A r t i g o
Avatar - The movie in light of Space Law
José Monserrat Filho *
"Civilized life, as it is
called, is a great white tower celebrating human achievements, but at
the top there is permanently a large black cloud. Human progress
dominated by unimaginable cruelty and death."
John Kenneth Galbraith (1908-2006), "The Economics of Innocent Fraud –
Truth for Our Time", 2004, p. 61.
A huge box office record-breaking movie, budgeted
at US $500 million, is about an ambitious incursion of earthlings to an
imaginary planet with exuberant vegetation, Avatar helps us know, understand,
and apply the rules and regulations, already in force on Earth, as to space
activities.
At last, a commercial blockbuster motion picture
that does not promote gratuitous violence, but brings us a highly instructive
message. Avatar refers to the transmutation of humans into natives of Pandora,
due to a mixture of DNA, in order to spy on them...
Written and directed by James Cameron, this film
opened in Brazil on December 19 and is destined to be very popular and a huge
box office success. The story tells of a tragedy that touches the depths of the
best feelings of justice of any people inhabiting this and other worlds.
The science-fiction storyline is set in an
imaginary planet, Pandora. Its people, the Na'vi, and their paradisiacal rain
forests are attacked with unprecedented fierceness, their own survival is
threatened, as in the times of the worst colonialism here on Earth.
A private corporation from Earth settles in Pandora
in order to explore a mineral capable of generating unprecedented profits in the
energy market. To safeguard its billionaire investment, it takes along an
advanced military detachment, a powerful army of mercenaries, supplied with
state-of-the-art weapons. The corporation’s settlement looks much more like a
gigantic military base.¹
Everything happens in the year of grace 2154. In
other words, within 144 years.
But it appears to be at the present time...
From a legal point of view…
Avatar deals with space activities undertaken by an
entity of the Earth on another celestial body. As a student of space law, I find
myself attracted to analyze the case in light of international space legislation
in force since the 1960s, but not mentioned in the movie.
My appraisal is based on the 1967 Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and other Celestial Bodies, better known as the
"Outer Space Treaty" (OST)²
and acclaimed as the overall law governing the actions undertaken from our
planet in outer space. It has been signed by 26 countries and ratified by 100,
among them all those that have developed space programs, or engage in outer
space activities, including the United States (USA).
Somebody could allege: "what happens in Pandora is
not activity of a State, but of a private corporation; therefore, in this case
the Outer Space Treaty does not apply to it." Not true.
According to Article 6 of the OST, the States
Parties "shall bear international responsibility for national
activities in outer space, including the moon and other celestial bodies,
whether such activities are carried on by governmental agencies or by
non-governmental entities, and for assuring that national activities are carried
out in conformity with the provisions set forth in the present Treaty."
Furthermore, "The activities of non-governmental
entities in outer space, including the moon and other celestial bodies, shall
require authorization and continuing supervision by the appropriate State Party
to the Treaty." This means that private corporations
may only conduct business in outer space and celestial bodies if and when
authorized and under supervision of the respective State Party.
The corporation that decided to explore Pandora’s
mineral wealth would be required to have permission granted by its home country
- in this case, as everything indicates, the USA - and be under its permanent
watch. Thus, all the actions carried out by such corporation and its mercenaries,
beginning with slaughter of the native population and destruction they committed,
are the responsibility - not of the corporation – but of the country they come
from, probably the USA.
This principle of responsibility is universally
accepted and acclaimed by the community of countries in the 21st
century, as it was already in the second half of the 20th century.
And it is unlikely that this basic rule of space law will change, but will
remain in force. .
of Military activities in Space
Art. 4 of Outer Space Treaty was also breached in
Pandora, as this Article compels all States Parties to use the Moon and any
other celestial body "exclusively for peaceful purposes."
It should be said in passing that Antarctica, ,
thanks to the 1959 Treaty governing activities there, is the only area on Earth
where only peaceful activities are allowed, for scientific research; in other
words, Antarctica may not be used for military purposes.
According to Art. 4 of the OST: "The establishment
of military bases, installations and fortifications, the testing of any type of
weapons and the conduct of military maneuvers on celestial bodies shall be
forbidden".
The presence of military personnel is not forbidden,
since they are involved with scientific research and other peaceful purposes or
activities. Likewise, it is not forbidden to use equipment or installations
necessary for the "peaceful exploration of the Moon and other celestial bodies."
However, the enormous military base built on
Pandora, quickly and secretly activated for a slaughtering operation, doesn't
have even the smallest legal basis. It is an affront to the legal regime that
the countries of the Earth, including the USA, determined to set up for the
peaceful exploration of celestial bodies.
The scope of the United Nations Charter
The people of Pandora were subjected to "unspeakable
sufferings", to quote the expression used right in the beginning of the United
Nations Charter, the central or core document of contemporary international law.
Not by chance, the Outer Space Treaty sets forth in
Art. 3, that exploration and use of space and any celestial body
"shall be carried on in accordance with international law,
including the Charter of the United Nations, in the interest of maintaining
international peace and security and promoting international co-operation and
understanding".
Well, Art. 2 of the UN Charter sets forth that "all
(State) Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations".
Although the events analyzed here take place on another planet, it wouldn’t make
any sense to suppose that they don't impair the objectives of the United Nations.
The wording and the spirit of the Charter are incompatible with the barbarism
committed in Pandora or any other place in the Universe.
Everything that concerns human rights, is now
definitively part of international law on Earth and cannot be restricted to only
our planet, but, on the contrary, it must be extended to other civilizations
that may occasionally be found on planets not yet discovered. Actually,
according to the code of ethics we have already accepted, we must treat the
inhabitants of other worlds not only in the way we humans would like to be
treated, but above all, in the manner that they would want to be treated.
The pretext of "preventive attack"
The brazen will be bold enough to assert that the
devastating attack of the mercenaries hired by the settler company in Pandora is
just a "preventive operation", a "self-defense action", due to the hostile
reaction of the native people. The film highlights this vile maneuver.
But it so happens that the
United Nations Charter³
emphatically forbids the "right" to a "preventive attack" to overcome an assumed
or potential future aggression. Its Art. 51 is crystal-clear and to the point: "Nothing
in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security".
Principle of previous consultation, a necessary
precaution
In Pandora’s case it could be feasible to have
recourse to the principle of previous consultation among countries regarding
space activities capable of impairing the interests and the space programs of
other States, as is set forth in Art. 9 of the Outer Space Treaty: "If a State
Party to the Treaty has reason to believe that an activity or experiment planned
by it or its nationals in outer space, including the Moon and other celestial
bodies, would cause potentially harmful interference with activities of other
States Parties in the peaceful exploration and use of outer space, including the
Moon and other celestial bodies, it shall undertake appropriate international
consultations before proceeding with any such activity or experiment. A State
Party to the Treaty which has reason to believe that an activity or experiment
planned by another State Party in outer space, including the Moon and other
celestial bodies, would cause potentially harmful interference with activities
in the peaceful exploration and use of outer space, including the Moon and other
celestial bodies, may request consultation concerning the activity or experiment".
Outer space and celestial bodies are not subject to
appropriation
The corporation that manu militari took
control of Pandora treats the planet as though it were its colony where it can
do whatever it wants. This kind of attitude or behavior reminds us of past
colonial conquests, when the great empires did not need to account for their
actions to the community of nations.
In particular, after World War II the world changed:
empires began to collapse in an unavoidable manner, including the ones that had
such a thorough wide-reaching power that the Sun would never set on its
territories.
The Outer Space Treaty, negotiated in the sixties,
if nothing else, can prohibit the one-sided possession of outer space and
celestial bodies, in order to prevent the repetition of Earth’s sad history.
Art. 2 of the OST sets forth in terms that could
not be clearer, "Outer space, including the Moon and other celestial bodies, is
not subject to national appropriation by claim of sovereignty, by means of use
or occupation, or by any other mean".
We come to the conclusion that among the remarkable
advances of human civilization is included the abomination and condemnation of
imperialism and colonialism, which should also extend to outer space activities.
If the future relies on the Outer Space Treaty and other sources of modern
International Law, we will not make the same mistakes as in the past. (the
future will not relive our past.)
References
* Master Degree in International
Law, Professor of Outer Space Law; Vice President, Brazilian Association of Air
and Space Law; Director of the Board, International Institute of Space Law;
Effective Member (elected), International Academy of Astronautics; Member,
Committee of Space Law, International Law Association (ILA); and, currently,
Head of International Affairs Office, Ministry of Science and Technology; Author,
among other publications, of the book "Policy and Law in the Space Age - Can we
be more equitable in outer space thanon Earth?) (2007).
1) "Wars are, one cannot doubt, a major modern
threat to civilized existence, and corporate commitment to weapons procurement
and use nurtures and support this threat. It accords legitimacy and even heroic
virtue to devastation and death", John Kenneth Galbraith, "The Economics of
Innocent Fraud – Truth for Our Time", 2004, p. 58.
2) The complete text of the 1967 Outer Space Treaty,
and other treaties pertaining to space activities may be found at the website of
the United Nations Office for Outer Space Affairs,
http://www.oosa.org,
3) See <http://www.un.org/en/documents/charter/index.shtml>
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