Guest Post: “Will Outer Space be an Empire or a Utopia?  Star Wars and Star Trek, with a Dash of History, Can Help Predict Our Future in Space”

In today’s post Lawfire^® contributor Navy CDR Tracy Reynolds, speaking in her personal capacity, discusses the “Predictive Power of History, Policy, & Pop Culture” with respect to the development of the law of outer space.  She observes:

“International law practitioners, academics, and decision-makers can consider not only history and policy, but we can also explore legal concepts within the context of fictional narratives.  We can choose to explore potential third and fourth order effects through pop culture.  This creative and deep thinking can help us all.  Practitioners can creatively consider risk mitigation in a no-risk environment.  Decision-makers can explore consequences of actions without any real world impacts.  Creative thinking will increase informed decision making about law and policy in outer space.”

She advises that the Space Law Interest Group (part of the American Society of International Law) is hosting a regular Zoom event series on this fascinating approach.  (Details below.)

Tracy is obviously a highly innovative scholar who is willing to think outside the box.  This is one reason you’ll see her on the “Emerging Challenges of Space Law” panel at our 29th Annual National Security Law Conference coming up on Feb. 23-24!

Will Outer Space be an Empire or a Utopia?  Star Wars and Star Trek, with a Dash of History, Can Help Predict Our Future in Space

By CDR Tracy Reynolds

Humans long for outer space.  Since our earliest origins, humanity has looked to the stars.[1]  Developments in technology from ochre paint to telescopes to rockets have carried us from mere observation to physically traveling to outer space in person. 

Our curiosity, hunger, and drive will continue to pull our attention outside earth’s atmosphere into outer space.  Humanity has explored, studied, and gathered natural resources in space.  We might even build cities.  Our very future as a specie could lie in outer space.

Clearly, humanity will not wait for a clear outer space legal regime before engaging in outer space activities.  In fact, we haven’t waited.  But the law has not kept pace with human activities in outer space.

We can learn from law, policy, history, and pop culture.

Gene Rodenberry, World War II Fleet Admiral Ernest King, Han Solo, and Captain Picard all have something in common.  Let’s explore this commonality’s exact nature in a slightly roundabout way.  Indulge me, please. 

Outer space is more accessible to people now than at any time in history.[2]  As humans continue to increase activities in space, the need to more deeply understand the outer space legal regime will also increase.

What is the basis of outer space law?

The 1967 Outer Space Treaty and associated agreements established the foundational legal framework for human activities in outer space.[3]  Since negotiation and coming into force almost fifty years ago, the outer space legal regime has withstood challenges to core tenets[4] and served as the firm basis for decades of space law policy discussions. 

However, what the Outer Space Treaty does not provide is practical assistance in how to apply these legal principles in outer space. 

Since 1967, State practice that illustrates the application of many treaty principles to human activities in outer has not materialized.  Moreover, additional multilateral treaty law that provides substantive details on the application of these principles to ever more sophisticated and broadening human activities in outer space has not been forthcoming. 

In the absence of international agreements, States have turned to non-binding normative agreements and a focus on national space law and policy.  The Artemis Accords, established in 2020 and now including 33 signatories, is an example of just such a non-binding agreement.

In the absence of case law and State practice, we can and must be creative. 

While there are limited examples of State practice to develop customary international law in outer space or assist in interpreting existing treaty law, there are numerous examples within literature, T.V., movies, and other pop culture that can serve as a foil by which to examine a variety of scenarios. 

Also, historical events often funnel from the real world into pop culture.  This provides a method by which to examine real world law/policy within the frameworks of a fictional “case study” or “vignette.”

Which gets me back to Gene Rodenberry.

Law, history, policy, and pop culture have always influenced each other.

Not only does pop culture often predict developments in society (think about Spock’s tricorder, first shown in the 1960s, and our iPads) but history often influences pop culture.  The protagonist of Robert Heinlein’s 1947 novel, Rocket Ship Galileo, is based on U.S. Fleet Admiral Ernest J. King, an American naval officer who served as Commander in Chief, United States Fleet and Chief of Naval Operations during World War II. 

Gene Roddenberry read Rocket Ship Galileo and used the character based on Admiral King as the inspiration for Star Trek’s Captain Pike.  The original television serial Star Trek aired from September 1966 to June 1969.  Star Trek has spawned additional T.V. series, including Captain Picard’s Next Generation, and a score of movies. 

Captain Pike re-entered popular culture in 2022 as the lead character in Star Trek:  Strange New Worlds, a T.V. serial aired on Amazon’s streaming service.  Rotten Tomatoes, a web site that aggregates critical ratings of movies and T.V. shows, have Strange New Worlds a critical rating of 98% and the audience gave it a score of 78%[5], which speaks to the cultural resonance and longevity of both the Star Trek series and Captain Pike as a literary character. 

Perhaps this longevity also speaks to the character’s relevance and the role his universe could have in providing case studies for examination as legal principles in outer space continue to develop.  Star Trek takes place in a post-scarcity society and can provide utopia-like vignettes to explore legal concepts in outer space.

Now we can talk about Han Solo.  Star Wars, where we first encounter the beloved Millennium Falcon pilot, presents issues related to Empire.  Literally.  The Star Wars universe is a foil to the Star Trek universe.  Utopia versus Empire.  Where one is scientific exploration and self-defense, the other is domination and aggression. 

Star Wars is uniquely positioned as a fictional society grounded in concepts of “Empire” while Star Trek generally represents one of “Utopia”.  Choosing vignettes from these two universes and exploring associated legal concepts, can help us all carefully consider the development of the outer space legal regime.

Empire (Star Wars) vs Utopia (Star Trek):  The Predictive Power of History, Policy, & Pop Culture 

What do Gene Rodenberry, World War II Fleet Admiral Ernest King, Han Solo, and Captain Picard all have something in common? 

They all can play a part in deepening our understanding about the outer space legal regime.  International law practitioners, academics, and decision-makers can consider not only history and policy, but we can also explore legal concepts within the context of fictional narratives.  We can choose to explore potential third and fourth order effects through pop culture. 

This creative and deep thinking can help us all.  Practitioners can creatively consider risk mitigation in a no-risk environment.  Decision-makers can explore consequences of actions without any real world impacts.  Creative thinking will increase informed decision making about law and policy in outer space.

The Space Law Interest Group, part of the American Society of International Law, hosts a regular Zoom event series that attempts to do exactly this.

Episode 1 – Why care about Han Solo and Captain Kirk?, recorded on 26 May 2023, set the theme of Empire vs Utopia with a focus on Star Wars and Star Trek. 

https://www.youtube.com/live/W8OzHoczxQA?feature=share

Episode 2, Perfidy in Space – Do Klingons follow the Geneva Conventions?, recorded on 10 Oct 2023, compared Star Wars and Star Trek conceptions of the law of armed conflict.  The panel discussed both the Star Wars series, “Andor,” and a Star Trek:  Discovery episode (Battle of the Binary Stars) that featured the use of force both terrestrially and in outer space.

https://youtu.be/21JY2ZP2Zlk?list=PLYp0ZUypbrndTTK_HMn_g_eNk0PNMruVp

Episode 3, AI and Androids, is scheduled for 25 January 2024 at 12:00pm EST.  Registration is free and open to the public at www.asil.org/events.

Let’s keep talking, and working together, to understand how the law can apply in outer space

Notes

[1] “Art and astronomy part I:  The cosmos on canvas”, published 23 September 2021, available at https://www.leidensciencemagazine.nl/en/articles/kunst-en-de-kosmos-deel-i-sterren-in-de-schilderkunst.  One of the oldest recorded encounters between art and astronomy are the famous Palaeolithic Lascaux cave paintings in France. The paintings are more than 15.000 years old and depict wild animals that researchers now believe to be drawings of constellations.

[2] Tangermann, Victor.  “There are More People in Orbit Right Now than at any other Point in Human History,” Futurism.  The Byte.  16 Sep 2021.  Available at  https://futurism.com/the-byte/more-people-orbit-human-history.  Vice, Tom.  “The most significant industrial age is upon us,” The Washington Post, 13 Jul 2022.  Available at https://www.washingtonpost.com/creativegroup/sierra-space/the-most-significant-industrial-revolution-in-history-is-underway-in-space-and-the-u-s-must-lead-it/.  Smithsonian Magazine, “The Age of Humans:  Evolutionary Perspectives on the Anthropocene,” Available at https://humanorigins.si.edu/research/age-humans-evolutionary-perspectives-anthropocene.  Goguichvilli, Sophie, Alan Linenberger, Amber Gillette.  The Global Legal Landscape of Space: Who Writes the Rules on the Final Frontier?  Available at < https://www.wilsoncenter.org/article/global-legal-landscape-space-who-writes-rules-final-frontier>.  See also Report of the Committee on the Peaceful Uses of Outer Space, Sixty-fifth session (1–10 June 2022), paragraph 24 available at https://www.unoosa.org/oosa/oosadoc/data/documents/2022/a/a7720_0.html.

[3]  The late 1950s, with the start of the ‘space race’ between the United States and the Soviet Union during the International Geophysical Year (1957-1958), saw the development of international interest in the creation of a legal regime in outer space.  Several multilateral treaties have been adopted by the United Nations General Assembly to enable the orderly conduct of activities in outer space.  The cornerstone of these governance instructions is the Outer Space Treaty (OST).  Four other treaties were adopted to reinforce the framework set by the OST in 1967.  The Rescue Agreement of 1968 requires States to assist an astronaut in case of accident, distress, emergency, or unintended landing.  The Liability Convention of 1972 establishes the standards of liability for damage caused by space objects.  The Registration Convention of 1975 requires States to register all objects launched into outer space with the United Nations.  The Moon Agreement of 1979 elaborates on the provision of the OST as they apply to the moon and other celestial bodies.  See the United nations Office for Outer Space Affairs available at https://www.unoosa.org/oosa/en/aboutus/history/treaties.html.  Note that the 1959 Antarctic Treaty also provides important precedent for the development of international space law as it relates to the province of all humankind.  The Antarctic Treaty lacks interpretative State practice and is closely associated with nuclear disarmament, which is outside of the scope of this writing.  Moreover, elements of the Antarctica Treaty that were introduced into the OST negotiations were ultimately rejected.  On September 22, 1960, U.S. President Eisenhower proposed that the principles of the Antarctic Treaty be used as a model for an international agreement governing outer space and celestial bodies.  However, the then-Soviet Union would not separate outer space from other disarmament issues, nor would it agree to restrict outer space to peaceful uses.  The resulting Antarctic Treaty is thus isolated from the development of interpretative State practice which could be used to further understand the application of legal principles in outer space.  See the U.S. Department of State narrative on The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies available at https://2009-2017.state.gov/t/isn/5181.htm.  Also see the Federation of American Scientists, ’Outer Space Treaty,’ available at https://fas.org/nuke/control/ost/intro.htm.

[4] For example, in 1976, eight equatorial countries tried to exert sovereign ownership over the sections of geostationary orbit that corresponded to their ‘national terrestrial, sea, and insular territory’ as a ‘natural resource.’  This claim went against a core tenet of the OST in Article II that outer space is not subject to national appropriation by claim of sovereignty.  Declaration of the First Meeting of Equatorial Countries (Adopted on December 3, 1976) available at https://www.jaxa.jp/library/space_law/chapter_2/2-2-1-2_e.html.  Also see Nicolas Giacomin, ‘The Bogota Declaration and Space Law,’ available at https://www.spacelegalissues.com/the-bogota-declaration-and-space-law/.  Also see Jill Stuart, ‘The OST has been remarkably successful – but is it fit for the modern age?’ available at https://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381.

[5] https://www.rottentomatoes.com/tv/star_trek_strange_new_worlds

About the Author

Tracy Reynolds, CDR, JAGC, USN is an active-duty military attorney in the U.S. Navy.  She currently serves as Force Judge Advocate to Commander, Naval Medical Forces Atlantic in Portsmouth, Virginia. Throughout her seventeen years of service, she has advised military decision makers both ashore and afloat during peacetime and combat operations.

CDR Reynolds’ focus at NMFL is on investigations, national security cases, and ethics.  Prior to NMFL, she served at SECOND Fleet and advised on Russian hypersonic missiles off the East Coast, Chinese high altitude balloon recovery operations, and countering drones in international air space and on/under the high seas.  CDR Reynolds is a remote PhD student through the University of Adelaide.  Her thesis is that maritime law can and should serve as an analogue to the development of the outer space legal regime.

*Disclaimers:

Tracy Reynolds is a commander in the U.S. Navy. All views expressed in this article are the participant’s own and do not represent the official view of the U.S. government, the Department of Defense, or the Department of the Navy.

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!