A Confusion of Concepts in Commentary on the Outer Space Treaty
Outer space is a huge concept. Its sheer scope eludes our Earth-bound brains, hinting at innumerable unknowns speckled across enormous distance. It is, in a sense, our one great uncertainty, surpassing metaphysical questions with an unfathomable physical presence. That’s why we have the Outer Space Treaty, signed under United Nations auspices in 1967 at the height of Cold War tensions.
The treaty offers a guide to how we can think about outer space and its possibilities, at least from an international relations perspective. But recent commentary on the treaty has become rather slippery, stumbling over notions that are marginally relevant to the final frontier.
In a nutshell, the treaty has established a protocol for the use of space that excludes the ability to claim territory or to introduce weapons of mass destruction, particularly nuclear bombs, in any way. A good United Nations treaty, you might think. But as science fiction author Ben Bova recently pointed out in an op-ed column, the provision against weapons killed off at least one proposal for space travel using nuclear bombs detonated behind a ship that would have been far speedier than rocket propulsion.
Still, Bova didn’t actually show that the concept would work, or what the consequences would be if it didn’t, which is the sort of thing that the treaty was designed to protect against.
And what seems more important is the treaty’s concern about territorial claims. Or, rather, how that concern has been interpreted. There’s an understanding that it explicitly sought to prevent “a new form of colonial competition”. Jessica West makes just that claim in the Space Review. Thomas Graham, a man deeply immersed in international arms control, used the same quote in an article on the military use of space a few years back. But curiously enough, the quote comes from a US State Department assessment of the treaty, is unsourced even in that document and doesn’t accurately reflect the treaty’s wording.
What the treaty says is that “outer space and celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. None of these actions constitute colonial competition; they simply can’t.
Colonialism involves the grabbing of land ahead of others, sure, but it’s not about that alone. The process also involves taking land that’s already occupied. As John Hickman points out in a recent criticism of the treaty, “there are no extraterrestrial natives anywhere else in the Solar System that might object to national appropriation”.
So within the current scope of space travel the idea has no merit. The concept that does cover the seizure of unoccupied land in competition with others is terra nullius (land belonging to no-one). But even the Antarctic Treaty, which addresses the most legitimate scenario, doesn’t use the term. And given that it’s mainly applied to disputes over dubious or irresolvable land claims in places like the West Bank and the Spratly Islands, terra nullius hardly seems to have the strength of international law behind it when applied to space.
How, then, could sovereignty be asserted over any part of a ‘celestial body’? In short, it’s currently impossible. We tend to think of sovereignty as the exclusive claim by a government to land, but that’s only part of the story. As I’ve argued before, the concept has its origins in the right to self determination. Sovereignty is exerted over an occupied area on behalf of its occupants, regardless of where the sovereign – person or state – resides or what good or ill it intends to do. So to argue, as John Hickman does and the treaty implies, that this all boils down to denial of access to unoccupied real estate evades the dual consideration of people and power that has long made sovereignty in all its varied forms an integral aspect of international law.
But one thing that Hickman’s argument does emphasise is that the treaty grapples with very worldly issues. And that sort of focus in less skilled hands can lead to illogic.
In the Space Review article that I mentioned earlier, Jessica West claims that space is “fragile like no other environment”. She’s not discussing celestial bodies, but space as a vacuum. How can it be so easily damaged? Because “space debris can be deadly for spacecraft”. It’s a spiralling logic that keeps coming back and then slipping away – space is fragile because things that humans do in it can be dangerous to other things that humans can do in it.
Debris from satellites and the like is clearly a problem, but even a pessimistic assessment by the Australian government admits that very little of it will ever reach Earth. Outer space just seems imminent, the few voyages and clutter of satellites aside. It’s almost but not quite here. And given the Earthly way we’re discussing the related issues, maybe we’re just not ready for it yet.
It’s a puzzling world, and space is no less so.