” exploded Marie. “You—jeune bouc!” When he didn’t seem impressed, she translated: “Young goat.”
     The officer said sternly: “There’s a severe penalty for noncompliance, Miss Quesnay.
     “But I thought no one was going to rescue us,” said Teresina.
     “If we are rescued, the penalties will apply. Besides… well, let’s face it, I am the only man for God knows how many parsecs.” Newhouse buffed his nails on his shirt, regarded them critically, and smiled again.

     “It’s outrageous!” Hedwig waddled toward him, shaking her fists. “It’s indecent, I say, immoral, improper! When do you start?”
     Newhouse’s composure cracked a little. “Oh,” he said.
     Hedwig fluffed her green hair, revealing gray roots. “I want it known that I am complying only under protest," she said. “Furthermore, if we should be rescued, you must make an honest woman of—”
     “Well,” said Newhouse, jumping down from the ladder and backing away, “Let’s not be hasty. I, er, didn’t want to embarrass any of you ladies. I know you’ll, uh, need time to get used to this. To the idea. I’ll t-t-talk to you seperately… later…”
     “Don’t think I am afraid,” said Hedwig. “I am prepared to do my duty to civilization, however distasteful.”

(ed note: Newhouse suddenly has other business to attend to and runs away)


     “Just let him dare!” flared Teresina.
     Kamala said gently: “He will have the extraterrestrials on his side. They will certainly desire a large community here, especially as a provision for their old age. And there is the question of law, and even of duty.”

     “Duty! Law!” Teresina looked out to the river. Finally she spoke, hard-voiced:
     “Has it occurred to you just how bad and stupid that law is‘? Go down the line, tick off the points one by one. First, it’s a gross infringement of civil liberties. People have the constitutional right to decide what they’ll make of their own lives. An enforced marriage isn’t legally a marriage at all. Second, this kind of situation is so wildly improbable that there’s no reason for a law regulating it. How sloppy are space crews supposed to be, anyhow? There’s almost no excuse for getting marooned. Even explorers, Survey ships, don’t head into the wild black yonder. They identify in advance the stars they’re going to visit, using astronomical telescopes. If they aren’t back within a reasonable time, a rescue expedition will know where to search!”
     “True,” said Marie. “Though I am surprised that you, a civilian, know so much about Survey procedure.”
     “I don’t really,” confessed Teresina. “I only reasoned it out, on the assumption that space explorers aren’t idiots.”
     “Well,” said Kamala, “this is indeed an unnecessary law, as you point out. But that sort of thing is not unknown. There are many regulations providing for the weirdest contingencies. For example, in one of the American states, I have heard, it is illegal to take a bath by the side of the highway on Sunday mornings. So a law regulating castaways is not out of the pattern, even if I have never heard of a situation like ours arising before.”

     “All right,” said Teresina. “Conceded. Fermat knows what will happen when an M.P. gets the bit between his teeth. But let’s take this law at face value. It’s supposed to guarantee that castaways of mixed sexes will reproduce, if at all possible. Really—” she felt herself blush again, but plowed stubbornly on— “Do you think that has to be required?
     “The law is supposed to pervent degeneration by enforcing the greatest outbreeding. Well, after all! I mean, if a band of people are so stupid they can’t think of that for themselves, it doesn’t matter if they degenerate or not, does it? They don’t need to get all promiscuous in the first generation to take care of the genetic drift. All they have to do is regulate who their children and grandchildren marry, make marriage contracts between families. And that’s been common practice throughout human history. Our modern custom of leaving it entirely up to the individual is the statistical abnormality.
     “Hm, yes,” said Marie. “I can also see that if there were several couples shipwrecked together, and they were supposed to change partners all the time, oui, the emotional tensions that could make would be more dangerous than any genetic problems!

     “And then, that—” Teresina tried her Anglo-Saxon word again (male bovine excreta). It seemed to fit, so she let it stand and continued: “—about spreading civilization. Really! If a planet has no natives, it can wait till it’s discovered in the usual way. If it does have natives, can you imagine how much trouble a band of aliens like us, calmly filling their land with our own offspring, would make? The explorers who finally did arrive would probably find a full-fledged war waiting for them. In fact, what the law ought to do is forbid reproduction, till the castaways are sure there aren’t any aborigines!
     She fell silent. The wind murmured and the forest talked in the night.
     Kamala said at last, “You are right, dear, it is a most ridiculous piece of legislation, and if I ever get home I shall certainly have my father introduce abill to repeal it. But meanwhile—”

(ed note: Teresina does some deduction, and realizes that this is all a sinister plot by that scum Newhouse to make himself an instant harem of four pretty young women. Well, three at least. Hedwig's place on the lifeboat was orginally assigned to a red-head, but Hedwig traded places. Hedwig was not quite as attractive to the evil Newhouse.

Anyway Teresina figures out that there is nothing wrong with the lifeboat. She gets the other women and the extraterrestrial into the boat and takes off, marooning the dastardly Newhouse on the planet. They make it to the nearby planet Holmes and report Newhouse to legal officer Sir John Baskerville.)

     “Or he might have taken you all off ‘looking’ for a colonial planet and ‘happened’ to find another,” nodded Sir John. “Jotunheim isn’t far away. Or he might simply have flown off, leaving all of you in the wilderness. A proper villain, Miss! We shall certainly see that he is punished, when we find him. Though I’m afraid, this planet is so big and our police force so small, it may take weeks to identify your camp.”
     “No matter.” Teresina smiled. “He can stay right where he is. I hope he enjoys every minute of it.”
     “He, ah, would have, if you hadn’t been so quick on the uptake,” said Sir John.
     Teresina blushed. “Yes. I mean, that was his whole intention. To live like a sultan, as long as he wished. And all quite legally, too.”

     “Why, what do you mean?”
     Teresina blushed still more furiously. “You know. That silly rule that castaways must, well, have children.”
     “Good heavens!” barked Sir John. “What are you talking about? I’m quite familiar with the statutes relating to space exploration, young lady, and I assure you there is not and never has been any such law!

From EVE TIMES FOUR by Poul Anderson (1960)
COMMUNITY JUSTICE

(ed note: Laurie Hansen of Hansen Enterprises is trying to industrialize space. Her political opponents (Equity Trust) are trying to sabotage the project. On the space station Heimdall, Equity Trust undercover agent Martin Holloway aka David Hindler murdered Heimdall's captain Amos Shorey, and is terrorizing the remaining Hansen employees. Laurie Hansen sends Aeneas MacKenzie to deal with this.)

(ed note: In Norse mythology, Heimdall is the gate-keeper of the rainbow bridge Bifröst which connects Midgard {Terra} and Asgard {the solar system})

     "What the hell are you doing here?" a man demanded. He came across the room to Aeneas: a tall man, sandy-haired and square-jawed, his muscles hard. He had the confidence of a man long in space, and more; a man who made his own destiny and controlled the destinies of others. It was a confidence that Aeneas recognized easily . . . .
     "Hello, David," Aeneas said quietly.
     "Eh?" Penrose said. "That's Martin Holloway."
     "His name is David Hindler," Aeneas said. "He is, or was until very recently, an agent of the CIA."
     Holloway-Hindler smiled with half his face (the smile stopped before it reached his eye, it was a fake smile). "And Aeneas MacKenzie is, or was until recently, political and legal advisor to the President of the United States."
     "I work for Miss Hansen now," Aeneas said. The room was still; everyone was listening.
     Holloway shrugged. "You betrayed Greg after damn near twenty years with him—how long before you double-cross Hansen, Aeneas? Just what the hell are you doing here, anyway?"
     "I have come to try a case of murder," Aeneas said.
     Holloway looked up in surprise. "By what authority?"
     "My own. I am commander of this station." He looked to Eliot.
     "That's what Miss Hansen says," Eliot announced. "She appointed MacKenzie in Captain Shorey's place."
     "That's stupid," Holloway said. "You've got no authority. Companies don't make law and courts and appoint judges—"
     "Then I appoint myself. Sit down, David. You are charged with the willful murder of Captain Amos Shorey. How do you plead?"
     "Go to hell! You've got no authority over me." He looked around for support.


     "But I do." The quiet voice demanded attention. Holloway looked back to Aeneas and saw that he had taken an odd-looking gun from inside his coveralls. Holloway started to reach for his own—
     "Don't!"
     The command halted his move for a second.
     "The first dart contains a tranquilizer," Aeneas said. "The rest have cyanide. And I've practiced in this gravity. Keep your hands where I can see them, David. And please sit down."
     "I'll sit." Holloway eyed the gun warily. "But you can't make me accept the authority of your court. You're no better than any other gunman—don't the rest of you see that? You let him do this to me, and which one of you's next? Do something!"
     There were murmurs of assent, and several crewmen stood menacingly.

     "Wait," Aeneas commanded. The helium in the atmosphere in the station made his voice shrill, but the timbre of command remained. "You may as well hear me out. How many of you hope to go with Valkyrie? Or to the Moon colony?"
     About half. Kittridge Penrose was among them.
     "And why?" Aeneas asked.
     "Because we've had enough of Earth and bureaucrats and laws and regulations," Penrose said. "We can't breathe down there! We've had it with the Martin Holloways—and people like you, MacKenzie!"
     "Yet you cannot live without law," Aeneas said. "There is no civilization without justice."
     "Law? Justice?" Penrose was contemptuous. "Rules, regulations, taxes, traps for people minding their own business."
     "Those are perversions of law." Aeneas deliberately kept his voice low so that they had to strain to listen. "There can be no civilization without law and no civilized men without justice. Earth's law cannot govern here. It cannot even govern Earth. But that does not mean you can dispense with law altogether."
     "So you'll give us laws?" Holloway said contemptuously.
     "No. But this satellite is not independent of Earth. It is not sovereign. It must have government. Miss Hansen has given me that task."

     "Are you going to put up with this?" Holloway demanded. "You don't know this son of a bitch. Law! He's a goddam computer. He'll have you marching around under regulations like you've never seen." He turned to the crew. "Help me!"
     "Help him and you give Heimdall to the Equity Trust. Or to Greg Tolland," Aeneas said. "I do not think you will care for either master. Even those who are here for short tours only—and those who want a new life in space will be finished."
     There was a buzz of conversation. "Hansen's been decent enough.”
     “Hell, he's got the gun . . . .”
     “I don't owe Holloway nothing.”
     “Let Penrose and Eliot decide, that's their job, I mind my own business . . . ."
     Aeneas raised his voice to cut through the chatter. "The prohibition against murder is as old as man. Are any safe here? Who had more friends than Captain Shorey? Who will avenge you if you are wronged?"
     "What do you intend to do with Holloway?" one engineer demanded.
     "I intend to try him for murder."
     "Some trial!" Holloway shouted. "A kangaroo court."
     "Yes. You prefer a court which you know will never convict you. I think, David, you have forgotten what a trial is for. It is not a show, but a means of discovering what has happened. I think we can do that here. The crew will be the jury."
     "What happens if we say guilty?" Penrose demanded.
     "Sentence is the responsibility of the judge. Martin Holloway, as you are known here, how do you plead?"

     "You goddamn fools!" Holloway shouted. "You're really going to let him do this, aren't you? By God, you touch me and the Agency'll track every one of you down. You've got to go back to Earth sometime—"
     "Not everyone," Aeneas said quietly.
     "They've got families," Holloway said grimly.
     Aeneas shook his head sadly. "This is beneath you, David. And I warn you, you are not helping your case. I advise you to say nothing else." Still carefully holding the pistol ready, Aeneas took a seat across the table from Holloway. "I wish you had not threatened the crew."
     Because, Aeneas thought, you force me to act alone. But he had always known it would come to this. He had become—what? "Your plea is not necessary," Aeneas said. "I call the first witness. Miss Raisters, your oath. Do you swear—"
     "His people will kill me," Ann said. "He wasn't alone. There are more of them here—"
     "You told me Amos Shorey was your friend. And there will be justice here, and on Valkyrie."
     Her lips tightened. She took a deep breath and began to tell her story.

     In two hours they had heard it all: Holloway's threats and promises to various crewmen; sabotage plans, promises of money and position when Equity took control of Heimdall. There were five witnesses to those acts; and Ann Raisters and another woman had seen Holloway enter the laboratory. They saw Captain Shorey go in after him; and Shorey never returned.
     The station physician told them that Shorey died of explosive decompression, but that he had been drugged first. "I don't know the drug," he told them. "Not precisely. One of the curare derivatives, I'd think. Certainly something at least that powerful, to leave a man's muscles relaxed as he explodes. Not even unconsciousness could have done that."

     When it was finished, Aeneas spoke to Holloway. "You may present your defense."
     "I don't have to make any defense!"
     "I advise you to do so. At the moment the evidence is much against you."
     "You used to be my friend," David said.
     "Make your defense," Aeneas replied. His voice was even, and no one could tell if that had cost him much or little.
     "Crap. I didn't kill Shorey!"
     "How did he die?"
     "It was an accident. He—"
     "Yes?"
     Holloway thought for a moment. There was no possible explanation. Drugged, Shorey could not have operated the airlock; yet he had certainly been outside it. "You've got no authority here. I demand you send me down!"
     "No. Have you completed your defense?"
     "I've said all I'm going to say to you."
     "Then this court finds you guilty. I would have put this to a jury, but your threats prevent that. David Hindler, alias Martin Holloway, this court finds you guilty of sabotage, attempted bribery, and willful murder. On the minor charges you are sentenced to forfeiture of all pay and allowances and one year at hard labor. You will not serve that sentence. On the charge of murder you are sentenced to death."

     There was an excited babble in the room.
     "Who'll kill me, Aeneas?" Holloway said. "You?"
     "Of course. I would not ask anyone else to do it." I never wanted the high justice, but I accepted refuge with the Saracens

(ed note: Aeneas had been political and legal advisor to the POTUS Greg Tolland and against Hansen Enterprises. And was also an agent of the CIA. Until he discovered that Tolland and pretty much all the rest of the US government was corrupt, in bed with Equity Trust. So Aeneas "accepted refuge with the Saracens" like Youkínna and his Renegados, leaving US government service and entering into service with Hansen Enterprises)

     "Stand up, David."
     "No. I won't help you."
     "You have five minutes."
     Penrose and Eliot crowded around Aeneas. "You can't do this," Dr. Eliot said.
     "Why the hell not?" Penrose demanded. "The bastard's got it coming."
     "This is no better than murder," Eliot insisted. "You have no authority…"
     "If I have none, there's none here," Aeneas said. "And you can't live that way. If you object, Doctor, you can get the crew to stop me. I'm only one man."
     "Two," Penrose growled.
     "Three." Ann Raisters stood behind him.
     
     "Your five minutes are up. Have you anything to say, David?"
     Holloway turned to the others. The crew hadn't moved; they stood or sat in small groups, watching, saying very little, speaking in the hushed tones used in cemeteries and at funerals. "You're all next!" Holloway shouted. "You let him get away with this and you're next! They'll send up company cops, and you'll all be slaves."
     No one moved. They may have believed him; but Aeneas stood there as the figure of—
     What am I? he thought. Justice in person? The high justice? Why should they accept me? But what can they accept? In these days when no one trusts anyone or anything—there is only power. I would like to believe I am more than that
     "They'll have you for murder, Aeneas," Holloway said. "Greg Tolland will have extradition warrants in every country on Earth. But don't worry about that, because the Agency won't forget either. You're a dead man, Aeneas. You won't live an hour after you get to ground."
     "I believe you." Almost, Aeneas envied David; Aeneas had once been part of that brotherhood of dedicated young men (the CIA), and he missed their camaraderie. But now he served the Saracens (Hansen Enterprises).
     Must I do this? What choices have I? There had been a time when David's threat would have been welcome; now, Aeneas would never see Laurie Jo on their lonely beach. She wouldn't be safe for long, either. Earth was not a place of safety for anyone, great or small.
     The Station turned slowly and through the ports he saw the spindly framework and tankage that would someday be Valkyrie. Earth was lovely beyond it. But she will come here, and we will take that ship together
     "Lost your goddamn nerve?" Holloway demanded. The fear was unmistakable in his voice, and beyond it was pleading. "Get it over."

     The pistol coughed twice.

     Afterwards, Aeneas stood again at the viewport and looked at Valkyrie; but did not look at Earth.

From HIGH JUSTICE by Jerry Pournelle (1974)
DISTRESS CALLS

     Then the captain leaned back, pointing over his shoulder at the communications station.
     "Becca!" McDowell snapped. "Tell him."

     "Emergency signal," she said. "Picked it up two hours ago. The transponder verification just bounced back from Callisto. It's real."
     "Ah," Holden said. And then: "Sh*t. Are we the closest?"
     "Only ship in a few million klicks."
     "Well. That figures," Holden said.
     Becca turned her gaze to the captain. McDowell cracked his knuckles and stared at his display. The light from the screen gave him an odd greenish cast.
     "It's next to a charted non-Belt asteroid," McDowell said.
     "Really?" Holden said in disbelief. "Did they run into it? There's nothing else out here for millions of kilometers."
     "Maybe they pulled over because someone had to go potty. All we have is that some knucklehead is out there, blasting an emergency signal, and we're the closest. Assuming..."
     The law of the solar system was unequivocal. In an environment as hostile to life as space, the aid and goodwill of your fellow humans wasn't optional. The emergency signal, just by existing, obligated the nearest ship to stop and render aid—which didn't mean the law was universally followed.
     The Canterbury was fully loaded. Well over a million tons of ice had been gently accelerated for the past month. Just like the little glacier that had crushed Paj's arm, it was going to be hard to slow down. The temptation to have an unexplained comm failure, erase the logs, and let the great god Darwin have his way was always there.
     But if McDowell had really intended that, he wouldn't have called Holden up. Or made the suggestion where the crew could hear him. Holden understood the dance. The captain was going to be the one who would have blown it off except for Holden. The grunts would respect the captain for not wanting to cut into the ship's profit. They'd respect Holden for insisting that they follow the rule. No matter what happened, the captain and Holden would both be hated for what they were required by law and mere human decency to do.
     "We have to stop," Holden said. Then, gamely: "There may be salvage."

From LEVIATHAN WAKES by "James S.A. Corey" (Daniel Abraham and Ty Franck) 2011. First novel of The Expanse
SALVAGE LAW

     Our supporters on Earth called us the cutting edge of technology. We were the first of a series of asteroid mine operations that would eventually liberate Earth forever from shortages of raw materials. The orbital space factories already demonstrated what space manufacturing could do; and with asteroid mines to supply raw materials, the day would come when everyone on Earth could enjoy the benefits of industry without the penalties of industrial pollution.
     They fought hard in Congress: more government support for Space Industries, and more importantly, tax writeoffs for the private companies investing in Moria. "Look to the future," they said. "We cannot afford shortsightedness now! Is it not time that mankind looked twenty years and more ahead, instead of always seeing no further than the next election?"

     Unfortunately there were more on the other side. "Boondoggle" was the kindest word they had for us. We were, they said, a terrible waste of resources. We absorbed billions that could go to immediate improvements for everyone. Foreign aid; schoolhouses; unemployment; these were the immediate problems, and they would not go away through dumping money into outer space! Who ever heard of Moria? Who could even find it? A rock not even visible through Earth's largest telescopes, a tiny speck hundreds of millions of miles away, where expensive people demanded more and more expensive equipment. . .

     Our friends kept us alive, but they couldn't get us many supply ships; and we were holding on with our fingernails.

     "Interesting thing, admiralty law. Applies to space if there's not special legislation."

     There wasn't much to joke about. "It's official," Commander Wiley said. "We've been ordered to abandon Moria. There will be no more support from Earth."

     Commander Wiley let the chatter go on for a while. Then he said, "There's a way. It's not something I can order, and it's not something I can put to a vote. But there's a way."
     "What?" A hundred people, or more, maybe everyone asked it. "What is it?"
     "We can send down one big payload to Earth," Wiley said. "Only one. It can be us, or most of us, if that's what's got to be done. But it could be something else. Twelve thousand tons of copper, iron, silver, and gold. Twelve thousand tons that we can put into Earth orbit from here. If we use every engine we've got and all our fuel."
     More chatter. The department heads who were in on Wiley's plan looked smug.

     "And it's ours," Commander Wiley said. "The instant they ordered us to abandon Moria this entire station became jetsam. It belongs to the first salvage crew that can get aboard. There's a Swiss firm willing to buy our cargo if we can get it to Earth orbit. They'll pay enough to let us buy our own ship."
     And they'd be getting a hell of a deal even so. I could see international lawyers arguing this case for thirty years and more. The United States didn't want us, but they wouldn't want their billions to be lost to the Swiss.
     "There's nothing easy about this," Commander Wiley said. "It will be years before we can send our cargo down and bring up new supplies. We'll be on short rations the whole time. And there won't be any new people."

     Kevin Hardoy-Randall let out a wail (ed note: age 2 months). "There's your answer to that," his mother said. "We'll have plenty of new people. Commander, can we really do it?"

     "We can."

From BIND YOUR SONS TO EXILE by Jerry Pournelle (1976)
SOVEREIGN LAW

(ed note: In the novel, there are various star nations, including Earth. It was always more or less assumed that a given star nation had ownership of all the planets and moons in their "solar" system. But this wasn't actually a written down treaty or anything.

The hostile nation of Sirius establishes a tiny colony on the Saturnian moon Titan, on the grounds that it is uninhabited, and even though it is in Earth's solar system the Sirians are not actually breaking any treaties. What the evil Sirians really want is a military base right in the heart of enemy territory. Earth is understandably upset.

But our hero Lucky Starr springs into action. He makes camp on the moon Mimas, but is captured by the Sirians. They force Lucky to testify at a Galactic Conference. Unbeknown to the Sirians, this is a trap set by Lucky and Hector Conway. )

The conference opened on the stiff and formal note to be expected. Everyone was painfully correct, and when Earth's delegation entered to take their posts in the front and at the extreme right of the hall, all the delegates already seated, even the Sirians in the front and extreme left, rose.


     After a short speech by Doremo extolling the virtues of compromise and begging no one to be so stubborn as to risk war where a slight yielding might insure peace, he recognized Earth's Secretary of State once more.
     This time the Secretary was a partisan, presenting his side of the dispute forcefully and well.
     There was, however, no mistaking the hostile attitude of the other delegates. It hung like a fog over the assembly hall.

     Conway sat next to the orating Secretary, with his chin digging into his chest. Ordinarily it would be a mistake for Earth to present its major speech at the very start. It would be a case of shooting off the best ammunition before the nature of the target was known. It would give Sinus the opportunity for a crushing rebuttal.
     But in this case, however, this was exactly what Conway wanted.

     Finally, six hours after the conference had been called to order, Sten Devoure of Sirius was recognized and rose slowly to his feet. He stepped forward with quiet deliberation to the rostrum and stood there, looking down upon the delegates with an expression of proud confidence on his olive-skinned face. (There was no sign of his misadventure with Bigman. (a black eye))
     There was a stir among the delegates that quieted only after a number of minutes during which Devoure made no effort to begin speaking.
     Conway was certain that every delegate knew that Lucky Starr would be testifying soon. They were waiting for this complete humiliation of Earth with excitement and anticipation.

     Devoure began his speech at last, very quietly. His introduction was historical. Going back to the days when Sirius was a Terrestrial colony, he rehearsed once again the grievances of that day. He brushed over the Hegellian Doctrine, which had established the independence of Sirius as well as that of the other colonies, as insincere, and one by one cited the supposed efforts of Earth to re-establish domination.
     Coming down to the present, he said, "We are now accused of having colonized an unoccupied world. We plead guilty to that. We are accused of having taken an empty world and made it a beautiful habitation for human beings. We plead guilty to that. We are accused of extending the range of the human race to a world suitable for it that had been neglected by others. We plead guilty to that.
     "We have not been accused of offering violence to anyone in the process. We have not been accused of making war, of killing and wounding, in the course of our occupation. We are accused of no crime at all. Instead, it is merely stated that not quite a billion miles away from the world we now so peacefully occupy there is another occupied world named Earth.
     "We are not aware that this has anything to do with our world, Saturn. We offer no violence to Earth, and they accuse us of none. We ask only the privilege of being left to ourselves, and in return for that we are glad to offer to leave them to themselves.
     "They say Saturn is theirs. Why? Have they occupied its satellites at any time? No. Have they shown interest in it? No. For the thousands of years during which it was theirs for the taking, did they want it? No. It was only after we landed on it that they suddenly discovered their interest in it.
     "They say Saturn circles about the same Sun that Earth does. We admit that, but we also point out that the fact is irrelevant. An empty world is an empty world, regardless of the particular route it travels through space. We colonized it first and it is ours.
     "Now I have said that Sirius occupied the Saturnian system without force of any kind and without the threat of force; that we are actuated in all we do by a desire for peace. We do not speak much of peace, as Earth does, but we at least practice it. When Earth called for a conference, we accepted at once, for the sake of peace, even though there is no shadow of any sort on our title to the Saturnian system.
     "But what of Earth? How does it back its views? They are very fluent in their talks on peace, but their actions match their words very poorly. They called for peace and practiced war. They demanded a conference and at the same time outfitted a war expedition. In short, while Sirius risked its interests for the sake of peace, Earth, in return, made unprovoked war upon us. I can prove this from the mouth of a member of Earth's own Council of Science."
     He raised his hand as he spoke the last sentence, his first gesture of any sort, and pointed dramatically to a doorway upon which a spot of light had been allowed to fall. Lucky Starr was standing there, tall and defiantly straight. A robot flanked him on either side.

     Lucky nerved himself for just that when he finally stood in the doorway and felt the eyes upon him, the silence, the caught breaths. In the spotlight himself, Lucky saw the delegates to the conference as nothing but a giant black mass. It was only after the robots led him into the witness box that faces swam out of the crowd at him, and he could see Hector Conway in the front row.
     For a moment Conway smiled at him with weary affection, but Lucky dared not smile back. This was the crisis and he must do nothing that, even at this late moment, might warn the Sirians.

     Devoure stared at the Earthman hungrily, savoring his coming triumph. He said, "Gentlemen. I wish temporarily to convert this conference into something approaching a court of law. I have a witness here whom I wish all the delegates to hear. I well rest my case on what he says—he, an Earthman and an important agent of the Council of Science."
     He then said to Lucky with sudden sharpness, "Your name, citizenship, and position, please."
     Lucky said, "I am David Starr, native of Earth, and member of the Council of Science."
     "Have you been subjected to drugs, to psychic probing, or to mental violence of any sort to induce you to testify here?"
     "No, sir."
     "You speak voluntarily, and will tell the truth?"
     "I speak voluntarily and will tell the truth."
     Devoure turned to the delegates. "It may occur to some of you that Councilman Starr has indeed been handled mentally without his knowledge or that he may be denying mental harm as the very result of that mental harm. If so, he may be examined by any member of this conference with medical qualification—I know there are a number of such—if anyone demands such examination."
     No one made the demand, and Devoure went on, addressing Lucky, "When did you first become aware of the Sirian base within the Saturnian system?"
     Curtly, unemotionally, eyes staring stonily forward, Lucky told of the first entry into the Saturnian system and the warning to leave.

     "And did you leave after being warned?"
     "I did, sir."
     "Permanently?"
     "No, sir."
     "What did you do next?"
     Lucky described the ruse with Hidalgo, the approach to Saturn's south pole, the flight through the gap in the rings to Mimas.
     Devoure interrupted, "Did we at any time offer violence to your ship?"
     "No, sir."
     Devoure turned to the delegates again. "There is no need to rely only upon the word of the Councilman. I have here telephotos of the pursuit of the Councilman's ship to Mimas."

     At this time Devoure must have felt the growth of a furtive admiration for the daring of the Earthman, for he said with a touch of annoyed haste, "Our inability to overtake the Councilman was the result of his ship's equipment with Agrav motors. Maneuvers in the neighborhood of Saturn were more difficult for us than for him. For that reason we ourselves had not previously approached Mimas and were not psychologically ready for his doing so."
     If Conway had dared he would have shouted aloud at that. The fool! Devoure would pay for that moment of jealousy. Of course by mentioning Agrav he was trying to stir up the outer worlds' fears of Earth's scientific advances, and that might be a mistake too. The fears might grow too strong.

     Devoure said to Lucky, "Now then, what happened once you left Mimas?"
     Lucky described his capture, and Devoure, having hinted at Sirius's possession of advanced mass-detection devices, said, "And then, once on Titan, did you give us further information concerning your activities on Mimas?"
     "Yes, sir. I told you that another Councilman was still on Mimas, and then I accompanied you back to Mimas."
     This the delegates had apparently not known. There was a furor, which Devoure shouted down. He cried, "I have a complete telephoto of the removal of the Councilman from Mimas, where he was sent to establish a secret war base against us at the very time that Earth called this conference, allegedly for peace."

     "A fully equipped base, as you see," said Devoure. Then, turning to Lucky, he said, "May your actions throughout all this be considered to have the official approval of Earth?"
     It was a leading question and there was no doubt as to the answer that was desired and expected, but here Lucky hesitated, while the audience waited breathlessly and a frown gathered on Devoure's face.
     Finally Lucky said, "I will tell the precise truth. I did not receive direct permission to re-enter Saturn a second time, but I know that in everything I did I would have met with the full approval of the Council of Science."

     And at that admission there was wild commotion among the reporters and a hubbub on the floor. The conference delegates were rising in their seats, and cries of "Vote! Vote!" could be made out.
     To all appearances the conference had ended and Earth had lost.

     Conway shut it off, and in the sudden quiet Doremo said quickly, "I have agreed to recognize Chief Councilman Hector Conway of the Terrestrial Federation that he might cross-examine Councilman Starr."
     There were shouts of "No, no," but Doremo continued obdurately, "I ask the conference to play fair in this respect. The Chief Councilman assures me his cross-examination will be brief."
     Amid rustling and a tide of whispering, Conway approached Lucky.

     He smiled but spoke with an air of formality, saying, "Councilman Starr, Mr. Devoure did not question you as to your intentions in all this. Tell me, why did you enter the Saturnian system?"
     "In order to colonize Mimas, Chief."
     "Did you feel you had the right to do so?"
     "It was an empty world, Chief."
     Conway turned so as to face a suddenly puzzled and quiet group of delegates. "Would you repeat that, Councilman Starr?"
     "I wished to establish human beings on Mimas, an empty world that belongs to the Terrestrial Federation, Chief."

     Devoure was on his feet, calling out furiously, "Mimas is part of the Saturnian system."
     "Exactly," said Lucky, "as Saturn is part of Earth's Solar System. But by your interpretation Mimas is merely an empty world. A while ago you admitted that Sirian ships had never approached Mimas before my ship landed on it."
      Conway smiled. Lucky had caught that error on Devoure's part too.
     Conway said, "Councilman Starr was not here, Mr. Devoure, when you made your introductory speech. Let me quote a passage from it, word for word: 'An empty world is an empty world, regardless of the particular route it travels through space. We colonized it first and it is ours.'"
     The Chief Councilman turned toward the delegates and said with great deliberation, "If the viewpoint of the Terrestrial Federation is correct, then Mimas is Earth's, because it circles a planet that circles our Sun. If the viewpoint of Sinus is correct, then Mimas is still Earth's, because it was empty and we colonized it first. By Sirius's own line of reasoning, the fact that another satellite of Saturn was colonized by Sirius had nothing to do with the case.
     "In either event, by invading a world belonging to the Terrestrial Federation and removing there from our colonist, Sirius has committed an act of war and has shown its true hypocrisy, since it refused to allow others the rights it claimed for itself."


     And now again there was a confused milling about, and it was Doremo who spoke next. "Gentlemen, I have something to say. The facts, as stated by Councilmen Starr and Conway, are irrefutable. This demonstrates the complete anarchy into which the Galaxy would be thrown if the Sirian view were to prevail. Every uninhabited rock would be a source of contention, every asteroid a threat to peace. The Sirians, by their own action, have shown themselves insincere "
     It was a complete and sudden change-about.
     Had time been allowed, Sirius might yet have rallied its forces, but Doremo, an experienced and skilled parliamentarian, maneuvered the conference into a vote while the pro-Sirians were still completely demoralized and before they had a chance to consider whether they dared go against the plain facts as suddenly revealed.

     Three worlds voted on the side of Sirius. They were Penthesileia, Duvarn, and Mullen, all small and all known to be under Sirius's political influence. The rest of the Council, better than fifty votes, was on the side of Earth. Sirius was ordered to release the Earthmen it had taken prisoner. It was ordered to dismantle its base and leave the Solar System within a month.
     The orders could not be enforced except by war, of course, but Earth was ready for war and Sirius would have to face it now without the help of the outer worlds. There wasn't a man on Vesta who expected her to fight under those conditions.

From LUCKY STARR AND THE RINGS OF SATURN by Paul French (Isaac Asimov) 1958
PRIVATEERS

(ed note: in the novel the Alerion aliens have captured a human colony world of New Europe in the Phoenix. For political reasons having to do with appeasement, the nations of Terra are loath to do anything about it. Gunnar Heim, a private citizen, finds a loop-hole in the archaic concept of privateers.)

Heim looked at the bent head, and the rage in him seemed about to tear him apart. "I'd like to go out myself!" he shouted.

"This would be piracy," Coquelin sighed.

"No ... wait, wait, wait." The thought flamed into being. Heim sprang to his feet. "Privateers. Once upon a time there were privately owned warships."

"Eh, you have read a little history, I see." Some life came back to Coquelin. He sat straighter and watched the huge, restless figure with eyes again alert. "But I have read more. Privateering was outlawed in the nineteenth century. Even countries not signatory to that pact observed the prohibition, until it came to be regarded as a part of international law. Admitted, the Federal Constitution does not mention so archaic a matter. Still"—

"Exactly!" Heim roared; or was it the demon that had come to birth in his skull?

"No, no, flout the law and the Peace Control forces arrive. I am too old and tired, me, to stand trial before the World Court. To say nothing of the practical difficulties. France cannot declare war by herself. France cannot produce nuclear weapons." Coquelin uttered a small sad chuckle. "I am a lawyer by past profession. It there were a, you say loophole?—I could perhaps squirm through. But here—"

Word by word, Heim said: "I can get hold of the weapons."

Coquelin leaped in his seat. "Qu'est-ce que vous dites?"

"Off Earth. I know a place. Don't you see—Alerion has to put space defenses in orbit around New Europe, or she can't hold it against any determined attack." Heim was leaning on the desk now, nose to nose with the other, talking like a machine gun. "New Europe has only a limited industry. So the Aleriona will have to bring most of the stuff from home. A long supply line. One commerce raider—what'd that do to their bargaining position? What'd it do for our own poor buffaloed people? One ship!"

"But I have told you—"

"You told me it—was physically and legally impossible. I can prove the physical possibility. And you said you were a lawyer."

Coquelin rose too, went to the window, and stared long out across the Seine. Heim's pace quivered the floor. His brain whirled with plans, data, angers, hopes; he had not been so seized by a power since he bestrode his bridge at Alpha Eridani.

And then Coquelin turned about. His whisper filled the silence: "Peut-etre—" and he went to the desk and began punching keys on an infotrieve.

"What are you after?" Heim demanded.

"Details of the time before quite every country had joined the Federation. The Moslem League did not recognize that it had any right as a whole to deal with them. So during the troubles, the Authority was charged with protecting Federation interests in Africa." Coquelin gave himself entirely to his work. Once, though, he met Heim's eyes. His own danced in his head. "Mille remercîments, man frère," he said. "It may be for no more than this night, but you have given me back my youth."


"Here's the situation. One commerce raider in the Phoenix can make trouble out of all proportion to its capabilities. Besides disrupting schedules and plans, it ties up any number of warships, which either have to go hunt for it or else run convoy. As a result, the Aleriona force confronting ours in the Marches will be reduced below parity. So if then Earth gets tough, both in space and at the negotiations table—we shouldn't have to get very tough, you see, nothing so drastic that the peacemongers can scream too . loud—one big naval push, while that raider is out there gobbling Aleriona ships—We can make them disgorge New Europe. Also give us some concessions for a change."

"It may be. It may be." Vadasz remained sober. "But how can you get a fighting craft?"

"Buy one and refit it. As for weapons, I'm going to dispatch a couple of trusty men soon, in a company speedster, to Staurn—you know the place?"

"I know of it. Ah-ha!" Vadasz snapped his fingers. His eyes began to glitter.

"Yep. That's where our ship will finish refitting. Then off for the Auroran System."

"But ... will you not make yourself a pirate in the view of the law?"

"That's something which Coquelin is still working on. He says he thinks there may be a way to make everything legal and, at the same time, ram a spike right up the exhaust of Twyman and his giveaway gang. But it's a complicated problem. If the ship does have to fly the Jolly Roger, then Coquelin feels reasonably sure France has the right to try the crew, convict them, and pardon them. Of course, the boys might then have to stay in French territory, or leave Earth altogether for a colony—but they'll be millionaires, and New Europe would certainly give them a glorious reception."


"Mr. President, honorable delegates—" The translation could only suggest how the voice shifted, became the dry detached recital of an attorney making a technical point. "The Federation was founded and still exists to end the tragic anarchy that prevailed among nations before, to bring them under a law that serves the good of all. Now law cannot endure without equal justice. The popularity of an argument must be irrelevant. Only the lawful cause may be admitted. In the name of France, I therefore advance the following points."

"1. The Constitution forbids each member nation to keep armed forces above the police level or to violate the territorial integrity of any other member nation in any way. To enforce this, the Peace Control Authority is vested with the sole military power. It may and must take such measures as are necessary to stop aggressive acts, including conspiracy to commit such acts. The individuals responsible must be arrested and brought to trial before the World Court."

"2. The naval branch of the Authority has been used beyond the Solar System, albeit only in relatively minor actions to suppress insurrection and riot or to protect the lives and property of humans on distant planets. By authorizing such action, and by negotiating agreements with various aliens, the Federation has de facto and de jure assumed the posture with respect to non-human societies that was traditional between governments on Earth prior to the Constitution. Hence Earth as a whole is a sovereign state with the lawful prerogative of self-defense."

"3. By attacking New Europe and subsequently occupying it, Alerion has committed an act of territorial aggression.

"4. If Alerion is not regarded as a sovereign state, negotiation of this dispute is legally impossible, and the Authority is required to take military measures against what can only be considered banditry."

A roar went through the hall. Fazil banged his desk. Coquelin waited, sardonicism playing over his mouth. When order had been restored, the spokesman of France said:

"Evidently this assembly does consider Alerion to be sovereign like Earth. So, to proceed—

"5. If Alerion is indeed a legitimate state, then by the preamble to the Constitution it belongs to the family of nations. Therefore it must be regarded as either (a) obliged to refrain from territorial aggression on pain of military sanctions, or (b) not so obliged, since it is not a member of the Federation.

"6. In case (a), Alerion is automatically subject to military sanctions by the Peace Control Authority. But in case (b), the Authority is also required, by the Constitution and by past precedent, to safeguard the interests of individual humans and of member states of the Federation. Note well, the Authority has that obligation. Not this honorable assembly, not the World Court, but the Peace Control Authority, whose action must under the circumstances be of a military nature.

"7. Accordingly, in either case an automatic state of war now exists between Alerion and the World Federation."

Chaos broke loose.

Somehow quiet was enforced. Coquelin waited until the silence had become deathly. He raised another typewritten sheet and resumed in the same parched tone:

"8. In the event of territorial aggression, member states of the Federation are required to give every appropriate assistance to the Peace Control Authority, in the name of the Federation."

"9. In the judgment of France, this imposes an inescapable duty to provide armed assistance to the colonists of New Europe. However, a member of the Federation is prohibited the manufacture or possession of nuclear weapons."

"10. There is no prohibition on individuals obtaining such weapons outside the Solar System for themselves, provided that they do not bring them back to the Solar System."

"11. Nor is there any prohibition on the unilateral authorization by a member state of the Federation of a private military expedition which so outfits itself. We grant that privateers were formerly required to be citizens of the country whose flag they flew, and that this might conflict with the national disarmament law. We grant also that eventually the issuance of letters of marque and reprisal was banned, by the Declaration of Paris in 1856. But while such treaties remain binding on their signatories, including France, they are not binding on the Federation as a whole, which is not a signatory and indeed has members such as the United States of America which never were signatories. And we have seen that the Federation is a sovereign state, possessing all rights and responsibilities not explicitly waived.

"12. Therefore the Federation has the unrestricted right to issue letters of marque and reprisal.

"13. Therefore, and in view of paragraphs 7, 8, and 9, France has the right and the duty to issue letters of marque and reprisal in the name of the Federation.

"France has done so."


(ed note: Gunnar Heim is recruiting crew for his privateer. He is interviewing a Naqsan alien named Uthg-a-K'thaq for the post of chief engineer)

He dismissed worry and said, "Right. This is actually a raiding cruise. Are you still interested?"

"Yes. Hawe you worgotten that horriwle den you wound me in?"

Heim had not. Tracking rumors to their source, he had ended in a part of New York Welfare that appalled even him. A Naqsan stranded on Earth was virtually helpless. Uthg-a-K'thaq had shipped as technical adviser on a vessel from the planet that men called Caliban, whose most advanced tribe had decided to get into the space game. Entering the Solar System, the inexperienced skipper collided with an asteroid and totaled his craft. Survivors were brought to Earth by the Navy, and the Calibanites sent home; but there was no direct trade with Naqsa and, in view of the crisis in the Phoenix where his world also lay, no hurry to repatriate Uthg-a-K'thaq.

Damnation, instead of fooling with those Aleriona bastards, Parliament ought to be working out a distressed-spaceman covenant

.
From THE STAR FOX by Poul Anderson (1965)

Metalaw

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.

Take a tip from Dr. Einstein and his special relativity: there ain't no absolute standards, everything is relative.

CANONS OF METALAW

METALAW—DEFINITIONS AND RULES (CANONS)

Law: A system of rules of conduct and action governing the relationships between intelligent beings. These precepts are classified, reduced to order, put in the shape of rules, and mutually agreed-upon.

Metalaw: A system of law dealing with all frames of existence and with intelligent beings of all kinds.

Intelligent being: An organized system having all of the following characteristics:

  1. Self-awareness.
  2. Time-binding sense — able to consider the future, conceive optional future actions, and act upon the results thereof.
  3. Creative — able to make bi-sociative syntheses of random matrices to produce new concepts.
  4. Behaviorly adaptive — capable of overriding the preprogrammed behavior of instinct with behavior adapted to perceived present or imagined future circumstances.
  5. Empathetic — capable of imaginative identification with another intelligent being.
  6. Communicative — able to transmit information to another intelligent being in a meaningful manner.

Zone of Sensitivity: A spherical region about an intelligent being that extends out to the threshold of sensory detection, physio-bio-psycho-socio effects, or some arbitrary boundary within those limits that is announced by the being.

THE CANONS OF METALAW:

First Canon (Haley's Rule): Do unto others as they would have you do unto them.

Second Canon: The First Canon of Metalaw must not be applied if it might result in the destruction of an intelligent being.

Third Canon: Any intelligent being may suspend adherence to the first two Canons of Metalaw in his own self-defense to prevent others from restricting his freedom of choice or destroying him.

Fourth Canon: An intelligent being must not affect the freedom of choice or the survival of another intelligent being and must not, by inaction, permit the destruction of another intelligent being.

Fifth Canon: Any intelligent being has the right of freedom of choice in life style, living location, and socio-economic-cultural system consistent with the preceding Canons of Metalaw.

Sixth Canon: Sustained communication among intelligent beings must always be established and maintained with bilateral consent.

Seventh Canon: Any intelligent being may move about at will in a fashion unrestricted by other intelligent beings provided that the Zone of Sensitivity of another intelligent being is not thereby violated without permission.

Eighth Canon: In the event of canonical conflict in any relationship among intelligent beings, the involved beings shall settle said conflict by non-violent concordance.

From A MATTER OF METALAW by Lee Correy (G. Harry Stine) 1986
ALIEN LAW

. . . As the Olympians fought for Man on the fields of honor, so, in a far more meaningful way, did the barristers fight for Man in the courts of law. The problems were both new and immense, for a million alien worlds with a corresponding set of mores, laws, and statutes were the battlefields, and as often as not the lawbreakers had not the slightest notion that they were violating planetary ordinances. In many cases the laws were simply incomprehensible, totally meaningless to someone raised in a human culture; but even then, Man looked after his own, and, however hopeless the case, one or more barristers were sent in to defend their errant brother.

Perhaps no other barrister during the period of the Democracy achieved quite the measure of fame that Ivor Khalinov did. Born at the huge complex on Caliban, he grew to maturity on that incredible world prior to . . .

—Man: Twelve Millennia of Achievement

From THE BARRISTERS by Mike Resnick, collected in Birthright, the Book of Man (1962)

Atomic Rockets notices

This week's featured addition is MOVERS Orbital Transfer Vehicle

This week's featured addition is UM Lunar Transport

This week's featured addition is Afterburner fission-fragment rocket engine

Atomic Rockets

Support Atomic Rockets

Support Atomic Rockets on Patreon