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Settling in outer space

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P.J Blount discusses the law and policy issues connected with potential human settlement in outer space.

Image courtesy of interviewee. November 27, 2023

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This video video discusses the evolving landscape of space law, focusing on the implications of long-term human habitation in outer space and the challenges posed by legal frameworks as humanity ventures beyond low Earth orbit. It highlights the historical context of space law, notably the Outer Space Treaty, which established key principles governing state interactions in space, including prohibitions on territorial claims and nuclear weapons deployment.

As humans contemplate settlements on celestial bodies like Mars, the text raises several critical questions, including the legal status and rights of individuals involved in such settlements, who may be considered either state astronauts or private employees. It argues for the importance of addressing legal responsibilities, emergency cooperation, and the potential for settlements to become self-sufficient and distanced from their Earth-based authorities.

The discussion emphasizes the need to rethink traditional territoriality in law and the potential for a paradigm shift in legal systems, particularly regarding sovereignty and self-governance for future space settlers. This video video concludes by inviting reflection on the fundamental principles of law and justice as they relate to the potential for human settlements in outer space.

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In the volume that it's in.

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They're, they're trying to lay out, you know, what are,

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what are our future, what's our future agenda?

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If you're thinking about policy and law in outer space, and,

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and obviously the notion

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of long-term human habitation is one that we have had,

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in the space sector for, you know,

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well since the beginning, if not before.

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I mean, in the, the early 19 hundreds,

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people were already writing about what it would be like

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to live on the moon.

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Um, and so, you know, this, this notion

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of long-term settlement is one that we slowly creep closer

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and closer and closer to.

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And so sort of the context here is coming to grips with,

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well, what does that mean from a law

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and policy context, particularly projecting

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that well into the future?

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And one of the big questions that,

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that we have in space law is we, we recognize

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that space law was really established between

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and among states as they go up and, and, and,

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and engage in activities in space.

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And that's been very effective in low earth orbit.

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Um, where, you know, we have a lot of actors, as we sort

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of move away from low earth orbit,

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it gets a little bit more difficult to figure out, you know,

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what are the laws that are going to apply?

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And we've had lunar activities,

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but we haven't really had an establishment of

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how we coordinate these.

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And so, you know, a lot

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of my background comes from just thinking about

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how states are going to interact in space and, and,

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and what is going to play into that.

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So I work a lot with the,

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the literature on space traffic management,

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which is very much built on thinking about, you know, if,

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if we have two actors that wanna be in the same place at the

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same time, how do we come to a conclusion on that?

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And right now it's very, it's an ad hoc system.

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Um, but when you transpose that out into, you know,

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settlements on Mars, you have much deeper issues

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that you have to deal with.

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And so I would say that I, I,

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my work is very much based in sort of traditional space law.

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And then I, I, I use that to project forward into, well,

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how do we think about this as we move not just further away

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from, from, from the earth,

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but also move away from state paradigms.

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You know, in, in 1957, Sputnik gets launched

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and we kind of get these two different narratives.

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One is, will the Soviets beat the

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United States and the space race?

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Um, and, and that one is what we hear more often,

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but we often forget

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that there was ex an existential threat at the time.

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Um, the, the launch of Sputnik showed a capability

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to launch a nuclear weapon into space

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and drop it down, onto your adversary,

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which changed the dynamics of the potential for nuclear war.

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Luckily at the time, sort of the, the technology,

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there was a technology mismatch between these two states.

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And, they had the wherewithal to say, you know,

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maybe we should think about some rules for this.

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Maybe we should try to avoid conflict in outer space.

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And so, you know, just 10 years later

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we get the Outer Space Treaty,

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and the Outer Space Treaty sets out sort

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of these broad principles for how states are going

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to interact with each other in this space environment.

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And critical to that, our notions

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that you can't appropriate outer space,

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you can't make it part of your territory.

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And the goal behind that was to ensure

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that states didn't go off

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and have a fight over the moon as they,

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they sought territory.

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Um, there's also a rule

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that you can't station nuclear weapons

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or weapons of mass destruction in space.

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This, again, is linked to this idea that we want

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to increase security.

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So that's one big part of it.

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But the other part of the Outer Space Treaty is very much

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this idea that we should have cooperation

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and collaboration and space.

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And so it sets out

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a framework in which states can interact with each other.

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And key to that framework is the idea that states are going

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to be responsible for their non-state actors.

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Um, and so, you know, if, if I as a, a citizen

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of the United States wanna go

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and engage in a space activity, I have to go

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to the government and I have to get permission to do that.

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And part of that permission is ensuring that I abide

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by the international obligations

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of the United States when I engage in these activities.

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And so space law is very much built

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around this state framework, this idea

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that states are interacting up there.

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Now, states themselves have, domestic laws that,

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that govern space,

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but it's, it's, it's an integrated system.

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So those domestic laws do also need to comply

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with international laws.

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And so when I work through a domestic context

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to engage in a space activity,

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my state is looking out at the international system

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and thinking about how my activities impact their

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responsibility and their li liability within that system.

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But you can't appropriate space, by claim of sovereignty

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or by user occupation or by any other means.

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Um, and so no, you can't go up there

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and say, you know, this is my part of the moon

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and I own this part of the moon.

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You can't claim an orbit that this is my orbit

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and I own that orbit, but you can use it, right?

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So there is this idea that you can use these,

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these things and, and that's a, a,

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an important sort of dynamic there.

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So, so you can't own, but you can use.

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And so we have this division between sort of the,

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the real property notion of, of ownership

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and the movable property.

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Um, ocean notion of, of being able to like pick up a rock

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and use that rock,

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but the extension of law itself, while, while yes,

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law is often territorially based, the extension

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of law can follow the, the, the individual, right?

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So, if I go into space, there's still going

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to be personal jurisdiction over me,

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and I'm going to have to abide by those laws.

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Um, and most states that have authorization regimes

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for space have some sort of extension

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of jurisdiction over their nationals that go into space.

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This is one of the, the key problems that we have is that

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in article two, we have this idea that,

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that they can't appropriate by any other means.

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And if we think about property, right?

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When you own real property, that's something

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that you usually have to get permission

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to the state for, right?

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There is a, there's a deeded office,

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and those deeds are kept

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and there's a record of who owns this property.

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And so property law is often connected

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to this notion of territory.

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Now, we have had multiple attempts by people to sort

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of claim territory or claim property in space

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and say, well, the outer space treaty doesn't apply to me.

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But the problem becomes that you still need some state

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to give you a deeded or give you that license.

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Now, while this, how this connects over

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to this other problem is that at some point we're going

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to have a settlement that's going to say, Hey, no, you know,

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we've been here long enough, this is ours.

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And I, I do think that's a long-term problem.

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But, but so, so just to think about this in, in,

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in near mid and long-term, right?

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We have this near term problem of, of basically, I,

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I think the status of these individuals, right?

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I mean, and you've got two options.

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They could be state, that could be astronauts

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or they could be employees.

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And so if it's Elon Musk, right?

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Those are going to be employees.

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They're going to be subject to contract law,

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employment law.

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And so we have a lot of questions about what are the duties

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that are gonna be owed to those employees.

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I mean, can you imagine being on Mars,

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getting mad at Elon Musk

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and then getting fired while you're on Mars?

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Like, what are, what duties are owed to you?

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Um, and I think that that's a,

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a major question in the short term is just

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how do we treat these people that are going off

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to do this settlement activity?

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Now? And

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and when I say near term, right,

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I don't think it's super near term.

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I mean, there's, there's a reason nobody lives on the moons

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'cause it's not a pleasant thing to do.

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Um, but, but it is something that if we are going

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to pursue long-term habitation in the near term, we have

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to think about what are the rights of those individuals?

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What do we owe them moving into the midterm?

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If this is something that is slowly going to, to, you know,

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take hold and they're going to be others doing this.

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Um, in the midterm, we have to think about how

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to coordinate activities, right?

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If there are multiple,

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settlements on one celestial body, how do they interact?

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Um, what are the, the rights that are between them, right?

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Do they have to help each other in times of,

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of emergency and distress?

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How does that work? How do we make sure

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that they don't interfere with each other?

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Because it would be very bad for one settlement

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to inadvertently damage the other settlement

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and damage can cause problems, right?

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It, it's, it's a life or death situation

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in extreme environments.

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And then we have this sort of, this, this long-term idea

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that, that really gets back to this question

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of, well, can they own the land?

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Well, what happens when the settlement becomes

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self-sufficient and says, Hey, we don't like you government,

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or we don't like you corporation, and we now want to move on

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and be our own thing.

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And this is really sort of the fun question.

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It's one that we're, I would say

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hundreds of years away from.

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But, but how do we think about this notion of,

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of a human settlement breaking away from earth in the sense

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that we don't need you anymore and,

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and we don't owe you anything and you don't owe us anything.

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And, and, you know, again,

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think about this in the corporate sense, right?

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Elon Musk has invested a lot of money in his Mars city,

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and his Mars city suddenly says, we, we don't,

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we don't care for you, Elon.

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We can, we can grow our own food now and we don't need you.

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This is going to be a very problematic thing.

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This is this, this moment of a paradigm shift in the law.

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And it is a, it's a great opportunity to, to, you know, I,

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I, again, I don't think we're going

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to see this in our lifetime,

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but it's a great opportunity to reflect on

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what do we want out of the law?

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What is a legal system to us? What is just, and right?

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And, and that becomes, I think, a fundamental question

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to why we have law.

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And so I think that thinking about space settlement in this

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way gives us this sort of excellent thought experiment

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to think about, you know, well when is it proper for a, a,

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a group to break off and say we are our own thing

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and we want to do something different.

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Um, when is it right to keep them from doing that?

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How do we manage this division in legal systems?

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And, you know, we have so long thought about this in terms

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of territory, and,

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and in indeed in terms of sort of post-colonialism.

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But it's, it's interesting to think about it in terms

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of a paradigm shift.

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What do we think about it in terms of a settlement on, on,

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in, in foreign or not in foreign territory in interplanetary

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settlement that has depended on the earth for resupply for

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so long, suddenly saying, well, we're self-sufficient now

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and we don't need you anymore.

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And, and, and I just, I find that

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to be a really fascinating thing

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because it, it forces us to, to challenge the notion

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of territory territoriality, that's a big word to say.

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Suddenly it, it, it forces us to challenge that notion,

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and, and challenge the notion

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that law is explicitly linked to territoriality.

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And I, I find that fascinating.

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