Supreme Court Justice William Brennan tackled the issue of how people will govern themselves in space settlements in a 1988 speech. (credit: Library of Congress)

The path to the future, from a voice from the past

by Jeffrey G. Liss
Monday, March 21, 2011

The overarching goal of space advocates is to create “a spacefaring civilization.” A key aspect—some say a key precondition—will be the existence of a legal structure governing how people will live and work in space.

More than two decades ago, almost forgotten now, a remarkable clarion call to address that need was issued by a Justice of the United States Supreme Court. It should be remembered, respected and revived.

Associate Justice William J. Brennan must surely have startled his audience on October 26, 1988, when, on the topic of the future role of the federal judiciary, he said, “[A]fter you’ve heard me, you may think what I say is pure fantasy and that I have taken leave of my senses. Because I’m going to say something about the law and Outer Space…”

Continuing, in his remarks at the Bicentennial Conference of Judges of the Unites States Court of Appeals, Justice Brennan quoted then President Ronald Reagan’s declarations, “Let every child dream that he or she may one day plant the stars and stripes on a distant planet” and, “We will find the means to protect this Earth and to nurture every human life and to explore the universe.”

The Justice cited the increasing pace of human space activities and called attention to efforts to create a Declaration of First Principles for the Governance of Space Communities and to other efforts “in its field.” He acknowledged that “it may certainly be a long time before large, independent societies will be in existence,” but then asked, “Yet, if we accept, as I am persuaded we must, that space colonization is inevitable and that we should therefore prepare for it, what are just some of the legal problems we should be thinking about?”

After discussing a large number of those problems and noting various approaches that had been explored to deal with them, he concluded that it was “very obvious” that they did not “come even close to being the last word on the subject.”

In passing, he also suggested that “inquiry into the rules that should govern societies in space is likely to provide fresh insights into the governance of societies here on Earth, a field in which, to judge by current events, there is certainly room for progress.”

Justice Brennan then ended his remarks: “But we can be glad that responsible quarters are beginning to give thought to the law and space communities. For, to repeat President Reagan’s admonition, ‘America must lead the effort to colonize space, because in the next century leadership on Earth will come to the nation that shows the greatest leadership in space.’”

The insightful words of this farsighted jurist should not be lost, and they are appended below.

I feel highly privileged to address the distinguished audience. I promise you I shall not detain you long. You have been discussing what the future holds for the role of the federal appellate judiciary. I’m going to continue on the same line but, after you’ve heard me, you may think what I say is pure fantasy and that I’ve taken leave of my senses. Because I’m going to say something about the law and Outer Space – and specifically what prospect there is for involvement of the law and courts and lawyers in the still mysterious but surely burgeoning evolution of humankind’s effort to conquer the far reaches of the Universe. Can it be that human beings shall indeed colonize the moon, and Mars and even farther reaches of the heavens? Does the nation’s reentry into the fray, signaled by the successful flight of Discovery, answer with an emphatic yes? Only a week or so ago, the administration funded NASA with about 900 million dollars to being work on a space station, a project estimated to cost upwards of 3 billion dollars by the time it is finally assembled in orbit in the late 1990s. Apparently, about 20 shuttle flights would be required over a 3-year period to haul the station components into orbit for assembly there. Several shuttle flights would then be needed to ferry people and research equipment to and from the station. A “visions” committee of NASA is pondering a permanent base on the moon and human exploration of Mars.

And only just a month ago, The Washington Post reported that President Reagan, with the five astronauts of the shuttle Discovery beside him at Houston, proclaimed that “America must lead the effort to colonize space, because in the next century, leadership on Earth will come to the nation that shows the greatest leadership in space.” He talked of establishing a permanent moon base and of a manned flight to Mars. “Let every child dream that he or she may one day plant the stars and stripes on a distant planet,” he said. “Mankind’s journey into space,” he went on, “like every great voyage of discovery, will become part of our unending journey of liberation. In the limitless reaches of space, we will find liberation from tyranny, from scarcity, from ignorance and from war. We will find the means to protect this Earth and to nurture every human life, and to explore the universe.” “This,” he concluded, “is our mission, this is our destiny.”

And in the last 18 months, in the pursuit of that mission, the National Air and Space Museum of the Smithsonian joined with the Center for Democracy of Boston University to stage conferences of a large number of leading legislators, jurists, lawyers, educators, businessmen, and other distinguished citizens to discuss and propose a Declaration of First Principles for the Governance of Space Communities. Drafts of such a Declaration were completed and circulated for comment. As might be expected, some found flaws in it, of which more in a moment.

Now, why the sudden interest in the law of space communities? No such community exists yet but there is a feeling abroad that more quickly than we realize, there will be space communities, on the moon or on Mars or simply anchored somewhere in space. Princeton physicist G. K. O’Neill anticipated orbital colonies of 10,000 or more people in many places.¹ Another who has broad experience with space problems goes so far as to insist that we have technology today that can deliver millions of people to space; “hundreds of millions of people”, he assures us, “will eventually live and work there from every part of the Earth.” Moreover, a Presidential Commission, the National Commission on Space, has filed a report stating that shortly we will be a “growing number of people working at Earth orbital, lunar, and eventually Martian bases, initiating the settlement of vast reaches of the lunar solar system.” The Commission even hazards a time table: by 2001 (13 years from now) economical new vehicles operating to a spaceport in orbit to travel a highway to space and move people and cargo from Earth into space; by 2006 (18 years from now) initial operations by robots on the moon, followed by a permanent lunar outpost to support astronaut operations; by 2016 (28 years from now) detailed exploration of Mars with robots followed by a Mars outpost for human activity.

In the face of the unbelievable accomplishments of space programs of the United States and Russia, I don’t see how we can possibly reject all this as pure fantasy. But I do think that with so much to be done to create them, it may certainly be a long time before large, independent societies will be in existence.

Yet, if we accept, as I am persuaded we must, that space colonization is inevitable, and that we should therefore prepare for it, what are just some of the legal problems we should be thinking about? The conferees at last year’s Smithsonian meetings identified a large number. Here are some: since Earth is part of space and in space and is part of the Cosmos, space societies can’t sever their ties with Earth. Is Earth then to determine the shape or nature of governance in space? If so, isn’t space then just a new continent, as was our own when the Mayflower landed, to be explored as was our own by several nations – the Spanish, the French, the Portuguese, the English? Should any law then be made for a space society in advance of actual settlement? Does not that law have to await knowledge of what people will make up a colony in space? What is the best historical model the Mayflower Compact, the Articles of Incorporation of the British East India Company or whatever? Or should it be a wholly original creation? Will the norms of Western society determine the lives and dreams of humanity in space? If the United States creates a society populated by U.S. citizens, what federal law should govern that society admiralty law, perhaps? Does the Constitution follow the flag so that its protections are available to every resident of the space settlement? Who regulates the United States settlements the space-dwellers themselves or the Congress? Can we really say or is that a question that should be left to the space settlers? In any event, is it not folly to think of a homogenous society in space – we won’t have separate, different groups. How do we acquire a portion of the moon or of Mars or of space itself for a settlement? From whom? What right is there to own real property in space? What mechanism should be created for determining what domestic laws are appropriate to the space environment? Should it be something akin to a space equity jurisdiction? What of international approaches looking to a body of international law to regulate governance of all settlements?

These are by no means all of the questions posed by the relationships of Earth and the United States to space communities. The list does, however, signal something of the monumental tasks that must inevitably entangle lawyers in their solution. It is not that we do not already have some laws in the field. The United States became a signatory in 1967 to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the moon and other celestial bodies. Under that treaty the signatories agree that each “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.” There is also the Moon Treaty and perhaps up to 100 additional treaties or agreements relative to outer space. Indeed, the American Law Institute itself co-sponsored in November 1981 the International Conference that debated issues on Doing Business in Space: Legal Issues and Practical Problems. Moreover, Congress has extended federal criminal law to punish criminal conduct on the moon or other celestial bodies, and in space craft outside Earth’s atmosphere. Indeed, a few district courts and state court decisions have extended American domestic law to the solution of outer space problems. And doubtless, too, you know of lawyers who have already had occasion to counsel clients on space law. But I suggest that the actual establishment of space settlements will confront the profession with enormous new responsibilities that we ought to prepare for as thoroughly as we can. For it is accepted by all of us, I am sure, that the United States must be, and must become, unequivocally committed to space exploration and exploitation and the settlement of space by Americans. Our very survival requires no less. We have to keep in mind that Russians, Japanese, Europeans and South Americans also have asserted interests in outer space.

Let me return now to the Declaration of First Principles that the Smithsonian Conferences produced last year.² That Declaration was not the only effort in its field. Another, entitled a proposed “Treaty Governing Social Order of Long-Duration or Permanent Inhabitants of Near and Deep Space”³ (which I shall refer to as the Convention to distinguish it from the Declaration), was advanced in a book “Envoys of Mankind” by George S. Robinson and Harold M. White, Jr. Both the Convention and the Declaration have come under sharp criticism in a review of “Envoys of Mankind” by John A. Ragosta and Glenn H. Reynolds, lawyers practicing in Washington, D.C.⁴ The criticism of the Declaration may be more serious. While concluding that the Declaration has much to recommend it because it focuses directly on affirmative statements of fundamental and political rights, the review comments:

“The Declaration appropriately guarantees civil and political freedoms that should govern all actions in space of earth and space inhabitants. Such principles can guide analysis of legal issues that arise in whatever context and provide guidance for a discussion of rules for governance of space societies. Unfortunately, the Declaration has a fatal flaw. The Declaration is written solely from the perspective of the United States, failing… to understand the critical role that the political relations of all Earth nations will have on space inhabitants… We do not believe that the Soviet Union, France, China, or any other spacefaring nation will look with favor on principles formulated in such a manner. It is simply not productive to seek to establish principles for laws and government in space that will certainly be perceived by the world’s leader in space habitation (the Soviet Union, alas, not the United States) as either irrelevant or insulting.⁵

Having decided that both the Convention and the Declaration were flawed, Messrs. Ragosta and Reynolds offered their own version of a “Declaration of Rights and Principles for the Governance of Space Societies”.⁶ Their guidelines emphasized focus on the space inhabitants, not an attempt to defuse or resolve all the possible conflicts of Earth nations in space. Accordingly, their focus was on man’s exploration and ultimate inhabitation of space, not simply one nation’s space activities, and in that respect avoided unnecessary historic, political and cultural ties to one nation. They believe that the Declaration could not itself be a system of laws and governance but should stop with fostering such a system. Finally, they too would have the Declaration recognize that there are fundamental principles that should apply to governance of any human society.

It’s very obvious that neither the Convention nor the two Declarations come even close to being the last word on the subject. As the reviewers observed, “All of the work done to date constitutes little more that a preface to the task of working out a scheme of governance for space societies.” But whether permanent human presence in outer space is likely in the near term, or likely only in the distant future, apparently they are going to be a reality with which we must deal.

And the study of space societies may have a big dividend for Earth. As Walter McDougall has noted, the great age of earth exploration stimulated a burst of inquiry into the laws governing nations and led to our modern system of international law. In the same way, inquiry into the rules that should govern societies in space is likely to provide fresh insights into the governance of societies here on Earth, a field in which, to judge by current events, there is certainly room for progress. This is particularly true because many of the most salient characteristics of space societies, such as strong dependence on sophisticated technology, problems with maintaining environmental quality, the need for people to work together smoothly under stress in close quarters, and the dependence of inhabitants on their society for basic necessities just as food, water, air, and communications, are in many ways simply exaggerations of characteristics already present (and growing) in Earth societies. By studying the problem of space societies we gain a window into not just their future, but our own.⁷

I won’t see the day when a code of laws for space communities will become an urgent necessity. Perhaps a few of you may see that day. But we can be glad that responsible quarters are beginning to give thought to the law and space communities. For, to repeat President Reagan’s admonition, “America must lead the effort to colonize space, because in the next century leadership on Earth will come to the nation that shows the greatest leadership in Space.”

1. G. K. O’Neill, The High Frontier (rev. ed. 1982).
2. Text at Jurimetrics Journal, Summer 1988, pp. 484–485.
3. Text at Jurimetrics Journal, Summer 1988, pp. 477–480.
4. Jurimetrics Journal, Summer 1988, p. 473, et seq.
5. Jurimetrics Journal, Summer 1988, pp. 485–486.
6. Text at Jurimetrics Journal, Summer 1988, pp. 487–489.
7. Jurimetrics Journal, Summer 1980, p. 490.

Jeffrey G. Liss is an Illinois lawyer and a long-serving member of the Illinois State Bar Association Assembly, as well as a Director and former Senior Vice President of the National Space Society.

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