Law in “the New Dimension”
Haris A. Durrani
Haris Durrani is a JD/PhD candidate at Columbia Law School and Princeton University (History of Science). He is winner of the Sacknoff Prize for Space History.
When it comes to international law and global economic inequality, double standards prevail in outer space as they do on Earth. Judge Manfred Lachs may have called outer space “the new dimension,” but the powers at play are not. One need look no further than recent calls to implement a property regime that will reform the Outer Space Treaty’s rigid limitations on sovereignty and ownership in space. As a matter of fact, this controversy is older than lawmakers and legal academics presume.
Since May, Ted Cruz, Chairman of the Space Subcommittee of the Senate Commerce Committee, has led several hearings on commercial space, calling for a reform of the apparently outdated Treaty, which celebrates its 50th anniversary this year. Likewise, legal academics have spent the last few years questioning the Treaty’s rigid property regime. These calls for reform originated in part from the passage of the Spurring Private Aerospace Competitiveness and Entrepreneurship (SPACE) Act in 2015 and a similar law in Luxembourg. The Act has sparked controversy over whether commercial space mining violates the Treaty’s non-appropriation doctrine, which prohibits “national appropriation [in space] by claim of sovereignty, by means of use or occupation, or by any other means.” The Act aims to establish a property regime in space that will grant businesses the legal security to invest in space mining technologies, thus boosting the American commercial space industry.
A similar debate over property ownership in space occurred decades ago but is now a forgotten chapter in history. In 1976, a medley of equatorial nations from South America, Southwest Asia, and Africa signed the Bogotá Declaration, a rebuke of the Treaty’s non-appropriation doctrine.. Like the SPACE Act, the Declaration attempted to create a new property regime in space. The Declaration asserted ad coelum ownership (extended air rights) over the fixed orbital slots in geostationary orbit hanging above these nation’s lands. Unlike airplanes crossing overhead, there was a direct physical connection between these nations’ land at the equator and the stationary orbital slots above them. Geostationary orbit was and remains the most valuable orbit for telecommunications satellites, and, at the time, these postcolonial nations were concerned that technologically-advanced states would occupy most of the slots before anyone else could develop access to space.
The Declaration failed, and the brief controversy has fallen by the wayside. Today, the International Telecommunications Union allocates orbital slots. But the countries who signed the Declaration share something with Cruz’s school of thought – they both want to install a property regime in space. Although ownership of mining resources is different from that of orbital slots, the more fundamental distinction between both controversies is motivational. When a group of postcolonial nations challenges the Treaty with the motive of resisting global economic power structures that international law seems to uphold, this becomes a neglected piece of history. When a dominant nation like the U.S. raises a similar question about reforming the Treaty to introduce property regimes, this time with the motive of commercialization, that question is taken seriously.
Proponents of commercial space mining claim that the Treaty’s other provisions, which require freedom of use, exploration, and access in space, allow for a broad range of free enterprise, including mining. But, in space, “free enterprise” is de facto state power. In hearings leading to the passage of the SPACE Act, Congressmen emphasized the importance of getting the bill passed in order for America’s space industry to beat out any other. In May, Robert Bigelow, of Bigelow Aerospace, even advised Cruz that military personnel ought to be permitted in space in order to protect private property. It is telling that Goldman Sachs—many of whose former executives serve in the Trump Administration—published a 98-page report on the viable economic returns of space mining around the same time that Trump asked NASA about the technological feasibility of space mining. This February, at a symposium on commercial space mining at the Legal Sub-Committee of the U.N. Office of Outer Space Affairs, a representative from Brazil—which was an observer on the Declaration—spoke at length about global inequality.
Although the double standard is disconcerting, it is not new to the international legal order and its global economic asymmetries. Commercial space actors resemble the phenomenon Timothy Mitchell calls “the state as effect,” in which non-state actors carry out the interests of a political body, like the Saudi Aramco company effectively promoting the American state’s oil interests.
Perhaps the Treaty does need reform. But if the Treaty’s stringent property regime gets a makeover, lawmakers must acknowledge the history of these controversies and their countervailing motivations and context
Video: Cosmic Origins Spectrograph, NASA Video Library