Social Welfare

In Space We Trust: Regulate the Race

By: Hannah Payne, MJLST Staffer

In 1999, the UN General Assembly launched “World Space Week,” an annual celebration observed from October 4th (the date of Sputnik’s launch in 1957) to October 10th (the day The Outer Space Treaty entered into force in 1967). This year’s theme was “Space Unites the World.” The UN said the theme “celebrates the role of space in bringing the world closer together.” Unfortunately, the words ring hollow in light of the U.S.’s Space Force plans, as well as the recent escalation of inter-planetary militarization by China, Russia and the EU. Additionally, activities of SpaceX and others raise concerns about privatization, space pollution and the plans of the uber-wealthy to leave the world behind. These forces threaten to marginalize the awe-inspiring exploration of space into a scheme concerned only with war, profit, and advancing inequality. The dominance of such interests calls for a coherent system of global space regulation.

Some have observed that many recent activities violate the 1967 Outer Space Treaty, which declared: “The exploration and use of outer space . . . shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” The treaty also states that space and all celestial bodies are unowned and open to exploration by all. The U.S. and over 100 countries signed and ratified it, and America did not reserve the right to alter its obligations, as it often does in agreements. However, with no real international enforcement mechanism and our ceaseless profit-seeking, countries have—and will continue to—disregard the goals of the 1967 agreement. Last year, Ted Cruz expressed excitement that “the first trillionaire will be made in space.” He proposed amending the treaty to foster commercialization – and correct its erroneous assumption that worthy goals exist besides wealth and power. His motive seems to be formalistic, as was Congress’ in 2015 when it declared in the Commercial Space Launch Competitiveness Act that “the United States does not, by enactment of this Act, assert sovereignty . . . exclusive rights . . . or ownership of, any celestial body[,]” but in the same act granted U.S. citizens the right to own and sell any “space resource.” Though the U.S. track record of treaty violations makes their disregard of the agreement perhaps unsurprising, the serious consequences of space militarization and privatization call for critical advancement in space regulation.

From an environmental law perspective, the language of the 1967 treaty evokes the seldom-used Public Trust Doctrine (PTD). Traced back to the Roman era, the Public Trust Doctrine is described as “requir[ing] government stewardship of the natural resources upon which society . . . depends for continued existence.” The PTD places the government/sovereign as the trustee, obligated to protect the rights of the public/beneficiary in the trust, which is comprised of things like navigable waterways. It has mostly been applied to water rights, and successfully reclaimed property for the “public good” in Illinois and California. However, in 2012 the Supreme Court suggested that the PTD is no stronger than state common law. Even so, the doctrine should be remembered by those who think the privileged cannot, by right, hoard or destroy resources – including those in space. In the 1970s, Joseph Sax argued for the PTD’s use as sweeping environmental common law. Some have since theorized about the extension of the PTD to space. These scholars identify issues such as the lack of a sovereign to act as trustee. That problem would not likely be solved by allowing every country to exert self-interested sovereignty in space. At least no one has been so bold as to outright claim the moon – yet.

The PTD is just one tool that may be useful in designing a peaceful move forward. The Expanse, a near-future science fiction series in which humanity has colonized the solar system, offers a thought-provoking look ahead. Earth and the moon are governed by the UN. Mars is a sovereign as well, and the asteroid belt a colonial structure with fractured governance. Space is highly commercialized and militarized, and personal opportunity is hard to come by – but humanity has avoided self-destruction. Their global governance allows for some cooperation between Earth and Mars in space. Depending on one’s dreams of the future, the situation represents an overpopulated, inefficiently run hellscape – or a less-bad option out of the possibilities that now seem likely. It begs the question – how do we expand while avoiding astronomical inequality and self-destruction?

Perhaps it is nearly impossible, but Earth needs real, global regulation of outer space. A weak U.N. cannot do it; private companies and wealthy countries should not be given free reign to try. Last month, the U.N. held the First United Nations Conference on Space Law and Policy.  It’s good to see the international community ramping up these discussions. Hopefully, the PTD’s underlying philosophy of equitable preservation will be central to the conversation. Done right, the exploration of space could be the most inspiring, community-building, and even profitable experience for humanity. If approached thoughtfully, inclusively, carefully –  we could have much more than just a Space Force.


Haiti, Hurricanes and Holes in Disaster Law

Amy Johns, MJLST Staffer

The state of national disaster relief is one that depends greatly on the country and that country’s funds. Ryan S. Keller’s article, “Keeping Disaster Human: Empathy, Systematization, and the Law,” argues that proposed legal changes to the natural disaster laws (both national and international) could have negative consequences for the donative funding of disaster relief. In essence, he describes a potential trade–off: do we want to risk losing the money that makes disaster relief possible, for the sake of more effectively designating and defining disasters? These calculations are particularly critical for countries that rely heavily on foreign aid to recover after national disasters.

In light of recent tragedies, I would point to a related difficulty: what happens when the money is provided, but because of a lack of accountability or governing laws, the funds never actually make it to their intended purposes? Drumming up financial support is all well and good, but what if the impact is never made because there are no legal and institutional supports in place?

Keller brings up a common reason to improve disaster relief law: “efforts to better systematize disaster may also better coordinate communication procedures and guidelines.” There is a fundamental difficulty in disaster work when organizations don’t know exactly what they are supposed to be doing. A prime example of the lack of communication and guidelines has been seen in Haiti, in which disaster relief efforts are largely dependent on foreign aid. The fallout from Hurricane Matthew has resurrected critiques of the 2010 earthquake response—most prominent was the claim of the Red Cross to build 130,000 homes, when in fact it only built six. Though the Red Cross has since disputed these claims, this fiasco pointed to an extreme example of NGOs’ lack of accountability to donors. Even when such efforts go as planned and are successful, the concern among many is that such efforts build short—term solutions without helping to restructure institutions that will last beyond the presence of these organizations.

Could legal regulations fix problems of accountability in disaster relief? If so, the need for those considerations is imminent: climate change means that similar disasters are likely to occur with greater frequency, so the need for effective long-term solutions will only become more pressing.