Mathilde Minet

Astronationalism or nationalism in outer space

Could we talk of astronationalism when talking about nationalism in outer space? The Oxford Dictionary defines nationalism as a feeling of love for and pride in your country, a feeling that their country is better than any other and defined nationalistic as having strong feelings of love for and pride in your country so that you think that it is better than any other.

Nationalism, as defined currently, is a quite modern concept. It is an ideology based on the fact that an individual’s loyalty and devotion to the nation-state shall surpass other individual or group interests. Nationalism is an idea that grows into people’s minds in times of conflicts, in times of stress and doubts. When the human being cannot proceed to understand and integrate the future or even what is happening in present days, he will have a tendency to seek refuge from the unknown. And what is something that one knows better than everything else? One’s own culture, language, history. The human being will shut himself away from the doubt. The mind will use this defense mechanism in times of fear and of inability to understand. Recently, in the last few years, nationalism made a big comeback. Far right-wing political parties have seen their popularity grow more and more and no continent escapes the influence of nationalism.

Nationalism is also mainly influenced by the competitive spirit. It is part of the human being mind and spirit to be competitive and wanting to be the first, to be the one who influences the most, to be the leader. Outer space will be no exception to this principle. At the dawn of space exploration, what happened on Earth will probably happen in space. Currently, most of the great powers of our world have a space program, whether it be the United States of America, Europe, China, Russia or Japan. After several years during which space conquest and space exploration was no longer a priority, a few entities have shown clear signs that they have made it now a priority. The United States of America reaffirmed their wish to continue the discovery of our Solar System, President Trump even wanting to skip a return on the Moon first and go directly to Mars. The European Space Agency (ESA) has voted a record budget of fourteen billions euros for the upcoming period with the idea of going to the Moon with the first European astronaut. China has clearly set some very ambitious guidelines towards the conquest of space, wanting to be a space superpower and becoming a leader in this field.

We can already forecast some tensions and objections between these gigantic and powerful entities. As things will progress and that technology will be more and more accessible, more and more nations will have the desire to be part of such an adventure. Therefore the more various and different entities there will be, the higher the risk of tensions or astronationalism. Every nations will want to contribute, every nations will want to see its name and the name of its people engrave in the marble of space conquest. Space exploration and its success is a tough, laborious, complex task that requires both enormous technical skills, intellectual skills as well as financial resources. Successfully completing such a task demonstrates the country’s high level of development. Moreover it will also allow a nation to acquire a more or less important power, something necessary to have control over resources, raw materials which are necessary for the expansion of a country. In the same way that the great powers colonized territories on Earth to extend their power and have always more and more resources, nations will want to do and will, almost certainly, do the same in outer space.

Aware of this concern and the possibility of astronationalism, a few treaties have already been negotiated and signed in order to prevent and avoid any tensions and appropriation by a State of a “land” in space. Thus, in the 1967 Outer Space Treaty, the first article states that “The exploration and use of outer space, including the Moon and other celestial bodies shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind”.

And again in 1979, the General assembly of the United Nations adopted the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. In its article III, the Treaty states that the Moon and other celestial bodies should be used exclusively for peaceful purposes and their environments should not be disrupted. However, we can point in these treaties the fact that it allows the exploitation of the Moon and of the celestial bodies. Even if they declared that the appropriation is for mankind in its entirety, it is still appropriation.

In spite of some efforts made by the States, the tendency to protect the Moon, celestial bodies and outer space from privatization fades, and it appears that the opposite situation is about to come true. One clue is the Space Act of 2015: the law passed on May 21, 2015 allows the American industries to “engage in the commercial exploration and exploitation of space resources” which clearly allows U.S. companies to search for, extract and sell the water and metals that they might find of asteroids and planets. The question of resources and raw materials from space can be considered as one of the main core of the conquest of space and “astronationalism”. Roughly we can divide the space conquest into two main parts: the first being the expansion of humanity beyond the Earth and to settle mankind into the Universe, the second one being a support for human life on Earth through medical researches, technologies advancements and raw materials constituting a new resource when ours will be drained.

Nationalism in space or astronationalism is, in my sense, something that should clearly not happen. Humankind, at least I hope for, should learn from the past and continue the international cooperation, as it is seen in the case of the ISS for example, to lead the space exploration. For space conquest, the Earth should be one, should form a single entity. Apart from the more realistic, the more technical considerations which are the questions on tensions between States, we should place this consideration, this idea of the Earth being one, on the level of a philosophical reflection. To meet and explore unknown worlds, humanity must move forward as united. As Sagan explained, we should now move forward and consider ourselves as “We are one planet”.

Cooperation is more than necessary in the next big adventure of mankind. Just as the European Space Agency (ESA) showed it, cooperation can totally work. If European countries with their past history can cooperate together for a greater goal, then an international cooperation could definitively work. It will be a very complex task, probably the most complicated task that has ever existed, but we have the resources to create and elaborate the cooperation. On the contrary of nationalism or astronationalism, this is called internationalism or astrointernationalism, a movement I hope will take the lead in the future years.

Legal issues concerning a Chinese booster which crashed in a rural area

For this new Space Law article, let us study the space legal issues concerning a Chinese booster which crashed in a rural area. China’s space program is described as an ambitious and flourishing one, demonstrating the willingness of President Xi Jinping to place China as a leader in space exploration. However such an ambitious program is not without its own risks.

According to the China National Space Administration, on November 23, 2019, China launched a Long March-3B rocket to put two navigation satellites BeiDou into orbit from the launching site of Xichang, located in the Sichuan province. This launch was the three hundred and nineteenth one with the Long March launcher. Still according to the statement of the Chinese space agency, the two satellites have successfully placed themselves in orbit. However if the launching was successful in placing the navigation satellites into Medium Earth orbits (MEOs), one of the Chinese booster crashed and hit a rural village near the launching site of Xichang.

The accident was relayed on social networks and especially on the national social network Weibo where the videos published of the accident allow us to witness the damages. We are able to note how the numerous debris of the booster impacted and destroyed several homes of the village. Thus, we can observe one part of the booster that crashed into the roof of a house as well as a lot of debris scattered on agricultural fields. But one thing raised major concerns: the yellow smoke rising from the debris. The yellow smoke is actually hypergolic propellant which is a very toxic substance. Hypergolic propellant is mainly used in different rocket and aircraft systems as a mean for propulsion and hydraulic power. In this way, orbiting satellites, manned spacecraft, military aircraft as well as deep space probes are using hypergolic propellants. According to a NASA’s report, hypergolic propellants are “toxic liquids that react spontaneously and violently when they contact each other”. The toxicity of this substance is then established. According to journalist Andrew Jones, the inhabitants of the village where the booster crashed were told by the authorities to stay away from the wreckage due to the toxicity of these fluids.

Actually, it’s not the first time that such an accident has taken place. One of the most important accident in this genre happened back in 1996 when a Chinese rocket crashed into the village near the launching site of Xichang which caused the death of six people according to the Chinese authorities, up to hundreds according to foreign sources. One of the most recent one happened last year in 2018. Indeed in April 2018, the Chinese Space Station Tiangong-1 failed and hurled back to Earth. As the crash site was unknown, it rose a few concerns among the international community and fortunately, the station disintegrated as it entered the atmosphere.

At the lights of these events, we can wonder why are the Chinese rocket more likely to cause damage and fall back on Earth rather than the American, European or Russian rockets? One of the cause for this problem is the fact that the Chinese launching sites are located inside the land and not along the coastlines, which will cause the rocket’s boosters to fall back over inhabited village when the American, European or Russian rockets will crash into the oceans. Space debris are a major issue of the Chinese Space program. As these kind of accidents seem to happen quite frequently, what is the legal basis on which we will be able to rely on?

From 1963 to 1972, the Convention on International Liability for Damage caused by Space Objects or also called the Liability Convention, was considered and negotiated. The agreement was reached in the General Assembly in 1971 and the Convention entered into force in 1972. In its article II, it established that a launching party is “absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft”. The Convention specifies that the word “Damage” means “loss of life, personal injury or other impairment of health, or loss of or damage to property of states or of persons, natural or juridical, or property of international intergovernmental organizations”.

China has not ratified the Liability Convention but has acceded it in 1988. According to the United Nations, “accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Both of these expressions have the same involvement, the States who acceded to a Convention have the same rights and obligations as those States that ratified the Convention. The difference only lies in a difference of terminology: a Convention is open for signature for a defined period. When this period is over and a State wants to become a party, it may only accede it.

In this specific case, it’s a Chinese booster that caused damages on a Chinese village. There is no involved foreign state in this accident. It will likely be that the Chinese government is going to give some financial compensation to the inhabitants whose house were shattered by the Chinese booster. Considering the political regime of China, and even if the People’s Republic of China is considered as liable according to the Liability Convention of 1972, it’s very unlikely that the Chinese people will claim for compensation or sue the government.

But what would happen if the Chinese booster crashed on the territory of any other State? The article II of the Liability Convention would apply and the State whose space object (here the Chinese booster) caused damages on the territory of another State shall be liable to pay compensation. Furthermore, the article VIII of the Convention states that “a State which suffers damage or whose natural or judicial persons suffer damage, may present to a launching State a claim for compensation for such damage”. There is then a possibility of one State to claim compensation. However, there are more questions that arise: how the amount of compensation for damages will be calculated and who will define it? Will it be possible to amicably settle it? If not, in front of which jurisdiction of which country?

The Liability Convention defined a few procedural rules to settle these issues. First, the Convention favors diplomatic negotiations to settle the claim. But if no settlement was found within a certain period of time, a Claims Commission should be established that would act as an arbitration tribunal, whose composition and procedure are defined in the article XV and XVI. In the end, it will be the Claims Commission that will decide the merits of the claim for compensation as well as determine the amount of compensation to pay. One major point of the Convention is that the decision of the Commission is final and binding if the parties have agreed to, which is quite important in order to avoid any blockage that would eventually penalize the civilian casualties.

Concerning the hypothetical situation where one state causes damages to another state but this time in outer space, the solution lies in the article VI and VII of the Outer Space Treaty of 1967. The article VI established that “State Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty”. The international responsibility for one’s national activities is reinforced in the article VII states that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is Internationally liable for damage to another State Party to the Treaty”.

In a nutshell, international responsibilities have been established for one’s space activities, whether the damages lies on the surface of the Earth or in outer space. As space exploration will only continue to grow and as the number of launching, satellites, boosters and so on will also only continue to grow exponentially, more and more situations involving damages caused by space debris will happen. However as new technologies, and especially with SpaceX‘s reusable launch system program, continue to be implemented, we may find a lasting solution to this problem. This is what can be said concerning the Chinese booster which crashed in a rural area.

Understanding the Barcelona Traction case

For this new Public International Law article, let us study the Barcelona Traction case. The past two hundred years have seen the transformation of public international law from a rule-based extrusion of diplomacy into a fully-fledged legal system. Some decisions have contributed to the development of international law into an integrated whole, whilst also creating specialized sub-systems that stand alone as units of analysis. The significance of these decisions is not taken for granted, with contributors critically interrogating the cases to determine if their reputation is deserved. The Barcelona Traction case is one of the most important, and needed to be analyzed in order to understand Public International Law.

Barcelona Traction, Light and Power Company was a Canadian company, created in 1911 and that operated and provided light and power utilities in Spain. Its headquarters were in Toronto, Canada, it operated in Spain but was owned mostly by Belgian holding companies. The company Barcelona Traction managed to survive the Spanish Civil War without many damages and was still quite profitable. Because of its foreign investors, the company issued several series of bonds, principally in sterling. However, in the idea of Spain’s financial recovery after the civil war, the government banned the transfer of foreign currency from Spain.

As a result of a financial maneuver led by Juan March in order to take control over the society, the Court of Spain declared Barcelona Traction Company bankrupt on February 12 of 1948. Belgium, in order to protect its nationals and their interests, sought reparation for damage claimed to have been caused to Belgians nationals who were shareholders in the company. A first round of diplomatic negotiations started involving a few governments, such as Belgium, Canada, the United Kingdom, and the United States of America. As it was a society ruled by Canadian law, Canada proposed to settle the matter with arbitration which the Spanish government refused but agreed to form a committee of experts to study the dispute. Because the diplomatic negotiations were unsuccessful, the Belgian government filed a first request before the International Court of Justice on September 23, 1958, which was in 1961 interrupted as new negotiations took place. Understanding that these negotiations would go nowhere, Belgium filed a new request before the International Court of Justice on June 19, 1962.

Regarding the jurisdiction of the Court, Belgium and Spain are both parties to the Statute of the Court meaning that the Court is qualified and has jurisdiction to hear and to resolve the dispute, in which Belgium is using its diplomatic protection for the benefit of its foreign nationals and supports that Spain broke the international law rules concerning the way foreigners are treated. In 1963, Spain raised four preliminary objections to the Belgian complaint. In a judgement of July 24, 1964, the Court rejected the first two preliminary objections and joined the second two together. In the decision of February 5, 1970, the main question revolved around the thematic of diplomatic protection: does Belgium have the right to use its diplomatic protection for the Belgian shareholders of a Canadian company and therefore stand before the International Court of Justice or not?

In this case, the Court made a distinction between two separate entities: the company and the shareholder, which are ruled by different law. The company was Canadian and the shareholders were Belgians. The Court emphasized the fact that the harmful acts attributable to Spain aimed at the company’s rights and not at the shareholders’ own rights. A clear distinction has been made between a violation of a company’s right and the mere prejudice towards the shareholders’ interests. Thus, in its judgement of 1970, the International Court of Justice rejected the request of the Belgian government and declared Belgium as not qualified to stand before the Court as it did not have jus standi, or recognized rights, to exercise diplomatic protection for its nationals. The Nationality State of shareholders cannot sue diplomatic protection. Moreover, the Court stated that Belgium couldn’t sue Spain by itself as the Barcelona Company was ruled by Canadian law. There was no legal interest in the matter for Belgium to bring a claim. What also emerges from this judgment is the question of the obligation to treat foreign nationals in a certain way. Belgium thought that it could use this mean to support its claim.

One of the main benefit of this judgement is the recognition of the concept “erga omnes”. It’s a Latin locution which means “towards all” or “towards everyone”. For the legal domain, it means that a judicial decision is binding towards everyone, rights and obligations are owed towards all. These norms are imperative. Maurizio Ragazzi explained in his book, The Concept of International Obligations Erga Omnes, that “In the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all”.

The judgement of 1970 is a fundamental one in the way that it expressed this notion of erga omnes that is now considered as one of the pillar of the international law. It expanded this notion in the international community. The notion of erga omnes is associated with the notion of jus cogens which corresponds to a fundamental principle of international, accepted by the international community, considered as universal and superior to which no derogation can be granted. The notion of jus cogens was established by the Vienna Convention on the Law of Treaties of 1969.

The case Barcelona Traction, Light and Power Limited Company is of the greatest importance and value in the field of International Law, and more particularly for diplomatic protection and the promotion of the concept of erga omnes norms and rights. Jean Charpentier explained in his analysis of the case, the relations between the states are rigid which does not facilitate the flexibility at the base of multinational companies. He then explained that the only solution would be to ask the State to which they invest a right of direct access to ad hoc arbitral bodies.

Is 2019 the Year When The First Crime In Space Was Committed?

Let us study for this new space law article the possibility of the first crime in space, maybe committed recently by astronaut Anne McClain. Crimes related to the space industry or space domain in general can be counted on the fingers of one hand. Indeed, space-related offenses are quite rare, as it is still a domain restricted from the general public. However, in 2019, a news made the headlines due to its surprising novelty.

In August 2019, the NASA astronaut Anne McClain has been accused of committing a crime in outer space. McClain would have tried to access the bank accounts of her former spouse without her authorization. The astronaut was accused of identity theft and of improper non authorized access to financial records. As a result of several things she did not understand, Summer Worden, McClain’s former spouse, asked her bank to find the locations of the computer that had access to her bank account using her login name. Surprisingly enough, the unknown computer was one registered to the National Aeronautics and Space Administration.

Worden explained that it was actually Anne McClain from the International Space Station (ISS) that had tried to access her bank account. Worden then filed a complaint with the Federal Trade Commission and her family later filed a complaint with NASA’s Office of Inspector general. Following this accusation and complaints, Anne McClain expressed her willingness to fully cooperate with the authorities and stated that she would answer truthfully to every question. She was then heard by a senior NASA official and by investigators from the Inspector General’s office in order to understand the situation, unravel the true from the false and hear what McClain had to say about it. The astronaut acknowledged and admitted having tried to access her former spouse’s bank accounts.

However, her defense line is based on the argument whereby watching over the joint account is something that she would usually do on a regular basis and that she just wanted to check on the finances in order to make sure Worden had sufficient funds to provide for her son’s care and to pay bills. She explained that it was purely based on a routine and that she did not have any bad intentions. Eventually, McClain did not carry out any financial transaction but the trial will revolve around the question of knowing if she did not carry out any financial transaction because she had no intention to do so or because she ran out of time, unable to complete a financial or any particular operation.

Several precedent cases have already taken place, space-related offenses are not unknown. In 2011, when a space engineer’s widow tried to sell a Moon rock, NASA organized an operation in order to prevent it. And in 2013, a Russian satellite was damaged after colliding with debris from a satellite that China had destroyed in a 2007 missile test. But this case is actually the first time that a violation was committed in outer space by a human being.

What are the legal basis on which this violation should be treated? The laws set on Earth continue to be applied even if one of the people concerned is on a mission in outer space. Actually, procedures have already been established. A Treaty named the Intergovernmental Agreement on Space Station Cooperation governs the International Space Station (ISS) and every jurisdictional questions that might arise. The five States which are involved in the International Space Station (Russia, Japan, Europe, Canada and the United States of America) signed this Treaty. According to it, if a crime is committed on the International Space Station (ISS), the country whose national was involved has criminal jurisdiction, unless people from other countries were affected. As Anne McClain is American and her actions affected only American citizens, the dispute will entirely fall under the American jurisdiction and law.

Space law is a relatively new field of law. According to the Washington Post, it can be defined as a field composed of both domestic and international agreements, as well as guidelines that govern issues such as space exploration, military and weapons use, and liability for damage. While it’s definitely a field that is growing and will continue to grow at an increasing pace, it’s still a niche domain. Furthermore, the law concerning reprehensible actions realized by human beings is even narrower. Indeed, space exploration began only a few decades ago, but it was only recently that human beings arrived there permanently and on a regular basis. And still, this only affects a handful of people, at least for now.

This dispute can be seen as quite easy, as it involves people from the same nationality, but it being probably the first crime committed in space raises questions concerning the development of space law. Thus, will it be possible to create a unified international space law which shall be applied in spite of the nationality? Or will each State want to create its own law? In this situation, if a crime happens in space and that multiple nationalities are involved, which law will be destined to be applied? All of these questions will need to be resolved and quite quickly as missions destined for human beings to make a comeback on the Moon are becoming more and more precise, and as a mission to explore Mars has left the realm of dreams to enter the one of reality. Longer distance and trips will be involved, different nationalities with different cultures as well.

Space law in general should be developed in the future years, as more and more conflicts in this genre are inevitable. The development of space tourism will surely be the main cause of the development of the space law. Already in 2017, an Austrian business man had sued a space tourism agency in order to retrieve his deposit for a trip that never took place. As Mark Sundahl explained: “The more we go out there and spend time out there, all the things we do here are going to happen in space”. As for now, no news was given on the outcome of the case. The investigation is surely following its course and it will decide if the matter should be examined by the judicial field or not.