Outer space, explained.
The Moon passes through the Earth’s shadow, resulting in a lunar eclipse, also known as a blood moon, seen in Santa Rosa, Laguna province, Philippines in March (Ezra Acayan/Getty Images)
Space belongs to everyone, but the question of who protects rights there remains unsettled.
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In space, who owes you rights?In space, who owes you rights?
Artemis II, the first crewed flight in the Artemis program, took humans further from Earth than ever before. The world watched the crew fix a toilet, mourn a loved one, and choose a playlist. For all the technological advancement, the flight was inherently human. What then of human rights and space?
Our dependencies on space are well-documented. As the Australian Defence Force reminds us: “the space domain is critical to defence operations”. Space-based technologies, such as remote sensing tools, can also affect human health, agriculture, the environment, disaster management, access to education, communication and the provision of humanitarian assistance. Space infrastructure is essential in supporting critical energy and transport infrastructure and provides more than half of the variables that are used to monitor climate change.
For this reason, space activities can impact the enjoyment of human rights on Earth, including rights relating to education, food, safety, privacy, employment, and health. For humans in space, the physical challenges, including radiation, prolonged confinement, the need for breathable air, and distance from Earth, pose particular and obvious risks to basic human rights. Who owes those rights?
There is also the broader issue of access to outer space, and its consequences for the right to enjoy the benefits of scientific progress and its applications, as enshrined in Article 27 of the Universal Declaration of Human Rights, and Article 15 of the International Covenant on Economic, Social and Cultural Rights.
Artemis II Commander Reid Wiseman looked at Earth from the Orion spacecraft’s main cabin windows as the crew travelled towards the Moon (NASA)
The legal starting point is that space is res communis: it belongs to everyone. Article II of the Outer Space Treaty (OST) sets out the principle of non-appropriation: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” The traditional starting point for human rights and jurisdiction has been that a nation-state is not responsible under human rights law for acts or omissions that fall outside its jurisdiction. Given space belongs to everyone and no one, can nation-states owe human rights obligations in areas which, like outer space, are beyond any national jurisdiction?
All major international human rights courts and tribunals have tended to accept that extraterritorial human rights obligations can still arise “when a state has effective control of a foreign territory, and when it exercises control over the person whose rights have been allegedly abused”. For example, in its advisory opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), the International Court of Justice held that states parties to the International Covenant on Civil and Political Rights should be bound to comply with its provisions, even when exercising jurisdiction outside national territory.
Further, Article III of the OST also provides that activities “in the exploration and use of outer space, including the moon and other celestial bodies” shall be “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.”
Citizenship is the right to have rights – and private actors in space complicate that question.
This means nation-states will owe human rights obligations to persons and areas within their control, such as set out in the treaty governing the International Space Station. Notably, the first alleged crime in space (also a fundamentally human crime) reportedly took place on the ISS. The applicable law related to both citizenship and the area of the ISS in which it took place. While astronauts have a special status, there are technical legal issues that can arise in relation to citizenship of private persons in space (such as space tourists, for example). After all, citizenship is the right to have rights. Private actors in space can complicate the question of human rights obligations, not least because there are no clear and consistent legal rules for determining nationality of corporations.
More broadly, there is a view that “Australia lags behind its partners and allies” in space. However, Australia has unique strategic advantages in space, including its Southern Hemisphere geography and a large, relatively sparsely populated landmass. At the very least, Australia would benefit from a national space policy, which recognises the importance of sovereign space assets, especially in relation to Space Situational Awareness and affirms our commitment to the international rule of law, including human rights law.
Humanity has always shown thirst for exploration, knowledge and scientific advancement, and space is no exception. We also know humanity is capable of both beauty and horror. The development of human rights law has always sought to grapple with this duality. This is relevant to both activities in space that impact Earth, as well as to humans physically located in space. The Latin expression Ad Astra means “To the Stars”. As humanity continues to reach for the stars, human rights law will apply in relation to space, and, despite challenges posed by current geopolitical disorder, we must do our bit to ensure that continues – “on Earth as it is in heaven”.
About the author
Danielle Ireland-Piper
Dr. Danielle Ireland-Piper is Associate Professor at the National Security College, Australian National University and Honorary Adjunct Associate Professor at the Faculty of Law, Bond University.
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