Human colonisation/exploration beyond low-Earth orbit: Reconsidering the existing law in light of Safety imperatives

摘要

With the prospect of human colonisation/exploration beyond low-Earth orbit, it will be necessary to debate whether, and to what extent, the existing international space law regime is flexible in permitting mechanisms to safeguard explorers/settlers from asteroids or comets. Imagining a hypothetical scenario in which humans have established colonies in outer space, or on the surface of the Moon or Mars, and considering the worst possible threat (an impending impact with an asteroid/comet), what are the legal impediments to establishing a defensive system comprising of a nuclear weapon? Such a defensive system could arguably breach the 'peaceful purposes' requirement of the Outer Space Treaty, and would most certainly violate the prohibition on the deployment of nuclear weapons covered by Article IV of the same treaty, and potentially, also the Limited Test Ban Treaty. Should the international community deem that the establishment of such a defensive system is necessary, both treaties provide mechanisms that allow for their amendment. The purpose of this paper is to consider whether such exploratory endeavours necessitate a different approach to safety considerations in space law, and whether new legal mechanisms need to be adopted accordingly.