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6 A Point of Reference for UN Action? The Case of Near-Earth Objects

6 A Point of Reference for UN Action? The Case of Near-Earth Objects

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18



Shaking the Foundations of the Law: Some Legal Issues …



261



have to be analysed in greater detail, but they certainly show that, at least in

principle, the United Nations could provide a roughly appropriate platform to use

also in that context. It is essentially the only readily available platform of almost

global scope, where member states have learned to some extent to cooperate

together for the perceived greater common good of mankind.

However, one key issue to be discussed in this context concerns whether the

division of competences between the General Assembly, as representative of all

(member) states, and the Security Council, as mandated to undertake certain tasks

requiring the consent at least of the five permanent members, would continue to

make sense. If for example action would need to be taken on an urgent basis with

respect to extra-terrestrial life, achieving consensus on how to act would be considerably easier amongst the 15 states members of the Security Council as compared to the 193 states members of the General Assembly. At the same time, its

acceptability may be lessened to the same extent.

A related key issue then concerns whether the distinction between the five

current permanent members of the Security Council as veto-holders and all other

states makes the same sense in the context of twenty-first century actions vis-à-vis

(the possibility of) extra-terrestrial life that it made in the context of the middle of

the twentieth century. The United States, Russia, China, the United Kingdom and

France have rather varied capabilities in terms of the search for extra-terrestrial

intelligence, and from that perspective some other countries could lay equal or even

better claims to such capabilities—not to mention the intergovernmental ESA,

harnessing the technological and scientific expertise of the most important spacefaring nations in Europe.

At the end of the day, however, it should again be realized that the United

Nations can only do what its member states generally speaking allow it to do.38

Even broadening interpretations of existing UN Charter concepts such as

‘self-defense’ and ‘threats to peace and security’, which would trigger certain legal

consequences in a semi-automatic manner, require at least silent consent or lack of

fundamental opposition from the more powerful states on earth, including the five

veto-wielding powers of the Security Council.

In conclusion, once the international peace or a threat to it may be at stake,

which at least covers one type of possible scenarios in the present context, the

United Nations would probably be the ‘least-worse’ platform. More substantial

questions would arise, however, once the discussion would extend to having the

organization deal with any contact with extra-terrestrial life. It may well be that the

United Nations is not yet ready for that, meaning that—for better or worse—

individual states remain completely at liberty to handle such scenarios in a political

and legal sense. One of those questions would concern whether the division of

states as between a Security Council always comprising—next to ten temporary



38



The United Nations is, after all, still an intergovernmental, not a supranational organization of

sovereign member states.



262



F.G. von der Dunk



members—five permanent members with veto powers and the General Assembly

comprising all states of the world does make as much sense here as it, apparently,

does in the NEO context.



18.7



From Law to Meta-Law



It should be reiterated finally that the role of law is inherently limited to mankind.

Humans namely also generally understand the unspoken underlying assumptions

even if they do not always underwrite (all of) them. Extra-terrestrial life, obviously,

presuming of course it possesses the requisite intelligence in the first place, does not

necessarily share those assumptions, understandings or even the concept of ‘law’ as

a binding set of specific social arrangements amongst humans—nor does it need to

comply with it.

From this perspective, one should realize that there would be three generic

scenarios at issue with respect to such extra-terrestrial life. Which of the three

scenarios turns out to be the proper one would also fundamentally determine which

role the United Nations, further to the above, would be likely to see thrust upon

itself. The higher the perceived degree of hostility towards and vulnerability of

mankind vis-à-vis any extra-terrestrial life would be, the more important it will be to

address any such perceived threats in as unified a version as possible, where the

United Nations again might then be seen as the ‘least-worse’ mechanism for

achieving that.

Firstly, extra-terrestrial life might be fundamentally less intelligent and advanced

than human life, in which case it likely has no concept such as ‘law’. Should this

mean we humans could treat them as animals, as objects of the law with rights but

no self-standing capacity to stand up for them? Subject to certain decidedly

non-legal or meta-legal phenomena such as ethics or enlightened self-interest which

would likely intervene, this is at least probable to happen.

Secondly, extra-terrestrial life may be roughly as intelligent and advanced as

human life, in which case it is likely to have a concept similar to law, a construct of

broad binding arrangements on behaviour and its consequences designed to facilitate interaction and the realization of something like ‘justice’—although it may be

elaborated very differently. In such scenarios probably humanity should strive for a

compromise ‘meta-law’, arranging essentially the respective spheres of application

of human-made law and the comparable extra-terrestrial system, as well as finding

some sort of common denominator, a compromise system or construct for

inter-species social and other interaction.39



39



In a sense, this mirrors the current role of international public law respectively private international law as, inter alia, accommodating the various national law regimes wherever international

aspects or elements are involved, albeit at a conceptually higher level of course.



18



Shaking the Foundations of the Law: Some Legal Issues …



263



Under this scenario, an overarching ‘regime’ would thus be supposed to deal

with the interaction between human life and extra-terrestrial intelligent life, by

somehow providing each with their own domain, and adding a superstructure of

meta-law. It would at least allow human life to continue applying the law amongst

itself in relative independence. One might consider an approach furthermore of

delineating the respective domains of application along ‘physical’/‘geographical’

lines: humanity the solar system, the extra-terrestrials their own part of the universe,

and in between ‘cosmic oceans’.

Furthermore, such ‘cosmic oceans’ would preferably be roughly comparable to

our terrestrial notion of ‘global commons’, essentially geographically delineated

areas which cannot be appropriated, hence ruled legally, by any individual state or

group of states and belong to society as a whole, whilst any individual state or

group of states is entitled to use those areas at liberty, as limited only by general

legal principles and laws.40 This also raises a warning sign, as the concept of a

‘commons’ has also given rise to the ‘tragedy of the commons’, where all are

entitled but no one (feels) responsible.

Thirdly, of course, extra-terrestrial life may be much more intelligent and

advanced—in which case humanity is in trouble, at least as far as its laws are

concerned. Whatever we might have concocted in terms of facilitating predictability

and correctness of behaviour, it will depend on such extra-terrestrial life whether

such a system and concept of ‘law’ will find any application vis-à-vis those

extra-terrestrials, or even amongst ourselves. Humanity may end up being the ‘object’ of their system of ‘law’, or whatever has taken its place. This is essentially a

legal version of the famous ‘zoo hypothesis’—we are the intergalactic animals there,

only objects of the superior observations, interests and resulting socio-politico

constructs of superior creatures.

In sum, depending upon the level of intelligence and advancement of

extra-terrestrial life, the foundations of the law will suffice, be thoroughly shaken in

a need for a compromise, or found to be totally irrelevant in relation to such

extra-terrestrial life—and perhaps elsewhere, too…



40



Cf. for outer space Arts. II, I, Outer Space Treaty; and for the high seas Art. 87, United Nations

Convention on the Law of the Sea, Montego Bay, done 10 December 1982, entered into force 16

November 1994; 1833 UNTS 3 & 1835 UNTS 261; UKTS 1999 No. 81; Cmnd. 8941; ATS 1994

No. 31; 21 ILM 1261 (1982); S. Treaty Doc. No. 103-39.



Index



A

Aesthetic(s), 9, 80, 131, 162, 209, 210–217

Animal welfare, 39, 120, 149

Antarctica, 70, 175, 210

Anthropocentrism, 5, 86, 93, 99, 112, 115, 118,

137, 138, 144, 145, 147, 148, 168, 182,

183, 188, 205, 206

Arnould, Jacques, 5, 8, 9

Artificial Intelligence (AI), 111, 144

Asimov, Isaac, 17, 25, 52

A Space Odyssey (movie), 2001, 18, 26, 156

Asteroids Act, 53

Astrobiology roadmap, 5

Astronaut Rescue and Return Agreement of

1968, 223, 226

Astronauts

definition, 223

psychology, 227

Autonomy, 130, 187–189, 231, 245, 247, 248

B

Bainbridge, William, 63, 66

Banks, Ian M., 16

Baxter, Stephen, 7, 9

Beauty, 9, 154, 162, 209–212

on Mars, search for, 213

Bernal, J.D., 27, 31, 33

Billings, Linda, 69

Bioethics, 3

Biopolitics, 143

Biosphere, 9, 20, 24, 84, 116

Bloch, Ernst, 61, 64–66, 69, 71

C

Callicott, J. Baird, 4, 97–102, 104

Catastrophic risk, 121, 122

China, 54, 261

Cockell, Charles S., 7, 9, 39, 110, 114, 170,

176, 182, 202



Code of Conduct for CCoC, 225

Cold War, 7, 47–52, 57, 147, 223

Committee on the Peaceful Uses of Outer

Space (COPUOS), 259, 260

Complexity, 5, 75, 77–79, 131, 181, 184

Conservation, 211

Consolidationism, 61, 68–70

Cosmic evolution, 76

Cosmocentrism, 8, 9, 181–185, 188

Cosmology, 75, 76, 86, 88, 102, 155, 158

Cultural evolution, 63, 75, 78, 79, 84, 88, 144

D

Dyson swarm, 109, 116

E

Ecocentrism, 111

Ecology, 99, 100, 102, 209

Einstein, Albert, 76, 77, 157, 158

Environment, 1–4, 8, 10, 20, 23, 31, 32, 36, 37,

39–41, 43, 47, 49, 51, 53, 54, 57,

61–63, 68, 69, 86, 93, 94, 102–104,

106, 115, 129, 173–175, 222, 227, 232

pristine, 233

urban Spacemen, 226

Environmental ethics, 4, 93, 94, 97–101, 103,

195, 209, 234

value Pluralism and, 95

Ethnicity, 55, 143

European Space Agency (ESA), 257, 261

Evolution, 39, 62, 63, 68, 71, 75, 163, 169, 185

cosmocultural, 84, 85, 89

of posthumanities, 149

F

Fogg, Martin, 24, 184

France, 259, 261

Frontierism, 61, 68, 69



© Springer International Publishing Switzerland 2016

J.S.J. Schwartz and T. Milligan (eds.), The Ethics of Space Exploration,

Space and Society, DOI 10.1007/978-3-319-39827-3



265



266

G

Gender, 142

discrimination, 143

race and, 143

Genetic engineering, 99

Geocentrism, 210, 216

Geopolitics, 49, 54

H

Haldeman, J., 23

Hargrove, Eugene, 4

Heidegger, 55, 137, 139, 148

Heinlein, R.A., 19

HiRISE, 214, 215

Hybrids, 143, 148

I

Ing, D., 21

Intergovernmental Agreement (IGA), 224

International Space Station (ISS), 42, 222, 224

International Telecommunication Union (ITU),

256

constitution, 256

convention, 256

K

Kant, Immanuel, 96, 97, 158, 169, 181–186,

188, 197–199, 247

L

Liability Convention, 255

Lowell, P., 213

Lupisella, Mark, 7–9, 174, 176, 181, 184

M

Mariophilia, 196, 203

Mars, 9, 10, 18, 113, 117, 128, 137, 138, 142,

146, 148, 153, 156, 174, 182, 190,

195–197, 202–205, 207, 209, 214

aesthetic value, 210

search for beauty on, 213

terraforming, Aesthetic Objection to, 210

Mars landers, probes and rovers

Curiosity (Rover), 214, 240

Mariner 4 (Probe), 213

Opportunity (Rover), 142, 214

Spirit (Rover), 214

Viking (Lander), 240

Mars Reconnaisance Orbiter (MRO), 214

Martian life, 174, 182, 195, 196, 204, 205

Metaethics, 93

Microorganisms, 167, 168, 170, 175

Migration, space, 137–139, 141, 143, 144, 148,

149



Index

Milligan, Tony, 7, 8, 53, 94, 104–106, 110,

112, 191

Mining

asteroid, 43, 52, 115, 126

helium-3, 54, 127

Moral pluralism, 96, 97

N

Nagel, Thomas, 100

NASA, 4–7, 33, 41–43, 48, 49

CIA and, 50

funding, 50

Mariner, 213

Russian space agencies, 240

Spirit, 214

Naturalistic fallacy, 79, 80, 84

Normative ethics, 3, 93, 94

O

O’Neill, Gerard K., 7, 15, 16, 18–28, 32–34,

36, 37, 39–44

prospectus, 16

sociology, 16

space colonization in SF before, 17

Ontology, 93, 99, 103, 137

object-oriented, 139, 146

Originism, 175–177

Outer Space Treaty, 137, 147, 149, 223,

254–256

P

Planetary protection, 8, 9, 102, 127, 174, 233

Posthumanism, 138, 144, 149

Pournelle, J., 18, 20

Prime directive, 199, 201, 207

Process philosophy, 75, 82, 86, 88

R

Radio regulations, 256

Rational, 93, 96, 159, 206, 247

Registration Convention, 255

Reiman, Saara, 104, 106

Relationalism, 79, 81–85, 88

Relativity, 75, 76, 81, 82, 88, 129, 158

Rescue agreement, 223, 226

Respect, 1, 9, 38, 94, 96, 105, 125, 161, 171,

173, 177, 189, 190, 192, 222, 255, 259

Robinson, Kim Stanley, 133, 212

Robots, 28, 96, 141, 144, 148, 214

Rolston III, Holmes, 4, 183, 214

Russia, 51, 54, 143, 261

S

Sagan, Carl, 9, 22, 76, 174, 196, 202



Index

Schiaparelli, G., 213

Schwartz, James S.J., 8, 40, 53, 127, 209, 212

Science Fiction, 7, 15, 17, 28, 64, 129, 156,

200

Search for Extraterrestrial Intelligence (SETI),

110

Silent Running (movie), 25

Space

colonies, 2, 27, 32, 36, 40, 44, 62, 115–117

criminal justice, 229

funding, 19, 48, 56

race, 48–50, 140, 148, 239

science, 3, 38, 53, 56, 102, 200, 260

Space Act, 53, 147

Spaceflight

participants, 2, 3, 222, 228

Star Trek

Deep Space Nine (TV), 26

Steele, A., 19, 20

Sterling, B., 21, 22

Sustainability, 145, 234

T

Teleology, 80, 87

Terraforming, 4, 9, 63, 116, 146, 190, 204,

209–211, 214, 217

Transhuman(ism), 63, 139, 143

Tsoilkovsky, Konstantin, 17, 31, 32

Turner, Frederick, 7, 68



267

U

United Kingdom, 259, 261

United Nations, 147, 253, 257, 259, 261, 262

United States of America, 24, 48

Utopia, 18, 25, 31, 33, 40, 61–64, 66, 69, 71,

213

V

Value

abiotic, 111, 114, 118

inherent, 4, 9, 132, 168, 246

instrumental, 79, 80, 111, 115, 168, 170,

173, 197, 205

intrinsic, 47, 75, 79, 85, 89, 93–96, 101,

103, 106, 111, 113–115

non-instrumental, 9, 171

Van der Steen, Wim, 99, 100, 102

Veil of Ignorance, 127, 129, 130

Virtue ethics, 93, 104

Von Braun, Wernher, 17, 20, 31, 33, 35, 48,

145, 156

W

Well, H.G., 213

Westfahl, G., 17

Whitehead, Alfred North, 82

Williamson, J., 18, 233

Z

Zebrowski, G., 28



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