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  • Gregory Chan

Human Rights in Outer Space: The Jus Ad Astra Project

Introduction

The Space Race was one of the most notorious eras of the Cold War; The United States and the Soviet Union diverted their attention to weaponising the stars [1]. While that era might be over, these countries’ have yet to take their attention away from outer space, with more players joining the arena. Of note among these new players, private corporations are looking for extraterrestrial supremacy, looking beyond the atmosphere for untapped business opportunities [2]. As such, the race for the final frontier seems to have only become more complex, with varied and nuanced challenges. While certain international instruments do exist, their relevance and applicability are similarly being queried.

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This article will explore the importance of human rights in outer space, and query the relevance of these existing international instruments on both countries and corporations. It will first provide a brief overview of the current situation, and explore existing recommendations for reforms, focusing on the Jus Ad Astra project. It then concludes that greater involvement is required from all stakeholders to protect the evolutionary nature of human rights in the region.


Importance of Human Rights in Outer Space

At first glance, it might be hard to draw the link between human rights and outer space. However, their importance cannot be understated.

On the ground, concerns have arisen between the balance of human rights and the ongoing space race for nations. In that regard, some commentators criticise stakeholders for balancing human rights and the technological pushes for the stars, referencing certain tragedies such as the 1967 Apollo Fire [3]. However, other implications of human rights in outer space include the use of satellites to monitor gross human rights violations [4]. In that light, the United Nations’ Space4SGDs has moved forward to make the push to apply the current Sustainable Development Goals in the context of outer space [5]. Going forward, however, ambitious projects postulate the move of humans to outer space. Of note, the Mars Colonisation Project has seen some traction, with the National Aeronautics and Space Administration (‘NASA’) has begun year-long Mars simulation missions to simulate missions in this new arena [4]. Nonetheless, one needs to consider the applicability of current human rights instruments when humans make the jump to the stars.


Current framework of international agreements

There exist major national international agreements on outer space, and are often collectively referred to as the five United Nations treaties on Outer Space [6]. In essence, the effect of these instruments can be summed up as such: greater opportunity for participation and accessibility of space for all member-states, technical coordination and data sharing among participating states, and the coordination of peaceful activities for the protection of Earth (i.e circulation of information pertaining to natural disasters). However, these instruments are notably silent on the applicability of the operation of human rights in outer space.

Perhaps then, one should consider the applicability of an evolutionary interpretation of human rights, as found under the Vienna Convention on the Law of Treaties (‘VCLT’). Evolutionary interpretation of treaties allows parties to interpret treaty provisions in light of the developing context around them, under the presumption that parties’ had drafted these treaties to last for an extended period of time, and could not be unaware of the developing circumstances which might influence their interpretation [7]. Notably, Article 23(2) of the International Covenant on Civil and Political Rights (‘ICCPR’), (the right to marry) had been interpreted in an evolutionary context to include same sex marriages [8]. Within the context of outer space, perhaps then, under Article 11 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), the Right to an Adequate Standard of Living could be interpreted as having a Right to a Breathable Atmosphere within the context of outer space. While this is ideal, one must nonetheless be aware of the controversy of doctrines of evolutionary interpretation [9].


Jus Ad Astra

In light of such difficulties, the Jus Ad Astra project has been pushing for the codification of ‘new’ human rights in the context of outer space. Particularly, they suggest the inclusion of the Right to Water, the Right to a Breathable Atmosphere, and the Right to a Habitable Environment [10]. They argue that such codification of rights in international instruments would advance the implementation of the Sustainable Development Goals in outer space, and utilise human rights as a framework for the development of a Rule of Law for space.

While such a project is ambitious and to be applauded, one wonders about its viability and feasibility. Codification would indeed promote greater certainty of such rights, rather than relying on constructive interpretation of these treaties. Yet, the push for global norms would require significant cooperation among the international community, which might be difficult. Presently, even the ICCPR and ICESCR does not have universal ratification [11]. Hence, the coordination of further amendments to these documents would be similarly unlikely. Similar concerns arise for the drafting of new international treaties in this regard.

In addition, it must be considered that these instruments operate among countries rather than bind corporations. In the context of outer space, corporations have been playing a larger role. Notably, Elon Musk’s SpaceX program seems to be rivalling NASA to attempt to colonise Mars [12]. Other key private industry players include asteroid mining companies who look to exploit the key natural resources in space, such as the Asteroid Mining Corporation [13]. In that light, it seems rather difficult that these key international legal instruments would have any binding effect on these corporations. It is true that perhaps such legal instruments, once implemented at a domestic level, would serve to bind these corporations which have their legal registration in a particular country. Yet, it would be rather simple for corporations to escape obligations by mere registration in a domestic system which has yet to ratify such laws. Some countries might then even utilise their lack of ratification to provide themselves a comparative advantage, and encourage these space companies to incorporate in their domestic system to boost the economy.

As such, one might consider involving these corporations in the legislative process. Moving forward, their importance cannot be neglected. While concerns might arise of the non-democratic nature of such corporations, it might be finally time to acknowledge the importance and key roles which such corporations provide. By giving them a seat at the table, it might allow for greater accountability in the field of outer space.


Conclusion

The final frontier of mankind seems to be within reach. The rapid pace of technological developments around the world, alongside ambitious projects in both the public and private sector, would soon see the stars within our grasp. In light of new challenges, the basic human rights of those who have made this possible should not be neglected. Instead, a greater and more nuanced approach should be adopted in the current framework. Perhaps then, this might be the perfect opportunity to bring all stakeholders to the table, including those in the private sector, to be able to forge the best possible path in the next step of exploration.


References

[1] Walter A. McDougall, ‘Sputnik, the space race, and the Cold War’ (1985), 41 Bulletin of the Atomic Scientists 5, 20-25. <https://doi.org/10.1080/00963402.1985.11455962> accessed 20 February 2022.

[2] Paul B. Larson, ‘Outer Space, How Shall the World’s Governments Establish Order among Competing Interests’. (2019) 29 Wash. Int’l L.J 1.

[3] Filling Space, Why is it important to consider Human Rights in Space, (21 August 2020), <https://filling-space.com/2020/08/21/why-is-it-important-to-consider-human-rights-in-space/> accessed 21 February 2022.

[4] ibid.

[5] Werner R. Balogh, Luc St Pierre and Sinmonetta Di Pippo, ‘Towards a results-based management approach for capacity-building in space science, technology and applications to support the implementation of the 2030 agenda for sustainable development’ (2017) 139 Acta Astronautica, 385-389, <https://doi.org/10.1016/j.actaastro.2017.07.029> accessed 22 February 2022.

[6] United Nations Office on Outer Space Affairs, Space Law Treaties and Principles, <https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html> accessed 21 Febuary 2022.

[7] Geraldo Vidigal, ‘Evolutionary Interpretation and International Law’ (2021) 24 Journal of International Economic Law 1, <https://academic.oup.com/jiel/article/24/1/203/5994971> accessed 21 February 2022.

[8] Oscar I Roos and Anita Mackay, ‘The Evolutionary Interpretation of Treaties and the Right to Marry: Why Article 23(2) of the ICCPR should be Reinterpreted to Encompass Same-Sex Marrage (2017) 49 George Washington International Law Review 4, 879, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3039870> accessed 21 February 2022.

[9] Eirik Bjorge, ‘The Evolutionary Interpretation of Treaties’ (2014 OUP).

[10] AJ Link and Jonathan Lim, ‘The Future of Space Rights - Fundamental Human Rights in Outer Space’, (ASCEND Conference, Virtual, 16-18 November 2020) <https://doi.org/10.2514/6.2020-4265> accessed 21 February 2022.

[11] Ratification status found on http://treaties.un.org.

[12] Tim Urban, ‘How (and why) SpaceX will Colonise Mars, (2015), <https://waitbutwhy.com/2015/08/how-and-why-spacex-will-colonize-mars.html> accessed 22 Febuary 2022.

[13] Matt Weinzierl and Mahak Sarang, ‘The Commercial Space Age is Here’, (12 February 2021, Harvard Business Review), <https://hbr.org/2021/02/the-commercial-space-age-is-here> accessed 21 Febuary 2022.


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