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Abstract
The expansion of private-sector space activities is significantly changing the dynamics of space policy in the United States and potentially the entire field of space exploration and utilization. However, state sovereignty remains, and shall remain, central to the law, politics, and economics of space. States will continue to be important space actors, and even as private space actors emerge, governments shall play a vital enabling and regulatory functions. The exact role states will play in future economic development of space, as well as the nature of the relationship between state and non-state actors in space, depends on the concept of state sovereignty. This article discusses theoretical understandings of state sovereignty, outlines the current legal regime for space, examines controversies in space law, and explores possible scenarios for future forms of state sovereignty or jurisdiction in space. It concludes that the best outcome is where international law evolves in anticipation of these new developments to ensure a stable international regime for space.
ACKNOWLEDGEMENTS
Earlier versions of this article were presented at meetings of the International Studies Association and the Tennessee State Political Science Association, both in April 2013. My thanks to Chris Bronk, Ronald J. Deibert, and Steven Livingston for comments to earlier drafts of this article. The opinions contained here are those of the author alone.
Notes
1. Michael Sheehan, The International Politics of Space (London: Routledge, 2007), 156–157, 181–182; James Clay Moltz, Asia’s Space Race: National Motivations, Regional Rivalries, and International Risks (New York: Columbia University Press, 2012), 31.
2. John L. McLucas, Space Commerce (Cambridge, MA: Harvard University Press, 1991), 93–94.
3. Quoted by Moltz (note 1): 208.
4. “NASA Expands Commercial Space Program, Requests Proposals for Second Round of Cargo Resupply Contracts for International Space Station,” Johnson Space Center News Release, 26 September 2014, http://[email protected] (accessed September 2014).
5. Ram Jakhu and Maria Buzdugan, “Development of the Natural Resources of the Moon and Other Celestial Bodies: Economic and Legal Aspects,” Astropolitics 6:3 (2008): 201-250, 215–219.
6. Virgiliu Pop, Who Owns the Moon? Extraterrestrial Aspects of Land and Mineral Resources Ownership (New York: Springer, 2009), 27, 33.
7. Jeffrey Herbst, States and Power in Africa: Comparative Lessons in Authority and Control (Princeton, NJ: Princeton University Press, 2000), 99–100.
8. Hans J. Morganthau, Politics Among Nations: The Struggle For Power and Peace, 2nd ed. (New York: Alfred A. Knopf, 1956), 287–288.
9. Convention on the Rights and Duties of States (Inter-American), signed 26 December 1933. 115 UNTS 21.
10. Steven D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999), 10, 20–21.
11. Morganthau (note 8): 287.
12. John Gerard Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations,” International Organization 47:1 (1993): 139–174, 151.
13. Krasner (note 10): 14–20; Thomas J. Biersteker and Cynthia Weber, “The Social Construction of State Sovereignty,” in Thomas J. Biersteker and Cynthia Weber, eds., State Sovereignty as Social Construct (Cambridge: Cambridge University Press, 1996), 1.
14. Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 73; Hendrik Spruyt, The Sovereign State and its Competitors: An Analysis of Systems Change (Princeton, NJ: Princeton University Press, 1994), 15.
15. Philip Marshall Brown, “Sovereignty in Exile,” American Journal of International Law 35: 4 (1941): 666–668.
16. Krasner (note 10): 231–232.
17. Full titles, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, signed 27 January 1967, 610 UNTS, 205; Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched Into Outer Space, signed 22 April 1968, 672 UNTS 119; Convention on International Liability for Damage Caused by Space Objects, signed 29 March 1972, 961 UNTS 187; Convention on Registration of Objects Launched Into Outer Space, signed 14 January 1975, 1023 UNTS 15.
18. Full title, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, signed 18 December 1979. 1363 UNTS 205.
19. Thomas Gangale, The Development of Outer Space (Santa Barbara, CA: Praeger, 2009), 13.
20. United Nations General Assembly, International Cooperation in the Peaceful Uses of Outer Space, Resolution 1721 (XVI), 20 December 1961, http://www.un.org/depts/dhl/resguide/r16.htm, Section A1(b) (accessed December 2014).
21. Virgiliu Pop, “Appropriation in Outer Space: The Relationship Between Land Ownership and Sovereignty on the Celestial Bodies,” Space Policy 16:4 (2000): 275–282, 280.
22. Moon Agreement (note 18): Article 11.3.
23. Pop, “Appropriation in Outer Space” (note 21): 11–12.
24. Wayne N. White, “Real Property Rights in Outer Space,” Proceedings, 40th Colloquium on the Law of Outer Space, 1998 (Published by the American Institute of Aeronautics and Astronautics, Reston, VA). http://www.spacefuture.com/archive/real_property_rights_in_outer_space.shtml (accessed January 2015).
25. United Nations General Assembly (note 20).
26. Andrew Brearley, “Mining the Moon: Owning the Night Sky?” Astropolitics 4:1 (2006): 43–67, 58.
27. Howard E. McCurdy, Space and the American Imagination, 2nd ed. (Baltimore: The Johns Hopkins University Press, 2011), 72–75.
28. Ibid., 76.
29. Full title, Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 5 August 1963, 480 UNTS 43.
30. Michael Sheehan, “Profaning the Path of the Sacred: Militarisation of the European Space Programme,” in Natalie Bormann and Michael Sheehan, eds., Securing Outer Space (London: Routledge, 2009), 179, 181.
31. Carl Q. Christol, “International Liability for Damage Caused by Space Objects,” The American Journal of International Law 74:2 (1980): 346–371, 352–353.
32. Liability Convention (note 17): Article 1(a). One such case is the 1978 crash of the Soviet Cosmos 954 satellite in Arctic Canada. See Christol (note 31).
33. Many states only provide “partial declarations” under this treaty (Moltz note 1: 215–216).
34. Liability Convention (note 17): Article I (c) ii, Article V 3.
35. Pop, Who Owns the Moon? (note 6): 34.
36. Agreement Among the Government of Canada, Governments of the Member States of the European Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the United States of America Concerning Cooperation on the Civil International Space Station, signed 29 January 1998. NASA Historical Collection. Article 5 and 22.
37. Pop, “Appropriation in Outer Space” (note 21): 280–281. Lawrence A. Cooper, “Encouraging Space Exploration through a New Application of Space Property Rights,” Space Policy 19:2 (2003): 111–118, 113; Brearley (note 26): 47.
38. Presumably, this includes the entire universe (except Earth), disregarding any possible extraterrestrial life. Humanity may believe it owns the cosmos, but perhaps our solar system has been similarly declared part of another species’ “province.”
39. Daniel H. Deudney, “High Impacts: Asteroidal Utilization, Collision Avoidance, and the Outer Space Regime,” in W. Henry Lambright, ed., Space Policy in the Twenty-First Century (Baltimore: Johns Hopkins University Press, 2003), 147–172, 165.
40. Ibid., 156, 165–166
41. Sheehan (note 1): 133–134; George B. Dietrich and William C. Goldstein, “Collective Trusteeship for Near Space: The Case for UNNESA,” Space Policy 14:1 (1998): 9–14.
42. United Nations General Assembly, Principles Relating to Remote Sensing of the Earth from Outer Space, Resolution 41/65, 3 December 1986. http://research.un.org/en/docs/ga/quick/regular/69 (accessed January 2015).
43. Pop, Who Owns the Moon? (note 6); Pop, “Appropriation in Outer Space” (note 21): 281; see also Virgiliu Pop, “The Nation of Celestial Space,” Space Policy 22:3 (2006): 205–213.
44. Virgiliu Pop, “The Men that Sold the Moon: Science Fiction or Legal Nonsense,” Space Policy 17:3 (2001): 195–203, 198, 200.
45. Pop, Who Owns the Moon? (note 6): 12–13.
46. F.G. Von der Dunk, E. Back-Impallomeni, et al., “Surreal Estate: Addressing the Issue of ‘Immovable Property Rights on the Moon,’” Space Policy 20:3 (2004): 149–156, 150.
47. Pop, Who Owns the Moon? (note 6): 41–43.
48. Ibid.
49. A few states still consider the Moon Agreement to be relevant. Since 2000, it has been ratified or acceded to by Kazakhstan (2001), Belgium (2004), Peru (2005), Lebanon (2006), Saudi Arabia (2012), Turkey (2012), and Kuwait (2014); http://treaties.un.org (accessed January 2015).
50. United Nations Convention on the Law of the Sea, signed 12 October 1982, 1833 UNTS 3. In 1980, the U.S. State Department’s position was that the “Common Heritage” principles of UNCLOS and the Moon Agreement were separate and distinct (Marian L. Nash, “Contemporary Practice of the United States Relating to International Law,” The American Journal of International Law 74:2 (1980): 418–432, 425–426). See also Brearley (note 26).
51. While Pop (Who Owns the Moon? note 6: 124–130) links the “common heritage” model and communism, he acknowledges that neither the Soviet bloc nor China ratified the Moon Agreement. Gangale (note 19: 70–1) notes that, in the Moon Agreement negotiations, the U.S. supported, and the USSR initially opposed, the “Common Heritage” formula.
52. Moon Agreement (note 18): Article 11.5.
53. Ibid., Article 11.7a–c.
54. Nash (note 50): 425.
55. Pop, Who Owns the Moon? (note 6): 146–7; Gangale (note 19): 119; Jakhu and Buzdugan (note 5): 231–2.
56. Nash (note 50): 422–423.
57. Gangale (note 19): 5, 10, 51.
58. Von der Dunk (note 46): 156.
59. If technology is developed to move asteroids into near-Earth space, safeguards against unauthorized remote access will be vital. Such an asteroid could become a tempting target for weaponization by a suitably apocalyptic terrorist group.
60. Jakhu and Buzdugan (note 5): 211–13.
61. Gangale (note 19: 130) notes sarcastically, “Space enthusiasts are fond of saying, ‘The meek shall inherit the earth; the rest of us are going to the stars.’ It would seem that this is only the case if the heavens are tax havens.”
62. Brian Weeden and Tiffany Chow, “Taking a Common-Pool Resources Approach to Space Sustainability: A Framework and Potential Policies,” Space Policy 28:3 (2012): 166–172, 168.
63. Glenn H. Reynolds and Robert P. Merges, eds., Outer Space: Problems of Law and Policy (Boulder: Westview, 1997), 171–176.
64. Deudney (note 39): 161.
65. Reynolds and Merges (note 63): 279.
66. Deudney (note 39).
67. Jakhu and Buzdugan (note 5): 224–228.
68. Weeden and Chow (note 62): 169.
69. Reynolds and Merges (note 63): 167.
70. Cooper (note 37): 114–115.
71. McLucas (note 2): 41.
72. Dietrich and Goldstein (note 41).
73. Moltz (note 1): 190–191.
74. In July 2013, Representative Donna F. Edwards (D-MD) introduced a bill to designate Apollo mission artifacts left on the Moon as a “Historical Park.” The bill was referred to committee but no further action was taken. Apollo Lunar Landing Legacy Act, HR 2617, 113th Cong., 1st Sess., 8 July 2013. Library of Congress, http://thomas.loc.gov/home/thomas.php (accessed January 2015).
75. Pop, Who Owns the Moon? (note 6): 47–48, 52–53. There is an analogy to this question in the law of the sea. States can claim sovereignty over islands but not uninhabitable “rocks.” See Jonathan I. Charney, “Rocks That Cannot Sustain Human Habitation,” American Journal of International Law 93:4 (1999): 863–878.
76. Declan J. O’Donnell, Thomas L. Matula, and Buzz Aldrin, International Space Development Authority Corporation: Proposed Structure, http://www.internationalspacedevelopment.com/legislative/ (accessed January 2015).
77. Constitution and Convention of the International Telecommunications Union, signed 22 December 1992. 1825 UNTS 331, Article 44.2.