Learning from Guantanamo: Avoiding Legal Black Holes in Outer Space

Authors

Mia Bonardi

Abstract

"Legal black holes" are spaces beyond the reach of enforceable law and thus inflict people within their pull with "rightlessness." The term "legal black hole" arose originally around the Guantinamo Bay detention center, but it has since been used in other contexts, such as migrant drownings. There is a new frontier for legal black holes in the space beyond Earth. This topic is timely and pertinent to modern application because if places or spaces exist where fundamental laws cannot be applied or enforced, then such legal black holes undermine the rule of law.

This Article argues that outer space is, at present, a legal black hole. The increased human presence in outer space will result in legal black holes that cannot yet be imagined. This Article follows the throughline from the Guantanamo Bay detention center to outer space regarding the prohibition of torture and argues that space is the new frontier for legal black holes. This Article argues that established jus cogens norms, including the prohibition against torture, are also nonderogable in outer space because the principle that the "use and exploration" of outer space must be "in accordance with international law" is customary international law.

Disciplines

Comparative and Foreign Law | International Law | Jurisdiction | Law | Law and Politics | Law and Society | Military, War, and Peace | National Security Law

Recommended Citation

Mia Bonardi, Learning from Guantanamo: Avoiding Legal Black Holes in Outer Space, 6 Cardozo Int’l & Compar. L. Rev. 747 (2023).
Available at: https://larc.cardozo.yu.edu/ciclr/vol6/iss3/3