Op-ed | Space Law and Migration Off-Earth

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When we focus on the humankind component of space migration, we’re looking at the potential survival of the species and its evolving descendants — or their extinction. Nothing is forever, and the bush of evolution is unquestionably full of examples.

Homo sapiens sapiens stands on the shoulders of its single-cell ancestors and even the most simple of viral life forms. In this context, we also have to take into consideration the resurgence of the Panspermia Theory — the idea that life on Earth did not originate on our planet but was transported here from somewhere else in the universe — which encourages us not to be too parochial about our biological origins. And there are seemingly endless types of human-like hominids that exist or protohominid ancestors and existing less-complex life forms standing in the wings that manifest expressions of sentience, of abstract perception capabilities according to modern human standards. The caveats against stoicism regarding humankind’s survival and that of its “essence” are real, and seemingly endless.

Timing is critical for the inescapable biological dictate of migration to more survival compatible ecosystems, either natural or technologically created, for survival of humankind and its descendants as well — transhuman or post-human. Of course, stabilizing Earth’s ecosystem and biosphere also is critical for supporting and facilitating the representative migrations, and that very likely will be the most difficult convincing task for the stay-at-home human population. Again, nothing is forever, not even Earth. Asteroids (among other potentially uncontrollable natural events) and their potential for impacting Earth and eliminating all or significant portions of life as we presently know it may now be more timely than heretofore understood and believed.

And the clock keeps ticking — for a little while longer. Time is of the essence for developing an effective, globally oriented — not national or international — humankind space migration and settlement undertaking.

In 1991, NASA established the Space Propulsion Synergy Team (SPST), consisting of top national propulsion multidisciplinary experts. The objective is to encourage these people to have a relatively free hand in bridging the communications gap between technology creators and developers, and the ultimate users. In 2012, the SPST developed a white paper, of which a variation was published in the new journal Space and Evolution. The paper set forth six reasons for development of space beyond low Earth orbit, the very first and most emphatic reason of which was species survival — the human species, Homo sapiens sapiens.

“Space exploration is critical and necessary for survival of the human species and should be a global undertaking,” the white paper asserted. “Earth has limited resources required to support life as we know it … [and] this, along with ever increasing internal global threats, as well as possible external threats, conceivably could make Earth largely uninhabitable in the foreseeable future.”

The white paper emphatically concluded that space therefore must be made habitable — permanently — in the foreseeable future. “Development of space and human habitation are needed urgently to extend life beyond the bonds of Earth” was the very first conclusion of the white paper’s drafters.

But after having made such a sweeping, breathtaking and well-grounded observation, the paper’s authors went on to discuss why this reason for the manned space station was so critical to re-energizing NASA, to lift NASA and the dependent U.S. private-sector space industry from their fiscally moribund status and programmatic options in slow disintegration. So much for a genuinely global undertaking. But the fact remains that space exploration, human migration, and incremental settlements and long-term and permanent habitation are integral to the survival of humankind and its evolving descendants. It is critical to evolution and survival of the “essence” of the species — however that term is defined and in what specific context. And that is even more than dedicated “international” cooperation, as emphasized in U.S. President Barack Obama’s 2010 space policy. It is a significantly global responsibility and undertaking.

Accelerating uses of low Earth orbit for commercial and national defense/military objectives only emphasize the traditional intermittent methodology for the incremental steps to human migration and permanent habitation off-Earth. What seems to be missing is the carefully articulated underlying and driving philosophic construct of survival of the human species and its “essence” — as well as that of its evolving, highly advanced biotechnologically integrated descendants, i.e., transhumans and post-humans.

Migration, much like certain other biological dictates (metabolism, replication and the like), is critical for survival of the human species — indeed, all species — and their respective descendants. That is the driving justification for a global space migration undertaking. That is what policy-makers, treaty negotiators, and space jurisprudents and lawyers must focus upon first and foremost before wasting precious time, energy and indeed funding and other critical resources on establishing transitory mutual agreements regarding what constitutes the amorphous definitions of fair, moral and ethical values inherent in most space treaties — in fact, in most all other international agreements focused only on interim economic competition and geopolitical posturing between and among an increasing number of spacefaring nations.

At present, the Outer Space Treaty of 1967 still serves as the mother treaty articulating the policy framework for space-related activities conducted or endorsed by signatory nations. It is 46 years old and in dire need of extensive re-evaluation and amending — or trashing altogether — to meet current and more empirically projected realities of space research, migration, habitation and use of space resources, both on Earth and in space. In this context, it must be recalled that the Outer Space Treaty was eventually signed by the former Soviet Union and other members of the Warsaw Pact alliance, as well as the United States and its NATO allies, perhaps primarily, if not only, because the Soviets recognized a variety of areas in which there was U.S. leadership in space activities and capabilities, but about which the Soviets were uneasy and uncertain with respect to details. The United States, in order to obtain a Soviet acquiescence to the treaty, agreed to sign a significantly watered-down document that had many ephemeral “do good” provisions, words and phrases that would become irrelevant in large part as the U.S. and Soviet space programs evolved — technologically and politically.

The Outer Space Treaty at present is inherently toothless in terms of legal compliance, and does not offer substantive answers to pressing legal issues and questions, such as those now presented by plans for asteroid mining and potential retrieval of an asteroid for study in a close fly-by or relatively near-Earth orbit. Although certain signatory nations of the Outer Space Treaty purport compliance with the spirit and intent of that treaty, they tend unilaterally to make parochial and self-serving exceptions — not infrequently without required notification.

In the context of mining asteroids and other space resources and the question of ownership of those resources, applicable and enforceable law is absent from the 1967 Outer Space Treaty, or intentionally hazy for political reasons beyond generalizations of use “for the benefit of all mankind” and the like. The 1967 treaty, like most other space-related treaties, is designed to be broken or ignored by signatory nations in whole or in part at some point. This reality is reflected in, for example, the 1967 treaty provisions which allow for formal amendments to such documents and set forth formal procedures for signatories to withdraw legally from the agreement. China and certain other signatory countries not infrequently pick and choose what articles or provisions of an agreement they wish to adhere to or ignore without resorting to formal amendments or termination provisions.

Reference to the 1967 treaty offers no real help in answering questions of law related to asteroid mining and/or retrieval. In this context a variety of academicians and practitioners of space law have an equal variety of opinions relating to issues of ownership of space resources obtained or controlled by governments or the private sector. Enforcement, consistent with tradition, is normally by extraneous trade-offs in the international community.

With respect to the advances in the uses of outer space and the need to reassess the relevance of provisions offered by the Outer Space Treaty, the U.N. General Assembly formed a Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities. The assigned objective was to determine and assess measures that would strengthen stability and security of outer space, and emphasize acceptable activities and technology that could be pursued in that medium. These measures would be nonbinding and without direct legal resource and consequences for violation of those measures. Words and phrases of an ambivalent nature, both within and without specific contexts, were relied upon — “pragmatic measures to ensure safety,” “activity sustainability,” “security in space,” “outreach,” “promote coordination,” and the like.

One can only hope that the diplomats and members of the space and related law professions are somewhat more focused in their objectives when they consider the necessary amendments to the Outer Space Treaty, or its complete replacement. If the latter is the route pursued, the underlying philosophic construct must be clearly stated with a focused effort emphasizing the requirement for a global, and perhaps ultimately a transglobal, undertaking to take seriously, and implement effectively, human space migration as a more immediately compelling requirement for survival of Homo sapiens sapiens and its evolving transhuman/post-human descendants.

Will Nero lay down his fiddle and join Norm Augustine’s volunteer fire department? Will space lawyers assume an active jurisprudential posture in implementing what clearly is critical to the short-term as well as long-term survival of Homo sapiens sapiens, its descendants, and the odyssey of their very “essence” or purpose? Will there be a global effort to save and evolve that essence — certainly no easy task given the current global economy and increasingly culturally fractionated societies and civilizations? Will space lawyers offer more than questionably pragmatic reflections of Nero’s fiddle composition? Will they understand the role of cyberspace beyond transitory geopolitics? “Easy” is not what put the first humans on the Moon!

 

George S. Robinson retired as legal counsel at the Smithsonian Institution and serves Of Counsel at the firm of Robinson and Robinson LLC in Maryland.