Legislating the Final Frontier: Labour Laws and Transnational Jurisdiction in Space
No longer the domain of Cold War rivalry, spaceflight is becoming increasingly common and lucrative. Government-backed research programs such as NASA’s Perseverance Rover on Mars or China’s Tianhe space station continue to make headlines. However, the rapid growth of the private sector in space exploration will ultimately define how humanity engages with space in the next century. As the field of private spaceflight grows, legislators of countries with manned spaceflight programs are in a unique position to learn from existing blind spots in labour laws concerning transnational business. In doing so, they can ensure that human rights are protected throughout the solar system and beyond.
SpaceX, the poster child for private-sector spaceflight, is already expanding its crewed mission roster beyond flights contracted by NASA through the Commercial Crew Program. Using the same Falcon 9 rocket and Crew Dragon spacecraft, they aim to enter the space tourism market with an all-civilian orbital flight scheduled for the fourth quarter (Q4) of 2021.
The feud between SpaceX and aerospace rival Blue Origin goes far beyond government contracts for NASA’s upcoming Artemis moon missions. Both are fighting to establish a lead in the broadband satellite Internet market with competing products: Starlink and Project Kuiper, respectively. Morgan Stanley projects that the “space industry” could become a trillion-dollar market over the next two decades, driven largely by such broadband satellite launches due to the importance of Internet access in today’s information economy.
It is unlikely that the future commercialisation of space will be constrained to the broadband satellite market. The moon is known to hold valuable resources such as rare earth metals critical to computing systems and Helium-3, a rare isotope that could facilitate nuclear fusion reactions and serve as a potential clean energy source. Tech startup Moon Express made headlines years ago after receiving the United States government's permission and tens of millions of dollars in backing for its goals of lunar mining.
The St Andrews Law Review previously examined the potential applications of international law concerning territorial ownership of extraterrestrial bodies and came to the opposite conclusion of SpaceX founder Elon Musk, who recently sparked controversy after suggesting that his company would be able to make its own laws on a planned Mars colony. However, even short of far-fetched scenarios like a martian declaration of independence, there are many causes for concern about human rights in space at the nexus of the agendas of multinational corporations and state actors.
When legislators consider ethics in space, contemporary concerns will likely be directed to situations such as those highlighted by last year’s protests over SpaceX’s launch of a Turkish communication satellite, given Turkey’s support of Azerbaijan in an ethnically charged conflict with Armenia. However, given the rapid technological and economic growth in the industry over the last decade, legislators should consider potential larger problems that can arise when multinational industries are poorly regulated. While there are legal tools that can be employed by domestic governments to penalise domestic companies for engaging in unethical practices associated with overseas supply chains (such as the US Foreign Corrupt Practices Act), additional complications emerge when regulatory responsibilities are less clearly defined. For this reason, it is vital to consider the current pitfalls of maritime law, especially in the cruise industry, to anticipate regulatory issues in the growing extraterrestrial economy.
Maritime law, which is concerned with the use of the world’s oceans and includes legislation such as the United Nations Convention on the Law of the Sea, is often used as a reference point when hypothesising how law can be applied in space. As with most international law, its enforcement is dependent on participating members, which means that individual states can craft their own legislation concerning matters such as taxation, safety standards, and labour rights. Consequently, the practice of ships flying a “flag of convenience” allows companies based in strictly regulated countries to take advantage of the less stringent laws of other countries to maximise their profits. Panama, for instance, is a relatively small country yet has the world’s largest shipping fleet. The Washington Post notes that this practice allows the three largest cruise companies in the world to be headquartered in Miami, yet not pay any US corporate income tax, all while engaging in labour practices that would be illegal in the United States.
Due to the legal quagmire associated with flags of convenience, it can be difficult to enforce criminal law against crimes such as sexual assault in international waters. The practice has historically aided rogue groups ranging from the Irish Republican Army (IRA) to North Korea. A lack of responsible legislative oversight can not only foster but encourage dangerous situations. Parallels between the limits of sovereignty on the open seas and in the void of space should give legislators pause for concern.
Given that the International Space Station is the only permanently crewed human settlement not on Earth’s surface, sounding the alarm about workers' rights in space may seem far-fetched. However, the ISS astronauts are a small group of relatively high-profile government employees; their working conditions are subject to extreme public transparency. The nations launching humans into space have thus far been ones in which the aerospace manufacturers are based and licensed. As a result, enforcement of the law takes place within a clearly defined framework of domestic law and international treaties, unlike the vacuum of maritime legal responsibility which contributes to sailors on bankrupt ships being abandoned without recourse for rescue, let alone compensation.
However, the mechanics of how human rights laws might be enforced in the long term, perhaps on privately-owned space stations constructed using the resources of another moon or planet remain theoretical. Groups such as Jus Ad Astra, which advocate for legislation protecting human rights in space, remain only marginally influential thus far. While Jeff Bezos, founder of Blue Origin, predicts that space stations are a future solution for Earth’s expanding population and energy needs, such possibilities take a decidedly dystopian spin when considered in the context of Amazon’s well-documented high rate of worker injuries at its warehouses. It also is worth noting that while accounts of the incident differ, in 1973 the NASA crew of the Skylab space station may have engaged in the first known instance of a strike while in space during an 84-day mission.
It is inevitable that the private sector will become increasingly prevalent across the solar system in the next few decades. The reusable nature of SpaceX’s Starship launch system, currently in development, will be a boon for future corporate enterprise across the solar system and are a far cry from the days in which rockets consisted of converted intercontinental ballistic missiles (ICBMs).
While international laws concerning space exploration already exist, there will likely be a need for new legislation due to the fact that existing laws were largely conceived in a pre-commercial age of spaceflight, mostly anticipating disputes between state actors and being contingent upon self-enforcement through treaties between different states. The UN Office for Outer Space Affairs (UNOOSA) has historically helped facilitate these treaties, which have been uncontroversial for the most part, given the relatively cooperative nature of post-Cold War government-backed spaceflight. While the International Space Station's resolution of issues pertaining to criminal jurisdiction, damage liability, and ownership or maintenance responsibility is determined by the Intergovernmental Agreement on Space Station Cooperation, this treaty is more analogous to the 1959 Antarctica Treaty to safeguard cooperative international research rather than forming the basis for a legal system to guide the human settlement of the solar system.
The 2020s are the start of a new era of spaceflight and legislators should bear this in mind as interplanetary travel and private spaceflight become more common.