Space settlements on the Moon and elsewhere will create new legal issues. (credit: NASA)

Space settlement and future of space law

by Babak Shakouri
Monday, April 1, 2013

Where explorers go, lawyers follow. In the case of outer space, though, the lawyers are likely well behind the advances of exploration and other efforts in our solar system. While the goal for many in space is spreading human civilization beyond the boundaries of our planet, the legal problem is that international lawyers are still bound to the legal frameworks that often don’t satisfy future or even current implications of space exploration. This is particularly true when it comes to plans for human settlement of outer space, in terms of jurisdiction, commercialization, and governance.

First of all, let’s just imagine humans can finally establish a permanent habitat on the lunar or Martian surface. The major question that might arise is how to determine which country is eligible to enforce its jurisdiction over that extraterrestrial settlement? We have three possibilities: the settlement is constructed by a single governmental body, private entity, or even, in a more complicated but not uncommon circumstance, a joint group of independent governments and private companies with distinct nationalities. In any case, the response which space law has to offer is the same. On account of the Liability Convention, governments are solely responsible for their nationals’ endeavors in outer space. In other words, if a space module, either in orbit or on a surface, is built by a given private or public entity of a country, the respective government possesses the absolute jurisdiction within such module and its inhabitants, just like the legal situation of flagged vessels in high seas.

For instance, the International Space Station is comprised of various modules that belong to US, Russian, European, or Japanese registered entities. Should any legal necessity arise, the owner government of the module in which the legal incident occurred would have jurisdiction. Such a legal criterion, though, will not be appropriate for even a relatively small permanent human settlement in space with numerous governments involved. Any legal incident will require studying the national law of the government who owns the module, chamber, or installation where it took place, something that, if not impossible, would be confusing and totally annoying.

One solution for this problem is the introduction of a Specialized Space Code of Conduct to cover the most common legal topics within multinational space stations or extraterrestrial habitats. Thus, instead of being suspended in legal limbo while determining in whose module your nose got broken, all disputes automatically get referred to the specialized code of conduct that represents the consensus of all the involved governments. This code can be based on the most common and universally accepted principles of major legal systems in the fields like tort, civil, or criminal law that comply with general simple legal needs of those in space habitats. Major crimes or complicated cases of liability that are not covered by Special Space Code of Conduct may be referred to the agreed international tribunal on Earth.

Commercialization of outer space is the second issue that is of crucial importance, mainly with regard to creating incentives for attracting more players in the arena of peaceful space activities. In order to persuade the exploration and development of outer space by private companies, it is inevitable to recognize the right of ownership in outer space. The “common heritage of mankind” principle stipulated in the Outer Space Treaty has effectively deprived governments or their nationals from making ownership claims on celestial bodies. However, the good news is that government and private companies can actually possess what they gain from outer space via mining or processing, just like the legal regime for mining and fishery in high seas and oceans.

If there weren’t such limitations regarding the ownership of celestial bodied, we would probably have witnessed the first space settlements by now. Nonetheless, it still is possible to find narrow pathways for pseudo property rights to encourage public and private entities to invest in peaceful space activities that, at the end, will pave the way for space colonization in the upcoming decades.

Once human settlements on nearby celestial bodies are established, their commercial exchanges with Earth will become an issue. Space migrants who choose to leave Earth and settle in an uncomfortable concrete or metal base on the Moon or Mars must have very strong incentives to step forth for such breathtaking adventure. There seems to be no greater reward than the lucrative economic opportunities found in a settlement on an alien surface full of potential resources.

The positive economic exchange rate with the Earth may assure the continuation and even expansion of space settlements on celestial bodies. Otherwise, settlers either will depend on equipment and reinforcements from Earth or go bankrupt. This may shed light on the importance of adopting suitable legal regime for human space settlements that, on one hand, fuels the needed investments for establishment of space settlements and, on the other hand, helps the efforts of inhabitants those settlements flourish economically and leads ultimately to their self-sufficiency.

There is sufficient evidence to suggest that the legal framework of a free market economic system incredibly suits the requirements of human settlements in space, since freedom of business and market innovation, together with recognition of private property, are the key elements in making the humans the first known spacefaring intelligent species.

Finally, the matter of the administrative legal regime of space settlements is another noteworthy issue to be considered. This matter, which is mainly categorized within the realm of administrative law, has attracted less attention in comparison with other legal aspects of outer space activities, but in no way should its importance and impact on future space settlement be disregarded.

Extraterrestrial human habitats might fall under direct administrative control of Earth-based governments or become politically independent, but at least for the intermediate stages of development, a Swiss confederation-like system is more likely to be practical and fruitful. Provided that the settlements comply with the major governing policies that are ordered by terrestrial authorities, they can benefit internal semi-independence in adopting local laws and regulations that can reflect the actual legal needs of settlers much better than remotely adopted laws. Space settlements might have commercial and criminal laws distinct from those practiced on Earth and still remain under the overall jurisdiction of Earth-based governments.

Such a situation is clearly noticeable in federation and confederation systems, in which subdivisions benefit from internal legal independence while major economic and political policies are taken in the capital. Without any doubt, if everything goes as predicted, space colonies will eventually pursue paths towards total independence from Earth and, in such cases, future lawyers may ultimately propose a new type of interplanetary confederation of humankind as the appropriate legal system for human civilization in the solar system.

In conclusion, despite the fact that present space law contains useful principles for dealing with the explicit legal needs of space activities, there are many more legal defects with regard to inevitable future settlement of outer space. The main task of space lawyers, therefore, is to propose flexible legal solutions for the unforeseen needs of humanity in its final frontier of exploration and development.

Babak Shakouri has an LL.M. in international law and is based in Tehran.

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