With tears in his eyes, the commander of the US moon base spoke to the woman begging for asylum.
"Sonya, my personal sympathies are with you. But I have my authorities above me. I have to do what is required. You will have to return to your base."
"Please!" pleaded Sonya. "They will kill me. I will not go back."
The commander reluctantly left his office and admitted the Russians. Dr. Gale Roberts, one of the civilian scientists at the base, later recounted the incident to the press.
"We could hear the woman's cries for help. She was on her knees, praying and crying, 'Oh God help me.' The Russians came in. Sometimes I couldn't see her, but I could hear her screaming. Then she ran to the upper deck. Her face was all bloody.
"She hid for a while, but three more Russians were let in. They found her, beat her unconscious. Then they tied her in a blanket and carried her out the airlock.
"We're not even sure they put a suit on her in the airlock," said Dr. Roberts. "Nobody was permitted to look."
* * *
Hypothetical overstatement? Not at all. Change Sonya to Simas, and moon base to Coast Guard Cutter Vigilant, and you have an incident that occurred in November 1970. The US ship and a Russian ship had met off Gays Head near Boston to discuss inspection procedures called for by a recently signed fishing treaty. Simas Kirdurka, a Lithuanian radio operator, who in 21 years in the Russian merchant marine had never been allowed ashore at a foreign port, saw his chance and jumped to the Coast Guard ship.
State Department bureaucrats who didn't want to take chances with "delicate negotiations," and Coast Guard officials on shore who disliked one of "their" ships being used for a defection, gave orders that Simas be returned to his ship. A considerable amount of violence on the US ship was required to accomplish the task. It was some time before it was known whether Simas was alive or dead. (See Time or Newsweek, Dec. 14, 1970, if you want more details.)
The story leaked to the press over a period of weeks. President Nixon was furious when he heard about it, fuming that the image of the country as a haven for defectors would be ruined. The ensuing uproar forced the two shore-based Coast Guard officials involved to resign in disgrace and left a black mark on the record of the captain of the Vigilant for allowing the violent abduction to take place on his ship. Besides broken bones and kidney damage from his beatings, Simas was convicted of treason and sent to a Siberian prison camp. The news services pointed out that, in giving him back, the US government had violated not only its tradition of giving sanctuary but also Article 33 of the Geneva Convention, which states: "No contracting state shall expel or return a refugee in any manner whatsoever…where his life or freedom would be threatened."
There are no treaties requiring the return of defectors on the high seas. Three years before the incident on the Vigilant, however, the US government signed the first of several treaties that some will interpret as requiring the return of defectors who try it in space.
Should anyone care? You should if you would like to live out there someday. Being able to leave your country and be taken in by another is one of the strongest checks on governments against abuse of civil rights. Even countries with very good records, like the United States and Sweden, have driven people to leave. Examples are the Hutterites who were imprisoned for refusing to fight in World War I (most of them afterwards left the States for Canada) and Ingmar Bergman, who chose to leave Sweden a few years ago because he was being taxed at more than 100 percent of his income.
The people who make up governments, whether or not the society is a "free" one, don't like the idea of those whom they control being able to escape. Space dwellers are going to have a rough time with civil rights if they are subject to repressive agreements between faraway governments to keep them under control. The Soviet Union is especially concerned about this, and so far, the Western governments have gone along with them in a series of "agreements."
The treaty provisions that concern us are: Article VIII of the 1967 Space Treaty, which reads, "A State…shall retain jurisdiction and control over such object [spacecraft] and over any personnel thereof"; Article IV of the Rescue Agreement, which enjoins signers to return personnel, willing or not, to the launching authority; and Article XII of the Moon Treaty (not signed by the US government), which declares, "States…shall retain jurisdiction and control over their personnel."
These space treaty provisions stand in stark contrast to a truly landmark document, the United Nations Declaration of Human Rights (1948). In Article 14, Section 1, it states, "Everyone has the right to seek and enjoy in other countries asylum from persecution." Article 15, Section 2, declares, "No one shall be…denied the right to change his nationality."
If someone were to ask for asylum in space or on the moon, the president might ignore or rule inapplicable these fairly clear treaty provisions—provided, of course, the president found out in time. Obviously, this cannot be counted on. It was more than a week before the president found out about the Simas Kirdurka incident, and then only through the newspapers. The president is the only authority who could decide something as drastic as suspending a treaty provision.
Even then, what would happen if SALT XXXIV were in a critical stage? Bureaucratic functionaries threw Simas to the wolves in the absence of a "return of sailors on the high seas" treaty. They also got badly burned in the incident.
The future bureaucrats faced with a Kirdurka incident in space will have an easier time handing back an asylum seeker. Customary legal practice is that if two laws (and treaties are laws) are in conflict, the more recent law shall be enforced. If the Moon Treaty were signed by the US government, there would be three UN space treaties applicable to a Kirdurka-type incident, all postdating the Declaration of Human Rights (which was only a General Assembly resolution and considered by some to be nonbinding anyway.)
This isn't the only loophole for the violation of human rights to be found in space treaties. Nothing so characterizes the lack of human rights in a totalitarian police state as the midnight knock on the door by storm troopers who do not need to justify a search and obtain a warrant from a judge. Fresh memories of Nazi Germany may have inspired Article 12 of the Declaration of Human Rights: "No one shall be subjected to arbitrary interference with his privacy, family, home.…Everyone has the right to protection of the law against such interference." Contrast this with the Moon Treaty, Article XV: "all…installations on the Moon shall be open to other States." Article XV does require advance notice of the "visit" and "consultations" for safety, but, if you don't like strangers poking around your home, you're out of luck, because under these treaties, there will be no "protection of the law" out there to defend you.
How did these UN-sanctioned human rights wind up being given such short shrift over the last 20 years of space law negotiations? Perhaps the most important factor is the change in the UN voting balance due to the increased membership of small, non-Western states in the United Nations. The General Assembly is a quite different organization today from that of 1948. According to Prof. John P. Humphrey, an expert in international protection of human rights, the new majority is less interested in the traditional civil and political rights than in questions of national self-determination and economic equality between states.
The new members' emphasis on intercountry economic equality is clearly expressed in Article XI of the Moon Treaty. A key phrase there is common heritage, a concept given meaning by many years of debate in the context of the Law of the Seas (LOS) negotiations. Most countries in the world consider "common heritage" to be equivalent to "common property," not to be touched (economically developed) without everyone's permission.
Implementing this idea for seabed mining leads to an "international regime" with unlimited power to administer the "common property." In the final LOS Treaty draft, the "Seabed Authority" is given the power to authorize and limit extraction from the seabed, to tax profits and production without limits, to force the transfer of mining technology to itself, and finally to shut down all other entities mining the seabed.
Under these conditions, it is no wonder that most of the interest in seabed mining has vanished. Extending, or even threatening to extend such confiscatory terms to the moon and asteroids would be a disaster to the human race. Without that most reliable of human drives (self-interest), the space resources of low-cost energy and materials needed to avert stark poverty for most of the human race seem unlikely to be developed. A "common heritage" we would have indeed: common poverty for all. US space treaty negotiators went to great effort to disclaim the "common property" definition of "common heritage," but if the LOS negotiations are any indication, the views of the majority will eventually be accepted.
One casualty of the "common property" concept is private ownership of real property. Not having any place to call one's own is psychologically degrading to humans, who are basically territorial creatures. The authors of the Declaration of Human Rights recognized this in Article 17, Section 1, which reads, "Everyone has the right to own property alone as well as in association with others."
This ban on land ownership is only one of many ways space law departs from earth laws. Though it drew some of its concepts from sea law, airspace law, and Antarctic treaties, space law, as we now have it, was developed only to serve the needs of states. The result could have been anticipated: unprecedented expansion of the powers of states at the expense of people and those legal persons known as corporations.
One example: if an airliner crashes outside of its country of ownership, the company that owns the airliner is liable for specific, and limited, damages under international law (the Warsaw Convention). However, if a satellite owned by a communications company crashes, the launching state bears unlimited liability. This provision is used by governments of otherwise free-enterprise countries to justify tight control over companies doing business in space. An example is Comsat, chartered by the US government and required to have government-appointed members on its board of directors.
Human rights in space probably took such a beating simply because nobody was watching. "The price of liberty is eternal vigilance" is as true today as it was when Wendell Phillips put it in an antislavery speech before the Civil War. No opposition to the provisions of the space treaties with their potential for abuses of human rights surfaced until those who are looking forward to living out there started looking into the consequences. In spite of their working for NASA, the negotiators do not seem to think people will ever make their homes out there. Missions by rigidly controlled military personnel? Yes. Settlements by ordinary people? Officially precluded by the 1978 US Civil Space Policy.
Setting up repressive conditions for future space settlers thus becomes unimportant in comparison to more immediate benefits to our government such as obtaining resources from despotic countries and securing markets for our products. Believe it or not, this argument was actually made in public as a reason to support the Moon Treaty. One thing is clear, however: these "agreements between states" cannot stand up to scrutiny by concerned free citizens. The future rights of space-dwelling humankind are being thrown away to appease countries where human rights are a tragically bad joke.
Simas Kirdurka's story, thanks to the efforts of many people, had a happy ending. The Lithuanian community in the United States began to lobby for his release the day after he was handed back to the Russians. Someone discovered that his mother had been born in Brooklyn. They even found her baptismal certificate at St. Mary of the Angels Catholic Church in Brooklyn. Yes, all along Simas was legally an American citizen. After months of delay, in July of 1974, Congress officially confirmed Kirdurka's US citizenship. Six weeks later, in response to belated pressure on the Soviets by the State Department, he and his family boarded a plane to New York.
And what happened to Sonya? We hope they put a space suit on her in the airlock. But wouldn't it be better not to have to depend on the good will of distant authorities? There is no excuse for human rights to be compromised as they have been in the space treaties to date. While the treaties may have been negotiated with the best of intentions to regulate the activities of states out there, they are clearly not a basis for laws under which free people could live.
The latest of these "agreements," the Moon Treaty, was accepted by the US negotiators at the United Nations in the summer of 1979. Several groups, most of the science fiction magazines, and many concerned individuals objected strenuously. As a result, the treaty was not signed by then President Carter nor submitted to the Senate for ratification. If pushed, the Reagan administration might formally reject the Moon Treaty as it finally did with the Law of the Sea Treaty. They might even withdraw the US from the earlier space treaties or negotiate strong human-rights and free-enterprise additions to them.
There may never be a better time to try. The rights you save may be your own.
Keith Henson was a founder and the first president of the L-5 Society, an organization formed to foster space development. He is currently working as a systems analyst. Arel Lucas is the former editor of L-5 News and one of the founders of a computer firm for which she is now working.
This article originally appeared in print under the headline "Star Laws".