Holes in the Outer Space Treaty (Part Two)

Like all the best famous last words, this series has two parts. Here is part one.

ARTICLE EIGHT

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return.

Countries have lists of the space objects that they own. These lists are registered with the UN and you can see the whole database here.

For example, Luxembourg registered this Lemur satellite:

(It looks like the Lemurs are a constellation of CubeSats owned by Spire Global, a data company headquartered in San Francisco but with an office in Luxembourg.) So since King Julien is registered to Luxembourg, he is Luxembourg’s legal responsibility.

In this article, we also legally differentiate sovereignty and jurisdiction and control (which are described legally in the Law of the Sea Convention, ratified five years later in 1982)

ARTICLE NINE

In the exploration and use of outer space, including the moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.

Yay cooperation

States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment.

A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the moon and other celestial bodies, may request consultation concerning the activity or experiment.

Arguably the largest hole in the Outer Space Treaty is that it applies only to States Party to the Treaty and not private persons or companies. Laura Montgomery, former manager of the Space Law Branch in the FAA’s Office of the Chief Counsel, points out that under Article 9, Luxembourg would be obligated to report to the US if one of its nationals were interfering with US space activities; however, if “Luxembourg were to learn that the activities of one of its nationals could cause potentially harmful interference with Pepsi’s lunar operations, the treaty doesn’t call for Luxembourg to reach out.”

This is far more applicable today that it was when the treaty was written. SpaceX, Blue Origin, and Virgin Galactic have all completed private space flights. Even Lockheed Martin, the largest federal contractor, is starting to self-fund some space projects. So how does the Outer Space Treaty regard non-state entities? Like they don’t exist (just like Amy Fulton).

ARTICLE TEN

In order to promote international co-operation in the exploration and use of outer space, including the moon and other celestial bodies, in conformity with the purposes of this Treaty, the States Parties to the Treaty shall consider on a basis of equality any requests by other States Parties to the Treaty to be afforded an opportunity to observe the flight of space objects launched by those States. The nature of such an opportunity for observation and the conditions under which it could be afforded shall be determined by agreement between the States concerned.

ARTICLE ELEVEN

In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively.

transparency.

ARTICLE TWELVE

All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives shall give reasonable advance notice of a projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited.

• Would reciprocity still apply if the visiting state doesn’t yet have any installations of note?
• What would be the purpose of these visits - just to share info??
• Should there be more restrictions on visitors, like no espionage? This is standard for Law of the Sea for territorial sea and straits.
• Undoubtedly countries would add their own restrictions for the sake of national security, but it would be nice for there to be an international standard. There’s a potential for imbalance if restrictions are decided by states individually
• Would this potentially interfere with Article 1 about free access to all areas of celestial bodies if the reciprocity condition is not met? Like, say Lichtenstein refuses Russia’s request to send a delegation to Lichtenstein’s new Death Star on the basis of reciprocity, because Russia will not allow Lichentensteinians on the Russia Death Star. This is because there is no Russian Death Star (they chose to invest in education instead). Since Russia can’t provide reciprocity, it no longer has “free access” to “outer space… on a basis of equality” as per Article 1.

ARTICLE THIRTEEN

The provisions of this Treaty shall apply to the activities of States Parties to the Treaty in the exploration and use of outer space, including the moon and other celestial bodies, whether such activities are carried on by a single State Party to the Treaty or jointly with other States, including cases where they are carried on within the framework of international intergovernmental organizations.

Any practical questions arising in connection with activities carried on by international intergovernmental organizations in the exploration and use of outer space, including the moon and other celestial bodies, shall be resolved by the States Parties to the Treaty either with the appropriate international organization or with one or more States members of that international organization, which are Parties to this Treaty.

ARTICLE FOURTEEN

1. This Treaty shall be open to all States for signature. Any State which does not sign this Treaty before its entry into force in accordance with paragraph 3 of this article may accede to it at anytime.

2. This Treaty shall be subject to ratification by signatory States. Instruments of ratification and instruments of accession shall be deposited with the Governments of the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics and the United States of America, which are hereby designated the Depositary Governments.

3. This Treaty shall enter into force upon the deposit of instruments of ratification by five Governments including the Governments designated as Depositary Governments under this Treaty.

4. For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

5. The Depositary Governments shall promptly inform all signatory and acceding States of the date of each signature, the date of deposit of each instrument of ratification of and accession to this Treaty, the date of its entry into force and other notices.

6. This Treaty shall be registered by the Depositary Governments pursuant to Article 102 of the Charter of the United Nations.

• Britain?? It’s not even a space power at the time!! or even now
• Is it there because it is trusted daddy?
• Or just because London was just like, a convenient place to sign the treaty?

Oh yeah, what’s a depositary? It’s defined in the Vienna Convention on Law of Treaties) (which is from 1969, AFTER the Outer Space Treaty 👀)

• article 76: depositaries must be impartial
• article 77: depositaries are stewards of the treaty– keep copy of original & receive signatures
• article 102: treaties have to be registered with the UN secretariat

ARTICLE FIFTEEN

Any State Party to the Treaty may propose amendments to this Treaty. Amendments shall enter into force for each State Party to the Treaty accepting the amendments upon their acceptance by a majority of the States Parties to the Treaty and thereafter for each remaining State Party to the Treaty on the date of acceptance by it.

Note that the Outer Space Treaty wasn’t signed by Russia but rather the USSR. Russia is recognized by the US as the legal successor to the USSR, inheriting its commitments and seat on the UN Security Council. While the legitimacy of Russia in the UNSC is rarely challenged today, the ad hoc nature of the succession, which is technically not allowed by the UN Charter, is a process that should be codified in future international organizations.

ARTICLE SIXTEEN

Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification.

• whats with the first one year requirement
  
  

ARTICLE SEVENTEEN

This Treaty, of which the English, Russian, French, Spanish and Chinese texts are equally authentic, shall be deposited in the archives of the Depositary Governments. Duly certified copies of this Treaty shall be transmitted by the Depositary Governments to the Governments of the signatory and acceding States.

cool

So there you have it, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. Like some members of Congress, it’s surprisingly effective given its advanced age. All that stuff about “stations, installations, equipment and space vehicles on the moon and other celestial bodies”? Ace, 💯, five stars, A1 beautiful foresight given that none of these things existed at the time. And a jointly, collaboratively written treaty by the US and the Soviet Union during the Cold War? CHEFS FUCKING KISS. It happened once, and IT CAN HAPPEN AGAIN. The Hari Seldons of the day did not predict the rise of the fanatical entrepreneur Elon Musk or the economic powerhouse of China, and so we now live in a space age that requires a new Outer Space Treaty. Some updated rules to address new technology, and hopefully some additional guidance on low-earth orbit regulation.

The Artemis Accords are the US’s attempt at an Outer Space Treaty 2 Electric Boogaloo. I’m planning to review it eventually, but the general idea is that it extends the spirit of the Outer Space Treaty while including provisions for excluding states from accessing certain parts of space. This may or may not be an issue, given the many caveats surrounding the function, but it’s probably what China is most concerned about. That and also China is very proud of its independent space program and deeply distrusts the US in general.

Probably not, for the next five or even ten years. Space governance isn’t in the UN Sustainable Development Goals, which are the main focus of the UN Office for Outer Space Affairs (UNOOSA).

The US is more interested in the Artemis Accords and getting back to the Moon. China is pursuing its own five-year plan, which includes new heavy rockets and space station modules. China and Russia are also collaborating on the International Lunar Research Station (ILRS), which they’ve invited other countries to join, though Russia has been occupied with occupying lately. India has a decadal plan to develop human spaceflight and has signed the Artemis Accords, signaling alignment with the US.

These are the states most active in space and they have two separate visions for our future in it. International collaboration is pretty important, though. On two fronts:

1. NEAR TERM WAR
   

The US, China, and Russia are already at odds over basically every issue ever. If anyone does anything that could be construed as claiming territory (on the Moon or elsewhere), that could be the camel that breaks the straw’s back.

2. LONG TERM SOCIETY
   

If we don’t eliminate ourselves through nuclear weapons, a new space race could involve a period of rapid imperialism and weapons development as states try to reach unclaimed land on the Moon and other planets as fast as possible, while hindering their opponents. This would set up new colonies poorly for long-term peace and prosperity, as we already know from previous rounds of imperialism. And we want to learn from our mistakes to make life good for space people.

Disclaimer:

A short list of things that I’m NOT:

• A LAWYER