Women Are Equal on Mars: Envisioning Gender Equality in the Governance of Extraterrestrial Settlements Under International Space Law

NOTE

WOMEN ARE EQUAL ON MARS: ENVISIONING GENDER

EQUALITY IN THE GOVERNANCE OF

EXTRATERRESTRIAL SETTLEMENTS UNDER

INTERNATIONAL SPACE LAW

NICOLE WILLIAMSON*

ABSTRACT

With both government agencies and private industry developing plans for

early-stage exploration and settlement of Mars, it is more crucial than ever to

begin crafting a framework for the governance of long-term human space settle-

ments. As nascent visions for human colonies take shape, scientists, scholars,

and lawyers engaging in constitutional design must make every effort to direct

focus towards maximizing equality. This Note will primarily address gender

equality, and will argue that under the Outer Space Treaty, which stipulates

that space activities be carried out “in accordance with international law,”

framers of a new society must draft constitutional language that adheres to

internationally accepted gender equality principles. Part II summarizes the legal

framework underlying international space law and argues that space explora-

tion “in accordance with international law” necessarily includes international

treaties on gender, such as CEDAW. Part III addresses the theory behind consti-

tutional design and how to appropriately constitutionalize gender equality.

Part IV applies gender-conscious constitutional design principles to a draft con-

stitutive document for a space settlement, proposing draft language that may

best serve women’s interests. Part V brief‌ly outlines practical barriers to female

success in space that must be eliminated.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

II. THE LEGAL BASIS: GROUNDING GENDER EQUALITY IN

INTERNATIONAL SPACE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

A. A Primer on the Law of Outer Space . . . . . . . . . . . . . . . . . . 153

B. Understanding the Outer Space Treaty . . . . . . . . . . . . . . . . 154

C. Reading Gender Equality and Human Rights into Space Law 157

1. Treaty Law on Gender Discrimination: CEDAW . . 160

* Nicole Williamson is a J.D. Candidate at Harvard Law School (2020), where she is President

of the Harvard Women’s Law Association. She holds a B.A. in Political Science from Washington

University in St. Louis. She would like to thank Professor Frans von der Dunk for his comments

on an early draft of this Note, and Professor Naz K. Modirzadeh for her guidance.

147

2. Additional Treaty Law Protecting Women’s Rights:

ICCPR and ICESCR . . . . . . . . . . . . . . . . . . . . . . . . 161

3. Beyond Treaty Law: UDHR as a Standard for

Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

4. Limitations to Gender Equality Under

International Law . . . . . . . . . . . . . . . . . . . . . . . . . 164

5. A Foundation for Gender Equality in Space . . . . . 165

III. THEORETICAL UNDERPINNINGS FOR THE DESIGN OF A SPACE

SETTLEMENT: CONSTITUTIONAL DESIGN, EQUALITY, AND GENDER. . 166

A. General Exercises in Constitutional Design . . . . . . . . . . . . . 166

B. Gender and Constitutionalism . . . . . . . . . . . . . . . . . . . . . 169

C. Feminist Framers: Sullivan’s Framework for

Constitutionalizing Women’s Equality . . . . . . . . . . . . . . . . 171

1. The Sullivan Framework’s Applicability to a Space

Settlement: General or Specif‌ic Language . . . . . . 172

2. Symmetrical vs. Asymmetrical Language . . . . . . . . 174

3. Private Action vs. State Action . . . . . . . . . . . . . . . . 175

4. Negative Rights vs. Positive Rights . . . . . . . . . . . . . 176

5. Judicially Enforceable Standards vs. Hortatory

Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

IV. WHERE NO CONSTITUTION HAS GONE BEFORE: FORMULATING A

GOVERNMENT DESIGNED FOR THE UNIQUE NEEDS OF SPACE . . . . . 177

A. Issues with Traditional Forms of Government . . . . . . . . . . . 178

1. Departure from Existing International Space Law 179

2. Involvement of Private Actors . . . . . . . . . . . . . . . . 180

B. Re-Conceptualizing the Mars Settlement as an International

Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

C. Draft Language on Gender Equality for a Mars Constitutive

Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

V. CHALLENGES TO FULL GENDER EQUALITY IN SPACE . . . . . . . . . . . 187

A. Conditions on Earth that Hinder Women’s Equality. . . . . . . 188

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

I. INTRODUCTION

Mars has long been a bright object in the night sky, and the planet

has enchanted both ancient cultures and well-known astronomers.

1

Our current culture remains similarly transf‌ixed, yet, unlike earlier

explorers, we have been able to launch landers and rovers to actually

1. All About Mars, NASA, https://mars.nasa.gov/allaboutmars/mystique/history/ (last visited

Jan. 17, 2019).

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148 [Vol. 51

touch down and explore the planet’s dusty red surface.

2

Now, we stand

at a new precipice: human exploration, and eventual habitation, of

Mars.

3

NASA anticipates that, after developing the capability to send

humans to an asteroid by 2025, it will place human feet on the surface

of Mars by the 2030s.

4

While that timeline itself may seem soon, it is

fully possible that humans may touch down on the red planet even ear-

lier. Robust efforts by private companies to design, test, and launch

space vehicles demonstrate a rapidly growing industry and an advanced

space exploration capability. In what is perhaps the most advanced pri-

vate effort, Elon Musk’s SpaceX anticipates designing an Interplanetary

Transport System (ITS) that could launch humans to Mars as early as

2023.

5

Given the efforts of both global space powers and their private

industry counterparts, human exploration of Mars may not be far off.

Mars, at an average of 142 million miles away from the Sun, is slightly

further out in our solar system than our home planet’s 93 million miles

from the Sun.

6

To live on the red planet requires signif‌icant advanced

planning: Mars is much colder than Earth at an average of negative 81

degrees Fahrenheit, has about a third of Earth’s gravity (meaning

humans would experience 62.5 percent less gravity than usual), and

has an atmosphere composed mostly of carbon dioxide with some

water vapor.

7

In other words, the conditions on Mars are by no means

an analog to those on Earth. Moreover, to get there from Earth requires

balancing an ever-changing distance between the Earth and Mars, as

the two planets each orbit the Sun at different rates—making for an av-

erage trip of around 162 days, but potentially requiring as long as 300

2. Missions, MARS EXPLORATION PROGRAM, NASA, https://mars.nasa.gov/mars-exploration/

missions/?page=0&per_page=99&order=dateþdesc&search=&category=167 (last visited Jan. 23,

2019).

3. See, e.g., The Global Exploration Roadmap, INTERNATIONAL SPACE EXPLORATION COORDINATION

GROUP (Jan. 2018), https://www.nasa.gov/sites/default/f‌iles/atoms/f‌iles/ger_2018_small_mobile.pdf.

The International Space Exploration Coordination Group (ISECG), a forum that brings together

global space agencies to advance long-range human space exploration strategy, has outlined a plan that

begins with the ISS and subsequently leads to Mars.

4. NASA’s Journey to Mars, NASA, https://www.nasa.gov/content/nasas-journey-to-mars (last

visited Jan. 17, 2019).

5. Katie E. Lee, Colonizing the Final Frontier: Why Space Exploration Beyond Low-Earth Orbit is

Central to U.S. Foreign Policy, and the Legal Challenges it May Pose, 27 S. CAL. INTERDISC. L.J. 231, 244

(2017).

6. All About Mars: Mars Facts, NASA, https://mars.nasa.gov/all-about-mars/facts/ (last visited

Aug. 9, 2019).

7. Id.

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