Supervised by: Dr. Joanna Rhodes MChem, DPhil (Oxon), MRSC, Solicitor. Having completed both her undergraduate degree and DPhil at Oxford University, Joanna qualified as a solicitor and enjoyed a successful career in Corporate and Intellectual Property Law at a magic circle law firm. In addition to her work as Director of Sixth Form at a leading UK school, Joanna is a member of the European Centre for Space Law and has attended DLR Hamburg as a prospective ESA astronaut.
The exploration of space and the establishment of bases on celestial objects has always been one of man’s fantasies, and it is highly likely that humanity will begin to make progress towards this goal with both national space programs and commercial organisations directly referencing these ambitions, to expand the sphere of human knowledge, as part of their mission statements: Space X “being a spacefaring civilization” and NASA “explores the unknown in air and space, innovates for the benefit of humanity, and inspires the world through discovery” (1, 2). With aspirations to construct supporting infrastructure on foreign celestial bodies (e.g., under NASA’s Artemis Programme), however, also comes the distinct possibility that these bases will expand and develop into formal colonies, complete with settlements and commercial activity. Consequently, then, it is necessary that we investigate how space law can promote the “purposes and principles of the Charter of the United Nations” as given in the rationale for the establishment of the foundational Outer Space Treaty 1967, the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” (henceforth referred to as the OST) (3).
Our aim has been to consider the purpose and role of a governing body, as foreseen by paragraph 5 of Article 11 of the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (henceforth the Moon Agreement), which states that parties undertake “to establish an international regime… to govern the exploitation of the natural resources of the Moon as such exploitation is about to become feasible” (3). Any governing body established under Article 11, however, will not only have to be concerned with the resources, but also the means by which they are exploited: the colonists themselves. We aim to assess whether it could be a sovereign entity or whether it must remain subject to terrestrial nations and organisations. In order to properly differentiate between these two possibilities when examining this question, we have divided it into 3 considerations. The first of these centres on the universal human right to hold property (Article 17), and we shall outline the effects of the two possibilities on the rights of colonists, and by doing so seek to establish which possibility of sovereignty is most compatible (4). The second of these centres on the functions and powers of the state, namely in military and police matters: whether its exercise of executive powers contravenes the provision that outer space is to be used exclusively for “peaceful purposes” (Article IV, OST), since if there must be limits to its executive power its sovereignty will thus be compromised (3). Finally we consider its ability to regulate its natural resources and the economic activities of colonists and bodies foreign to it, and whether its obligations under treaty law act as a check on its sovereignty.
The authors will argue that the only possibility that can adequately address all these concerns is a sovereign governing body. We begin by considering existing space law, and the conflicts that exist within it, followed by addressing the need for a sovereign governing body. We conclude by developing a plan for the structure of this body.
Existing Space Law
Under existing schemes of space law, the establishment of bases on the Moon or other celestial bodies remains a grey area.
Space law is constructed of several components of customary national law and general international law that may govern or pertain to outer space and human activity in relation to outer space. States have agreed upon it as the international legislation that will control significant technical and technological advancements of the 20th and 21st centuries. This agreement is outlined in five general treaties, as well as further treaty-level actions such as declarations of principles, guidelines for conducting space activities, and state-level practices. Most prominently, these principles include the freedom for all nations to access space, the intention of using space for the benefit of all people, and the prohibition of any government from claiming sovereignty in space (3).
However, a great extent of the legislation within the treaties does not address the private commercial uses of outer space with the jurisdiction of these pursuits falling to domestic law or state supervision: consider, for instance, that states are simply deemed “responsible for national activities” (Resolution 68/74 of 11 December 2013, 3). Thus, private uses of space are required to be regulated and overseen by nations to ensure compliance by nationals.
Insofar as the obligations of the OST as stated in Articles III are “in the interest of maintaining international peace and security and promoting international cooperation and understanding” (3), it is concerned primarily with national bodies and affords private organisations and individuals a level of freedom in relation to human activity in space, particularly the possibility of establishing a base. However, the regulation of such activities may have to be tightened as private companies are bound to be at the forefront of space exploration and exploitation; activities which may jeopardise national interests and thus undermine “international cooperation and understanding”. Commercial activities, although they may undermine “international cooperation and understanding”, could be considered to be permissible under domestic law, an example of which is US space law. The re-codification of domestic US space law in 2010 highlights that the nation looks to “encourage and facilitate the US commercial space transportation industry” (27). This policy supports and evidences the prospect that commercial activities, regardless of regulation, could be unintentionally, or even intentionally, encouraging the exploitation of space. Hence, this stipulation may undermine the US treaty’s obligation for “international cooperation and understanding”; infringements of a similar manner may be apparent in other international domestic legislation. The Note Verbale issued by China with respect to Starlink (5) is a case in point: Starlink satellites are described as a “phenomena which constituted dangers to the life or health of astronauts aboard the China Space Station”. Thus, proposed ventures to establish colonies of up to a million people on Mars are likely to become sources of tension if successfully executed.
Currently, organisations like SpaceX, for instance, claim to be participating in bringing about a multiplanetary civilisation by preparing to colonise Mars, while state activities like NASA and ESA’s Artemis programme envision a base established on the moon to aid future missions. Musk of SpaceX has revealed plans to transport “a million settlers to Mars, which he suggests would be the requirement for creating a permanent human presence on Mars” (12). As for the latter, NASA acknowledges its intention to “establish the first long-term presence on the Moon” in its Artemis programme (13).
It is feasible to anticipate that, if successful, these bases would develop. Combining supporting infrastructure with increasing numbers of people would facilitate the possibility of such outposts evolving into cities and eventually colonies. Whether launching states and any other ratified states contributing to the colony are permitted under the Articles of the OST to engage in space colonisation then comes into question.
The 1967 OST clearly stipulates that “the Moon and other celestial bodies” are not subject to “national appropriation by claim of sovereignty”, which might be interpreted as a disqualification of all claims to possessing a colony over which a terrestrial nation is sovereign (3). However, it is important to note that it also permits any activities in space as long as they are for “peaceful purposes” and without “harmful interference with activities of other States” (3): this may, in other words, legitimise the establishment of bases on such bodies. As Van Bogaert points out (6), “The appropriation of the Moon and other celestial bodies was prohibited by the Outer Space Treaty (Art. II). The establishment of lunar stations or other installations could be considered as a prolonged occupation of the moon [which was…] however admitted by Article XII of the Outer Space Treaty.” Equally, while he argues that the Moon Agreement resolved certain issues, it must be remembered that, as of 1 Jan 2022 (7), the Moon Agreement has only 22 signatories or ratifiers, with the USA, China, and the Russian Federation, among other majors, absent. Thus, it is unable to bind such nations to accept its provisions.
In other words, we might draw a parallel between the de facto situation in Space and in Antarctica: a worthwhile analogy, given that “On September 22, 1960, President Eisenhower proposed that the principles of the Antarctic Treaty of 1959 be applied to outer space and the celestial bodies” (8). Said treaty (Art IV, 9) prescribes that “no new claim, or enlargement of an existing claim, to territorial sovereignty shall be asserted while the present Treaty is in force”, which according to the Harvard Law Review (10) effectively means the consideration of Antarctica as a “res nullius” since “no nation enjoys recognised sovereignty of any part of the Arctic or Antarctica”. Applying this to the case of Space, the attitude of the USA of “reserving – not abjuring – its sovereign claims in Antarctica, while refusing to recognize those of any other nation” may become typical: the de facto recognition that bases or even colonies (analogous to the “ permanent scientific stations” of Antarctica) may be established even if they are not positively justified.
However, there is a notable difference. This attitude is possible in Antarctica only because it is an area in which “many nations are interested but […] their interests are sufficiently tenuous”. By contrast, Space has been vigorously defended, not least of all by such societies as the L-5 Society, a society with ambitions to “park a space platform to manufacture all sorts of handy articles out of sunlight and moon dust” at the 5th Lagrangian point, who have described it as a “give-me-liberty-or-give-me-death kind of issue” (11). The group was influential enough to defeat the USA ratifying the Moon Agreement by arguing that the provisions against any form of sovereignty or private property in outer space would hamper space colonisation and terraforming. In order to avoid potential conflicts, then, it seems ideal to consider a means of administering interests in an equitable way and resolving disputes: in other words, a governing body competent to administer all colonies in a specific celestial body. What this will look like will be the focus of our essay.
Need for a governing body
Indeed, even if the above argument was not sufficient to establish the need for a governing body, as per Article XI of the Moon Agreement (3), paragraph 5, states parties undertake to “establish an international regime” to regulate activities related to exploitation of resources when technological developments render this a possibility. Indeed, with NASA’s Artemis Programme acknowledging that “we’ve never been closer to seeing a new generation step beyond our home planet” (13), this requirement has now been met and it is imperative that we begin to consider what this body can be like.
There are a few precedents which we can consider. The first of these is the UN Convention on the Law of the Sea (14), which under Part XI establishes very similar provisions to those governing space. For instance, Article 136 specifies that the area is to be “the common heritage of mankind”, which Article 11, Moon Agreement (3), equally prescribes. Similarly, Article 137 prescribes that “no state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof”, whereas the same article of the above-mentioned treaty also declares that “the Moon is not subject to national appropriation” (3). Given the large similarities in the legal status of space and the seas, we could take reference from the Authority to design our governing body, specifically identifying a few areas of consideration.
The first of these is with regard to production policies as outlined in Article 151. The Authority is, for instance, to “take measures necessary to promote the growth, efficiency and stability of markets for these commodities produced from the minerals derived from the Area, at prices remunerative to producers and fair to consumers”. Thus by this precedent, it is the opinion of the authors that the proposed governing body should operate according to such a system and possess power over said resources. That said, there are differences between the sea and celestial bodies that may justify an expansion of power with regard to this governing body. In the first place are the vast resources present in the oceans that were historically incapable of exhaustion with contemporary fishing technology. As Grotius argues in Mare Liberum (15), this meant that unlike land, where the possibility of exhausting food supplies (“they could not in common suffice for the use of all people”) led to the introduction of dominion and the exclusion of others, the sea remained a thing in common since even if “anyone [uses it, it] may nevertheless suffice others whomsoever for the common use”. In the second place, the sea cannot be occupied and thus “can be proper to none because all propriety hath his beginning from occupation”.
Clearly, however, this is not the case with celestial objects. After all, such bodies having both continental areas and maritime ones, they are capable of being occupied by people at least in part. What is more, having exhaustible resources, they require protection–analogously to how the EEZ (Exclusive Economic Zone, as discussed in Part V, Article 56 of the UN Convention on the Law of the Sea, in which the coastal state has sovereign right to “exploring and exploiting, conserving and managing the natural resources”, (14)) was presumably introduced to enable states to exert control over the resources which they are held to have sovereignty over. We should thus distinguish between space proper, in the sense of the vacuum, and the sense of potential colonies: as per the aforementioned Universal Declaration of Human Rights, the fact that “everyone has a right to a nationality” (Article 15, 4) and to “own property” (Article 17, 4) naturally must imply respectively a nation (which they are part of) and a state possessing sovereignty and which is thus capable of guaranteeing property rights. Indeed, were we to accept the arguments of Hertzfeld, Weeden and Johnson (16), we would find that a system based upon the concept of Space as a “global commons” is “a logical contradiction” since “a commons needs a sovereign government to grant the open territory to the use of all people”.
Let us close this section by examining their other arguments against such the centralised system, with its governing body, of a “terrestrial model” commons, and by doing so, let us seek to establish the need for such a body. Their first two arguments centre upon the shortcomings of existing systems: namely the recent developments in technology and the private sector which are not encompassed under treaty law, and the impossibility of defining space. Finally, and perhaps most compellingly, they argue that “the existence and viability of terrestrial commons depend on the oversight and regulatory power of a sovereign”: where one is lacking, as in Space, “most commons arrangements[…] have not survived”.
However, instead of leading towards the use of “common pool resources”, which have supposedly been “successfully governed without resorting to central government or a system of private property”, we reply that the existing commons arrangements should instead be enhanced by the establishment of said governing body. Their arguments against this, namely that “nations retain the ability to interpret treaty language differently”, and that “widely different cultures and methods of governance exist”, does not seem to solidly disqualify such a system. After all, are these concerns not the very rationale for the establishment of a federal system, at least in America? Consider for instance Federalist No. 22, which refers to “interfering and unneighbourly regulations”: should not any difference in interpretation, or any conflict due to ideology be “restrained by a national control” (17), as Hamilton has it? Consequently, then, might a federal system which seeks to represent the interests of all states with colonies or with ambitions to place colonies on a celestial body, and which by doing so can enforce a res communis, not be better than the proposal for “human groupings which form themselves freely, without any intervention of the law, and attain results infinitely superior to those achieved under governmental tutelage” (18)? The quote is taken from Kropotkin, an anarchist writer: at the very least, it proves that the proposal of Hertzfeld, Johnson and Weeden is very much not “not anarchy or uncontrolled”: that as an “area of non-governance” it is by definition anarchy, the absence of government.
Thus we have hoped to establish in this section the need for a federal governing body with authority to maintain the res communis as the only feasible means of keeping with historical precedent. Without this, there would be no way to protect the “usufructuary right” that Schachter (19) supports, by resolving conflicts over the use of celestial bodies and the establishment of bases in contesting areas. The hope that “other states will not interfere with [established bases]” seems more and more contestable in the context of increasing international tension, and while it is true that the lack of interest in the Moon Agreement does suggest that “it is highly unlikely that any serious effort will be made in the foreseeable future to establish an international regime to govern the development and exploitation of lunar resources”, it may not necessarily mean that a governing body with some sovereign power to legislate and administer the colonies is unfeasible.
Examining the competencies of said state
Based upon this argument for the need for a nation-state or at least the commitment to a governing body, let us proceed to discuss what this would envision–namely, whether said state should be considered sovereign, or whether it retains the status of an international organisation, unable to act without consensus from its participants. In order to better cast light on this issue, we propose to examine a few issues: firstly the property rights of colonists, secondarily the possibility of exercising executive functions, and thirdly the issue of commerce.
In the first place, we start from the premise that private property (say prefabricated habitats, and resources brought from Earth) remain so even upon a celestial body. That said, there remain challenges to developing a system that would adequately support this: most notably is the prescription under the Moon Agreement (3), Article 10, that “States Parties shall offer shelter in their stations, installations, vehicles and other facilities to persons in distress on the Moon”. Furthermore is the requirement that private property remain open for visits, as required under both the OST and Moon Agreement: Art. 15, OST, “all space vehicles, equipment, facilities, stations and installations on the Moon shall be open to other States Parties”, and Art. XII, Moon Agreement, “ shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity”. Thus, this implies limits to the use of property, as well as an increased ability to compromise or override property rights in space. How might we then develop a scheme for protecting private property?
One means is by establishing a sovereign governing body with the ability to award title and property rights. Indeed, this will have significant pragmatic benefits both towards the growth of said colony and the maintenance of harmony with sending nations.
After all, it must be apparent that awarding title to land provides an incentive towards colonisation and growth. It would be analogous to the Homestead Act of 1862, which “encouraged western migration by providing settlers with 160 acres of land in exchange for a nominal filing fee” (20). Furthermore, insofar as the governing body should, as we have argued, be a system which is “remunerative to producers” (as cited from the Law of the Sea, 14), awarding such title would be one form of remuneration for the raw materials and resources extracted from celestial bodies.
What is more, as we shall establish, the failure to grant secure tenancy may be a cause for declarations of independence and the creation of sovereign states, bypassing the entire issue. As we are told by Locke in his Second Treatise, political power is instituted by social contract for the purpose of “regulating and preserving of property” (Chap 1 Section 3, 21), and there is thus a strong incentive to break away if such a basic requirement is not fulfilled. Even the US Declaration of Independence, a close analogy, includes a reference to “endeavour[ing] to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands” (22). Would this not be a possible grievance of colonists towards the existing international regime as yet, where “appropriations of lands” are indeed forbidden?
We progress to the functions of the state, particularly its military and police functions of maintaining justice and domestic peace, and to whether this is necessary and lawful. As to the former question, simply assuming that crime will remain an issue for the foreseeable future, we propose that it is also the case that an executive and judicial body will be necessary simply to deal with this issue. As regards judicial disputes, the principle of nationality is after all inefficient in a case with multiple nationalities and governments capable of claiming jurisdiction. In Hamilton’s words, Fed No. 22, this would lead to “the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories” (17), and a system based on the principle of territoriality seems preferable.
What is more, acknowledging the principle of nationality or offended nationality exposes one to the issues raised by Gorove (23), namely that the jurisdiction established according to Art VIII of the OST (3), that states “shall retain jurisdiction and control” over objects sent into space, is not “exclusive”. This is a problem because having multiple systems of jurisdiction would imply an additional administrative strain, as previously established. What is more, the jurisdiction is not necessarily “criminal”, but may pertain only to “civil” matters. Equally we are unable to remove the danger that certain nations may abuse this privilege to forward their own interests, with the fear highlighted by Ratiner with regard to the multiplicities of justice systems which could be established (11): “I doubt a KGB search would leave any air in a habitat”. Whereas the existing scheme of astronauts being subject to the jurisdiction of the state on whose spacecraft they travel may be workable when astronauts are carefully vetted and unlikely to commit any crimes, it is very much less workable when a metropolis of over a million people must adapt to multiple constantly-changing laws and systems.
Consequently the most suitable system seems to be one established upon the principle of territoriality. This would involve the governing body being vested with some form of legislative and judiciary power, presumably representative of the colonists and their interests. As for the executive power, however, we should now aim to discuss possible limitations on governmental power and to consider whether systems like a police force or self-defence force is admissible.
To this it might be objected that the treaties provide that outer space is to be used for peaceful purposes alone (Art. 4, OST, 3, “The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes”), with military personnel or equipment admissible only for said purposes, e.g. scientific tests or exploration of space. However, where it elsewhere provides that the use of space must be compatible with existing international law and the UN Charter, it must be remembered that the UN Charter does allow the use of force for self-defence, or restoration of the peace (14): see Art. 42, which legalises “action by air, sea, or land forces”, for instance. Thus we have established that they are lawful. What is more, even the definition of “peaceful” is not necessarily unambiguous. As Finch argues, “[Peaceful] can only mean ‘nonaggressive’”, as he sustains with reference to the fact that “in Russian the word for ‘military’ essentially means warlike rather than pertaining to the armed services of the country” (24). Thus the exercise of executive powers is very much acceptable, and should not pose a check on the sovereignty of the proposed governing body.
The consequences of the frameworks inadequately representing colonists’ interests
The concept of democracy is divided into two main types, with the oldest form of democracy being direct democracy. Direct democracy, also described as ‘Athenian democracy’, awards every colonist the equal power when contributing to a decision. Although this form of the concept gives a decision the greatest legitimacy and would accurately reflect every colonist’s view it would also lead to a waste of resources and could result in inhabitants making impractical decisions quickly. John Witherspoon validates this probable result in the Declaration of Independence as “Pure democracy cannot subsist long nor be carried far into the departments of state-it is very subject to caprice and the madness of popular rage”. Direct democracy could be considered to be unfeasible as ‘it is difficult to negotiate and impractical to enforce’ (25) ; a more direct form of democracy would prevent decision making to be efficient and quick – two features that would be required when making decisions of a large scale. This may be due to the large number of voters that this direct form would result in, this was an evident problem in the New England colonies of 1682 where the colonists complained that William Penn’s experimentation “of 1682 included too many people-in fact the whole male adult community-in the assembly” (26). Veritably, this would be the same drawback with the application of direct democracy for a colony on a celestial body.
However, if the suitability of an authoritarian system to be put in place in a colony was to be examined you would have to recognise its most influential characteristics. Juan José Linz, Professor Emeritus of Sociology and Political Science at Yale University in 1964 described these characteristics of authoritarian states to be of limited political freedom with strict government control over legislatures, political parties, and interest groups. Though an authoritarian system may allow a degree of political freedom, a strict control of political expression would not allow for the representation of colonists’ views and could lead to a spike in conflict and opposing views to the government. This also puts the colony in risk of a dictatorship or turning to become totalitarian where a colonist or a group of colonists are handed immutable decision-making powers which could lead to a stunt in the enhancement and growth of the colony.
For the governance of an early colony to be competent it should be a blend of sound democratic decision making and technocratic expertise in order to still adhere to the OST where the uses of outer space should be for peaceful purposes and non-aggressive. From an aspect this may be fulfilled with a composite of both direct and representative democracy with the latter being dominant.This aspect can be reflected by the emergence of representative democracies during 1780 – 1800 in the US; the 10th amendment granted significant powers to the state and federal governments, which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (28) This amendment allowed states to act sovereign and protected the interests and rights of both individuals and states via a separation of powers. This derived the modern constitutional federal republic system wherein the interests of citizens are represented by the government officials they have voted for and is protected by the constitution. Of course, considering the harsh conditions in space, where the danger of unwise decisions is of great significance, an adequate blend of expertise and respect for expertise is necessary to eliminate the threat of a democratic decision amounting to practical suicide. For this reason, at least until a sufficient level is reached for democratic self-governance, an element of authoritarianism (in the opinion of the authors) may remain inevitable.
Insofar as a federal system which blends this republicanism in governing colonies, and a representative system in settling disputes between colonies of different nationalities etc. seems the best way of satisfying both colonists and stakeholders, e.g. corporations and states responsible for them, it then seems the best way of establishing a sovereign governing body.
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