INTERNATIONAL SPACE DEVELOPMENT
AUTHORITY corporation:
The Proposed Structure
By: Declan J. O’Donnell, Esq.*, Thomas L. Matula, Ph.D.**, Dr. Buzz Aldrin
Abstract: The International Space Development
Authority Corporation (ISDAC) is proposed to conduct the first phase of outer
space development (as opposed to research and exploration). It would be enabled
by UN General Assembly resolution. Part of the mission will be the creation of
a treaty on space development as called for by the Moon Treaty of 1979. The
first phase is to design, architect, engineer, specify, and demonstrate a
permanent human society in space within 100 years with a plan for growth and
maturity during the balance of the third millennium. The structure of this type
of authority is a trusteeship for the benefit of humanity, both on Earth and in
space. Its initial officers are
appointed by the secretary-general of the United Nations (UN) from nominees
endorsed by the International Astronautical Federation (IAF). The goal is to
install space advocates with space activist backgrounds in charge, as well as
those who are competent technically and respected generally. The formal
structure of a traditional governance entity is recommended: a legislative,
executive, and judicial branch of government. UN member governments will be
enabled to participate by contracts. Each would be awarded a fair share of a
master plan for its exclusive development and usage, all subject to
developmental approvals, permits, inspections, and enforcement. Also, participants
are privileged to negotiate fair loans from the ISDAC bank and cause private
and public investment in long term general obligation space revenue bonds
issued by ISDAC. See, Diagram No. 1.
introduction
United Nations General Assembly
Resolution
A resolution of
Congress of the
The 1996 UN
General Assembly resolution, a Declaration on International Co-operation in the
Exploration and Use of Outer Space, has updated and reaffirmed the world’s
dedication to peaceful uses of outer space. In 1996, the UN called for “All
States, particularly those with relevant space capabilities and with programs
for the exploration and use of outer space, should contribute to promoting and
fostering international cooperation on an equitable and mutually acceptable
basis.”[1]
The follow-on UN
resolution as proposed herein is described in a
Constituancy Focused
The United
Nations was founded in 1947 by treaty. It focuses on member nations as its
constituency. The US National Aeronautical and Space Administration was founded
in 1958 by legislation. It focused on
Future settlers
in outer space are not named as constituents, as beneficiaries, nor as part of
mankind as used in the treaties. The political and legal reality is that
nations are in charge of outer space exploration. Space is a place but it is
not a nation. It is like a territory not yet ready for the full measure of
self-governance. National jurisdiction over space activity is exclusive,
recognized, and permanent in each nation for that entire territory.
However, that
legal status can and should be shared, pooled, and delegated. This is
particularly applicable for the purpose of creating an authority to function in
space and for the purpose of preparing for colonization of space for the
benefit of both the countries, mankind, and the future settlers in space.
International cooperation could not become effective as a meaningful political
reality under this “pooling” rule of law.[3]
Because the
proposed authority will be organized as a mini-governance entity, and thereby
appear to be convenient for future evolution into an independent space
governance entity, it should identify space settlers as part of its
constituency. That additional focus would help define its purpose and educate
humanity towards the proposition that it may include not only earthkind, but,
also, spacekind in the future.
ISDAC officers
will be appointed by the secretary-general of the United Nations, but
successors will be self-perpetuated by those original appointees. There is no provision
against some of the future leaders of this authority being comprised of
astronauts, cosmonauts, and space settlers in permanent off world habitats.
Society in outer space is expected to produce political leaders who can serve
with UN original appointees during the 100-year term of ISDAC.
The issue of a
potentially unethical conflict of interest between earthkind and spacekind
could be suggested. However, that is eliminated, legally, where there is a
clear parallel of interests. The mandatory scientific assertion that we as a
society cannot survive on Earth forever requires international cooperation and
a parallel development of space as a legal venue for human colonization. In
order to avoid legal conflicts among ISDAC constituents, the principles of
legal jurisdiction, scientific standards, and government enforcement are merged
in this structure.[4]
Catalyst for Solving Problems
There are space
policy problems that have been called chronic and pandemic: these include such
topics as lack of political focus; lack of adequate financing; soft law
proliferation; ownership of space resources; and the treaty burden of benefit
sharing. Despite diligent efforts of the UN Committee on Peaceful Uses of Outer
Space (UN-COPUOS) and the International Institute of Space Lawyers (IISL),
these hard problems continue to provide a barrier to outer space colonization.
None of these are technical problems: they are all manmade and they should be
solvable by man.[5]
IDSA will bring
specialized governance focus to the forefront. It will gather private and
public monies in exchange for its revenue bonds. The ISDAC bank will sponsor a
monetary and fiscal policy in order to establish an economy in space. The
Authority legislature may speak to the many soft law problems, the issue of
ownership of space resources, and benefit sharing. To the extent that effort is
not conclusive, the supreme court of ISDAC may add clarity. If nothing else
happens but only one of these chronic space policy problems is solved, the
mission will be a success. If all are solved and the technical side continues
its giant strides forward, humanity will soon be space-faring and saved from a
sentence of death on Mother Earth.
United Societies
in Space (USIS) and its affiliates have been working on these space policy
problems for over a decade. It has launched the concept of “space governance”:
a specialized form of leadership with jurisdiction off world and throughout our
solar system. Its “Regency” group has served as a virtual prototype for ISDAC,
complete with a constitution. Experience gained from that exercise in virtual
space governance is valuable background for the proposal made here: years of
work are reflected in its documents.[6]
The New International Regime
There is a
treaty burden in the Moon Treaty of 1979 whereby nations should undertake to
establish a new international regime of space law. This is focused on mining
and the exploitation of space resources. This duty is to be accomplished “as
such exploitation is about to become feasible.”[7]
During the 25
years since the Moon Treaty was proposed by the United Nations, there has been
no legal determination that “space resource exploitation” is about to become
feasible, nor any proposal as to what a new legal regime should say, nor any
new space treaty proposals at all. The advent of ISDAC by UN General Assembly
resolution with space-faring nation support may serve as the catalyst to effect
change. The ISDAC leadership as appointed by the secretary-general of the UN
would act as protagonists, the usual suspects may serve as antagonists, and the
UNCOPUOS may serve to propose the treaty, on a new legal regime for space.
The future space
law treaty that may result from ISDAC efforts should address mining rights,
property rights, and the developing field of astro law. The traditions of
natural law and the procedures for effecting common law must not be entirely
eliminated by international treaty law. Perhaps the justices of the ISDAC’s
supreme court may offer valuable guidance in this important judicial area.
There is a void in outer space law in many areas of human activity, including
property, contracts, torts, criminal procedures, and family law. The ISDAC
court personnel and its legislators should contribute generously to developing
a proposal that fits future settlers and UN member nations equally.
The importance
of solving space policy issues cannot be stressed enough. Investors tend to
assume risks related to markets, technology, and personnel. However, investors
do not tend to assume legal risks. The current space law needs to be
supplemented as part of ISDAC. President George W. Bush’s call for space
development in January, 2004, may reflect a policy decision that the
exploitation of space resources is about to become feasible, as called for in
the Moon Treaty, 1979. See Diagram No.
2.
the legislative department
The Senate
The most
valuable group of individuals who should serve as our Authority senate is the
group of those who have been in space. These are the astronauts and cosmonauts.
Conveniently, they are all members of one organization, the Association of
Space Explorers (ASE). This is a non-profit public charity consisting of 250
astronauts from 27 countries. This group would be able to focus on future space
settlers as a real constituency while respecting the national interests of
their sponsoring countries. Furthermore, all are very well educated, trained in
space science, and respected by their peers, their governments, and by people
worldwide who admire their bravery and leadership in this activity.
The ASE is
engaged in the hard work of colonization of space. It has organized itself into
committees that resemble legislative committees:
1.
The Professional Forum concerning internal affairs and
meetings.
2.
Space Science and Exploration Committee, which promotes space exploration, advance
science and technology, and stimulates education about space.
3.
Education Committee, which conducts an awards program,
promotes the benefits of space science, and participates in educational events.
4.
Environmental Awareness Committee, which promotes understanding of the
limits of Earth’s resources and the proper uses of space resources.
5.
International Cooperation Committee, regarding human and technical exchanges
in space activities.
There are 18
Apollo astronauts out of the original 24.
The Representatives
The legislative
representatives are the delegates appointed by each participating country.
There are 180 UN member nations, 198 recognized nation flags, and 220 postal
country codes. ISDAC limits delegates from nations to a total of 250, thus
capping the total number of legislators to 500. With email and website computer
technology, such a large group is manageable. With so much at stake it is
appropriately large. The delegate is appointed pursuant to the terms of the
nation’s participation contract in the ISDAC program, unless it opts out of the
ISDAC resolution.
The
combined legislative procedures should be determined by these 500 or fewer
legislators. Its agenda is expected to focus on outer space development as
opposed to research, and exploration. That means eventual colonization. Rules
of the road and the plan of development must be worked out well in advance of
the first settlers arriving in space. Until these things are clearly defined by
the Authority, colonization cannot hope to commence. See Diagram No. 3.
The executive department
Basic Structure
The structure
recommended for the executive department of ISDAC is the classic corporate
structure of one strong president, numerous vice presidents, an executive
committee, and a strong financial department, this one to include a bank. The
initial appointments are to be made by the chief executive of the UN from
nominations made by its NGO, the IAF. This structure should lead to timely
results whereas a committee leadership may not produce the agenda expected and
desired within the 100-year target limit for the first phase of outer space
development.
Participating
nations are expected to sign a contract that contains the following concepts:
►Not
a treaty
►But
a convention agreement
►Enabled
by some act or resolution of the nation’s legislature
►That
ratifies participation as proposed rather than opt out
►Accepting
the development of space resources assigned to it by the contract
►With
in-space benefit sharing burdens
►And
international cooperation
►And free
access to space
►And free
sharing of research and exploration data
►With
exclusive usage of space money and the ISDAC bank in space
►And
consent to one overall master plan for outer space development (that may have
been proposed by the IAF or some of its affiliates), approved by the ISDAC
legislature
An advisory
committee to ISDAC would oversee these functional segments. Within that
committee should be standing committee chairs for nominees from the
International Mars Society, Inc.; the National Space Society; United Societies
in Space, Inc.; the US Space Foundation; US Space Frontier Foundation; and the
other space activist organizations, except ASE. NASA has used a citizen
advisory committee for over 30 years on a formal meeting basis and that has
worked for it. This committee need not have a vote but it may do well to
publish its opinions on ISDAC legislative matters before the senate and house
members vote upon it.
Financial Base
The essential
structure must also require each participating nation to waive objection to
space bond solicitations legally conducted in its jurisdiction. As a contract
provision short of a treaty burden, such waiver invites the domestic and
international securities regulators and technical compliance agencies to work
with the Authority in approving proper funding disclosure procedures. Each
participating nation would have the right and the duty to review bond
prospectuses and promotional literature well before any offers are extended in
its jurisdiction.
The recommended
bond amount is five thousand US dollars cost per unit; a term of 30 years with
two possible 30-year extensions; an interest rate of maximum eight percent
compounded annually; and general obligation revenue bond provisions with the
ISDAC bank guarantee and no specific assets as bond holder security. The
extended term could be 90 years but the payback could be negotiated earlier by
sophisticated lenders such as participating nations. The bank guarantee would
be paid in space dollars in the event of a shortage in originally tendered
monies. This plan should raise an amount equivalent to perhaps a small
percentage of the world’s gross national product annually, about $1 trillion
USD equivalent.
The American
experience with quasi-public authorities has been favorable. The Tennessee
Valley Authority (TVA) raised $50 million USD at three percent per annum
interest in 1947 after Congress agreed to appoint three members to its board of
directors. The imprimatur of national approval ended 17 years of futile efforts
by the promoters to raise money by other means. By the way, there were no
governmental guarantees on the bonds and, here, there is a 100 percent
guarantee by the ISDAC bank. The TVA subsequently conducted several more bond
offerings and all were repaid successfully.
The
International “Chunnel” between
Like the Chunnel
the ISDAC would charge a fee for its services, such as a surcharge on persons
going into space and on those who send things into space and to nations who
reserve rights to exclusive use of certain space objects or resources managed
by the Authority. These sources of income combined with selling memorabilia,
books, and even charging for Moon rocks and the like returned to Earth may pay
current interest on the bonds. However, there is virtually no economic scenario
relied upon whereby Earth end users pay bond principal covering the cost of the
mission of ISDAC.[9]
Instead, the
resulting settlers as united societies in space will be responsible for paying
the largest part of the cost. As space assets are eventually turned over to
settlers grouped together as corporations, associations, or governmental units,
a longer term revenue-bonded debt with specific asset security will be assumed
by the group, association, or government, perhaps on a non-recourse basis. The
real wealth in space is that of a society with a monetary and fiscal policy, a
space bank, and a developed space resource rental program, (in lieu of
ownership and taxation as on Earth). The larger the space society the more money
transactions and, therefore, the greater its annual gross national product.
More importantly
than the money transaction theory, there are rich resources in space to be
captured by settlers. The Earth value of one large, (200 kilometer diameter),
metallic asteroid is believed to represent in space about a thousand times the
gross national product of all Earth nations, and there are well over a thousand
of these available.[10]
Compared to all
other forms and schemes and predictions, the best bet for financial victory in
space is the creation of a viable society off world. It will have cheap energy,
almost unlimited resources, 6000 years of Earth traditions, and more money than
Earth could produce in a million years. The reason for this prediction is that
money becomes counted as national product when it is transacted. Spacekind will
be free to spend more, make more, and have more because there are no barriers.
It simply
resolves down to this: we spend whatever it takes to establish a society in
space and it, in turn, will repay us as agreed and as secured by its off world
estate, (that ISDAC money provided to it).
It may be
predicted that the true budget for establishing one hundred thousand people in
permanent habitats in space within a thousand years is $1 quadrillion USD. That
is $1 trillion USD per year for a thousand years. The first phase may approach
$100 trillion USD during the 100-year target date. On a whole world basis with
contributions coming from a pool of six billion people and all 220 governments
invited to invest, the International Space Development Authority Corporation
has a good chance of success.
The Panama Canal
Authority successfully changed the geology of
The Space Bank
The executive
branch is in charge of budget procedures and it would be the logical starting
place for the space bank. The ISDAC charter would provide for this important
agency. The need for a bank during the development stage is based on the first
financial principle that Earth’s national monetary systems should not be used
in space society. If there is a disaster in space, then that money may suffer a
devaluation on Earth, and vice versa.
The preferred method is to fix the ratio of space dollars to a market basket of
major international currency like U.S. dollars, Euros and Yen. This would
compensate for the variation of individual currencies and avoid the problems
that occurs when a new currency is fixed to a single currency. This ratio would
remain fixed during the first 100 years of development for the limited purpose
of conducting ISDAC business. For example, U.S. dollars may trade at par with space
dollars and Canadian dollars at 85% now. The bank would freeze that ratio for
100 years lest periodic setbacks to one or the other would disrupt long term
contracts in respect to space development. The pegging of ratios would apply
only to ISDAC contracts.
The ISDAC bank
would take deposits of any denomination and issue space money in return. Only
space money would be recognized in space and in all transactions relating to
space development. A fiscal policy follows this monetary policy. This would be
reflected in interest rates on ISDAC bank loans and bonds to participating
nations.
Benefit Sharing in Space
The treaty
burden of benefit sharing has a tortured history and, unless modified
substantially, it has no future whatsoever. The concept originally appeared in
three UN General Assembly resolutions in 1963 and became a treaty provision in
1967. The idea was to take money made in space and send it back pro rata to all
nations. When Moon rocks were brought back to Earth, however, they were not
sold or otherwise divided and shared with all
nations. It became even more obvious that benefit sharing was in trouble when
In 1996, UN
General Assembly resolution 51/122 redefined benefit sharing as just another
aspect of international cooperation on an “equitable basis”. It left that
overriding treaty directive to the discretion of each space-faring nation as to
how it should be implemented. The legal community has not yet classified the
1996 UN retreat as “soft law,” but it certainly is a downward departure from
the 1963 and 1967 concept that may have been codified in the Outer Space
Treaty.
The recommended
modification is to create a royalty-style pool of rental income on space
resources administered by ISDAC. This pool of money can be borrowed by
developing nations to establish their space agencies and space industrial
infrastructure, space education, and launch facilities. When they appear in
space to develop space resources reserved for them the loans are converted to
grants and all prior loans would be forgiven on a formula basis, (the exact
terms to be agreed upon when the first loans are made). This scheme broadens
the base of national participation in the ISDAC program, avoids a taxation
regime, and encouragesdeveloping nations to develop space economically,to
utilize space science and technologyand to find a way to enter space during the
first 100 years of this mission, (in order to receive the benefit).[12]
Benefit sharing
may have been a good idea in 1963 for most of the world. Now the focus needs to
change so space development as a mission becomes a condition precedent. Any
other way of dealing with this treaty burden could lead to judicial hard law
that breaks the bank, so to speak. The sharing of space money in space by
developing nations appears to represent a fair solution to this perceived
problem.
The ISDAC bank
could administer this kind of program as part of its charter duties. It
involves keeping a ledger of accounts for intended beneficiaries of a trust
fund. The work of ISDAC again harkens back to that of the fiduciary, this time
for the truly needing and deserving portion of our world society and the
developing countries.
Space Resources Management
Participating
nations will agree that space resources should be managed by ISDAC for the
common good. The legal basis for this sort of pooling of rights by nations has
precedent and tends to work.[13]
International
Space Development Authority Corporation resource management may include a
master plan in the most general and conceptual terms at the outset. Each nation
would be able to accept the mission of developing a selected part of the whole.
The International Space Station was created and is operated under this kind of
plan with 17 nations. This plan would then be detailed and contracted. The
space bank would lend money for that development purpose to that nation. A
coordinated construction program would result among all such participants. For
example, the Moon may sustain many mining projects, adequate residential
habitats for workers, a few greenhouses, and a public transportation system.
Perhaps all of this will be clustered on or near
Space scientists
have presumed that utilization of space resources will be allowed, if not
praised. There has been a 20-year trend to publish bigger and better ways to
utilize space resources for human habitation and commercialization of space.
None of these technical works of great importance have considered the
possibility that space resources could be off limits legally.[15]
The problem is
that most legal commentators recognize that space resources are public
property. As public property they have classified usage as a form of
“appropriation” contrary to the OST. The weight of authority is that space
resources are public property or the legal equivalent thereto, not subject to
any free usage.[16]
ISDAC may
legislate, mandate, or adjudicate a middle legal theory known as astro law and
create “common law estate titles” in space resources. These titles are infirm,
limited, possessory, and defeasible. Nevertheless, they can work for space
development purposes because they can all be created in advance of occupancy
and be pledged to secure loans. The four common law estates in real property
that may work out for at least 99 years in space would be the lease, the
easement, the trust, and the mortgage.[17]
These common law
estates would merge into astro law
with ISDAC granting them to nations, corporations, and associations for
settlement purposes. They would work well on the Moon and on Mars. At the end
of a long term lease, the holder may apply for another term so long as it has
not defaulted on the primary term. The underlying status of title would remain
as vested in humanity as public lands. The management of public property is
important to the common good. It is well known that the common goat tied to a
common tree is the first to die, (without governance management).
Science and Technology Applied
Science has had
a high place in American society. At ISDAC it may take precedence over
everything. The vice president and a department of space technology must be
qualified and capable: the whole world is relying on the substance that flows
from this quarter.
Earth has had
humans in space most of the time since Apollo 11 landed on the Moon in 1969 for
the first time. However, no permanent habitat has evolved, one that replenishes
food and sustains life in space indefinitely. There is no in-space manufacturer
of necessary goods. We have much to do during the phase one, the first 100
years, to embed humans permanently in space.
However, the
human industry and leadership exhibited during annual IAF Congresses reflects
the education and imagination that is up to the challenge. On a worldwide basis
we are better prepared now than ever to make this mission possible. The window
is wide open. God forbid that we refuse to move ahead or that terrorists,
warfare, or natural calamities close the window, perhaps forever.
Rather than
compete with any other governmental agency or corporate enterprise, ISDAC will
utilize the three human-rated launch facilities and pay them for services
rendered: NASA, the Russian Space Agency, and the Chinese Space Agency should
provide the basic launch services and most of the high science and technology.
ISDAC would thereby return monies raised in those regions to those regions.
Contracts for additional research would be subcontracted out of these three
agencies and others where relevant work is required: ESA,
Education
Settlers in
space should be required to attend ongoing continuing education with annual
certification. There is no good reason to stop formal learning requirements at
age 18, as in most states. The human body and spirit and attitude are better
suited to formal education later in life rather than at teenage years.
Furthermore, living and working in outer space has new perils and more unknown.
Every settler, worker, guest, and explorer in space should be required by ISDAC
law to attend ongoing educational programs with degrees awarded.[18]
The curriculum
may be set by ISDAC from courses offered by the AIAA and other affiliate
members of the IAF. The instructors should be certified as qualified and
licensed by the same authority. The tradition against state domination of the
education agenda is not applicable here because we are dealing with adults and
most of the curriculum is technical rather than editorial.
Hopefully, ISDAC
can get this part of its program on line well in advance of placing people in
space. All of the course content to start up such a series is already
available. Much of the reading material has been gathered in one or more
special collections, such as the AAS library, the IISL proceedings, the IAF and
AIAA publications, and the Buzz Aldrin Space Library Collection.[19]
Immunity Administered
The legal
defense of immunity of a governmental entity must be available to the
Authority. This is important because the development phase of outer space
resources and the building of space objects, habitats, mines, and asteroid
interference will more likely than not lead to claims of liability. The Outer
Space Treaty of 1967 and the Liability Treaty of 1972 requires nations to be
responsible for damages caused by their space objects and (licensed) citizens.
The Liability Treaty of 1972 requires the launching State to be liable for all
resulting damages attributable to its space objects with no statute of
limitations to cut off that exposure.
The
International Space Development Authority Corporation is viewed as a
quasi-governmental entity, one that has a dominant governance function.
Governmental immunity is likely as to its governance functions and liability
caused thereby.
The structured
functions that warrant immunity for a governmental authority include the
maintenance of a legislative branch, a judicial branch, and an executive
branch. These should be enabled by UN resolution and nation/state legislation.
The programming functions of a traditional governance character would include
municipal planning, standard setting, licensing, inspection, and enforcement of
building code regulations for space habitats, mines, and all related
development in space. The concept of a governance structure for the broader
purpose of effecting an internationally acceptable development plan is
necessary.
By structuring
the affirmative defense of immunity into ISDAC there is a skewing of liability
allocation back to nation states. In other words, the unfortunate result is
that participating nation states could incur unwanted and undeserved liability
exposure while the management authority would avoid liability. This could
present a negative feature that should be eliminated.[20]
To that end the
governmental immunity feature should be offset by an authority sponsored
workers compensation, social security, and workers disability and life
insurance program. This traditional kind of liability assumption program could
be administered conveniently by ISDAC for the benefit of all who participate in
outer space development, including workers from all nations and settlers in
space. See, Diagram No. 4.
|
INSPECTIONS & ENFORCEMENT CONSTRUCTION PERMITTING SCIENCE & TECHNOLOGY V.P. V.P. V.P. V.P. V.P. V.P. PERMANENT OFF-WORLD SETTLERS IN THE ESTATES Diagram No. 4:
THE EXECUTIVE DEPARTMENT SPACE BANK: Deposits, Loans, Bonds C.E.O. |
THE JUDICIAL DEPARTMENT
A Court of Record
The structure of
the International Space Development Authority Corporation must include a
traditional court of record. In the trinity of governance powers to be
developed for future space inhabitants--the executive, legislative, and
judicial functions—the judicial power is the least understood and the most
utilized by the citizens of Earth and will be for space inhabitants of the
future. It also provides the only way for citizens of Earth and of space to
obtain justice, fairness, and legal certainty about property, contracts, torts,
criminal procedures, and family matters.
The model court
should have a last resort court to which appeals may be addressed. This group
of qualified jurists would be appointed initially by the secretary-general of
the UN and subsequently to vacancies by the chief executive and confirmed by
the Authority’s legislature. The ISDAC Court of Last Resort must keep a record
of its cases, proceedings, rules, and practices. Cases would be reported with
appropriate case citations in order to create a data base of precedent.
Predictability of outcome is what limits controversy. Also, a rule of law,
rather than a rule of people, requires precedent.
For reasons to
be discussed later, the Authority jurists should have a solid legal career, a
familiarity with common law, and a background in the new field of space law. A
law degree and admission to a recognized bar association would be expected as
well as a good reputation in their community. Their job is not only to resolve
traditional disputes in the commercial world surrounding outer space
development, but, also, to develop a body of astro law regarding societies in space.
Astro Law Development
The principal
reason for the Authority court jurists to have a solid legal career with
familiarity in common law principles is because that appears to be the likely
way astro law can develop. It proceeds in equity and on principles of
traditional judicial fairness. It extends common rules to new circumstances. It
bends to concepts like necessity, equity, and traditional fairness.
Common law is
known, understood and appreciated in a judicial sense worldwide. It is
incorporated into maritime law in many ways. It is used by all nations when
comity requires it. It is the world’s only legal model that resembles a natural
law code to which we should aspire as a society.[21]
However, the
most attractive feature of common law is that any judge in the world could be
competent to apply it in almost any circumstance: it is simply common to every
society. It is based on time tested principles.
Shelly’s Case was decided by the Court of the Queen’s
Bench in London, England in 1581. For the past four hundred years and more and,
it is asserted, for the future of astro law in outer space, this case controls.
It demonstrated the role of the courts, the limits of sovereignty, the concept
of precedent, and, all at the same time, how rules of equity can correct or
cushion the unfair law of the king when necessary.[22]
Inferior Courts
Eventually the
venue of outer space may feature municipal courts, county courts, state courts,
and appeals courts under a last resort supreme court. That is far off and
beyond the scope of ISDAC, a transition space authority created to organize
space development as a world project and overcome space policy problems. The
idea of inferior courts here may be limited to arbitration by agreement,
recommending traditional courts by pre-agreed standards, and monitoring all
judicial functions as a reviewing Court of Last Resort. In other words, ISDAC’s
supreme court would borrow any willing and able other court to hear cases by
agreement, then report results to it.
There is legal
tradition for this sort of borrowing courts. The 1934 U.S. Securities Act
contains an exemption from securities registration with the U.S. Securities and
Exchange Commission for reorganization offerings to existing shareholders in an
offering already completed. One of the requirements is that a court of
competent jurisdiction decree that “the new offering is fair, just, and
equitable to all concerned.” Typically a U.S. bankruptcy judge would be
available to conduct such a hearing. However, this author has used state court
judges who have general jurisdiction where the people reside and who agree to
read the federal rule and abide by it. The state court judges do very well at
this because the Securities Act language merely codifies a common law standard.
Furthermore, for
forty years there has evolved a tradition of agreed arbitration of space law disputes. With important exception, almost no courts
have had an opportunity to review space law cases because arbitration
agreements always require the parties to waive appeal. Arbitration awards are
never published and they are not precedent. Not only has this dominant legal
procedure prejudiced the development of any astro
law, it has nurtured a growing evil called soft law. (See below for a short explanation of this unfortunate
legal problem.)
Soft Law Hardened
The judicial
function of the ISDAC should eliminate soft
law problems by giving the world hardened law that may be relied upon by
all who participate in its activity. Soft law has proliferated in this climate
of arbitration rather than judicial decision. In the event hard law develops
contrary to soft law, the money damages could be so large that development
activity in space will have to stop.
A relevant
example of this problem is as follows: The OST of 1967 provides that nations
are responsible for damages caused by their citizens in space, (and while
trying to launch into space). This is a treaty burden signed and ratified by
101 nation members of the UN. Under all civil domestic law, such burdens take
precedence over all other laws.
In the United
States this rule of treaty law has been limited by statute to $500 million;
restricted so non-civilians only are permitted to go into space by executive
order; and totally negated by the practice of requiring liability waivers from
any and all persons involved in a launch, including the astronauts. If these
are eventually ruled illegal and a hard law that “the treaty says what it means
and means what it says,” 35 years of soft law error could lead to corrective
class actions in court. The damages plus interest plus attorney’s fees could be
large enough to stop any further space development activity. The space
insurance fund would not cover this because those policies do not cover errors
of law.
In net effect,
only such a catalyst as ISDAC with a space court, space legislature, and a space bank could deal with soft law. It
would be foolish to embark on any space development program without also
solving these and other soft law problems.
Resolving Disputes
The ISDAC
supreme court has the primary function of resolving disputes among
participants. This is the core function of a court system. In the venue of
outer space and during the heightened activity level occasioned by space
development, special provisions for judicial procedure may be indicated.
The space
treaties make no reference to any such judicial procedure, nor do they call for
any judicial mechanism. During the early exploration and research phases of
space activity, only nations held the tools and equipment of space launches.
Now there are alternatives. When nations had an exclusive lock on space
activity they could use the world court in the Hague to resolve disputes among
nations. That court is reserved exclusively for nations so another court system
is needed in the future, one for all participants in space development.
Mr. Stephan E.
Doyle ends his recent book on space law with the call for more attention to
dispute resolution among activists in outer space activity, as follows:
“Further, there has to be more attention
paid to the issue of settlement of disputes. …UNISPACE III has shown that
settlement of disputes is a topic requiring attention to formulate a sufficient
legal framework for settling disputes arising in the expanding future uses of
outer space…”[23]
The ISDAC
judicial department represents an answer to fill up that void in the fabric of
space law. Unless a reasonable court system such as that proposed herein is
adopted legally and effected practically, chaos will result. International
cooperation is a value to be protected and the creation of chaos about disputes
would lead to conflict, not any higher degree of cooperation. See, Diagram No.
5.
conclusion
The
International Space Development Authority Corporation is proposed pursuant to
United Nations General Assembly enabling resolution. All nations should be
participants, subject to an opt-out procedure. The structure should be like a
private corporation with a strong president, many vice presidents, and a
professional financial group, (this one to include the space bank). A public
model of charter tracking the U.S. Constitution should be added so there is a
legislature and a court system, also. The legislature should have a Senate
composed of the 250 living astronaut members of Association of Space Explorers.
The House of Representatives would consist of UN member nations who are
participants unless they opt out. There are 198 nation’s flags to fly in ISDAC
headquarters.
The program is
to create a world plan for space development and allocate parts of that to each
participating nation to perform. Funds would be provided by the space bank as
managed by ISDAC. Space colonization of
ten thousand people within 100 years is the target of colonization phase one,
as a demonstration.
A court system
is provided for easy access by participants to resolve disputes involving space
development issues. It would seek to eliminate soft law and add certainty to
space law. It would also consult on a future legal treaty regime as called for
by the United Nations in 1979, at par. 11-5 of the Moon Treaty.