Extra-Terrestrial Application of Human Rights

On the 14th of November 2008 the Universal Declaration on Human Rights (UDHR) burst through the clouds. It was aboard the space shuttle ‘Endeavour’ which docked on the International Space Station (ISS) the next day in a belated act of symbolism. An explosive celebration of parallel projects which to some degree were successful in uniting the international community: human rights and space exploration. Both provided a crucial impetus for cooperation during the Cold War. This year, more than two decades later, the New Horizons probe passed by Pluto revealing stunning photographs of the most distant resident of our galactic suburb. While back on Earth there are slow-but-sure developments in the field of human rights. My contribution will consist of a look at one of my childhood fantasies - the idea of space travel - through the lens of my other preoccupation: international human rights law.

What if …

In 1989 Michael Potter stated in a paper titled ‘Human Rights in the Space Age’ that “[l]iving in space is unquestionably part of human destiny, not science fiction.” The unhappy corollary is that where we live, so must we die. As living on other celestial bodies moves closer to becoming a reality, we will be looking at what happens back on Earth when in space somebody does hear you scream. In other words, who is responsible for providing a remedy for your relatives if you perish at the hands of an individual in charge of law and order on the new colony? Or what if that individual, placed in charge by an Earthly-State, fails, negligently, to look after you resulting in your death?

Space Law

Earthly-international law is made up largely of treaties. Treaties are legal agreements – like contracts – between States. ‘Space law’ is just one fragment of international law which found its way into existence through the United Nations Office for Outer Space Affairs (UNOOSA). The most important treaty established by UNOOSA is the Outer Space Treaty 1967 (OST). Article I informs us that exploration of celestial bodies is to be conducted “in accordance with international law.” Elaborating on this, Article III explains that international law “include[es] the Charter of the United Nations.” The word ‘includes’ suggests a non-exhaustive list. As a part of international law which shares many of the space missions core values – such as human development, understanding, equality and the rule of law (words found throughout the provisions of the OST) – international human rights law could arguably be applicable in outer space.

But what about jurisdiction of Earthly-States over people and objects in space? Article VIII of the OST has us covered:

"A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body."

Human Rights Law

States who sign up to human rights treaties must protect the rights of the people within their territory or jurisdiction. Whenever a state has effective control over territory and someone dies as a result of the action of their officials they must properly investigate those deaths and provide a remedy. The same applies where they invade another country and one of their soldiers dies because his superiors didn’t pack the right equipment (e.g., Smith v MOD). So what if, on our new Martian colony, Commander A – who is in charge of keeping order – unlawfully kills civilian B, or is grossly negligent resulting in B’s death?

We will limit ourselves to the European Convention on Human Rights (ECHR) for the moment. Our hypothetical agent (commander or astronaut) is from the Netherlands – where the Mars One mission was born – and the victim is an ordinary citizen of the United Kingdom, selected to be a part of Mars One. Both countries are bound by the Convention and the European Court of Human Rights (ECtHR) have told us that the Netherlands will have jurisdiction outside of her own borders when (1) she has effective control over an area (2) within which one of her agents commits an illegal act (Al-Skeini v. United Kingdom). ‘Effective’ is the key word and responsibility cannot be shirked just because another State is ‘in charge’ on paper (Jaloud v. Netherlands). However, can the Netherlands be said to have effective control over a base 225 million kilometers away on Mars? Perhaps not.

Yet, Article 1 of the ECHR simply says that a State must have jurisdiction over the individual. We know already, from Article VIII of the OST (above), that States retain jurisdiction over their objects and personnel in space and the European Court can and has taken international law into account where appropriate (e.g., Saadi v. United Kingdom).

Turning away from the ECtHR, other human rights bodies have developed a broad (‘personal’) approach which says that the Netherlands would be liable simply because its ‘agent’ was the one committing the act. While the European Court have rejected this approach, the relatives of our space victim could potentially take their case to the United Nations Human Rights Committee (HRC) who have, in the past, applied the ‘personal’ method to find ‘State A’ liable where her soldiers kidnapped their victim and and tortured him within ‘State B’ (Lopez Burgos v. Uruguay). Unfortunately, neither the UK, nor the Netherlands have yet given the HRC the power to consider human rights applications from individual citizens.

Is Human Rights Law Really the Answer?

Without any fresh space-law telling us what happens to the victims’ family where an agent of the state violates their rights in space, human rights law could arguably plug the gap. However, there are many problems: NASA and Mars One are both non-State associations, which opens a whole new can of worms; how would a State on Earth carry out an effective investigation on Mars? Furthermore, there is a lot of opposition to applying human rights treaties across borders, let alone across the vacuum of space. Amplifying this issue, the OSTs use of terms such as ‘envoys of mankind’ appears to suggest that in space statehood becomes redundant. As one writer put it: “national flags decorating the lunar surface are about swagger, not sovereignty.” Sovereignty is the foundation of the treaty. But if, as Earth pales into insignificance against the backdrop of the cosmos, man-made fictions of sovereignty are doomed to crumble, is it better to leave our colonies to furnish themselves with rules and regulations? Or, as one writer tells us, do our “natural law rights” apply wherever we are in the universe?

Despite the questions raised above, one thing is certain: as we are confronted with the possibility of how best to cope with hostile, alien environments, we will, in time, be forced to re-consider the very foundation of our laws and institutions and their applicability in the beyond.