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5 Master and Commander? Administration of Justice in Space

5 Master and Commander? Administration of Justice in Space

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The defining feature of a criminal law is that it is a prohibition accompanied by a

sanction. The effective punishment of interplanetary travelers is an issue that is

distinctly problematic. The uniquely remote nature of interplanetary space travel,

coupled with the rigorous selection of the astronaut grouping, means that none of

the usual models of criminological theory are effective at fully exploring or predicting the commission of crimes in space:

…until criminology comes up with a thorough understanding of the causes of crime in outer

space, the criminal justice system will lack the necessary theoretical tools to design a criminal

justice approach to effectively deal with these conflicts. (Hermida 2006, before n. 135)



Particularly problematic is the mechanics of investigation and punishment and

how they will be administered on an interplanetary space mission. It is the “prospect

of punishment which differentiates criminal proceedings from other state-sponsored

proceedings.” (Wilson 2014, 51). This, however, brings us to the first definitional

obstacle when considering the administration of justice in outer space; who should

be considered ‘the state’ or sovereign authority and who should administer any

resulting punishment. Classical constitutional theory holds that there should be a

separation of powers,5 with the legislative body, the executive authority and the

judicial function being kept distinct and separate to prevent abuses of power

(Bradley and Ewing 2014).

Such a separation of the investigative and judicial roles within the confines of an

interplanetary space mission poses clear practical problems. Whilst popular culture

(particularly within the Star Trek franchise) tends to give unlimited authority to the

mission commander, this is problematic for two reasons. The first is cultural; the

omnipotent commander approach tends to indicate a military structure with attendant codes of discipline. The experiences of the ISS would tend to suggest a

deliberate attempt to emphasize the civilian, peaceful nature of space exploration.

Indeed Article 1 of the IGA echoes Article I of the OST stating that the ISS shall be

a civilian, international space station for peaceful purposes. Second, and from the

perspective of administrating justice, concentrating the investigative function and

judicial authority in the same position would clearly be contrary to the separation of

powers principle that characterizes the majority of countries’ constitutions.

As has been shown in respect of the ISS, the nationality of the astronaut provides

the legal framework for the investigation and prosecution of criminal offences. This

would seem to be an unsatisfactory long-term solution, although given the distances

that humans can currently travel, it may be that this approach is likely to remain in

place for the foreseeable future. Irrespective of which ‘sovereign authority’ is

granted responsibility to investigate and adjudicate on criminal infractions by



5



The theory of the separation of powers is particularly significant in respect of criminal justice as

the executive will be comprised of the police, who are responsible for the investigation of crimes

and they will work with prosecutors to build the case against a suspect. The need for the judiciary

to be independent from the executive is a fundamental requirement of the rule of law. For further

details of the operation from a UK perspective see Bradley and Ewing (2014).



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crewmembers, there is a second element of punishment to consider. Here, the key

issue is that:

…as well as general questions of jurisdiction there are also questions of how to treat a

suspect before trial, and what, if any, punishment to administer while in space. (Redfield

2004, 80)



Punishment is, perhaps, the most problematic area of contemplation for the

administration of justice on interplanetary missions and one where there are few

obvious solutions. Given current (and foreseeable) engineering capability, living

space is likely to be at a premium on any interplanetary spacecraft. Redfield (2004)

identifies that the nature of such a craft means that individual space travelers will

already be confined in a general sense. Restrictions of space mean that it does not

seem likely that provision for bespoke, isolated detention facilities will be made

given that living space will be at a premium on board interplanetary craft. The

principle tool of punishment (incarceration away from the main social group) would

seem to be inappropriate and unworkable. In addition, such isolation may be

impractical with the offender having duties vital to the success of the mission and

key to the survival of the other crewmembers. Other punitive sanctions, such as

financial penalties, may be appropriate but of limited utility on a mission that may

take many years to complete.

The administration of justice, both in terms of investigation and punishment,

poses a number of significant questions for long duration space travel away from

Earth. Despite the previously identified differences between life in LEO onboard the

ISS and conditions faced by interplanetary travelers, it is likely that the twin

approach adopted by the ISS, (that of an overarching code, coupled with

nationality-based jurisdiction) will be imported to any interplanetary mission. In the

event of serious criminality a course of action will be determined on a case-by-case

basis with reference to mission control on Earth. Whatever solution is adopted, it is

suggested that the issue of criminality is considered proactively as part of the

planning stage of an interplanetary mission. Otherwise mission control and those

onboard the ship will be forced to reactively consider how to deal with an event that

could adversely affect the mission.



16.6



Whose Crime Is It Anyway?



Whilst the issues of investigation and punishment pose difficult questions for future

interplanetary travelers, the rigorous and intensive selection process for astronauts

can provide a robust, in-built defence against criminality. Despite the zeitgeistcapturing ‘Mars One’ project utilizing an open selection, it is axiomatic to say that

astronaut selection will remain highly competitive and selective (Norberg and

Steimle 2013 at p. 255). Those with a criminal record are likely to be ineligible and



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the initial vetting of astronauts at the stage of application works in concert with an

on-going programme of evaluation designed to ensure maximum compatibility with

others in the astronaut group. Harrison (2001), drawing on the psychological

studies in Antarctica of Edholm and Gunderson (1973), identifies three qualities

which will undoubtedly reduce a propensity for criminal activity, specifically;

space farers who are capable of sustained high performance, who are emotionally stable and

who can get along with one another. (Harrison 2001, ch. 6 at n. 13).



All societies need a basic level of stability in order to function (Smith and

Natalier 2005) and long duration space travelers will be no exception. In the closed

community of an interplanetary space mission, this need for stability is underpinned

by the task-orientated nature of space flight. An explicit hierarchy reinforces this.

The commander of the mission is responsible for the safety of the crew and the

success of the mission. Each crewmember will have responsibility for an aspect of

the overall success of the mission. In addition, even the most mundane task

[identified by Harrison (2001 at Ch. 9) as repairing life support systems, vacuuming

filters and preparing food] assumes a mission-critical level of significance.

Accompanying this will be a recruitment and selection process designed to ensure

maximum compatibility within the group. As Hermida states:

…the recruitment and training programs are so demanding and place such an enormous

emphasis on physical and mental conditions by keeping those that show “criminogenic”

characteristics or proclivity to commit crimes out of the recruiting process. (Hermida 2006,

after n. 95)



The selection process for interplanetary spaceflight is, inter alia, predicated on

maintaining a closed, harmonious group where anti-social behaviour and criminality are minimized (Harrison 2001 and Maschke et al. 2011). This does not,

however, eliminate the prospect of the commission of a crime. As Wilson (2014)

recognises, the use of criminal law is designed to be coercive, laying down the

barriers of behaviour that will be permitted and introducing punishments for

transgression. This leads to the obvious question in respect of long duration

interplanetary space travel as to what behaviour should be sanctioned as criminal.

Simester et al. (2013) have identified two broad conditions that should be met if

behaviour is to be categorized as criminal and sanctioned accordingly. First, the

activity concerned must be ‘sufficiently serious’ to warrant intervention, leading to

significant levels of harm being suffered by others. If this duty is a positive one, to

safeguard others, the second criteria acts to constrain; the criminal law must be

shown to be the most preferable form of legal control. Crucially, they add one

important rider that; “the practicalities must be considered of drawing up an offence

in terms that are effective, enforceable and meet the rule of law” (Simester et al.

2013, 646).

The idea that crimes should be introduced only when they are needed to prevent

harm runs throughout criminal theory. This is founded on the notion of autonomy,



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as articulated by Mill in On Liberty, which holds that authorities may only punish to

prevent harm to others. In normal (terrestrial) society, the corollary of this is that,

beyond the constraints of the harm principles, individuals are free to behave in any

way they see fit.6 In the confines of an interplanetary space mission, it is clear that

such a concept will in practice be subservient to the mission planning and the roles

and responsibilities of crew members within that plan. Given the hostile nature of

outer space and the requirements of the mission, there will be restrictions imposed

on the behaviour of the crew. Not all of these will be criminal, instead being

enforced by ‘softer’ codes of conduct and more informal, social processes within a

code of conduct. It is recognised that there is only a remote prospect of criminal

activity being a serious problem on interplanetary missions. Well-trained and

carefully selected astronauts should share a ‘common professional discipline’

(Redfield 2004, 80) that means criminality is likely to be restricted to the realms of

the improbable. If the approach adopted by the ISS is extended to other forms of

space exploration, and the criminality of the astronaut is contingent upon her or his

nationality, there will be a clear body of jurisprudence with significant areas of

commonality regarding laws preventing offences against the person, murder, sexual

offences and property transgressions.7

Notions of crime and punishment in respect of interplanetary missions can only

partially be dealt with via existing legal and regulatory regimes. The governance of

astronauts during long duration visits to the ISS is bespoke to the agreement that

established the Station. It is also predicated on the relative proximity of the ISS to

Earth. The unique human habitat of a spacecraft used for interplanetary space travel

means inevitably that there would need to be fresh consideration of any crew code

of conduct, even if the basic principles of liability remain. Establishing the need for

a revivified regulatory regime, therefore, requires consideration of the broader space

environment. It is contended that the type of harm that human activity could cause

to the delicate, pristine environment of outer space is potentially more far reaching

than any other consideration, including harm to other crewmembers. This discussion will, therefore now examine the need to embed environmental protection

within the fabric of rules governing human behaviour in outer space.



6



Criminal theory has long discussed the notion that conduct should only be criminalized if it

results in harm to another. This “Harm Principle” was first articulated in John Stuart Mill, On

Liberty (1859). This principle was developed to include occasions where serious offence to others

arose from the conduct in Feinberg, The Moral Limits of Criminal Law (1984–1987); vol. 1, Harm

to Others (1984); vol. 2, Offense to Others (1985); vol. 3, Harm to Self (1986); vol. 4, Harmless

Wrongdoing (1988). It is not the purpose of this discussion to analyze these theories. For contemporary exposition of the competing issues see, Simester, Spencer, Sullivan and Virgo, Simester

and Sullivan’s Criminal Law Chapter Sixteen, The Moral Limits of Criminalization, pp. 643–669;

Wilson (2014), Ashworth (2009).

7

Art 22 of the IGA requires that each signatory to the IGA have to make sure that there is sufficient

provision within their respective legal systems to categorize the crimes that are likely to be targeted

for prosecution (Farand 2004 at p. 76).



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16.7



233



Preserving the Pristine Environment:

Ecologically Driven Regulation



In considering notions of ‘harm’ and the foundation of criminal liability, the damage

caused by human space activity is an area to which one is unavoidably drawn. There

has been much written about the environmental impact of space activity. It is an area

that has seen, perhaps, the most significant shift in normative values over the course

of human exploration of space within the twenty-first century. Williamson (2006)

and Viikari (2008) both explore the fragility of the extra-terrestrial environment and

conclude that human activity has contributed to the degradation of the space environment threatening its sustained use. Contemporary discussions on the environmental impact of humans on outer space have tended to focus on the question of

dealing with space debris (Hobe 2012) and also potential damage to celestial bodies

due to speculative and commercial mining (Newman 2015a). Nonetheless, the actual

process of interplanetary travel will not be without an environmental impact. That it

will be immeasurably small, does not mean that it should be overlooked. As Welly

(2010) points out, early advances in space technology meant that human-made

debris was not considered as being problematic; yet now such debris is regarded as a

serious threat to on-going human space activity.8 The situation of interplanetary

travel cannot be discounted as posing similar risk.

One of the key difficulties in this area is the lack of explicit, hard-law attention to

environmental issues in outer space. This is a critical area of oversight, however;

that utilitarian and pragmatic approaches to space activity have sidelined any

attempts to provide meaningful new treaties (Newman 2015b). This has led to a

manifestation of the ‘tragedy of the commons’ where individual countries have

received benefits from individual missions whilst damaging the ‘global commons’

(Welly 2010, 279). A lack of bespoke legally binding environmental provisions has

created a largely unfettered space environment. It is voluntary and non-binding

codes of conduct tend to predominate in environmental space regulation. The UN

Debris Mitigation guidelines cover the area of space debris (UN Office of Outer

Space Affairs 2010).

The threat to other celestial bodies from human activity is even more fundamental than that posed by space debris. Accordingly, there are guidelines in respect

of planetary protection (Robinson 2006). Once an alien environment has been

contaminated, be it by a robotic probe or by human settlers, the environment has

been corrupted irrevocably. This will have two key impacts; first it will limit

scientific study by providing a false positive reading of life (Butler 2006). Second,

there may be profound implications for any life that does exist should humanity

contaminate a biosphere. This is outside the area of contemplation for this inquiry,

but it is nonetheless an area that will need consideration as interplanetary travel

draws closer. When considering notions of harm, therefore, it is not only planetary

8



For consideration of the legal implications of Space Debris and especially issues regarding

liability for damaged caused by debris, see Listner (2012).



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C. Newman



colonization and space debris that has an environmental toll. It is germane to this

discussion to consider the act of interplanetary travel and how this may have an

ecological impact. Robinson (2006) states that there is an increased awareness of

the importance of mitigating the environmental damage caused by human space

exploration. It is at this point that a dilemmatic choice emerges; is the harm caused

serious enough to justify a criminal sanction, with the attendant difficulties relating

to the administration of justice in outer space that such an approach begets?

There is clear justification for sanctioning ecological harm to the space environment within criminal theory. Feinberg (1984, 11) states that harm refers to a

wrongful setting back to some protected interest, leaving that interest in a worse

condition than it otherwise would have been. Transposing this to astronauts on an

interplanetary space journey, the degradation of space would be seen as leaving the

protected interest of the space environment as being in a worse condition. It is

argued that prohibiting such harm would help in the balancing of pragmatic realities

against environmental imperatives. This echoes similar ethical debates in other

areas of environmental regulation, specifically surrounding the issue of climate

change. The Hardinian ‘tragedy of the commons’ outlined above means that to

ignore the threat of environmental damage caused by space travel is ultimately to

risk the safety of space travellers and the sustainability of future space activity.

Criminal behaviour might include a prohibition of ejecting anything from the craft,

imposing legally binding duties on crewmembers with responsibilities for craft

subsystems that might leak substances into space and a specific regulation dealing

with waste management on the journey.

The advantage of an enumerated list is that clear parameters can be set, detailing

the nature of prohibited conduct. The principle of nullum crimen, nulla poena sine

lege9 embedded in most legal systems holds that any criminal law must be drafted

so that an individual knows when they are committing an offence. The obverse,

however, is also true; enumerated lists of discrete offences means that anything

committed outside the scope of that list will be acceptable. Imposing a general duty

on crewmembers would, therefore, ‘future proof’ the underpinning environmental

ethic of a code of conduct, making it more pervasive than lists of offences which

may well be made obsolete due to advances in space technology. It may also be that

criminalizing discrete elements of environmental damage is not only unnecessary

but also, ultimately, counterproductive.

The preferred option to ensure such harm may be mitigated is by embedding

environmental protection within a crew code of conduct on interplanetary missions.

As stated above, ‘softer’ codes of conduct rely on more informal, social processes

that emphasize common values and shared goals. Those forming the code of conduct

might wish to impose specific conditional criteria, detailing exactly the type of

damage that should be prevented. There may, however, be a more general statement

imposing a duty on all crewmembers to minimize environmental damage caused by

interplanetary travel. The CCoC underpinned by a general environmental duty would



Literally translated as meaning ‘no crime, no punishment without law’.



9



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remove the adversarial nature of apportioning blame for an infraction and instead

embed a duty to minimize environmental damage on all aspects of the mission. The

history of space governance shows that early patterns of regulation tend to be sustained as normative behaviour. Given the earlier observations about the discipline of

professional astronauts, it is suggested that the creation of a duty to safeguard the

wider space environment could have enduring benefits for future space travel.



16.8



Conclusion: To Infinity and Beyond?



A human journey to another planet will soon become a reality. Such a journey

poses unique challenges for the regulation of the behaviour of the crew. Astronauts

will carry the legal burden of being envoys of mankind, a role as yet undefined but

one that is sure to carry more weight in the context of interplanetary travel. The

rules governing conduct on the ISS, both the use of nationality to assign criminal

liability and the CCoC governing behaviour from first selection provides a template

for regulation. Given the differences between activity in LEO and interplanetary

travel, this is only going to be a short-term solution. As technology develops and

human capacity to travel moves beyond Mars, new solutions will need to be found

regarding the administration of justice. There will need to be an effective separation

of the investigation of crimes in space from the judicial process. Punishment away

from Earth will also need to be considered.

More fundamentally, the basis of what behaviours should be criminalized in

outer space will need to be addressed. This inquiry has shown that the harm caused

to the delicate space environment by human activity could necessitate criminal

sanction. The ‘tragedy of the commons’ that has already beset LEO should not be

replicated in respect of interplanetary space travel. It is suggested, however, that

instead of longer-term criminalization, the creation of an overarching environmental

value system, within a revivified CCoC would embed ecological protection within

the planning, training and the day-to-day tasks of astronauts on board interplanetary

spacecraft. Making environmental protection a core value of those who travel to

other planets would provide a meaningful lodestar for them as envoys of humanity.

Establishing environmental protection as the normative position for astronauts will

reorient human space activity. Effective regulation on these early journeys of

exploration to another planet may yet show humanity the way to Eden.



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