Should we allow nations to claim sovereignty in space? An analysis of The Outer Space Treaty and other international space law instruments
As it has been a little over 60 years since the first person travelled into space, space law is a relatively new concept in the legal sphere, with the first UN Treaty on the area (the Outer Space Treaty) entered into force in October 1967. Since this momentous occasion, space exploration has become increasingly prevalent, with over two and a half thousand objects launched into space in 2023 alone. As the number of objects entering outer space increases, being sent by both governments and private organisations, the need for the implementation of clear and resolute international space law on property rights and sovereignty is approaching its inevitability. Yet, there remains great debate amongst academics, governments and international organisations regarding the scope of such laws and their applicability, exhibited in the uptake of international legislation such as the Moon Agreement 1979, and academic argument concerning the relationship between international law and governmental and private parties. Therefore, this article will be categorised into three sections: the legal standing, goals, and the process of implementation of the Outer Space Treaty 1967; the benefits and limitations of the treaty and subsequent international law; and a discussion of the following normative question: should states be allowed to claim sovereignty in space?
The Outer Space Treaty 1967
The first UN treaty developed to govern space exploration and exploitation, the Outer Space Treaty of 1967 was a groundbreaking piece of legislation for its time, referred to by some as the ‘Magna Carta of international space law’. However, this does not affirm its effectiveness today. In fact, since the implementation of the Outer Space Treaty, the number of space-faring nations has increased drastically, with not just two superpowers (the US and USSR) dominating the space expiration sphere anymore: as of 2022, approximately 70 countries (including nations such as Rwanda and the Philippines) had established national space agencies, and 20 of these spend more than $100 million per year on civil space. Due to this, it can be argued that today the Outer Space Treaty is merely a symbolic instrument: it is the key mechanism to approaching international space law, but lacks competent approaches to modern threats.
The actual effectiveness of this Treaty will be determined by focusing on one of its 17 Articles, the one of greatest relevance to this discussion: Article II. However, before its usefulness can be concluded, the content of the appropriate articles must be analysed.
Article II is the article which explicitly outlines the topic being discussed here, stating that:
“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.”
While this article seems clear in its purpose at face-value, there are many instances of ambiguity, the main two being the meaning of “national appropriation” and ‘the scope of the phrase “by any other means”’. These two phrases are explored in depth by Lee and other academics, and their interpretations will be highlighted below.
“National Appropriation”
The most crucial debate surrounding the definition of “national appropriation” is whether it is solely applicable to states, or whether it has relevance to non-governmental or private parties. One of the most identifiable instances in which this is relevant is with the projection of objects into space. The ownership of the International Space Station (ISS) causes much controversy in this area, with Mijović noting its disparity to Article II, which distinguishes property law on Earth from property law in Space.
The ISS is owned by five separate entities: the United States, Canada, Russia, Japan, and the European Partner (which is made up of 10 European countries, including the UK). The ownership of the ISS by these 15 parties is reinforced by the International Space Station Treaty of 1998, which outlines the roles of the entities involved and, in Article 5, the jurisdiction of the governments
“each partner shall retain jurisdiction and control over the elements it registers in accordance with paragraph 1 above and over personnel in or on the Space Station who are its nationals.”
This is supported by Article VIII of the Outer Space Treaty, which gives states the right to claim jurisdiction over the objects they themselves have launched into space.
Within just one treaty, there is much ambiguity - elements just seven Articles apart contradict one another significantly, directly opposing Article 32 of the Vienna Convention which protects against obscurity.
“By Any Other Means”
The second uncertainty of Article II that Lee identifies is the phrasing “by any other means”. Although up for debate amongst commentators, there are two main arguments that Lee asserts: that of Lachs and that of Christol. While Lachs suggested that this phrasing was simply that of an abundance of caution, that the “other means” were unlikely to create an issue but the mention of them was simply preventative, Christol argues that this instead relates to who is attempting to claim sovereignty, placing restrictions on private entities and individuals as well as states.
Since the Treaty’s implementation over 50 years ago, clarity on this area of law has yet to be provided. Therefore, how effective can we say that this Treaty has been?
How effective has the Outer Space Treaty been?
Now that we have examined the meaning of some of the key articles of the Outer Space Treaty, we can begin to analyse its advantages and limitations.
As mentioned above, one of the key debates surrounding the Treaty is its application to private organisations and individuals. Explored in depth by Pop, the majority of academics and commentators argue that private entities are wrong to be thought to be excluded from this Treaty: “what is forbidden to a State is not permitted to a chartered company… [or] a private adventurer” created by or a national to that State. Yet, the minority viewpoint that the Treaty only applies to national appropriation and not private appropriation has not been without its consequences. The lack of clarification surrounding the Treaty’s applicability, against Article 32 of the Vienna Convention, has meant that private entities have not been explicitly stopped from launching objects into space. Examples include the US companies SpaceX and Blue Origin, whose roles in international space law, ‘for which there are no ready and straightforward solutions’, are yet to be determined.
Another clear limitation of the Outer Space Treaty 1967 is its influence on the development of the Moon Agreement 1979. Although jurists note its significance in international law, with Article 11(2) expressing how ‘the moon is not subject to national appropriation by any claim of sovereignty…’, the agreement’s effectiveness has been hindered by its uptake: having been rejected by the majority of the largest space-faring nations, it is considered by many a ‘failed treaty’.
However, there is one clear benefit that the Outer Space Treaty has had in regards to the progression of international space law - it has led to the development of the Liability Convention 1972. Unlike the Moon Agreement, the Liability Convention has had significant uptake, with 98 parties having ratified and 19 signed the convention. This Convention directly tackles the issue of legal accountability, with Article II expressing that:
“A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft flight.”
As Nathwani elaborates, this essentially means that a state can claim against another state (regardless of whether the damage was caused by ‘a private actor or a State-space agency’).
Taking into consideration the contents of and some of the limitations of the Outer Space Treaty above, it is clear that the overall effectiveness of the Outer Space Treaty 1967 has been limited. Although some of the subsequent legislation has been successful thus far, including the Liability Convention - a legally-binding international instrument to those states that have ratified it, the Moon Agreement and the Outer Space Treaty itself have been significantly less accomplished. While the Outer Space Treaty, unlike the Moon Agreement, is a legally-binding piece of international legislation to ratifiers, its ambiguity has made it difficult to follow and to govern.
Should states be allowed to claim sovereignty in space?
This brings us onto the final and most important question of the article. We have discussed throughout whether states and private companies can or cannot claim sovereignty in space, however we have not yet discussed whether they should.
Debates regarding whether or not entities should have claims to sovereignty in space have been in orbit since 1961, six years before the implementation of the first piece of international space legislation. In the 1961 journal article, the author recognises the governance of the seas, airspace and the polar regions, all regions without just one sovereign claim but all of which are governed differently.
The sea is governed by the United Nations Convention on the Law of the Sea (UNCLOS), which outlines the extent of a nation’s exclusive economic zone and international waters. This is similar to the Convention on International Civil Aviation, in which Article 1 highlights that ‘every state has complete and exclusive sovereignty over the airspace above its territory’. Yet, Antarctica is governed completely differently: the Antarctic Treaty System prohibits territorial disputes and ensures that the region is preserved only for peaceful purposes. This therefore raises the question of which method we should adopt - should states be able to claim sovereignty over ‘their’ section of space, like with the sea and airspace, or should outer space remain an internationally governed territory?
Chouhan takes the latter approach, recognising two reasons why outer space should remain a peaceful, non-appropriated territory.
Privatisation
The first reason why it may be argued that space should remain a non-appropriated territory is because privatisation in space is currently only an option for the most developed nations. This means that only the nations with the technology available will be able to privatise space, creating an evolved form of colonialism and increasing the inequality gap already present on Earth.
The latter point’s prospect becomes more likely when it is considered that states may act vicariously through private companies, whereby states can utilise the private companies in their nation as a means to proclaim sovereignty, thus bypassing the non-appropriation principle outlined in Article II of the Outer Space Treaty 1967.
Militarisation
While the increase in inequality is an almost certain impact of sovereignty in outer space amongst academics, the effect that it will have on militarisation is of greater complexity. If privatisation were to occur in outer space, Chouhan notes the inevitability of militarisation:
“Private property is exclusionary in nature, and for enjoyment of private property its enforcement is necessary.”
As Deudney expands, the development of private property in space is bound to lead to its weaponisation, with ideas such as nuclear weapons in orbit having been promoted since the 20th century. The problems with this should be obvious - it would disturb world peace and directly oppose Article IV of the Outer Space Treaty 1967, which directly prohibits the use of weapons of mass destruction in space.
Conclusion
As seen throughout, it is clear that the Outer Space Treaty is not as effective as it could be due to a number of reasons, including its contradictory nature, the failure of subsequent legislation, and the habit of private entities to send objects into space despite the Treaty’s ambiguity. However, there are ways in which the further failing of the Outer Space Treaty 1967 can be prevented. Firstly, the Treaty has not been updated since its entry into force in 1967, yet states are joining by accession to this day. As a result, the Treaty is not necessarily applicable to today’s society, and it does not adhere to the treaty stipulations outlined in the Vienna Convention 1969.
As to the argument of whether states and private entities should be allowed to claim sovereignty in space, again the answer is clear - they should not. Though there are some claims that the privatisation of space can only be prosperous, this is a westernised ideology that will eventually lead to a modernised version of colonisation and grave inequality as well as an unstable and frightening world governed by outer space militarisation.
As Riddick explains:
“The primary issue of sovereignty is not how the right is characterized, but whether States can exercise control over other States in a certain region of space.”
Amy Hutchison
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