As space exploration and related activities move beyond the realm of science fiction it seems that it will cease to be the preserve of governments as activities in space encompass greater international cooperation and private sector involvement. Here we are considering the implications for humanity and individual rights as we venture forth beyond our immediate airspace and innerspace to outer space, where jurisdiction may be unclear and governments and corporations are already battling for control.
Before we consider how individual rights can be engaged in space law, it is worth considering how little thought mankind has given to the assertion of those rights to date. In our ficitonal representations of a future where the final frontier has been breached, humans have anticipated a great deal of politics but rather less law.
Why are there no lawyers on the Starship Enterprise?
It is not entirely true that there are no lawyers in Star Trek but in that universe, as in much of science fiction, they play a very small part in proceedings. This is particularly surprising given how often political structures, laws, rules, and intergalactic treaties (and the breaking of them) seem to feature in science fiction. Where are the lawyers who should be roaming the Galactic Senate of Star Wars? Signing off on decisions at Starfleet Headquarters? Or helping Dr Who to avoid the many interstellar parking tickets that the TARDIS must surely have attracted over the years?
Perhaps science fiction writers for the big and small screen feel that legal disputes over interplanetary jurisdiction are not what their audiences are looking for. Or perhaps the lack of lawyers in fictional depictions of space represents an unspoken assumption that space exploration and, eventually, colonisation will turn out to be little more than imperialism 2.0. For all the talk of international (now intergalactic) law, ensuring fair access to space and its resources, the cooperation evidenced by the shared use of the International Space Station seems likely to give way to the dominance of a few Nation States, led for now by the US, as corporate interests begin to take hold.
A new hope for mankind or history repeating?
Just as the commercial activities of the British and Dutch East India Companies triggered the massive waves of 19th Century European imperialism in the Indian subcontinent, it seems as though the likes of Virgin Galactic and SpaceX could do the same in the 21st century. Modern day explorers and would-be colonisers employ the language of sustainability and inclusion but there is little evidence that the rights of individuals are being seriously considered by any of the Nation States or commercial enterprises which are making it their mission to boldly go into the unknown.
Aside from future possibilities opened up by space travel and exploration, there are already plenty of organisations relying on the resources of space to operate satellite reliant services, from internet provision to GPS. Fair access to these services and proper management of the environmental impact they create are increasingly issues on the agenda for international agencies trying to assert a legal framework in the face of national and corporate interests.
Managing resources in an infinite universe
Environmental protection may seem unimportant in the context of potentially infinite space and resources, but setting aside the ethical considerations, there are very practical reasons why space debris is a problem for those of us on planet Earth as we discuss here.
UN guidance encourages voluntary efforts on the part of space going countries and organisations to limit their impact on the near-Earth ecosystem before space refuse begins to pose a serious risk to satellites in orbit. Given the amount of rubbish in the World’s oceans, and the slow collective action on climate change, persuading space-goers to think of near-Earth space as part of our collective environment may be a challenge. As with climate change, air pollution and damage to our oceans, harm done to our space ecosystem is likely to cause real harm to the least well off. Since many advances in internet availability for the poorest people in remote parts of the world increasingly rely on satellite technology, and since other aspects of infrastructure may be greatly lacking in such places, damage to satellite capability, not to mention to the Earth's ecosystem as a result of space debris, could soon hit the poorest the hardest unless greater international cooperation addresses the issue in a more comprehensive way.
Data protection – in space no one can hear you processing
There is already a lot of personal data moving through space. Satellites, like the ones used by Google Earth, can take increasingly high resolution images of the Earth and people on it. Space drones are also being deployed with similar, more flexible technology that can follow individuals around. It is very difficult, if not impossible to identify who is sending and receiving such data. Even our own devices are monitoring our movements as the GPS on our phones will track our every move, if we let it (and sometimes even if we don’t).
Although cloud computing is still reliant on hardware here on Earth, data and server storage in space is very much on the horizon. Under the GDPR and many other privacy regimes, international data transfers to some jurisdictions may only take place subject to strict safeguards and legal mechanisms, and sometimes they cannot take place securely at all. All of these approaches require the data exporter to know where the data is going and, crucially, under whose jurisdiction it will sit. If data is fully housed in outer space, new protocols may have to exist for the protection of that data from government and third party interference.
The once minimal distinction between geography and jurisdiction has already changed in recent years as proximity to data no longer determines the ease of asserting control over it. It seems likely that the primary earth location of the exporting data controller, or (in the case of the GDPR) the location of the data subjects, will have to dictate the data protection principles applied in space for the time being. In the future, perhaps outer space will be carved up into colonies that reflect the legal regimes of the countries from which they originate. But perhaps corporations will lead the way in creating entirely new legal jurisdictions that are not tied to existing Nation States.
Free movement – but who pays?
One of the most controversial discussions around space exploration in recent years is how to make it accessible to individuals interested in being among the first settlers of Mars if and when settlement of the red planet becomes a genuine possibility. Since settlement is likely to be difficult and challenging, those who could afford to make the journey may not be interested in doing so, but those for whom it might represent a real opportunity will lack the necessary resources.
Elon Musk’s Mars colonisation plan seeks to address that problem by creating a way for ordinary people to make the journey – an ambitious one million of them by 2050. For students of history however, Musk’s proposal that those who make the journey should work to pay it off upon arrival does not sound too different to indentured servitude, the method by which individual settlers paid for their passage to the newly established American colonies in the 17th century.
Little better than slavery, indentured servitude restricts the freedom of individuals to live their lives in a manner of their choosing in a way that is now illegal across most of Earth but, if Musk has his way, could become a reality on Mars, 450 years after it first was tried in Virginia. Whether a country from which space flights launch would allow them to take off containing people bound to such contracts of employment is doubtful, but the fact that Musk proposes it at all is remarkable and demonstrates the fact that old human patterns of behaviour could easily emerge in outer space colonies beyond the reach of the nations of Earth.
(Non) Human rights?
Colonialist attitudes place little value on human rights and the lack of clarity around whose jurisdiction will apply where in space, together with the massive challenges for enforcement of whatever laws do apply, mean that individual rights are at risk of being made to take a backseat to corporate interests.
We have considered some of the ways in which the rights of humans may be impacted by our expansion into outer space as a species. There is also the possibility, however remote, that humanity’s forays into space may lead to encounters with other, non-human, life forms. How we should treat such life forms, particualrly if they are sentient, is a topic to which little serious legal thought has been devoted, but the further we look into space, the more pressing the topic may start to become. If humanity is able to create a framework to address the impact of space exploration on the rights of our own species then perhaps we will stand a chance of engaging fairly with any others that we may encounter.
