International template for space law, the law of the sea holds principles needed to share the great expanse.
By Rebecca Schembri, Harvard University Extension School, May 1, 2021.
Over hundreds of years, maritime customary law has honored freedom of travel and trade on the Earth’s waters (Grotius). Forming the backbone of modern international covenant, mare liberum is the main concept for the United Nations Convention on the Law of the Sea, or UNCLOS. This constitution sets rules for coastal borders and keeps states from encroaching into the “global commons” of international waters (Rochester 94). Although the decades-old framework is considered “one of the most impressive accomplishments engineered by the international legal system,” arguments about territorial limits ensue between countries (96). As the world grows in technology, climate change, and population, the borders of the sea will be tried and tested for expansion and UNCLOS will face changes when nations, together, deem it necessary.
From its conception in 1967 to its inception in 1994, 27 years passed for the international community to institute the Law of the Sea Treaty. Signed by 167 states and the European Union, parties to UNCLOS agree that borders will begin at a state’s low tide baseline, protecting internal water rights while allowing for territorial, contiguous, and exclusive economic zones which vary up to 350 nautical miles out to sea, (United Nations). These areas provide for differing degrees of state jurisdiction along with freedom to harvest and protect its boundaries (Bederman 186). In cases where zones overlap, countries should share the territory equally and if not, must decide amongst themselves how to establishthe borders of delimitation (United Nations 15). The seas beyond this are free to all without local jurisdictions, except for authority on ships and in cases of hot pursuit (92, 111). To ensure that the oceans remain a “peaceful place for all,” UNCLOS provides for the International Seabed Authority (ISA), whose job is to protect marine environment of the high seas and give freedom to conduct scientific research, controlling mining and maritime licensing (88, 156).
Although international maritime law has already gone into effect and states agree that crimes such as piracy and slave trading are illegal (101), there is not total consensus on the proper treatment of the seas (Bederman 192). As expert and author J. Martin Rochester illustrates, parties either push for less regulation, for more territory, or just the opposite: for protection and sharing of the commons (94). He warns of maritime squabbles, writing: “40 percent of the world’s population depends for drinking water and irrigation on 215 river systems shared by at least two states; twelve of these are shared by at least five different states” (241). Finding a consensus is delicate—a task that requires international diplomacy. While richer, sea-faring nations seek freedom to act, smaller, less-developed nations take solace in UNCLOS, supporting regulations that grant them a portion of the benefits harvested by rich countries using ISA mining licenses (Rochester 92-93). Scholars debating the topic agree with both sides, insisting that although international law must be kept simple, Earth’s oceans and seas should not be absolutely free for consumption—the waters should be fairly shared, memorably disputing that “they are the common heritage of all mankind” (Pardo 14).
As technology advances and it is easier to exploit the sea, states may argue to expand their maritime borders with proposals for new conventions on maritime law. This “demands international cooperation,” since “the only limitation to exploitation will be that of technology,”—human advancement will be the catalyst for policy change, and when such growth occurs, international waters will become more desirable (Bederman 183; Pardo 10). Humanitarians dream about the sea as well, pleading with the world to preserve the oceans in sustainable harvesting of resources and to look at “the development of …technology for the cheap extraction of fresh water from sea-water which gives us the promise of making deserts bloom and the possibility of supplying the water needs of multiplying urban nations” (Pardo 3). UNCLOS has immense clout for weathering these different storms of thought, and has successful maritime history on its side: “We sometimes forget how close the world has come…to producing a single set of rules governing virtually every human activity on 70% of Earth’s surface” (Rochester 38). The Law of the Sea is 436 articles strong, designed by the world to protect its interests of peace, prosperity, and community (United Nations).
In the future, will changes in the climate and rising sea levels affect state boundaries, calling for UNCLOS reform? Will governments need to control the oceans to feed a booming human population waning in agriculture? Will metals from the ocean floor fuel a trillion-dollar mining industry? These, among others, are questions that UNCLOS will need to answer and tend to, ebbing and flowing together with the inevitable tides of the international community it serves. Meanwhile, it suffices to note that “…achieving [in UNCLOS] such a wide agreement over such a large set of issues spanning [most] of the globe through a process that was based on consensus voting and that allowed no reservations to be attached to the final draft,” is remarkable (Rochester 96). It is an accord that took a generation to conceive, another to implement, and will take many more before it is obsolete.
Bederman, David J. and Chimène I. Keitner. International Law Frameworks, 4th ed., Foundation Press. 2016, pp. 183-197.
Grotius, Hugo. Mare Liberum, Alex Struick, 2012.
Pardo, Arvid. United Nations General Assembly, 22nd Session, 1967.
Rochester, J. Martin. Between Peril and Promise: The Politics of International Law, Sage Publications, 2nd ed., 2012, pp. 90-96.
“United Nations Convention on the Law of the Sea”. UN.org.
By Rebecca Schembri, Harvard University Extension School, April 7, 2021
International law is a system set up by nations, or states, to engender civilized predictability in relations between each other. Since states prosper in times of peace, and benefit from working together in commerce and intellectual growth, it is to a nation’s advantage to remain amicable with the rest of the world. Although international agreements do not inherently supersede a state’s national constitution, they are considered binding—only to be violated when the core values of a nation are questioned. States take international law seriously, writing its defense into their constitutions and honoring tradition in the absence of formal treaties. However, depending on a state’s attitude, such laws are not taken as supreme, and can be overridden when necessary.
The importance of international law may be seen in state constitutions worldwide. Illustrating such gravity, the constitution of the Italian Republic states that the “…Italian legal system conforms to the generally recognised principles of international law….” Likewise, South Africa’s constitution proclaims that the “… Republic is bound by international agreements.” These countries are not alone in forming accords with other nations, in fact, most states make room for it in their founding documents. Article VI of the Constitution of the United States of America decrees that: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under this document, treaties with other countries are protected and upheld.
Customary law, or the longevity of practice, can also be binding, as in the case of violated rights of Cuban fisherman, The Paquete Habana. Here, courtesies that had been observed for centuries were not easily undone when the U.S. Supreme Court ruled in favor of the boat owners, obliging spoilers to pay damages on goods they had confiscated. This accountability to custom was explained by the court: “…where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators.” This urgency of international customary law is considered a vital part of organized rule.
Depending on their political beliefs, however, states adhere to international law differently. This can be catalogued into two sections: monist or dualist, and, according to scholar David J. Bederman’s writings, hinges on “whether a domestic constitution or statute can ‘[override]’ a customary international law or treaty obligation as a matter of domestic law.” This means that if states adopt international law without question, it becomes their law, whereas a state that first honors its own laws, then those of treaties it has signed, keeps a distinction between the two. Monist, and partially monist, states, such as the Netherlands, Germany, Italy, and Austria merge international law with their own and generally accept treaties and custom as firm. Although these states differ in their degree of acceptance, overall they uphold these laws as one with their internal legislation.
Dualist states, on the other hand, adhere to international agreements yet keep the obligations of such as secondary to their own. In the United States, for example, it is “well-established that neither a rule of customary international law nor a provision of a treaty can [repeal] a right granted under the Constitution.” Although international law is solemnly honored, the United States’ values, and those of other dualist nations, prevail in court over international interests. This was shown in the U.S. Supreme Court case Reid v. Covert, when an American woman’s constitutional rights were upheld even though she was charged for a crime in England. As situations like this arise, and states must choose between their international legal aspirations and their own centric beliefs, domestic courts will consider the nation’s laws before ruling. In South Africa, for example, Article 232 of its constitution states that “[c]ustomary international law is the law in the Republic unless it is inconsistent with the Constitution or Act of Parliament.” This failsafe to protect the needs of the country before the needs of diplomacy is also marked for international treaties the state has signed.
In sum, although a nation makes every intention to keep its word, it is bound by international law only as far as it chooses to be and may do so on an item-by-item rationale: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time,” wrote twentieth century scholar Louis Henkin. This strict keeping of laws except in dire situations is, in Bederman’s words, solidly fluid. “The best way of thinking about international law in this respect,” he writes, “is that it may well be “separate” from domestic legal systems but it is not “apart”. The laws of a nation include international law, and they are a branch of each state’s judicial system. As the U.S. Supreme Court observes, “international law is part of our law.” The hard decisions of honoring one’s internal obligations before the external are not taken lightly and carry a legacy of precedent. It is for state leaders to make these calls, and to reap the consequences of the histories they write.
Rebecca Schembri, Harvard University Extension School, March 24, 2021
It is because of the terrific, yet possible, deployment of nuclear bombs that scientist Frank Bernardy has spoken out. Heeding his duty to educate the public on the danger of using nuclear power for fuel, the anti-proliferation expert thinks of his grandchildren as he explains the technology is “inseparable” from nuclear war and could cause the extinction of humankind. But in 2026, the National Aeronautics and Space Administration intends to install a nuclear reactor on the moon, testing the limits of international law by upsetting the standard for a weapons-free commons in outer space. NASA’s plan differs little from nuclear armament on Earth: while the administration insists the highly-enriched uranium to be made on the moon is intended solely for fuel, it will be the same ingredient used to make nuclear weapons. Is this legal? Is it safe? Perhaps not, but it is worth it. Although the world risks its life entrusting humans with the materials for mass destruction, nuclear energy is necessary for the next step in humankind’s survival. With nuclear-dependent technology ripe for space exploration, landing on other planets is more than a ‘giant leap for mankind’—it is one of the protective measures responsible leaders need to ensure the posterity of their constituents. Scientists agree that Earth is turning into a dangerous place; a reminder that all species of life have either gone extinct or will likely do so. Humans can escape this, endowed with advanced intelligence; they can rise to the threat, diverting their fate with science, innovation, and responsible politics. In the age of supercomputers, life off-Earth has been conceived and will push spacetravel to fruition with nuclear power, the only technology humans have for such missions, as its driving force.
Scientific research coupled with artificial intelligence has brought clarity to the dangers of modern life on Earth—as technology grows, the urgent call for putting humans into outer space does also. For example, in six years, an asteroid large enough to obliterate half the world will approach Earth. Although calculations do not predict impact, warnings like these are common, as NASA has been asked by Congress to identify over 1 million Near Earth Objects orbiting the sun. Since NEOs can change course unexpectedly due to their asymmetric shape and build—comets, for instance, break apart upon nearing the sun as icy gases within their rocky bodies burn and crumble the hard parts into tail pieces, forming meteors—they are unpredictable and largely unmappable by Earth’s scientists. Today, NASA has identified 3,697 comets in orbit, and estimates that billions more exist. Although Earth’s atmosphere burns up many incoming space objects, it would only take a rock the size of a football field to cause mass extinction on Earth. After the initial impact, dust from the collision would block out sunlight worldwide, causing a perpetual winter, and Earth’s animals and crops would die within a year, leaving survivors to starve as surpluses wane. This is what extinguished the dinosaurs, when an inbound asteroid, albeit larger, crashed into Earth, forming the Gulf of Mexico and leading to 75% of Earth’s life vanishing forever.
Extinction is a twisted truth to the miracle of life, an unspoken end that humans tend to not consider as the kind of thing they should worry about. That is, until it begins to happen. Climate change is coming, and is here, with myriads of scientists going public to support utter fear for a future in which the global warming beast comes hand in hand with overpopulation—the U.N. estimates a billion people are to become refugees or die from intense weather and starvation over the next three decades. Just as sobering, worldwide infection could also end humanity. Some viruses cause widespread death, as seen in the global and regional health crises of the past millennium, in which a third of Europe was wiped out from the bubonic plague, 90% of native Americans died from smallpox, and COVID-19 took more human lives worldwide than Americans lost in the Civil War, World Wars I and II, the Vietnam War, The Korean War, and the September 11 attack, combined. Late astrophysicist Stephen Hawking, who built and expanded on the work of Albert Einstein, warned, “I don’t think we will survive another 1,000 years without escaping beyond our fragile planet.” Humans are eggs in one delicate basket, susceptible to spreading disease to one another and subject to the revenge of a changing Earth; and of something as simple as getting hit in the head with a giant space rock—the mathematical probability that human extinction will one day occur, if nothing changes, is vivid.
In a concerted effort to provide humanity with options, spacefaring countries are looking beyond today for help. With scientists this decade discovering over 8,000 planets outside Earth’s solar system, they estimate some may be habitable: rocky, Earth-like planets warmed by their own star and which have a protective atmosphere. Currently NASA has active missions to the moon, Mars, Saturn, and Jupiter, and seeks to begin off-Earth enrichment of uranium for a nuclear-powered lunar base to be used for launching nuclear dependent deep-space exploration jobs. A result of Einstein’s calculations under the Nazi war threat, this powerful technology has been replicated in laboratories for the past 70 years, leading to grave concerns about its potential for weapons of mass destruction, and to intense fascination with its free, renewable energy. The desire for highly-enriched uranium is clear, says NASA: until technology advances, strong nuclear power is the only way to approach Space—by splitting atoms, nuclear fission produces heat energy which is converted into electricity, allowing for long-term power and propulsion and the possibility of settling on other celestial bodies, and of finding new worlds. A clean energy for the environment, nuclear power saves millions of lives per year when used responsibly. Although the horrific scares from nuclear meltdowns at Three Mile Island, Chernobyl, and Fukushima have shown the tragic results of widespread radiation poisoning, the power source can be contained and kept safe, especially on the moon. The United States has reported advances in safety protocols from the UN-backed Safety Framework recommended for all nations, showing that America publicly judges the use of nuclear energy as necessary and accepts responsibility for its caretaking; NASA is complying with the recommendations of world agencies and has been given the political nod to move forward.
Siding with Dr. Bernardy, opponents to nuclear proliferation say absolutely not—there is no ‘political nod’ to the manufacture of highly-enriched uranium, only on low-enriched uranium. NASA seeks to make enough material to create 12 nuclear bombs on its lunar base, they cry, sounding alarmist and well-intentioned fears: in a time when countries have worked tirelessly to prevent the manufacture of HEU, seeking to declare the radioactive material abolished, if nations bring in even more, humanity will be backtracking and asserting its own doom. Making a nuclear bomb “is so simple that even schoolkids could do it,” warns Bernardy. “This is a grave concern because if someone could get a hold of highly-enriched uranium…one shudders to think what could happen.” With the shelf life of HEU exceeding human lifetimes, Dr. Bernardy has reason for concern—one day, not this decade and perhaps not in the next, but many decades from now, the material could be used for evil. An alternate fuel source is recommended, say the organizations comprised of scholar and industry experts, as they plead with leaders for a non-nuclear world: “It is desirable to replace [it] with other materials and thus cease all HEU production forever.” They inherently oppose nuclear power on Earth and in Space, recognizing that although going nuclear-free could slow the advent of space exploration by many years, the U.S, in allowing the manufacture of HEU, even if it is on the moon, would be rewinding 40 years of domestic and international non-proliferation policy stemming from the Cold War, when the Soviet Union was poised for a nuclear attack, and vice versa. Also, international law—the United Nations Outer Space Treaty ratified by 110 nations and stemming from the potential horrors of nuclear proliferation in the 1960’s, reinforces the intention of nations to maintain peace and global opposition to the use of nuclear weapons, particularly in off-Earth operations. Nuclear weapons are banned in outer space, and that alludes to the ingredients for their manufacture. Allowing NASA to follow through with its nuclear space program will set a precedent for HEU production, with other countries following suit.
These traditionalists have a point, but the truth is: outer space is an environment that will boil blood in under a second, cause terminal cancer within months, and plummet spaceships with icy rocks that flame burning gas as they orbit at 17,000 miles per hour. Humans will die trying to save mankind and every effort to help them succeed is the inherent obligation of spacefaring nations around the world. Yes, nuclear war is horrific, but humans already live with that risk, along with the threat of extinction by scientifically-predicted acts of Nature. The U.S. has an obligation to its citizens to act in their best interest, reevaluating old policies based on new information which includes greater threats than that of nuclear war. Safety measures backed by the U.N. Working Group and the International Atomic Energy Agency, the latter which monitors uranium used for weapons, can be put in place to prevent nuclear missiles from being made in Space. Although it pushes the boundaries of the agreement, there is not a clear violation to the Outer Space Treaty because highly-enriched uranium is not a nuclear weapon, it is simply radioactive nuclear “material”, and the reactor placed on the moon will be a “nuclear device”; a generator of energy; a power plant.
Astrophysicist Neil deGrasse Tyson chides that “dinosaurs are extinct today because they lacked…the brainpower to build a space program.” He argues that humans can take action before it is too late. He is not alone: hundreds of years ago the ancient astronomers predicted humans would need to make it to Space one day. Had they been faced with the dilemma of nuclear energy, they would have vehemently debated the question, which is not if Earthlings should be permitted to manipulate the power of the cosmos, using it for fuel, the byproduct being provisions for weaponry so terrifying in wartime they could cause the extinction of the human race, but must they? It is a hard decision, and yes—they must. Dr. Frank Bernardy is correct—nuclear weapons pose a huge risk to Earth’s people—but the risks of not doing anything outweigh them. Expanding into outer space is a solution for humans; a light in the darkness that will, at great costs and at great risks, ensure that humanity does not die, but carries on, continuing to respect, and thrive by, the miracle of life. Perhaps there is a safer energy source than nuclear energy. Perhaps in the future it will be discovered, and humans can grow toward a more utopian society that does not include the threat of war. For today, the sentiment of support for outer space exploration is required by all peoples of Earth, perhaps not for themselves, but for their children’s children. The world’s leaders have a chance to save myriads of lives as humankind steps into the possibility of sustained life, both on, and off of, Earth. Godspeed.
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