Centre for Aviation and Space Laws Volume 1

Is there an Indigenous Right to Space?

Valmaine Toki*

Key Words: Space – Treaty rights – United Nations Declaration on the Rights of Indigenous Peoples – World view

Introduction

Space is often hailed as the final frontier to be conquered. The primary instrument that governs this desire is the Artemis Accords, announced in October 2020 by NASA, the National Aeronautics and Space Administration,[1] an independent American agency responsible for the civilian space program, aeronautics and space research.

The Artemis Accords is an agreement with international partners and commercial entities for lunar exploration and beyond, describing “a shared vision for principles, grounded in the Outer Space Treaty of 1967, to create a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.”[2] While the purpose of the Artemis Accords is to ‘establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program’, the Accords is silent on whether this extends to Indigenous peoples.

The Artemis Accords envisages the landing of the first woman on the Moon by 2024. With this in mind, Professor Melissa de Zwart recently asked the questions;[3]

  • “What are the laws that will regulate the sustained presence of humans on the Moon and their use of resources?
  • How will competing uses of the Moon be governed and how can international law assist with managing any resulting conflicts or tensions?”

This raises two further questions:

  • Can the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as an instrument of international law assist to manage the fundamental rights including those that extend to celestial bodies?
  • Does the Indigenous philosophy, or world view, support such a right?

To answer these questions this short piece will review the fundamental rights articulated in the UNDRIP before providing a short narrative on Indigenous world views and treaty rights as they apply to Māori.

United Nations Declaration on the Rights of Indigenous Peoples

The fundamental rights for Indigenous Peoples are recognised and articulated in the UNDRIP. The key right of self-determination is captured in Article 3.

The UNDRIP was adopted by the UN General Assembly with a majority of 143 states in favour in September 2007. Even if the UNDRIP is soft law and not legally binding until incorporated into domestic legislation, some jurisdictions have included it in their constitution. For instance, Bolivia and Congo.[4]

In addition, some jurisdictions have taken steps to promulgate enactments that promote the UNDRIP. For instance, the Canadian government has stated that, “Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the UNDRIP, and must prepare and implement an action plan to achieve the objectives of the Declaration.” This is reflected in the Statutes of Canada 2021, Bill C-15, a framework respecting the UN Declaration on the Rights of Indigenous Peoples, assented to on June 21, 2021.

In the absence of direct incorporation by a statute there are different methods of recognising international human rights instruments through recourse to administrative law. The (outdated) concept of legitimate expectation in Australia and a mandatory relevant consideration in New Zealand, have been employed to treat unincorporated international obligations, such as the UNDRIP, as considerations for the decision-maker. Also, the presumption of consistency, a common law principle of statutory interpretation, recognises that the Parliament is presumed not to legislate intentionally in breach of its obligations.[5]

The relevant obligation is found in Article 25 of the UNDRIP:

“Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Read together with the key right of self-determination, irrespective of national adoption of UNDRIP, this clearly provides the right for Indigenous peoples to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or otherwise occupied and used lands, territories and other resources. The inclusion of the term “otherwise” implicitly extends to land and territories within the celestial or non-earthly realm.

Indigenous Philosophy – World View

Aotearoa – New Zealand

Although from different global regions Indigenous peoples share commonalities regarding their ‘world view’. For the Māori, Indigenous peoples in Aotearoa, New Zealand, their world view is premised on cosmology. This cosmology includes various realms from which life is derived. Within these realms is Io Matua Kore where all celestial entities exist and originate. The steps through these realms assist to govern and understand the relationship between the animate and the inanimate.

For instance, within this cosmology is the separation of Ranginui and Papatūānuku that resulted in the developing of different ecosystems.[6] This separation was all part of the whakapapa relating the gods, the natural world and humans. Whakapapa connects Māori to the environment.[7] Within this philosophy is understanding that these elements are our relations and the concept of whanaungatanga or relatedness extends this obligation to non-human or inanimate objects.[8] Customs were also developed premised on this cosmology. Although there was no concept of ownership per se the obligation to look after the resource remained.[9] Resources had their own mauri or life-force and were perceived as treasures that required protection.[10] The underpinning doctrine was Tikanga Māori.

Tikanga Māori within the celestial realm denotes this environment as inter related. The mātauranga or traditional knowledge of this celestial realm where the movements of constellations, phases of the moon, rising of the stars were well known and assisted with the precise understanding of seasons and the well-known Māori navigation through the Pacific.[11] Kauwaerunga refers to the celestial knowledge that is linked to the cosmology and creation stories.[12] This knowledge was evident before colonisation and pivotal to Tikanga Māori and Te Ao Māori or a Māori world view from which denoted the relationships, framework and guidance for rights, responsibilities and duties between the animate and inanimate, with achieving balance as the aim.[13]

Treaty of Waitangi – Treaty Right

In Aotearoa, New Zealand, Māori entered into a Treaty of Waitangi (Treaty) with the Crown. The Treaty is recognised as a constitutional canon within the unwritten constitution of Aotearoa, New Zealand and a document of extreme importance as noted by the judiciary.[14]

Article 2 of the Treaty’s English text guarantees certain rights to Māori including a right to all taonga or treasures.[15] This includes their mātauranga or traditional knowledge of the celestial realm, knowledge upon which practical activities such as planting gardens and fishing were based. The traditional knowledge associated with the celestial bodies enabled the remarkable and renown navigation of the Pacific.

In sum, the rights available are:

(a)      First, the international instrument, UNDRIP, that recognises the right for Indigenous peoples, such as Māori, to maintain and strengthen their distinctive spiritual relationships with their traditionally owned or “otherwise” occupied and used lands, territories and other resources, such as those within the celestial realm in Article 25 of the UNDRIP,

(b)     Secondly, the underpinning tikanga or worldview that links Māori indisputably to the celestial realm., and

(c)      Thirdly, a domestic Treaty right, for Māori through the rights guaranteed under the Treaty including the rights to their taonga, their mātauranga or traditional knowledge of the celestial realm.

These provide an irrefutable right to space for Indigenous peoples and the celestial realm. Similarly, in recognition of the importance of Indigenous peoples’ rights, world-view and any relevant Treaty rights, scholars have urged the Canadian Space Agency to include Indigenous peoples in this project.[16] Understanding the historical adverse impacts of colonisation on Indigenous peoples this Canadian pre-emptive approach is welcomed to avoid any further marginalisation or alienation for Indigenous peoples to their taonga. To not recognise these rights perpetuates the outdated approach of colonisation. To continue to offer and consider economic or commercial gains without Indigenous participation further exacerbates the adverse effect of colonisation.

Conclusion

The Artemis Accords refers to creating “a safe and transparent environment which facilitates exploration, science, and commercial activities for all humanity to enjoy.” In addition the purpose of the Artemis Accords is to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program”. Aotearoa, New Zealand has offered support for the UNDRIP and Aotearoa, New Zealand has also signed the Artemis Accords earlier this year in May. Thus, Māori are entitled to the safety promoted by the Accords and the ability to contribute to the ‘common vision’ and ‘set of principles’.

With the race to conquer space well and truly afoot, it is time to raise the issue of where Indigenous rights are accommodated within this race. The Artemis Accords is silent as to Indigenous rights, however key international instruments, doctrine and domestic treaties recognize that a “right to celestial bodies” is evident. As the UNDRIP is an international instrument, this could assist in managing any conflict and resolve any opposing interests or tensions that other nation States may have regarding recognizing these fundamental rights.

References

* Professor of Law; Ngatiwai Nga Puhi, Former Expert Member UN Permanent Forum on Indigenous Issues Te Piringa – Faculty of Law, University of Waikato, New Zealand. Email: valmaine.toki@waikato.ac.nz

[1] NASA was established in 1958, replacing the National Advisory Committee for Aeronautics.

[2] Artemis Accords, section 1.

[3] Professor Melissa de Zwart ‘Boots on the Moon: Managing the return to the Moon’ (2021) Abstract, Virtual Outer Space Law Conference, University of Waikati 3 September 2021.

[4] See Toki, V. (2011) Indigenous Rights, Hollow Rights (WLR) v 19, issue 2.

[5] Ibid.

[6] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[7] Ibid.

[8] Ibid.

[9] Toki, V (2007) ‘Chief Executive of the Ministry of Agriculture and Forestry v Waikato Regional Council’ (RMB) September, 73.

[10] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221.

[11] Harris, Matamua, Smith Kerr and Waaka ‘A review of Māori Astronomy in Aotearoa – New Zealand Journal of Astronomical History and Heritage 16 (3) 325 – 336 (2013) <http://www.narit.or.th/files/JAHH/2013JAHHvol16/2013JAHH…16..325H.pdf>

[12] Ibid.

[13] Toki, V. (2010)  Adopting a Māori Property Rights Approach to Fisheries (NZJEL) v 14 pp 197 – 221. See also Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[14] Toki, V. (2018) Indigenous Rights, Self-Determination and Criminal Justice (Routledge, Oxon).

[15] Ibid.

[16] Hilding Neilsonand Elena E. ĆirkovićIndigenous rights, peoples, and space exploration: A response to the Canadian Space Agency (CSA) Consulting Canadians on a framework for future space exploration activities <arXiv:2104.07118v1>

Centre for Aviation and Space Laws Volume 1

Evolving Customary Law in Outer Space Frontier Settlements

Jennifer A. Brobst*

Key Words:  natural law – human nature – frontier settlement– outer space– international customary law

International customary law forms the basis of many international agreements. However, it should be uncontested that there is, as yet, no crystallization of international customary space law. Customary law takes generations to develop through cultural negotiation and the development of practice and custom accepted as law. [1] Laws and practices addressing space exploration and the frontiers of the cosmos are simply too recent. Should the human species survive to enable deep space exploration and frontier settlement beyond Earth, humanity will have an opportunity to develop new customary laws with the added benefit of the accumulated knowledge of human history and modern technology. This diverse human record of invention, achievement and strife was not available to the men and women on the frontiers exploring planet Earth in our previous history of expansion.

While international and national space law currently dominate discussions of what legal and social structures are best for humanity in outer space, such a focus is inherently limited to functional considerations of how to enter orbital space safely. For guidance on human exploration and settlement in the farther reaches of space, what is needed is a more inclusive and informed understanding of human nature. Modern conceptions of natural law, informed by social science research, may be helpful to move beyond the constraints of narrow commercial and governmental interests.

International Law in Orbital Space

In orbital and sub-orbital space, when the technological capacity of space exploration was more limited, the aspirational international agreements to engage in peaceful uses and cooperation in space were easily supported among nations. However, with the growing reality of both governmental and private commercial entry into orbital space, those ideals are undermined by existing suspicions and competition among state and private actors on Earth.

Outer space is jurisdictionally stateless under international law, with multiple resolutions adopted by members of the UN General Assembly to prevent an arms race in outer space:  “Reaffirming the will of all States that the exploration and use of outer space, including the Moon and other celestial bodies, shall be for peaceful purposes and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.” [2]However, “will” is not a mandate, and the General Counsel of the United States Department of Defense has asserted that:

None of [the outer space treaties] has any specific provision that indicates whether the parties intended that the agreement apply in wartime. There appears to be a strong argument that the principle of noninterference established by these agreements is inconsistent with a state of hostilities, at least where the systems concerned are of such high military value that there is a strong military imperative for the adversary to be free to interfere with them, even to the extent of destroying the satellites in the system. [3]

If matters of distrust on Earth have not been resolved between nations, why should such nations agree to different terms in a new space frontier that is equally, if not more, perilous? International law is imbued with concerns related to distrust and the potential for conflict.

An additional criticism of use of international law in space is that such agreements not only reflect the dominant voices of the first nations in space, but that they are predominantly Western and disregard non-Western perspectives and cultural strengths.[4] This is demonstrated by the tacit unwillingness of nations consistently to abide by the principles of treaties, declarations, and resolutions which they may have signed and the lack of clear mechanisms of enforcement. [5] Arguably, international customary law has been a product of a largely Western, colonial, and capitalist interests. A combined functionalist and humanitarian focus in space law would do well to remember this history.

Natural Law Among the Stars

         If the legal structures promoted by international efforts in space appear to be products of capitalist conquest, it is no surprise. Satellite use, mining celestial bodies, space tourism, and achieving scientific and technological advancements in space for use on Earth all appeal to a profit motive, which is not a problem in itself. If humanity seeks to achieve competitive gains, then perhaps this is simply part of human nature. Every large civilization, past or present, Western or not, has engaged in conquest and social disruption throughout human history. Then why do the outer space treaties and national space initiatives repeatedly speak of peaceful uses? The Artemis Accords, for example, seeking international and civil cooperation “for peaceful purposes” in the exploration of the Moon, Mars, Comets, and Asteroids, are currently embraced by 12 countries – Australia, Brazil, Canada, Italy, Japan, Luxembourg, New Zealand, the Republic of Korea, Ukraine, the United Arab Emirates, the United Kingdom, and the United States.

  Natural law, granted a Western political and philosophical concept, provides a framework to answer this question. Grotius, the purported father of international law, professed in 1670, a time of conquest and war, that nation states needed to create a set of unifying, universal principles “out of the chaos of lawless and unreasoning strife.” [6] The unifying growth of human civilizations is explained through natural law as humanity’s observance and attempted replication of order and harmony in the universe within human social structures. [7]That is, human nature seeks to create order. Applications of international law to  orbital space law, such as enterprises on the International Space Station or Moon landings, are tethered to an understanding of ourselves on Earth and what enforced order is needed. But would this be the case for human settlement in the frontiers of outer space far beyond Earth? Would international law as we know it effectively guide future human civilizations if it is a product of conquest and cooperation on Earth alone?  This is unlikely given the inscrutable nature of what is to come. The human species itself, however, is not an unknown factor, for it has not biologically evolved other than in minute physical ways for millennia and may retain key aspects of its social nature for many more millennia.

So who are we? Natural law theorists of the past, such as Rousseau and Locke, were all Western men who posited that, as a matter of reason within human nature, our species is inherently interested in survival and therefore will engage in violent self-defense.[8] Concepts of liberty and equality underpinning the nation states of the West were intended to create a utilitarian social compact of peace and cooperation that supported human survival as a society. However, in practice many were subjugated and enslaved to ensure the success of a select segment of society, colonial, male, and affluent, a reality both justified and criticized by international customary law. [9] Despite its apparent manipulation, what the natural law framework continues to provide is a recognition that there may be commonalities in our single human species across cultural, class, racial and gender identities that would potentially connect and unify us.  While current political ideals may never be universal, if seen as imperialist or too narrow, today we have the benefit of modern understandings of psychology, anthropology, and human biology to help us better understand human nature and what makes us thrive together as individuals in society.

How Humans May Thrive in Outer Space

         Both social and evolutionary anthropologists put forth that humanity builds its greatest trust within the family structure, in part because the human species has such a long period of childhood development. [10]However, family structures vary, and strict gender-based roles in society, based on assumed biological differences, have been more likely to emerge when women have had little control over reproduction. Positive law is often unneeded in the day-to-day practices of individuals in family life and small societies, where trust, cultural familiarity, and affection may lead to cooperation and negotiation. For example, even in times of conquest, colonial powers more often left alone matters of family law, which were deemed more inherently stable than matters of commercial law and trade. [11]Therefore, while an interest in survival and self-defense are shared in natural law, arguably so are a duty of care and an appreciation for generosity and affection, a factor often left out by early natural law theorists. Also, an interest in creativity, imagination, and innovation are indelibly human, and would need support to sustain humans in an isolated outer space frontier.

Far into the future, impositions of current international law, largely Earth-based, will have little to say regarding how human settlement should survive as a society. If human settlements in outer space survive, and even thrive, it will not be due to complex, restrictive legal structures, but to the unwritten natural law of human nature which is mutually cooperative and supportive in smaller societies and family-based groups. Indeed, in contrast to much of the natural law philosophy of the past and its lack of mention in international space law, empirical study has shown that healthy emotions derived from close human relationships “appear to be among the most stable, fundamental features of human nature.” [10] As new customary law emerges in outer space settlements, the natural risk of human conflict should be tempered by the human ability to understand itself and what it needs.  As Sun Tzu stated 2,500 years ago, “[t]he art of war teaches us to rely not on the likelihood of the enemy’s not coming, but on our own readiness to receive him,” but in this same work he acknowledged that conflict is meant to sustain peace and that soldiers approaching home will be more likely to leave the ranks early to see their loved ones. [11]

References:

*Associate Professor of Law, Southern Illinois University School of Law, Carbondale. UNITED STATES OF AMERICA.

[1] H.W.A. Thirlway, International Customary Law and Codification: An Examination of the Continuing Role of Custom in the Present Period of Codification of International Law (AW Sijthoff 1972) 76.

[2] E.g., U.N. General Assembly. A/Res/62/20 (10 Jan. 2008).

[3] United States Dept. of Defense, Office of General Counsel, “Department of Defense Law of War Manual” sec. 14.10.2.1, at p. 915, note 153 (June 2015, updated May 2016).

[4] See Arvind Sharma, Are Human Rights Western? A Contribution to the Dialogue of Civilizations (Oxford University Press 2006).

[5] Theodore Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press 1989) 142.

[6]David J. Hill, ‘Introduction’ in Hugo Grotius (transl. by AC Campbell), The Rights of War and Peace, including the Law of Nature and of Nations (first published as De Jure Belli ac Pacis in 1670, 1901) 1.

[7] Paul E. Sigmund, Natural Law in Political Thought (Winthrop Publishers, Inc. 1971) viii.

[8] Lloyd L. Weinreb, Natural Law and Justice (Harvard U. Press 1987) 78.

[9]E.g., Roper v. Simmons [2005] 543 U.S. 551 (prohibiting juvenile executions); Koowarta v. Bjekle-Petersen & Others [High Ct. Australia 1985] 68 Int’l L. Rep. 181 (prohibiting racial discrimination); The Antelope [1825] 23 U.S. 64 (supporting slave trade as not contrary to the Law of Nations).

[10]Barbara B. Smuts, ‘Social Relationships and Life Histories of Primates’ in Mary Ellen Morbeck, Allison Galloway, and Adrienne L. Zihlman (eds), The Evolving Female, A Life-History Perspective (Princeton University Press 1997) 60, 60.

[11] David C. Buxbaum, ‘Introduction’ in David C. Buxbaum (ed), Family Law and Customary Law in Asia: A Contemporary Legal Perspective (MartinusNijhoff, The Hague 1968) xxxviii.

[12] Sun Tzu, The Art of War (Fall River Press 2015) Ch. VIII(11), at 76.