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Space… the final frontier

With the recent discovery of a new earth-like planet, many countries are beginning serious talks about inhabiting and colonizing a planet in outer space.

We very soon might turn on the news and hear stories of interstellar exploration and colonization.  We might even hear about voyages of a starship named Enterprise.  This probably sounds like wild speculation, or the contents of a cheesy science fiction novel.  However, after a European research team announced the discovery of an earth-like planet circling the inhabitable zone of Proxima Centauri in August, 2016, we may soon see more discussions of the logistics and technology required to reach out into the stars.  The part of that discussion we ultimately must address is the legal ramifications of colonization, essentially what are the laws to which nations and private individuals must adhere, when claiming portions of a new planet, moon, or asteroid.

Proxima Centauri is the closest star to our own, lying a mere 4.54 light years from the Sun.  In interstellar terms, that is a stone’s throw away, though clearly still an impossible journey for a civilization who has yet to visit another planet in our own Solar System.  Still, Proxima Centauri’s vicinity to Earth has garnered a fair amount of interest from parties who hope to discover an inhabitable, one day reachable, planet.  Guillem Anglada-Escudé led a research team of 31 scientists from eight different countries for months studying Proxima Centauri through the European Southern Observatory’s HARPS spectrograph and 3.6 meter telescope in La Silla, Chile.  While investigating a tiny wobble Proxima Centauri experiences, the team discovered that the cause of the wobble is an Earthlike planet, promptly named “Proxima b.”

“…overall, Proxima b is the best opportunity we have ever had for an inhabitable planet that may be reachable in the foreseeable future.”

To be classified as “Earthlike,” Proxima b was studied based on likely mass, position, and orbit around Proxima Centauri, and the effects of Proxima Centauri on Proxima b.  The researchers believe Proxima b has a similar mass to Earth, possibly indicating a similar, rocky makeup.  Though Proxima Centauri, as a red dwarf star, releases less energy than our Sun, Proxima b is located in the so-called “goldilocks zone” of Proxima Centauri; in other words, not too hot, not too cold.  Therefore, the researchers believe the basic elements for human life, heat, oxygen, and water could exist on Proxima b.  There is some concern that the amount of solar radiation expelled by Proxima Centauri could make Proxima b uninhabitable, but overall, Proxima b is the best opportunity we have ever had for an inhabitable planet that may be reachable in the foreseeable future.

“A ratified treaty is then given the full force of domestic law in the U.S., and the U.S. government would generally be bound to uphold the tenets of that treaty.  Being bound to a treaty in this case means the U.S. could not claim any portion of Proxima b as U.S. property.”

Obviously we have to get there first, and at this very moment, some of the most brilliant minds on Earth are attempting to develop interstellar travel.  Ideas such as asteroid mining and economic incentives of resources available in space are already pushing us toward the day when we might visit another planet.  Once we do, our current legal framework may make colonization difficult, at least on a national level.  The best starting place for understanding space law is the “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,” better known as the “Outer Space Treaty.”  Signed in 1967 by the member nations of the UN, including space race powerhouses the U.S. and U.S.S.R., the Outer Space Treaty created a series of broad principles controlling the manner in which nations would explore space.  These principles include provisions that exploration is permitted in all states, that no celestial bodies may be appropriated by individual states, that nations take responsibility for the environments of space and celestial bodies, and that non-governmental space activities must be authorized and continually supervised by the states which have jurisdiction over such activities.

In order to have ratified such a treaty in the U.S., the President would have sent the treaty to Congress for their “advice and consent,” and the treaty would have to be approved by a two-thirds majority.  The treaty would then be sent back to the President to be ratified, as described in Article II, Section 2 of the U.S. Constitution.  A ratified treaty is then given the full force of domestic law in the U.S., and the U.S. government would generally be bound to uphold the tenets of that treaty.  Being bound to a treaty in this case means the U.S. could not claim any portion of Proxima b as U.S. property.  Fortunately, this is also true for Russia and China, the U.S.’s primary competitors in space, and none of these nations can violate the treaty without risking adverse reactions from the others.  The Outer Space Treaty is the only one of the U.N.’s treaties on outer space to which the U.S. or any other major space-faring nation belongs, and is therefore the only treaty that really matters, though the U.N. has passed other resolutions on the issue.

“Private exploration of space becomes more of a reality each day, with private corporations such as SpaceX, Blue Origin, and Virgin Galactic testing new platforms for space travel.” 

As a policy matter, though the Outer Space Treaty uses lofty ideals to bind nations into mutual respect and perhaps even unity of purpose, focusing solely on those ideals discounts a key ingredient of the original space race.  Promulgation of national ideology was the original motivator of the space race between the U.S. and the U.S.S.R.  Without national ideology, prestige, or power as a motivating factor, there is really no incentive for the governments of major spacefaring nations to spend massive amounts of money over long periods of time on such risky endeavors as space colonization.  For this reason, the colonization of Proxima b would more likely fall to private corporations with much to gain from the resources other worlds might offer.

Private exploration of space becomes more of a reality each day, with private corporations such as SpaceX, Blue Origin, and Virgin Galactic testing new platforms for space travel.  A movement has grown up alongside these private spacefaring companies claiming planets such as Proxima b might become a new frontier, where private citizens can stake their own personal claims.  This movement has even proposed legislation in Congress.  The “Space Settlement Prize Act,” which would ultimately guarantee that any settlement built privately on other planets, moons, asteroids, etc., would be owned by the private citizens or corporations who claim them.  This act would likely function similarly to the Homestead Acts, which allowed settlers who worked unclaimed land, to buy that land at very little cost.  Furthermore, these groups claim that they are not subject to the Outer Space Treaty, as the treaty’s provisions only govern nations.

“The language of the Outer Space Treaty does not forbid private claims on and settlement of celestial bodies, only national appropriations.  Furthermore, nations themselves are answerable in case of any environmental damages.” 

It is an interesting theory, and these 21st century frontiersmen and women might be correct.  The Outer Space Treaty does not only govern nations themselves, but national oversight of non-governmental organizations as well.  As all private attempts at space colonization on Proxima b and any other celestial body would be through corporate entities.  These corporate entities would certainly fall under the national mandate to authorize and continually supervise the operation of such groups.  But just because governments must have some form of oversight in place to manage private space exploration corporations, does not mean there is a mandate to control the legal operation of such corporations.  The language of the Outer Space Treaty does not forbid private claims on and settlement of celestial bodies, only national appropriations.  Furthermore, nations themselves are answerable in case of any environmental damages.  Nations can certainly pass laws regulating the actions of private corporations consistent with the Outer Space Treaty’s mandate, and in fact the U.S. is already considering and attempting to create policies governing private space craft and travel.  The problem is that none of this law has become official yet.

The reality behind this entire discussion is that it will not become truly important until either nations or private corporations prove they can travel to another planet.  Until then, the laws of space colonization are nothing more than an academic exercise.  However, they have been proven important in one sense: protection of our moon.  Prohibitions on national appropriation, military use, or exploitation have certainly been effective in keeping the moon unmolested (though technological and financial constraints also played a major role).  So perhaps there is a reasonable groundwork for the future laws of space colonization.  Proxima b may not be the first place they are exercised, but the discovery of a relatively nearby Earthlike planet is sure to hasten the need for such laws to be in place before we land.  The law now needs to boldly go where no law has gone before.

Jonathan Eure, Senior Staff Writer Emeritus
About Jonathan Eure, Senior Staff Writer Emeritus (12 Articles)
Jonathan Eure is a 2017 graduate of Campbell Law School, winner of the 2017 J. Bryan Boyd Award for Excellence in Legal Journalism, and served as a senior staff writer for the Campbell Law Observer. He lived in Morganton, in the foothills of North Carolina, before moving to Raleigh for law school. He earned BA’s in Political Science and History from the University of North Carolina at Chapel Hill, graduating in 2014. The summer after his first year of law school, Jonathan worked as a legislative research intern with Representative Rob Bryan in the North Carolina General Assembly. Jonathan now interns with the Honorable Paul Newby at the North Carolina Supreme Court. Jonathan is the Secretary for the Campbell Public Interest Law Student Association (CPILSA).