Quite a lot has happened … we think it’s time for an update.
For some time, we had been anticipating the opportunity to employ a legal route to gain access to international appraisal (legal due process with jurisdiction) for our unique celestial land claim (MARS). We waited until we had secured a membership of co-claimants that included people from ALL the world’s nations (195 nations). Thus our claim became a pan-multinational communal claim of celestial land possession. We assert that this allows our claim to fit elegantly within all existing international (and national) law, including space law. It sits very comfortably with the Outer Space Treaty, especially Article I, without breaching the customary law which has extended from Articles II and VI. The ultimate plan was to register the Martian land as “common land” (open to all) with legal title being offered to the UN (to act as trustee) and beneficial title to be shared by all co-claimants (or purchased from the co-claimants by UN, subject to successful ratification of an updated Outer Space Treaty). This plan is also a most comfortable fit within existing space law. After 10 years of witnessed statements and actions (repeated high powered laser targeting of Mars) and a rapidly growing pan-multinational membership, we felt it was finally time to start the formal legal process. We would have to start local (for us, that means the UK)…
Late last year, we took the UK Government to the High Court in an ‘Application for Permission for Judicial Review.’ Specifically, Dr Philip Davies was the listed claimant (acting on behalf of all of our many co-claimants); the Foreign and Commonwealth Office (FCO) and Department of Business, Energy and Industrial Strategy (BEIS) were the Defendants. High Court Ref: CO/2462/2019.
We sought to challenge the UK Government’s decision to refuse to present the matter of our pan-multinational communal Mars Land Land to the UN Committee for Peaceful Uses of Outer Space (COPUOS). We sought an effective Remedy from the UK High Court Judge, that being a Mandatory Order for UK Gov to comply with our request. We requested that UK Gov should be mandated to either present the matter to COPUOS or help to facilitate our access to some alternative international legal appraisal.
So what happened?…
As expected, the Judge refused permission for Judicial Review… but he did allow for a positive assessment of our actual claim. In quoting the defendants’ Grounds of Response’ as being his reasons for refusal, he was actually saying that whilst our communal claim might yet be proven to have merit in an International Court, the UK Government was not obliged to help our claim reach that international court.
Neither the UK Government (defendant) nor the Judge sought to question the legitimacy of our unique claim. There was certainly no suggestion that we were doing anything illegal or dishonest. The UK Government has accepted the seriousness of our efforts and the claim’s potential validity within International Law but has tried to wriggle out of any responsibility to bring the claim to any international legal due process (e.g. UNGA, COPUOS, or an international court) …
So, despite the negative outcome, a UK High Court Judge has effectively admitted that our claim might still have a genuine right to exist under International Law. This is fantastic to see in writing.
Here is the exact quote from the reasons used by the Judge (and the UK Government’s Grounds of Resistance):
“… whether a “pan-multinational communal
claim” is recognised in international law and, if so, whether it falls within Article
II of the 1967 Treaty are complex questions governed, again, solely by public
international law. In any event, even if such a species of claim were recognised to
exist and/or not to fall foul of Article II, this would still not establish that the
Claimant has a procedural right to have his land rights claim referred to COPUOS
by the UK as his national State.”
“… the FCO’s view that to submit the Claimant’s land
rights claim to COPUOS would be contrary to its obligations under the 1967 Treaty
is at least tenable, meaning that there was no error of law.”
Now, we did expect to lose out in this first legal challenge ( hence we advised all of our many co-claimants to decline the option to have their names listed as co-claimants – to protect them from financial penalty). The Judge (Sir Wyn Williams) refused to give permission for the Judicial Review. He justified his decision by stating that his reasons were in line with the UK Governments ‘Grounds of Response.’ He stated that he wasn’t surprised the the UK Government’s ‘Ground’s of response’ did not focus at all on the European Convention of Human Rights (ECHR) and instead concentrated on the absence of any procedural right within Space Law for our claim to be presented by UK Gov to COPUOS.
The UK Government and thus the High Court Judge have made a significant error in law. We will talk about the ‘error in law’ a little bit later, but there are many interesting points to come out of this initial legal challenge:
The UK Government realized that it couldn’t treat our serious legal claim with dismissive regard. Unlike any previous celestial land claims that have gone to a Court (The ‘Lunar Embassy’ case in China and the ‘Nemitz’ case in USA were thrown out with no need to examine the substance of the trivial claims), the UK Government did feel obligated to consider the nature of our claim. They admitted that such a unique, pan-multinational claim to possession of celestial land might be possible … but that was a matter for an international court, not a UK Court (we agree!)… but just because our claim might actually be valid didn’t mean the UK Government should be compelled to ‘promote it’ through an introduction to the UN (COPUOS). They then admitted that there was nothing in Space Law to say that they couldn’t present our claim to COPUOS … but they also opined that they shouldn’t assist our claim in this manner because it might be considered (in Space Law) to be an act of National Appropriation. They indicated that this interpretation of Space Law was at least tenable.
So, in summary, The UK Government (supported by the Judge) acknowledged that such a unique claim might ultimately prove to be valid within international law (in an International Court) but they reasoned that their refusal to present our claim to an international court was based on an interpretation of Space Law that was ”tenable’.
Well of course, there remains a direct pathway to an international court…. the European Court of Human Rights is available to us once we have exhausted the UK legal system:
Despite the fact that UK Government and the Judge both did not really assess the applicability of our claim against human rights law, we have contended that it is this law, namely the ECHR (which is incorporated into UK Law by the Human Rights Act (HRA)) which permits our claim of celestial possession to exist and supports our right to further protect this possession.
Article 1 of Protocol 1 (A1P1) of ECHR supports our right to protect our claimed possession (the best way to protect a possession in order to ‘peacefully enjoy it’ is to have it internationally recognized and registered). It is our assertion that in order to engage this protocol, we don’t have to prove beyond doubt that the celestial land is indeed our exclusive possession … we just have to show that the possession is arguably actual (just as the UK only have to prove that their opinion is a tenable one rather than proven). When we compare our actions to support proof of possession (10 years of repeated high dose lasers applied to Mars in order to provide an extremely small geo-atmospheric benefit; plus our governance plans to hold the celestial land as ‘common land’ with UN being offered the legal land title as trustee and co-claimants being the beneficiaries of possessory title) to the minimal requirement for evidence of proof of possession of difficult barren land on Earth, we are professionally advised that our actions are legally competitive.
If a Judge was to agree that A1P1 of ECHR was sufficiently engaged, then we see that Article 6 of ECHR (this civil right means a ‘Right to a Fair Trial’) is also engaged. Rather than space law (as stated above by the UK Gov and the Judge), it is A1P1 and Article 6 of EHCR which, if engaged, provide for a procedural right for us to have access to a fair trial (with appropriate jurisdiction) in order to seek recognition and protection of our claimed possession. In order for us to have access to such an international court/forum for fair appraisal, we require a state (or states) to introduce the matter to that court/forum. UNOOSA has already informed us in writing that this is the correct procedure for our claim to be considered by COPUOS (UN COmmittee for the Peaceful Uses of Outer Space). Thus, in order to satisfy A1P1 and Article 6 ECHR, there must be a positive obligation placed upon the state (in this case, UK) to facilitate our access to this international court/forum. Only if there is significant concern for public interest/safety (A1P1 ECHR) or a clear barrier to our claim in Space Law (and there is not) should our rights under ECHR be overridden. There is not; and so the UK Gov and the Judge have erred in law. Also, in applying articles II and VI of the Outer Space Treaty (OST) to their fullest extent (and beyond), the UK Government (and the Judge) must consider our action/claim to represent a significant ‘national activity in space.‘ In applying this interpretation so vehemently, they must then pay equal respect to all of the UK’s international obligations that flow from OST … namely Article XI, which obligates the UK Gov to inform UN Secretary General (and general public and scientific media) of our supposed national activity (Please Note: we would be satisfied if this had occurred). To have not done so (and to have not even considered the applicability of Outer Space Act 1986) is not only an error in law, it satisfies the definition of ‘Wednesbury Unreasonableness.’
We also contest that Article 14 was breached (the UK Gov, supported by the Judge, provided another key reason for refusing to advance our claim to an international appraisal: that being their dislike for the concept of UN trusteeship in Outer Space. Whilst we acknowledge that there might be legitimate concerns about the need for a more pro-business approach to space exploration/exploitation (the previous earthly experiences of UN Trusteeship or UN governance are hardly helpful for vibrant commerce), we believe this can easily be mitigated if the UN were to appoint a pro-business Celestial User Group to manage land use and waste management. The UK Government did indeed state their dislike for UN trusteeship as a reason for not facilitating our access to an international court/appraisal … this is an act of such bias that it satisfies the definition of discrimination.
It is also worth noting that the UK Government tried to pour scorn on our hopes that through the Mars land Claim we might provide a jolt to COPUOS to trigger a safe update to Space Law in order to prevent the imminent weaponization of near space. This diversion was not necessary (it didn’t need to be considered as part of the legal challenge)… but we find it laughable that they attempt to discredit our motivations when they and the other state delegates at COPUOS have failed to properly update space law since the Outer Space Treaty 1967 (OST), despite 53 years of trying. Showing that they actually shared some of our hopes, the UK had previously sent us an email (in 2016) stating that it just might be possible to update the Outer Space Treaty some time in the future.
So what do we have to do now?
We must exhaust the UK legal system before taking the claim to the European Court of Human Rights (ECtHR). So that means the next stop is the English Court of Appeal. That is where we are now.
We have a slightly better chance of getting a favourable outcome from this Application for Permission to Appeal. It is genuinely possible that UK Government could be mandated to facilitate access for our claim to an international legal appraisal. This would have to be on the basis of a positive obligation being imposed upon the UK Gov by the combination of Article 6 and A1P1 (and possibly a limited procedural right that may flow from A1P1).
If our appeal proves fruitless, we then have opportunity to then present our appeal (against UK Gov) to ECtHR. This is where we really do have hope to make positive legal impact.
The cornerstone to our legal challenge is that established international/national human rights law gives us a right to protect claimed possessions (and the Outer Space Treaty states that general international law does apply to Space). The UK government (or indeed any state government) can only block the progression of our claim if space law (or ‘public interest’) provides a barrier that overrides our human rights. There is nothing in the OST to bar our claim. There is nothing in the expanded customary space law which can bar a pan-multinational communal claim to celestial land. In fact, as it stands, space law supports the right for such a claim to exist: Article 1 of OST states that Space and celestial land is the ‘province of all mankind’ … not the province of all nations. So our claim, involving people from all 195 world nations and a plan for common land held under UN trusteeship, is very comfortably accepted (even encouraged?) by OST and customary space law.
So what is the key?
In order for our claim to justify a favourable view in an international court/appraisal, we must show that our claim to possession is sufficiently actual (actual possession = effective occupation). International law and private law is full of examples of how difficult barren land can be successfully claimed and registered as owned property without a need for a human settlement on that land (compare this to the legal proof requirements to prove actual possession for registration of high quality land which is ready for settlement and flush with tradable resources: in those cases there had to be proof of settlement and trade in order to register ownership). We assert that we have done enough to prove that our claim to possession of the difficult barren land on Mars is arguably ‘actual’.
Also, for your information, Dr Davies was happy to pay the UK Gov’s fees after the refusal in the UK High Court. He has done that … we think it keeps things clean and allows us to maintain pressure in the UK Courts.
So, we should soon know if we have opportunity to present our claim in a hearing of the Court of Appeal. We will keep you posted.
NOTE: for you information and enjoyment, here are secure links (‘https’) to two of our current Court Of Appeal documents: