Mar 13, 2019

Written By David Carnes

Space: the final legal frontier

Mar 13, 2019

Written By David Carnes

Outer space is, indeed, a frontier with no boundary. But who really owns it? And what are the legal implications of future space exploration? DAVID CARNES investigates. | Graphics by Josh Krohn |

It’s been said that arguing over who “owns” space is like fleas arguing over who owns the dog they live on. Although at present it’s impossible to exercise true sovereignty over any significant portion of space the way that Italy exercises sovereignty over Rome, it’s possible to decide among ourselves what, if any, property rights we hold against each other where outer space is involved.

It’s possible, of course, to exercise true sovereignty over “inner space”—the space inside Earth’s atmosphere. Try flying a fighter jet over Russian airspace and see if you don’t get shot down. But what if the US decides to launch a spy satellite that regularly overflies the space directly over Beijing? Does China have the right to shoot it down? Just how far up does national airspace extend?

The “Bear” beginnings

The space age officially begun on October 4, 1957 when the Soviet Union launched Sputnik I into orbit around the Earth. Sputnik passed over many nations during its celestial journey, including the US. Normally, such a blatant violation of a nation’s “air” space could be considered an act of war. So why didn’t the US complain about the USSR’s overflight of US territory?

The answer is that US President Eisenhower, anticipating that one day the US might want to place its own spy satellites above the Soviet Union, slyly refrained from objecting to Sputnik’s overflight. Eisenhower’s failure to object was a sneaky way of saying, “We accept that the legal status of outer space is the same as the legal status of international waters—and obviously you agree with us.”

Where does outer space begin?

The answer to this question has yet to be definitively resolved. Most legal scholars, however, agree that outer space begins no lower than the lowest altitude at which a satellite can orbit the Earth, or about 75 miles above sea level. On the other extreme, no respected legal scholar asserts that the planting of the US flag on Tranquility Base grants the US any sovereignty over the moon.

International cooperation

In 1959, only two years after Sputnik, the United Nations established the Committee on the Peaceful Uses of Outer Space (COPUOS). COPUOS further established the Legal Subcommittee, and it has turned out to be instrumental in drafting international treaties and in resolving space-related disputes.

There are currently five major international treaties that have been negotiated under the authority of COUPUS:

1. The 1967 Outer Space Treaty;

2. The 1968 Rescue Agreement;

3. The 1972 Liability Convention;

4. The 1975 Registration Convention; and

5. The 1979 Moon Treaty.

Some of the principles established by these treaties include:

- No stationing of weapons of mass destruction in space (no orbiting nuclear weapons, for example, although unfortunately, nuclear ICBMs can be and have been launched through space).

- No claims of national sovereignty over space or any celestial body (except for man-made objects such as artificial satellites).

- No establishment of military bases, no weapons testing and no military exercises in outer space or on any celestial body This prohibition has arguably been violated already by the testing of anti-satellite weapons.

- No claims of ownership or sovereignty in space, and no blockades that impede free navigation.

- Spacefaring nations are liable for any damages caused by their activities. This legal principle may move into public focus if, say, the International Space Station is damaged by space debris associated with a particular nation’s space activities.

- No contamination or pollution of space (a prohibition that’s repeatedly violated as “space debris” accumulates in orbit).

- Astronauts should provide assistance to each other when the need arises, regardless of their respective nationalities.

Not all nations have signed on to every treaty—the most popular one, the Outer Space Treaty, has about 100 signatories.

Possible legal precedents

At least two terrestrial events have occurred that might someday be used as legal precedents to allow national powers (or perhaps even multinational corporations) to claim jurisdiction over parts of outer space.

Most recently, China’s assertion of sovereignty over much of the South China Sea. The Chinese assertion of sovereignty over the area within the “nine-dash line”, covering most of the South China Sea, was made even though China was a signatory to the United Nations Convention on the Law of the Sea (UNCLOS), which forbids such broad assertions of sovereignty over what the rest of the world considers international waters. China is also rapidly militarizing the area through the use of man-made islands and airstrips. Could a “nine-dash line” be established by a space-faring power someday, using China’s de-facto sovereignty over the South China Sea as a precedent?

Territorial claims over parts of Antarctica have also been made by seven nations. Argentina, Australia, Chile, France, New Zealand, Norway and the UK all maintain territorial claims in Antarctica, despite its permanent population of zero.

These assertions may someday become relevant to the fact that only 17 nations have signed the Moon Treaty, which forbids claims of territorial sovereignty over any part of the moon (also with a population of zero). The US, the only nation with its flag planted on the moon, isn’t a party to the Moon Treaty.

Space junk: an international problem free enterprise can’t solve

The Space Age could turn out to be a short interlude in the history of mankind’s explosive technological development, unless the problem of space debris is solved before it gets much worse. Imagine global warming rendering the planet uninhabitable, just as the space debris problem gets so serious that we’re unable to place objects safely into orbit, much less escape to other planets.

The areas of outer space within the orbital zones above Earth are cluttered with over 22,000 chunks of space debris. Even a fragment the size of a pebble could cause catastrophic damage if it collided with a spacecraft at a speed of, say, 12kms a second. International efforts will be required even to track space debris, much less eliminate it, according to Lt. Gen. Susan Helms, commander of the US Strategic Command’s Joint Functional Component Command for Space. More than 60 nations now operate in space, and with private enterprises such as SpaceX now getting involved, any multilateral legal effort will require massive amounts of both cooperation and compulsory enforcement to keep the Space Age alive.

Military bases on the moon?

Plans for a military base on the moon have already been made, and they go back far longer than most people realise. A 1959 study commissioned by the US government, entitled Project Horizon, examined the feasibility of a joint military/scientific base on the moon operated by the US. Project Horizon was cancelled by President Eisenhower when authority for the space programme was transferred into civilian hands (namely, NASA).

In September 2018, however, US Air Force Secretary Heather Wilson outlined a plan to establish a “Space Force” that might someday include a moon base. According to Wilson, “This proposal establishes a clear mission, directly related to the strategic problem we are trying to solve.” Could China’s construction of artificial islands in the South China Sea (which the US opposes) someday be used as a legal precedent for the US or some other nation to claim sovereignty over a military base it builds on the moon?

Should space resources be exploited or conserved?

Although Article II of the Outer Space Treaty appears to prohibit any claims of sovereignty over areas of outer space or natural celestial bodies, its language is intentionally vague because of ideological disagreements between the US and the USSR that Article II papered over with ambiguity.

Article II reads, in pertinent part, “…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 means.” Lawyers, who are famous for being able to find ambiguity in even a “No Smoking” sign, have asserted numerous potential loopholes in this wording. In addition to this ambiguity, history demonstrates that treaties tend to change as times and national interests change. Looking to the future, the following are three basic positions that have been advocated by various sources:

1. The unlimited-exploitation position: claims of sovereignty could be made by both commercial interests and national governments—a party that developed a region of space or a celestial body, for example, would be entitled to make claims of sovereignty with respect to them, and not necessarily limited to objects they built themselves.

The main argument in favour of this proposition is that it would politically and financially incentivise the exploitation of outer-space resources, and that since these resources are (presumably) unlimited, mankind wouldn’t experience the same degree of conflict and warfare that the history of competition for the limited resources of Earth have been subject to.

2. The “Common Heritage of Mankind” position: expropriation of space resources should be strictly prohibited beyond claims of ownership of objects built by the claimants themselves—a weather satellite, for example. In general, outer space should be treated as a national park.

The arguments in favour of this position are that (i) it’s the more ethical position, and (ii) expropriation will inevitably lead to conflict and war in outer space and even on Earth.

Proponents of this position don’t see outer-space resources, at least those that are accessible to mankind, as unlimited.

3. The partial-exploitation position: commercial interests such as corporations would be able to claim limited private-property interests in outer space and on natural celestial objects, but no nation would be able to claim national sovereignty over them. An analogy would be the Admunsen-Scott South Pole Station.

In all likelihood, the unlimited-exploitation position is likely to prevail over the short run (until at least 2050), at least with respect to commercial (as opposed to military) exploitation. Indeed, space resources do seem unlimited to us now, although that might not always be the case.

For example, in the case of space mining, there are one to two million asteroids between Mars and Jupiter that are larger than one kilometre in diameter, along with millions more smaller ones. There’s even a planet known as 55 Cancri e, a mere 40 light years away from Earth, that contains a mass of diamonds larger than the entire Earth (a future honeymoon destination if warp drive is ever invented, perhaps?). For a while at least, there may seem to be no need for conservation.

And if we are not alone...?

History demonstrates the fallacy of making confident predictions about even the near future. In the late 19th century, for example, a sky full of dirigibles was envisioned by futurologists of the day, while underwater cities were confidently predicted “by the year 2000” as late as the early 1970s. In 2017 even Elon Musk stated, “In 2024 we want to try to fly four ships [to Mars].” Our predictions about the development of outer space could come to look foolish only a few decades from now.

One event that could decisively affect the development of space law in the coming decades would be contact with extra-terrestrial intelligence. We might just find ourselves with a very limited choice—either agree to abide by existing interstellar space law that was established thousands or even millions of years ago, or simply mind our own business and stick to our home plan.

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