Revising the Outer Space Treaty

My friend and official PB.com international law adviser Tony Arend asks if the time is ripe for a new Outer Space Treaty:

Forty years ago–on July 20, 1969, the Lunar Excursion Module, The Eagle, touched down on the moon. The following day, Neil Armstrong set foot on the lunar surface, uttering one of the most famous phrases in history– ““That’s one small step for [a] man, one giant leap for mankind”

As a 10-year old child, I watched this momentous event on our little black-and-white television set. And at some time during the coverage, I remember might have been the first reference to international law that I can recall. One of the commentators noted that when the American flag was placed on the moon that did not indicate that the United States was claiming sovereignty over the moon. Rather, the commentator noted, there was a treaty that prohibited states from making territorial claims to the moon.Indeed, there was- the 1967 Outer Space Treaty.

Forty years later, the Outer Space Treaty has generally served the international community well. No state has claimed sovereignty over the moon or other celestial bodies. States have not placed nuclear weapons or other weapons of mass destruction in orbit or on the moon or anywhere else in outer space as prohibited by Article IV.

Nonetheless, in the wake of a sea-change of events since 1967, one might argue that it is time for a revision to the Treaty. Steve Freeland and Donna Lawyer write in the July 20, 2009 Sydney Morning Herald:

The development of space-related technology has grown exponentially since those pioneering steps by Armstrong. Not only has the use of outer space become strategically vital for the major powers, but space-based technologies have become an essential part of daily life. All of us benefit from this when we watch direct satellite broadcasts of the Ashes, use GPS systems in our cars, listen to weather forecasts derived from remote sensing satellites and fly in aircraft that rely on satellite navigation.

Not surprisingly, the international law of outer space has struggled to keep up with this breathtaking advance in technology. This is a big challenge, more so in view of the strategic and military potential of outer space. While the UN is anxious to avoid a “weaponisation” of outer space, it is clear the conflicts of the 21st century are likely to involve extensive use of space technologies.

True enough. This then leads one to question whether efforts should be made to adapt the Outer Space Treaty in light of new technologies and military strategies. What do you think?

I think that human space exploration in the West increasingly will be privatized. Budget constraints in an era of burgeoning deficits likely mean that massively costly human space exploration will not be funded in the near term. Obama is already shifting NASA priorities from planetary to earth science and, moreover, has ordered a blue ribbon review of the whole agency's purpose and goals.

At the same time, we see a host of private space endeavors, including Virgin Galactic, XCOR, and the like.

It's not at all clear that the Outer Space Treaty as currently fashioned is adequate to deal with private exploitation of space. The ABA Journal explains that:

In viewing space as the province of mankind, the Outer Space Treaty borrows principles from customary maritime law, which guarantees peaceful passage through navigable waters by ships of all nations. But in application, the Outer Space Treaty is more similar to the Antarctic Treaty System, a series of international agreements that call for cooperative management of Antarctica as a nonmilitarized environment and put off claims of sovereignty for an indefinite period.

But as the prospects for commercial ventures in space increase, it will be necessary to address the issue of who will be allowed to profit from the fruits of those ventures, say lawyers in the field.

“The current system works if nations accept a détente in space and all the resources are only used for the benefit of all mankind,” Keefe says. “If that’s the case, then there will never be commercialization of space and there will be little benefit for mankind. I know that’s a cynical capitalist viewpoint, but I think if everyone is afraid to launch a venture because they might not be allowed to profit from it, then nothing will happen.”

Not that that's going to stop Richard Branson:

Branson and other space entrepreneurs plan to launch their space ventures whether the law is ready for them or not, says Heidi Keefe, a partner in the Palo Alto, Calif., office of White & Case who chairs the Special Committee on Space Law in the ABA Section of Science and Technology Law. “Branson’s approach has been that he’d rather beg for forgiveness later than ask for permission now, and that is what may be needed to give space law a kick,” she says.

The obvious risk is that space will become the next arena in which the tragedy of the commons plays out. Indeed, we are already getting there, as The Economist observed:

The tragedy of the commons meets the final frontier

THE Earth’s orbit is getting crowded. The past few years have witnessed huge growth in the number of satellites. Unfortunately, wherever civilization ventures it leaves a trail of rubbish. Of the 18,000 tracked objects travelling around the Earth that are larger than 10cm (4 inches), only about 900 are active satellites. The rest is debris—everything from fragments of paint to entire dead satellites and bits of old rockets. Smashed bits of space equipment orbit along with items dropped by astronauts, including tools and the odd glove.

As the pile of rubbish grows, so does the risk of collisions. In the 1970s one NASA scientist pointed out that debris from one collision could go on to create a second, which would create still more debris and more collisions, and so on. Eventually, an entire orbit would be rendered useless for generations.

The orbits around the Earth are too valuable to let this happen. Space is a public common and humanity needs to value it.

In order to encourage private exploration and exploitation of space and to address tragedy of the commons, I propose that a new Outer Space Treaty create a regime for creating and enforcing private property rights in space. After all, private property rights are a recognized solution both for providing incentives for commercial activity and for preventing the tragedy of the commons:

Why was the American buffalo nearly exterminated but not the Hereford, the Angus, or the Jersey cow? Why are salmon and trout habitually overfished in the nation's lakes, rivers, and streams, often to the point of endangering the species, while the same species thrive in fish farms and privately owned lakes and ponds? Why do cattle and sheep ranchers overgraze the public lands but maintain lush pastures on their own property? Why are rare birds and mammals taken from the wild in a manner that often harms them and depletes the population, but carefully raised and nurtured in aviaries, game ranches, and hunting preserves? Which would be picked at the optimum ripeness, blackberries along a roadside or blackberries in a farmer's garden? In all of these cases, it is clear that the problem of overexploitation or overharvesting is a result of the resource's being under public rather than private ownership. The difference in their management is a direct result of two totally different forms of property rights and ownership: public, communal, or common property vs. private property. Wherever we have public ownership we find overuse, waste, and extinction; but private ownership results in sustained-yield use and preservation. Although it may be philosophically or emotionally pleasing to environmentalists to persist in maintaining that wildlife, the oceans, and natural resources belong to mankind, the inevitable result of such thinking is the opposite of what they desire.  ...

Some experts recognize that "In order to facilitate commercialization and colonization, there needs to be a property rights regime established," but argue that a system of pseudo-property rights could be jerry-rigged under the current treaty. But wouldn't it make more sense to have a treaty that was designed from the ground up to promote private property rights? As that same expert observed:

If we do nothing, space will look a lot more like Antarctica than Alaska. Without property rights there will not be adequate investment and space resources will be underutilized. Establishing property rights in space will cost millions, not billions, and can be done decades ahead of any commercialization or colonization. It’s time to set the stage to break out of the exploration mode of Columbus and get on with establishing the regulatory regime to lay the foundation for the next Plymouth Rock.

Comments

[ech]

I concur that some sort of regime for recognizing private property claims in space is needed for some forms of commercialization to take place. With the USSR's conversion to a capitalist Russia, we might be able to get some limited revisions of the Outer Space Treaty to allow mining and the like.

The movie Outland has some interesting concepts based on the Old West territories. IIRC, Glenn Reynolds and others have said that the situation of private mining ventures policed by US Marshalls is not far off from what could be legal now - the argument is that while territorial claims can't be made, signatories still have a right to enforce laws on citizens/corporations like they do on air flights and at sea.

A couple of points - Branson, despite his rebel pose, is operating within the FAA's process for commercial spaceflight. From what I have seen, the FAA is operating with a (relatively) light hand. The State Department's ITAR rules on tech transfer have been difficult at times, however.

The orbital debris problem has been recognized for a while and NASA and the other government space agencies have negotiated a set of design guidelines that will minimize future debris generation. Unfortunately, old equipment designed before these practices were put into effect have been causing more debris.

The most valuable real estate in space, orbit slots for communication satellites, are allocated by treaty right now, IIRC.

[Alice]

Who will enforce these grand international laws? As the US grows more to resemble a third world nation, and most of the third world sinks deeper into idiocracy, only China, Russia, India, and perhaps Brasil retain the will and potential to enforce these "treaties."

With China and Russia as world hegemons to fill the vacuum left by Obama's retreating US, enforcement of such treaties is apt to be spotty and a bit one-sided.

Ah, well! Under Obama, the US may not be effective, but at least it will be completely innocent. We all know that the meek inherit the Earth every single time. Perhaps the same is true for outer space.

[Sigivald]

Forty years later, the Outer Space Treaty has generally served the international community well. No state has claimed sovereignty over the moon or other celestial bodies. States have not placed nuclear weapons or other weapons of mass destruction in orbit or on the moon or anywhere else in outer space as prohibited by Article IV.

Rubbish.

States have not done that with nuclear weapons (or others) not because of the OST, but because there is no reason to, for those capable of doing so.

ICBMs in bunkers or submarines are more secure and thus better deterrents (or offensive capabilities) than orbital weapons.

(The latter would have a quicker strike capability, but A) that only matters when one attempts to do a first strike against a global nuclear power and B) none of the global nuclear powers would be defeatable rapidly enough even with such a platform.)

Likewise, "claiming" a celestial body can't actually be stopped by the treaty, which can be repudiated at will. It hasn't been done because nobody can enforce such a claim.

Weaponisation* and territory claims in space cannot be stopped by words on paper - only by states willing and able to do so, with force of arms if necessary.

(*Already been done, decades ago, by the USSR with automatic cannons on spacecraft.)

[doug l]

There are good reasons Antarctica doesn't look like Alaska in regards to their developement, and no doubt Space will resemble both in some ways and neither in many others, but at this stage all we know is that it will be a different and I think a more vigorously competitive frontier than anything human history has experienced before while reflecting something of the jump in scale it represents for our species.