X-Men and Space Law

For this new article on Space Legal Issues, let’s have a look at X-Men and Space Law. X-Men: Dark Phoenix, which came out this week, kicks off in 1992 with the X-Men heading into outer space (and thus becoming astronauts, according to Article V of the 1967 Outer Space Treaty), responding to a distress signal from the Space Shuttle Endeavour, a partially reusable Low Earth Orbital (LEO) spacecraft system operated by the U.S. National Aeronautics and Space Administration (NASA) as part of the Space Shuttle program, to rescue the crew of the spacecraft/space object which has critically been damaged by a solar flare-like energy.

The X-Men conduct a desperate rescue mission, with Nightcrawler and Quicksilver teaming up to save the astronauts; unfortunately, they unwittingly leave one behind. A second attempt needs Nightcrawler to go aboard the American Space Shuttle with Jean instead of Quicksilver; Jean’s task is to telekinetically hold the Space Shuttle Endeavour together. While the X-Men save all of the astronauts, Jean, inadvertently left behind, is stranded and ends up absorbing all of the energy into her body. The X-Men watch in horror as the American Space Shuttle Endeavour explodes.

As Space Law enthusiasts, the question we may ask ourselves is the following one: are there laws in outer space concerning astronauts? What are those? Were they respected by the X-Men?

X-Men: Dark Phoenix

Dark Phoenix, also known as X-Men: Dark Phoenix, is a 2019 American superhero film based on the Marvel Comics X-Men characters, produced by 20th Century Fox and distributed by Walt Disney Studios Motion Pictures. It is the twelfth instalment in the X-Men film series, a direct sequel to X-Men: Apocalypse (2016), and the seventh and final instalment in the main X-Men series. The film is written and directed by Simon Kinberg.

In 1992, the X-Men respond to a distress signal from the Space Shuttle Endeavour, a partially reusable Low Earth Orbital (LEO) spacecraft system operated by the U.S. National Aeronautics and Space Administration (NASA) as part of the Space Shuttle program, which is critically damaged by a solar flare-like energy. While the X-Men save all of the astronauts, Jean is stranded and ends up absorbing all of the energy into her body. Jean survives the event, and her psychic powers are greatly amplified as a result.

Space Shuttle Endeavour

Space Shuttle Endeavour (Orbiter Vehicle Designation: OV-105) is a retired orbiter from NASA’s Space Shuttle program and the fifth and final operational Shuttle built. It embarked on its first mission, STS-49, in May 1992 and its 25th and final mission, STS-134, in May 2011. STS-134 was expected to be the final mission of the Space Shuttle program, but with the authorisation of STS-135, Atlantis became the last shuttle to fly. The United States Congress approved the construction of Endeavour in 1987 to replace Challenger, which was destroyed in 1986. Structural spares built during the construction of Discovery and Atlantis were used in its assembly. NASA chose, on cost grounds, to build Endeavour from spares rather than refitting Enterprise.

X-Men and Space Law

We could actually answer many questions concerning this passage in X-Men: Dark Phoenix where the X-Men use their Blackbird aircraft to go in outer space. The first one would be on the right to access outer space and the administrative rules to follow in order not to be considered a space pirate. Since the X-Men are not a State, Article VI of the 1967 Outer Space Treaty would apply to them.

It states that “States 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 activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.

Let’s have in mind that the Blackbird aircraft could be considered for that operation a space object; the term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the conventional launcher, the reusable launcher, the satellite, the orbital station, the probe, the impactor, the space telescope…

The term “space object” is not precisely defined by the Onusian space treaties. Let’s note that the five outer space treaties use such phrases as “objects launched into outer space”, object placed “in orbit around the Earth”, “in orbit around or other trajectory to or around the Moon”, or “around other celestial bodies within the solar system, other than the Earth”. Some of the treaties refer also to “spacecraft”, or “landed or constructed on a celestial body”, “man-made space objects”, “space vehicle”, “supplies”, “equipment”, “installations”, “facilities” and “stations”.

In our research on X-Men and Space Law, what’s more interesting it the International Law concerning the rescue of the astronauts. On December 19, 1966, the United Nations unanimously adopted a treaty, opened for signature on January 27, 1967, declaring that the exploration and use of outer space must be carried out in the interest and for the good of humanity, any discrimination between States being excluded. Outer space, including the Moon and other celestial bodies, will be free and accessible to all States and cannot be the subject of national ownership. Adopting these basic principles, it establishes that any action by States in outer space must be in accordance with international law (including the Charter of the United Nations of 1945, the foundational treaty of the United Nations) not only in the interest of maintaining international peace and security, but also to foster international cooperation and understanding.

Article V of the 1967 Outer Space Treaty enunciates that “States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space and shall render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they shall be safely and promptly returned to the State of registry of their space vehicle. In carrying on activities in outer space and on celestial bodies, the astronauts of one State Party shall render all possible assistance to the astronauts of other States Parties. States Parties to the Treaty shall immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations of any phenomena they discover in outer space, including the Moon and other celestial bodies, which could constitute a danger to the life or health of astronauts”.

As a result, the X-Men were considered astronauts (under the terms of Article V of the 1967 Outer Space Treaty) and helped the crew of the Space Shuttle Endeavour. The relevance of any International Treaty is not only measured by the rationality, coherence and scope of its terms, but by the extent to which it is actually implemented. Implementation in the context of international treaties refers to both implementation in law, that is by National States in their domestic jurisdictions, and implementation in fact, that is being invoked with respect to actual events, situations or disputes. The 1967 Outer Space Treaty reflects a wide consensus of views on the procedures that should be considered applicable to the rescue of astronauts, and the return of astronauts. We are happy to notice that the X-Men respected the Magna Carta of Space Law and Cosmic Law by “rendering all possible assistance to the astronauts”. That is what we can say about X-Men and Space Law.