space colonization

SPACE COLONIZATION Mukesh C Bhatt

Session 3. Space Law: International, trans-national and extra-terrestrial perspectives School of Law, Birkbeck College presented 18 January 2016

Overview

[email protected]

Birkbeck School of Law 2015-16 Space Law: International, transnational and extraterrestrial perspectives Session 3 – Space Colonisation: 18th January 2016

OVERVIEW

• 

Introduction

• 

Context

• 

Digression

• 

Definitions

• 

Space Habitats

• 

Migration and international law

• 

Sovereignty and territoriality

• 

Outer Space and emigration

• 

Property and ownership

• 

Governance

• 

Commerce and Trade

• 

Requisites

[email protected]


OVERVIEW 2

• 

Issues and perspectives regarding human migration into space

• 

Resources

• 

Terrestrial analogues

Birkbeck School of Law 2015-16 Space Law: International, transnational and extraterrestrial perspectives Session 3 – Space Colonisation: 18th January 2016 [email protected]

Context


HISTORICAL CONTEXT

1.  Legacy issues a.  Transfer of con2licts i.  Cold war and nuclear deterrence

b.  colonialism


WHY MIGRATE

1.  Space law is about survival in the face of nuclear

threats

2.  Migration is about a.  Survival b.  Lebensraum c.  Economics and resources d.  Curiosity and exploration e.  Refuge and 2light


Definitions


“COLONY” OR “DIASPORA”

• 

Colony, [late Middle English] •  • 

• 

settlement of retired soldiers, as garrison in newly conquered territory in the Roman Empire [Latin] colonia ‘settlement, farm’, from colonus ‘settler, farmer’, from colere ‘cultivate’.

Diaspora [Greek] “scattering of seed” •  •  • 

Greek colonies in antiquity Jewish populations after the exodus from Egypt Global dissemination (!) of original populations in other countries


COLONY

• 

A colony is a territory under the immediate political control of a state. •  •  •  • 

distinct from the home territory of the sovereign no independent international representation, direct control of the metropolitan state in European antiquity, from inception given separate statehood, or remained dependent territories The Metropolitan state (Metropolis) •  • 

• 

state that owns the colony (“mother country” as viewed by colonists) United Nations list of Non-Self-Governing Territories.

informal colony • 

de facto control of another state (contentious)


ISS & THE MARTIAN

• 

Agriculture and cultivation

• 

Mark Watney • 

• 

Uni of Illinois

ISS • 

Lettuce and other plants for consumption


HUMAN DIFFUSIVE MIGRATION

• 

Diffusive; Intentional; Hundreds of millennia

1.  Settler Colonialism: or possession and occupation

by steady diffusive migration a.  Brahmins/Indo-‐Aryans b.  Russians in Siberia c.  US extension of jurisdiction through the Homestead Act a.  compare Gingrich and the 2015 Space Act


Migration and international law


UNDHR

UN Declaration of Human Rights 13.2 EVERYONE HAS THE RIGHT TO LEAVE ANY COUNTRY, INCLUDING HIS OWN, AND TO RETURN

ONLY TO HIS COUNTRY

one leaves a country when one leaves its territory (which includes air, maritime, terrestrial and “other” space) Birkbeck School of Law 2015-16 Space Law: International, transnational and extraterrestrial perspectives Session 3 – Space Colonisation: 18th January 2016 [email protected]

UNITED NATIONS UNDHR

• 

UNDHR •  • 

No freedom of entry to another country Return to own country Belonging •  Identity •  “sovereign” • 

• 

Limits to emigration • 

• 

Does not allow “colonies” or “diaspora”

Does not allow emigration to establish colony under a national flag


UNDHR AND MIGRATION


NATIONAL EMIGRATION

• 

Do national legislations allow emigration, particularly into space?

• 

Legislation covering emigration •  •  • 

• 

India UK &c.

National Space legislation • 

Not aware of any specific provisions regarding emigration into space


THE RIGHT TO EMIGRATE

• 

Caste system (Hindus) • 

• 

China/Japan • 

• 

Political and cultural prohibition on sea travel

Arabia (Islam) • 

• 

Sea-travel prohibition; loss of caste status

“kalapani” [black waters – specifically the Atlantic]

Disagreement with rulers; tyranny; rebellion •  • 

Religion (Protestant “flight”) Hindu (various circumstances)


UNESCO ON CULTURE

• 

UN Declaration on Culture

• 

Ideologies and religions can be exported

• 

Cultural Recidivism

• 

Export solutions

• 

Export problems • 

conflicts


OTHERS

• 

Other organizations on migration, space and res communis? • 

[I have not YET found any direct or indirect references in the documentation]


ELYSIUM 2013 (IMAGE)

Elysium November 2013


Outer Space and emigration


THE OSTS ALLOW

• 

OST 67 – no sovereign national (appropriation) allowed

• 

Moon 79 – only installations, no settlements?

• 

Registration 72 & Liability 75 – residual sovereignty • 

• 

Relates to OST 67 – contradiction?

Rescue 68 – excludes intentional entry


OST AND MIGRATION

o  OST 67 is a value document, not a legal document o  Statement of principles, not of law o  No mention of long-‐duration space2light or

emigration


UN, OST AND MIGRATION

o  return to Earth (and country of origin) o 

including Return & rescue agreement which requires immigration and customs

o  intentional and unintentional entry o 

Accident as opposed to entry for the purposes of immigration, tourism and business and to espionage and invasion


WHO MIGRATES

• 

Will migration into space be

• 

a co-‐operative effort

• 

open to all

• 

restricted to nationals of sovereign/participating/ space-‐faring nations

• 

?


Requisites


HABITABILITY

• 

The Anthropic Principle • 

• 

Uninhabited •  • 

• 

Goldi and Snow: the genome No possibility « ever » of life Possible later development of life

Inhabited •  •  • 

Early stages of life Later stages of life Intelligent life [Cockell]


REQUISITES FOR SETTLEMENT

• 

Essentials • 

• 

Utilities • 

• 

Diaspora governance and organizations; extra-territoriality

Trade •  •  • 

• 

Power, communication

Emigration and return to Earth • 

• 

Air, food, water, shelter

With Earth (essentials and resources) Inter-planetary trade Interstellar commerce

Inter-settlement and Earth relations; diplomacy and negotation


CONSEQUENCES OF COLONISATION


Digression


CELESTIAL BODIES

• 

(Universes)

• 

Galactic clusters

• 

Galaxies

• 

Stars

• 

Planets

• 

Dwarf planets

• 

Asteroids

• 

How large/small – is particulate matter a celestial body?


CELESTIAL BODIES

1.  When a celestial body is occupied in part or the

whole: a.  Is a celestial body part of outer space? b.  What about the “new” air space and outer space, and body delimitations – these will differ because of differing physical conditions c.  The Oort cloud extends towards and is possibly shared by the nearby alpha-‐Centauri


CELESTIAL BODIES

1.  LaGrange points, celestial bodies etc. are only

notional and conceptual points and bodies a.  They are not static, but in constant motion, with dynamic boundaries that also change b.  “Sovereign nation” is a static term (state – stable, standing in one place)


Space Habitats


TYPES OF SPACE SETTLEMENTS

• 

Artificial Habitats

• 

Planetary settlements

• 

Research Stations

• 

World ships (multi-generational)

• 

Commercial vessels (nomadic)

• 

Mining settlements (transient)


MOSTLY ARTIFICIAL HABITATS

1.  Placement a.  Planetary Settlements b.  LaGrange points a.  What is a LaGrange point b.  Observational platforms L1 & L2

•  • 

Lagrange points L4 & L5 O’Neill colonies

a.  Orbital a.  LEO, NEO, Geo b.  Space Stations c.  Weapons placements

b.  World ships and Arcologies • 

Strategic positions


Sovereignty and territoriality


BASIS OF SOVEREIGN APPROPRIATION

• 

On what basis is there no sovereign national appropriation


TERRITORIAL CLAIMS

• 

possession • 

Terra/res nullius, communis Common Heritage of mankind •  occupation • 

•  • 

Settlement Gift • 

•  • 

award

Conquest Extra-territorial jurisdiction extended


TERRITORIAL SOVEREIGNTY

• 

Claim (unsubstantiated or otherwise)

• 

Ownership

• 

Property

• 

Use

• 

Extension of airspace into outer space •  •  •  •  •  • 

Unreal Infinite Depends on rotational position and that relative to the sun Therefore no sovereignty in space Residual sovereignty International airspace above international waters?


ESTABLISHING SOVEREIGNTY

• 

Dissension

• 

Forced conquest or separation

• 

Secession

• 

“stateless establishment”

• 

Independence from inception

• 

“Unilateral Declaration of Independence” • 

Bhatt 2015, 2016


ESTABLISHING COLONIES

1.  Settlements: Legal frameworks for establishment a.  Charter b.  Settler colonialism (Homesteading) c.  Diffusive migration


EXTENDING SOVEREIGNTY

• 

US National Park on the Moon

• 

US National Parks in the Pacific

• 

Declaration of National Parks in International Waters

• 

China and the Spratly Islands • 

Artificial extension of territory


DURATION OF SOVEREIGNTY

1.  How long does sovereignty last? a.  Treaties are inherited upon change of government, and of

secession b.  Treaties can be abrogated by legislative decision

2.  Situations are a.  Change of government b.  Changes in extent of territory c.  New country contains old and absorbed territory d.  Secession where the original country is reduced in territory a.  Is new country the same as the original country a.  Compare Indonesia which smaller but continues, East Timor which is new, or Sudan and South Sudan b.  But Yugoslavia or USSR does not, splits into new, successor states


EXTENDING JURISDICTION

• 

Airspace over International waters • 

• 

Extent •  • 

• 

No sovereign delimitation possible

upwards lateral

Jurisdiction


DELIMITATION AND TECHNOLOGY

1.  Von Kármán limit: 50s (250,000 ft – 50 miles – 80

km) now 2010s (330,000 ft – 62.5 miles – 100 km) a.  Jets stop working b.  Note 330,000 ft is 9-‐10 times aircraft cruising altitude c.  US/Virgin Galactic d.  As discussed under national legislation


DELIMITATION

1.  Delimitation a.  orbits are generally not circular, but elliptical, and

also subject to positional correction b.  note also corrections to satellite orbits affect telecoms, time corrections, GPS and boundary (borders) coordinates etc c.  Is the “object” sovereign territory, or the (variable) region of space that it occupies or traverses? d.  Suggestion: sovereignty is not appropriate here as it may not necessarily refer to cold war and military politics e.  Galaxies f.  Continental shelf


EQUIVALENCE & CONFLATION

Is this acceptable?

Sovereignty

[email protected]

Jurisdiction

DELIMITATION AND JURISDICTION

1.  Just because a nation-‐state says or agrees that air space

stops at cis-‐x km, and outer space begins at trans-‐x, with “x” being the transition or liminal/notional boundary, does not mean the nation-‐state has no sovereign jurisdiction on trans-‐x, equivalent to jurisdiction on cis-‐x a.  There is no sovereign-‐national appropriation in outer space (trans-‐x), but there is jurisdiction, which implies sovereign jurisdiction, deriving from the liability, registration conventions, and consequent residual sovereignty b.  => (extra-‐territoriality)!


RESIDUAL SOVEREIGNTY

• 

OST 67; Moon 79 •  • 

• 

Retain sovereign jurisdiction in outer space Limited on celestial bodies)

Return and Rescue • 

Astronauts and objects retain sovereign ownership

• 

Liability; Registration – retain sovereign jurisdiction

• 

Residual Sovereignty – mobile and immobile objects • 

• 

Space platforms

Maritime law •  • 

Salvage Territorial and international waters


SOVEREIGNTY AND FEDERALISM

1.  No national sovereign appropriation refers to

nation-‐states

a.  not to regional, non-‐sovereign entities (EU), or to

sub-‐states (Texas, Kerala) in a federal system b.  Perhaps not even to supra-‐national entities c.  Principle of subsidiarity in a vertical, upwards

sense opposed to downwards or horizontal version


THE EQUATOR & SOVEREIGNTY

1.  Bogota – Moon is property of equatorial nations a.  Sovereignty extended to moon a.  Traverses narrow band of eight nations in sky b.  Geostationary orbits consequent to Earth’s gravity

b.  Implies this is not equivalent to delimitation

between air and outer space c.  Full, not residual, sovereignty


ARTIFICIAL MARITIME HABITATS

• 

Oil Rigs •  • 

• 

In territorial waters (3, 12, 200, 300 miles) In international waters

Ships •  •  •  • 

Registered to national sovereign flag Independent in international waters Subject to jurisdiction of nation-state harbour Not sovereign in own right – can be boarded


ISLANDS AND ROCKS

• 

Habitable

• 

Uninhabitable

• 

Territorial waters

• 

International waters

• 

Artificial habitats (islands) in territorial waters

• 

Artificial habitats in international waters


ANTARCTIC ANALOGUE

• 

7 country claim not recognised

• 

Several “stations”

• 

No agreement on jurisdiction • 

Legal jurisdiction limited to nationality of research station or individual

• 

Not sovereign

• 

Compare Svalbard (declared international by and under Norwegian sovereignty and jurisdiction)


FUNCTIONS OF SETTLEMENT

• 

National

• 

Multi-national

• 

Commercial

• 

Diplomatic

• 

Scientific

• 

Military


Property and ownership


RES COMMUNIS

1.  Outer Space as res communis a.  Common Heritage of Mankind principle a.  (Hyman 1961, Magna Carta of Space, Bogota)

b.  Not res (terra) nullius, which would allow

appropriation under international law (Grotius and others). c.  OST excludes sovereign appropriation, but does

not exclude possession or ownership a.  subject to interpretation


POP ON WHO OWNS THE MOON? (I)

• 

Extraterrestrial real estate claims – trivial

• 

Norms & rules limited; basic concepts not defined – celestial body

• 

Territorial extensions, floating movable goods & legal analogies • 

• 

Some extraterrestrial resources are not celestial bodies

Appropriation outside sovereignty – sovereign-derived support unlawful although required for survival

[email protected]

POP ON WHO OWNS THE MOON? (II)

• 

Res Communis (commons – belonging to everybody and nobody)

• 

Res Publica (Public Trust doctrine) • 

Common Heritage of Mankind – Moon Agreement • 

• 

Frontier paradigm – property rights as engine of development • 

• 

Egalitarian, Marxist, “failed on Earth” Privatization - individualism, competition, ecnomic liberty, efficiency and laissez-faire economics

Movable goods – extra-terrestrial material as permissible sample or commercial commodity

[email protected]

FUNDAMENTAL ASSUMPTIONS ON PROPERTY

• 

Fundamental assumptions, but compare India, where the zamindar was created from users of land or revenue from land and became a “property owner” in the British sense


WHO OWNS THE EARTH?

• 

No-one (?) •  • 

• 

Sovereign territorial demarcated claimed territory • 

• 

Separable jurisdictions

In common • 

• 

No jurisdiction; humanity; animals; etc Abrahamic vs. non-Abrahamic religions

? jurisdiction

The right to assign: •  • 

Ownership Property rights


LAND APPROPRIATION

• 

Enclosures (17-18th C.) – UK and Ireland

• 

Zamindars (late 18th C.) - British India

• 

Homesteading Act (1841?) - USA

• 

MABO and aboriginal lands (1879 &1989) – Australia •  • 

“native” common law title rejects (Australia as) terra nullius

nota bene: British (common-law) -derived jurisdictions above


PRIVATE VIEWS

• 

IAU – naming of stars, not selling

• 

Nemitz and the 433 EROS asteroid •  • 

• 

The Lunar Embassy in China • 

• 

NASA charged rent (2001 onwards, disallowed Nevada 2007) (thrown out, 2006) – jail sentence

Moon Estates explanation of Space law and property rights •  • 

Also known as MoonLife Ltd, and Lunar Embassy Incoherent, conspiracy-based and (IMO) incorrect


EXPLOITING OUTER SPACE

• 

Mineral Resources

• 

Energy • 

• 

stellar, (geo)thermal, &c.)

other


OWNERSHIP AND PROPERTY RIGHTS

1.  Volume of land: a.  ownership of land i.  owner has ownership of property ii.  owner has rights over property iii. property is inclusive (contains everything) iv.  owner can assign or sell rights to property.

b.  Are rights separable from tangible property? i.  Assigned rights allow mining ii.  Mining allows separation of portion of land (soil, ore) from

original volume iii. Is separated portion owned by the original owner? iv.  “miner” has rights as assigned above over extracted portion v.  Does miner now become the owner of the separated portion?


MINING AND OWNERSHIP

• 

Property

• 

Land is owned

• 

Right to extract portion/resource

• 

Who owns extracted portion?

• 

How far down? •  • 

• 

Fracking in UK (300 m) Sea-level (tides) or land-level (not level at all)

How far laterally • 

Boundary at perpendicular to tangent at surface


THE UNITED STATES • 

Gingrich 1981 versus the Space Act 2015

• 

Extends jurisdiction (Gingrich)

• 

Property and rights awarded by both be entitled to any asteroid resource or space resource obtained, including •  “shall to posse ss, own, transport, use and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the [US]”

• 

International Institute for Space Law •  “in view of the absence of a clear prohibition of the taking of resources in the

Outer Space Treaty one can conclude that the use of space resources is permitted. Viewed from this perspective, the new United States Act is a possible interpretation of the Outer Space Treaty. Whether and to what extent this interpretation is shared by other States remains to be seen.”


US SPACE ACT 2015 AND THE IISL

1.  US Space Act 2015 and IISL: no con2lict a.  Many people, including lawyers, who have been,

or are, mistaken in interpreting the OSTs now and over the decades b.  the US Space Act is being misinterpreted c.  Is the IISL biased, and what does this say about a possible future global “space legal authority”? d.  Is the rest of the world anti-‐US space policy?


EXAMPLE: THE SPRATLY ISLANDS

1.  China and the Spratly Islands a.  BBC News24 14/12/2015 midnight “mischief reef” b.  If China builds an arti2icial island or extension to a reef or

island (Spratly) in order to “protect the reef” – note 12 mile limit to no-‐2ly zone c.  about 40% of world trade passes through the strait below the Spratlies in the South China Sea d.  Resolution through UN Council on the Law of the Sea – International Arbitration Board e.  Only US/China – local problem, but Australia is getting involved

2.  Compare the US Space Act 2015 1.  Can X build a space station to protect the asteroid, celestial body, etc?


EXAMPLE: MOBILE PROPERTY

1.  Consider a chunk of glacier or cliff that falls off, and remains 3, 12, 200 or

300 miles within territorial or economic jurisdictional zones, or above a continental shelf, the enters international waters further than 300 miles, but remains above a continental shelf, then leaves the continental shelf, or crosses the border, and eventually enters (inverse order), the 300, 200, 12 and 3 miles limits of an “opposing” nation-‐state/ a.  To whom does the chunk belong?

2.  The Moon is a chunk knocked off the Earth a.  Is the Moon part of the “country which now exists” in the place or section from where it was impacted b.  c. 

How far back in time does sovereignty extend? Compare land claims in various ex-‐colonial jurisdictions

3.  Martian meteorite lands in Antarctica, international waters or Canada

– whose property?


Treaty basics


TREATY CHANGE

• 

Principle of international law

• 

rebus sic stantibus

• 

Treaty is no longer valid or acceptable given that circumstances have changed (Robinson 2006)


Governance


TYPES OF COLONY: GOVERNANCE STRUCTURES

• 

Sovereignty

• 

Suzerainty

• 

Paramount power

• 

Subsidiarity

• 

Protectorate

• 

Colony


MODELS OF SOCIAL AND POLITICAL ORGANIZATION

• 

Communitarian (kibbutz analogues)

• 

Self-organizing (aggregates)

• 

Ideological

• 

Socialist Libertarian Liberal Fascist

• 

&c.

•  •  • 


BASIC IDEOLOGY

• 

Different Folks;

• 

Different Strokes: but always Liberty, Wealth, Happiness, Law/Structure • 

4 examples of space habitats • 

Selective misrepresentation


RULE OF LAW: LIBRA

Space Habitats and Facilities • 

Libertarian, privately-funded, self-governing manifesto « Let’s face it. Your world is falling apart. Politicians engaging nations in wars against the will of the people. Increasing worldwide poverty and starvation. Inflation, high unemployment, staggering crime rates, sky-rocketing costs of nationalised health care, overpopulation, inability to meet your energy needs, bankrupt cities, bankrupt states, bankrupt nations, and morally bankrupt people.»


LIBERTY: GINGRICH

• 

National Space and Aeronautics Policy Act of 1981 •  • 

• 

died, referred to House committee Sponsor: Gingrich, Newt

Title IV: Government of Space Territories •  • 

constitutional protections the right to self- government •  admission to statehood •  extension of jurisdiction


WEALTH: MINERVA ON AURORA

• 

Republic on starship (with several nations)

• 

Objectivist (Ayn Rand)

• 

Libertarian free-market (protection of all personal rights)

« Constitution … to enable the effective governing of widely scattered land areas and islands. … ties to the centr[e] are … strong, with […minimal…] interference » Regulatory and authoritarian

• 

• 

Equal rights statement

No personal responsibilities

•  • 

Focus on trade relations


HAPPINESS: THARSIS MONTES

• 

Tharsis Montes Commonwealth is a sovereign governmental unit … serving as trustee … for the Luna, Tharsis, and Vesta Industrial Development Corporation Constitutive

•  •  •  • 

Procedural Civil Rights

Communal responsibility (hostile environment) • 

Focus on diplomatic relations


ROBINSON CONSTITUTION

• 

Robinson 80s workshops

• 

Inimicality (protection in hostile environments)

• 

Return to Earth

• 

Cultural recidivism

• 

Extension of jurisdiction under US law

• 

Access to essential resources

• 

Free communication

• 

Other rights as on Earth


DISSENSION AND SECESSION

• 

Possible modes of avoiding the no sovereign national appropriation clause •  •  • 

Statelessness Unilateral declaration of independence Revolution All require removal of allegiance to a superior sovereign jurisdiction or authority Bhatt 2015, 2016


Commerce and Trade


TRADE

• 

What settlements and habitats can trade

• 

Trading partners

• 

Regulation of trade and finance

• 

Economic models

• 

Language uniformity

• 

Cultural requirements?


INTRA-SYSTEM COMMERCE

• 

Intra-system •  • 

• 

Between planets, settlements, moons, etc Resources

Import and export of essentials • 

Air, water, food and so on


FEUDAL SPACE

• 

Necessary for Earth and its economy •  •  • 

Space industrialization Physical diversification (extinction avoidance) Innate exploratory curiosity

• 

Biosphere degrades faster than space economy develops

• 

Solutions •  • 

• 

Implement feudal processes for space Separate space economy from that of Earth

Protects biosphere, enables space development (Kennedy 2016)


INTERSTELLAR TRADE

• 

Interest charges on goods in transit near the speed of light • 

Time dilation (special relativity)

• 

Calculate using common inertial frame, not spacecraft frame of reference

• 

Competition equalises interest rates on planets in the same inertial frame (Klugman 1978/2010) – Nobel Laureate in Economics: not for this paper


Terrestrial Analogues


COLONISATION ROADMAPS

• 

e.g. Rockwell Int’l Integrated Space Plan (1980s)

• 

Similar to the European Voyages from 1400 onwards

[email protected]


1492 AND ALL THAT: VOYAGES OF DISCOVERY

• 

Distribution by Pope

• 

European-derived Maritime Law & Sovereignty

• 

« International » Law

• 

Local sovereignty

[email protected]


WE COME IN PEACE: VOYAGES OF TRADE

[email protected]

• 

Commercial Negotiations

• 

Privateering

• 

Charter companies


YOURS, NOT OURS, BUT MINE: VOYAGES OF COLONISATION

[email protected]

• 

Land Alienation

• 

Land Acquisition

• 

Pioneering Settlements


SHOOT TO KILL: VOYAGES OF IMPERIALISM

[email protected]

• 

Imposition

• 

Governance

• 

Assimilation


CONCLUSION

Questions? References and slides available [email protected]

Work in Progress

[email protected]


space colonization

space colonization

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