Here’s a question – who owns space?
And here’s an answer – the government of Columbia.
Before I explain, let’s establish why this matters. There is a lot of space and most of it is neither accessible nor apparently much use. There are vast mineral resources on the Moon and buried in asteroids, but at the moment there is no prospect of any kind of machine getting there to dig it up and, even harder, bring it back. Given this, why would anyone want it anyway?
But put the question another way – who owns the parking lot where sits the satellite that sends calls to your mobile phone and pictures to the TV? Then ask another - what happens if the satellites that serve you are pushed out by satellites pointing at someone else? Now the question of who owns space starts to matter more.
For while it’s true that a lot of space is empty and inaccessible, there are some orbital positions around the planet (especially geosynchronous orbits, where a satellite is pointing at the same part of the Earth all the time) that are vital to the way our world functions.
I ask again – who owns space?
If you have read the constitution of Columbia – and you are excused if you have not got to it yet – then the answer to the question is in Article 101, Concerning Territory. This article defines the boundaries of the country and then adds to the nation:
'The segment of the geostationary orbit, the electromagnetic spectrum and the space in which it operates, in accordance with international law or the laws of Columbia in the absence of international regulations.'
This clause is a relic of an obtuse row that rumbled in the late 70s, when eight equatorial countries (Brazil, Columbia, Congo, Ecuador, Indonesia, Kenya, Uganda and Zaire, as they then were) made a claim to geostationary positions in space over their territories. They argued that the uniquely valuable properties of geostationary orbits derived from gravity, a terrestrial phenomenon, and that each country had the right to its natural resources. The argument was rejected when it was not ignored but it’s still there, on the face of at least one of the eight countries' constitutions.
ISome commentators in the post-Sputnik years did argue that countries had a claim to that space that lay above their territory. After all, this is the case for airspace, which is a national resource. In case of any doubt, here is the grand language of the UK Air Navigation Act of 1920:
‘The full and absolute sovereignty and rightful jurisdiction of His Majesty extends, and always has extended, over the air.’
That’s pretty clear. Where does airspace end and space begin? Less clear, it seems.
An attempt to sort out who owns space was made in the Outer Space Treaty of 1967. It currently has 98 signature countries. The treaty establishes, among other principles, that ‘The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries’ and that ‘outer space...shall be free for exploration and use by all States without discrimination.’ But the key point comes a little later:
'Outer space... is not subject to national appropriation by claim of sovereignty.'
So no one owns it? That seems to be the intention. Space becomes a bit like the seabed, un-ownable – the legal term for this is res extra commercium, a thing outside commerce.
The Outer Space Treaty had more immediate concerns than ownership of space. Its main motive was fear. It is a cold war document fuelled by dread of space-based nuclear missiles.
Enter the 1979 Moon Agreement. This tried to establish the Moon and space in general as ‘the common heritage of all mankind.’ This is a kindly phrase until one thinks about its implications, for example that any profits accrued from space missions should be shared among all signatories, irrespective of who does the work. Not surprisingly, those countries that could actually go to space mostly declined to sign it, but the treaty theoretically came into force in 1984 and it is still one of the UN’s official outer space treaties.
It includes intriguing remarks such as: ‘Neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property of any State.’ The point is clear – no one owns the Moon, no one owns space.
Which is probably fine until it matters, and where it will matter first and acutely is in the congested space where everyone wants to place their satellites. There is a register of what is there, also a very long queue to launch. There are satellites that no one wants any more still out there, and developing countries on Earth with little or no access to space in space, as it were, that they might feel is theirs.
National sovereignty is an awkward concept in space. The various treaties about outer space accept that the hardware and the people belong to the country that sent them there – although there is agreement that the rescuing of astronauts is the duty of any country that can, astronauts defined as ‘envoys of mankind in outer space’ in Article 5 of the 1967 treaty. (These texts, perhaps because they are a little meagre in application, are rich in phraseology.) But did planting a flag on the Moon, say, imply a claim to it?
The notion of national sovereignty is about the strongest ius cogens – an international law from which there can be no exemption – that there is, thanks to the Treaty of Westphalia. Since that Treaty was concluded in 1648, it’s no surprise it does not consider space in much detail.
Space might be considered to be like the Antarctic, where there are claims but no sovereignty and an agreement that it is only to be used for peaceful purposes (filming penguins, measuring neutrinos etc). Unfortunately, space has already been used for non-peaceful purposes and its resources, especially these vital orbits, are turning out to be less infinite than seemed possible before we all needed mobile phones and hundreds of TV channels.
So who owns space? The real answer seems to be, whoever gets there first. Which works as long as everyone does not want it at once.
Which they do.