The Spacefaring Web 2.10: Saluting the Flag of Convenience
John Carter McKnight
July 3, 2002
Reprinted by permission of the author.
Space-colony independence movements, usually modeled upon the American Revolution, are a hoary staple of science fiction. While a sci-fi Fourth of July may be valuable as entertainment and Aesopian analogy, the concept doesn’t hold up well as a likely outcome of foreseeable economic, political and cultural inputs. Particularly in the case of Earth-orbital (for shorthand purposes, L5) colonies, glorious democratic uprisings against tyranny, leading to a birth of national-identity consciousness and grudging acceptance into the family of nations, will probably remain a cheery fantasy. Rather more likely is a resort by colony owners and managers to that perversion of national sovereignty, the flag of convenience.
In the typical scenario, a space colony seeks the blessings of nationhood after a workers’ revolt. Robert Heinlein did it right in The Moon is a Harsh Mistress, crafting a political situation in which the benefit of suppressing Lunar independence was low (the revolutionary state increased civil rights and was willing to charge a reasonable market price for its key export) and the cost was high (underground tunnel warrens would have required door-to-door fighting in low G, and the rebels controlled a catapult capable of delivering endless city-busting payloads to Earth). In most other imaginable instances, particularly those involving orbital colonies, revolutionary success is much less likely. This column was inspired by Alan Steele’s out of print Clarke County, Space: while one of the smartest things written on the colonial economics of space settlement, the novel has the oppressed residents’ declaration of independence backed up by a sole large nuke. Anyone with the guile to embezzle milk money could whittle Clarke County’s survival out from under them without rendering their doomsday weapon a credible threat. Still, it’s a good story.
Beyond the military vulnerability of an orbital factory/residential complex (sabotage from within or without, a can opener enabling points of entry anywhere, ease of disabling with an electromagnetic pulse or outright destruction), an often-discussed obstacle is raised by international law. Article 2 of the 1967 Outer Space Treaty (OST) provides that
While there may be a loophole in that language for private property rights, extraterrestrial nationhood is precisely the development that the OST was enacted to prevent. Yet the significance of that barrier is questionable. The difference between international and national law is that the former lacks a sovereign willing and able to enforce it. Weaker even than a contract, with its assumption of clear penalties for breach, backed up by arbitration mechanisms, court systems and marshals empowered to seize assets, international law comes closer to a codification of moral norms, evolving over time, and with the constant prospect of turning a blind eye to sins when the realities of political and economic power require.
In practice, then, the OST may find itself nullified by international consensus, if the claim to nationhood has broad support, or by great-power fiat, if the powerful economic interests behind space industry succeed in obtaining the backing of their home governments. Further (a point I have never seen raised before in the extensive literature on the OST), a decent attorney or demagogue could have some fun with the apparent conflict between Article 2 and a key document of international law much beloved by the third-world majority in the UN. The 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples (http://www.unhchr.ch/html/menu3/b/c_coloni.htm ) is blisteringly clear on the right of self-determination:
Any genuine national-liberation movement in an L5 colony, particularly one directed against the sovereignty-impeding forces of capitalist globalization (e.g., the likely owners and managers of such a colony), might be able to win support among the have-not nations on the basis of such an argument, for whatever that might be worth.
However, it seems unlikely that, at least in the first generations, anything like a sense of nationhood would develop among the residents of an L5 colony. The term “colony” is carefully chosen; even Gerard O’Neill was clear that the purpose of space settlement would be to provide housing for industrial workers – who would be producing primarily for Earth markets, would likely only be resident during a part of their careers, supporting family or retaining other economic interests on Earth, and would probably regard an Island One assignment as an “overseas” posting rather than a homestead. Abuses of corporate power may lead to the sort of backlash against “intolerable acts” which inspired the American Declaration of Independence, but a revolution of the radical social and cultural scope of the American would seem to require a very long chain of unlikely assumptions, given current political and economic orthodoxies.
More probably, the trappings of sovereignty would be manipulated by an L5 colony’s capitalists, rather than its laborers. While international treaties may be disregarded under favorable circumstances, the same is not the case with national workplace heath and safety, environmental and human rights legislation, at least in the First World. Regardless of the commensurate benefit to other parties, such legislation certainly adds a substantial cost, both in money and in aggravation, to doing business. These laws were also, naturally, written for terrestrial situations, and applying them offplanet may be practically or economically impossible. Domestic politics may, however, prevent the granting of exceptions to orbital enterprises.
Companies or consortia looking to invest staggering sums in spaceborne industrial complexes will likely seek several things from a legal system to which their investments will be subject. First, the familiarity and certainty provided by a comprehensive legal code and enforcement mechanism. Even unfavorable, but swift and certain, dispute resolution is often cheaper than endless conflict and uncertainty. Second, minimal taxation. Third, minimal interference from cost- and restriction-imposing social legislation, and finally, a related point, maximum power with respect to shareholders, employees, the general public and other non-management stakeholders.
In a previous column (1.18, Finance and Freedom in L5), I described how contemporary American planned communities have developed the ideal legal tools to maximize an L5 management’s control while minimizing employee-resident civil rights. The external equivalent to these internal controls might be provided by the “flag of convenience” (FOC) mechanism.
There is no enforced requirement that there be a “genuine link” between the national locus of beneficial ownership and control of a vessel and its state of registry. A number of countries have indicated a willingness to flag foreign vessels, providing negligible legal oversight in return for registration fees which provide a substantial source of income to these small and/or poor countries. A report by the International Transport Workers’ Federation (ITF) (http://www.itf.org.uk/seafarers/foc/foc.htm) holds that “[c]heap registration fees, low or no taxes and freedom to employ cheap labour are the motivating factors behind a shipowner’s decision to ‘flag out.’”
FOC states choose not to enforce even their international-law-mandated window-dressing social legislation against registered vessels. ITF inspectors have found that FOC-flagged vessels are marked by very low wages, including company-store-type manipulations amounting to involuntary servitude; a substantially higher accident rate; inadequate safety training, maintenance and medical care. Comparative financial statements between FOC-flagged and other shipping lines were not readily available.
During the development and construction phase of a space colony, it would seem likely that the project would remain under the auspices of the first-world governments whose aerospace and construction conglomerates would be playing a leading role. Of course, if the initiative goes to the Chinese, they will be ideally placed to serve as their own FOC. Otherwise, it would seem that the prospect of investment tax credits and production and accounting synergies with other government-contract work would ensure traditional legal arrangements at the start.
But if the completed colonies should prove sufficiently profitable, and their number increases to the point that orbital industry is ubiquitous to the point that a spaceborne factory/residence complex is not a unique symbol of national pride like the ISS but an ubiquitous asset of commerce, like an oil platform or freighter, the FOC model may become desirable. With the major governments no longer having an emotional stake in claiming national identification of the assets, the balance sheet improvement for abandoning first-world rights and standards may trump the advantages of appeasing domestic legislatures.
Particularly if an FOC state should prove amenable to adopting a package of legislation allowing owners maximum freedom of action, including the ability to supplant civic rights with planned-community restrictions, some future July 4th may see the American and European Union flags stricken from an Island One, and its corporate management celebrating its liberation from human rights restraints by pledging allegiance to the flag – of Aruba.
The Spacefaring Web is a bi-weekly column © 2002 by John Carter McKnight, Mars Program Director for the Space Frontier Foundation.
Views expressed here are strictly the author's and do not necessarily represent Foundation policy [or that of HobbySpace].
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