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Designing laws for the solar system frontier

When is material from outer space not a ''space object''? Perhaps when it's a moon rock or a piece of an asteroid, Steven Gorove suggests. This is the University of Mississippi space lawyer's way of highlighting the legal ambiguities and unresolved issues that face the pioneers who would develop the solar system frontier.

These range from such basic questions as what legal system should govern extraterrestrial colonists and who controls lunar mineral rights, to the seemingly trivial distinction between space material and ''objects.'' The latter issue arises in connection with liability for damages caused by a nation's space activity. According to Gorove, the current international liability convention applies only to objects put in space by humans, not to moon rocks or other material found naturally ''out there,'' which solar system developers may acquire and use.

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Despite their futuristic flavor, such issues of space law are highly relevant to present-day life on Earth. Gorove was one of dozens of speakers at a recent conference, sponsored by the US National Aeronautics and Space Administration, that considered the prospects for lunar bases and other 21st-century space goals. Once the United States and Soviet Union have established permanently occupied space stations and the infrastructure of satellites and spaceships that serve them, it will be relatively easy to return to the moon and visit Mars and the asteroids. Thus, within 15 years, moon bases and the mining of lunar and asteroidal minerals will likely become practical possibilities.

This means that those who would develop these possibilities tomorrow must face up to space law today, for important legal issues are being negotiated right now, as they have been since the 1960s. Moreover, these issues involve the same fundamental differences in viewpoint that have made the Law of the Sea Treaty so controversial and that led the Reagan administration to refuse to sign it.

Briefly put, it is the difference between the desire of Western industrial nations for free access to the space frontier and the determination of third-world countries to control that access so as to share the benefits of space development, even though they may have no space capability themselves. They would require spacefaring nations and private companies to share, not only their profits, but also their space technology and know-how. In the language of space law, it is the difference between considering the solar system (Earth excepted) to be the ''province of all mankind'' or the ''common heritage of mankind.''

The former language extends the concept of freedom of the high seas to the solar system. No nation can claim sovereignty there. Yet all have equal access and an equal right to explore, establish bases, and conduct mining operations. This is the currently governing concept of international space law. It is embodied in the so-called outer space treaty, which has provided the basic space-law framework for 17 years or so, and in several subsidiary treaties dealing with astronaut rescue, liability, and registration of satellites and other man-made space objects. These treaties have been ratified by many nations, including the main spacefaring powers.

The ''common heritage'' concept, which Gorove says is ''not well defined,'' is much more restrictive. As in the Law of the Sea Treaty, it not only precludes national sovereignty; it proclaims the right of every nation to share in the rewards of space development regardless of who does the developing. This concept is embodied in the so-called moon treaty, which actually deals with the entire extraterrestrial solar system.

For United States space enthusiasts, who consider the solar system in terms of the manifest destiny of humanity, the whole thrust of the moon treaty is anathema. The ''common heritage'' concept is seen as an attempt to put a hammerlock on spacefaring nations. And, beyond that basic issue of access and control, there is uneasiness about questions of individual civil rights for space colonists. These should not be bargained away in treaty negotiations between nations, many of which do not share the democratic outlook of Western nations, let alone that of the United States.

The moon treaty, for example, would appear to give individual nations a right to inspect other nations' space facilities without a warrant to ensure they were not used for military purposes.This has raised visions of the Soviet KGB swooping down on unsuspecting American space facilities.

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Certainly, as Gorove pointed out, there are many open legal questions to be answered as humanity moves outward from Earth. And, even though that thrust is now being carried largely by national programs, it is an endeavor in which humanity must inevitably begin to act jointly. Reviewing the space-law challenge in the current issue of Sky & Telescope, Carl Q. Christol, a professor of international law and political science at the University of Southern California , observes: ''These problems are not wholly insoluble, for even protracted negotiations can be predicted and accommodated. Political decisions should emerge, and these will become the new principles of space law.''

Indeed, by undertaking the hard negotiations by which the haves and have-nots work out an equitable means of sharing the space adventure and in learning to accommodate radically different views of civil and commercial rights and law, the world's nations may discover that they are also learning more about how to live together here on Earth.

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