1.0 Independence from Earth
Sovereignty over celestial airspace and therefore bodies is not yet determined by international law leaving the ownership or right of occupation and resources to who ever gets there first. This is as it was in colonial times on earth and would appear to be the destiny of space.
The near advent of interplanetary flight (IPF) is opening our solar system to a modern day gold rush. The opening of the planets or even a lunar base will have immense monetary potential for businesses and governments, who will, by human nature, seek to control the resources for themselves. This is already evident in our current space laws which began as far back as 1919.
Our history shows that when money is to be made or new territory to be claimed, the worst in humanity dominates our desires for control of what has suddenly become available to us. This type of behavior in a technologically advanced society with vast military strength could lead to an undesirable and out of control conflict.
(Watch the arctic region as it begins to melt and open the area for resource extraction and shipping)
In 1919 space law attempted to exert sovereign control of the airspace over a country. As of 2020, air sovereignty is the fundamental right of a sovereign state to regulate the use of its airspace and enforce its own aviation law - in extremis by the use of fighter aircraft. The upper limit of national airspace is not defined by international law.[1]
Without the upper limits of airspace being defined by international law the potential for extrapolation of sovereign air rights into space and onto celestial bodies such as the moon or a solar planet creates a legal nightmare. These celestial bodies do not remain in constant position over any one sovereign state.
1. The United States Supreme Court ruled in 1946 that private property owners have exclusive rights to the airspace above their land, up to an altitude of 365 feet (see United States v. Causby 328 U.S. 256, 266 (1946))
2. In 2007, Dean N. Reinhardt published a paper entitled “The Vertical Limit of State Sovereignty” and stated that “As it stands, that 'border' between FL600 and above is undefined, and unregulated. There is no international agreement on the vertical limit of state sovereignty and that today, the need to settle this gap in the law is growing in importance. (FL600 means a pressure altitude of 60,000 feet.)
3. In 2017, H. Bertil Nordin (Managing Partner at Nordin & SNFNY Law PLLC) stated that “.Interestingly, there is no international law (or agreement) defining the vertical boundary of a nation’s sovereign territory/airspace (the boundary between outer space which is not subject to national jurisdiction and national airspace). Obviously, there is a “white” unregulated area that should be defined, not at least from national security concerns. Presently the airspace between FL 600 and up to the border between the earth’s atmosphere and outer space (generally an altitude of approximately 100 km (62 mi) (the Kármán line)) is not regulated[2]
4. More
and more states are developing their own domestic space launch capability. Few
of these new space powers will be able to freely access space, or utilize the
most efficient launch azimuths, if neighboring states can claim sovereignty up
to even 62 miles (100 kilometers). They will have even more difficulty
returning objects to Earth if the boundary is set at that altitude. Even the
In 1967, the United Nations attempted to remedy the lack of authority over space.
1.1 Who Owns The Moon?
According to the United Nations Outer Space Treaty,
signed by every space-faring country, no nation can claim sovereignty over
Earth's lunar satellite. 102 countries have entered into the 1967 accord;
But space law scholars debate whether the treaty actually
implicitly prohibits, or allows, private ownership on celestial bodies. Some
commercial companies, such as Bigelow Aerospace, are hoping to use the
ambiguity of the treaty's language to their advantage. Founded in 1999 and
based in
There are currently 195 countries on Earth and being recognized as a country by one sovereign state or the U.N. does not necessarily mean that your rights or signature on a document will have meaning to another state. This leaves ownership of a celestial body in limbo as any nation not adopting or signing any space related document is able to claim sovereignty or rights over any object in space.
1.2
United Nations Office for Outer Space Affairs
The Committee on the Peaceful Uses of Outer Space is the forum for the development of international space law. The Committee has concluded five international treaties and five sets of principles on space-related activities.
These five treaties deal with issues such as the non-appropriation of outer space by any one country, arms control, the freedom of exploration, liability for damage caused by space objects, the safety and rescue of spacecraft and astronauts, the prevention of harmful interference with space activities and the environment, the notification and registration of space activities, scientific investigation and the exploitation of natural resources in outer space and the settlement of disputes.[5]
Each of the treaties stresses the notion that outer space, the activities carried out in outer space and whatever benefits might be accrued from outer space should be devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation
1.3
United Nations treaties on Outer Space
The treaties commonly referred to as the "five United Nations treaties on outer space" are:
1.3.1 The
"Outer Space Treaty"
a. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies
b. Adopted by the General Assembly in its resolution 2222 (XXI), opened for signature on 27 January 1967, entered into force on 10 October 1967
1.3.2 The
"Rescue Agreement"
c. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space
d. Adopted by the General Assembly in its resolution 2345 (XXII), opened for signature on 22 April 1968, entered into force on 3 December 1968
1.3.3 The
"Liability Convention"
e. Convention on International Liability for Damage Caused by Space Objects
f. Adopted by the General Assembly in its resolution 2777 (XXVI), opened for signature on 29 March 1972, entered into force on 1 September 1972
1.3.4 The
"Registration Convention"
g. Convention on Registration of Objects Launched into Outer Space
h. Adopted by the General Assembly in its resolution 3235 (XXIX), opened for signature on 14 January 1975, entered into force on 15 September 1976
1.3.5 The
"Moon Agreement"
i. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
j. Adopted by the General Assembly in its resolution 34/68, opened for signature on 18 December 1979, entered into force on 11 July 1984.
It is interesting to note that “Adopted by the General Assembly” simply means that a General Assembly resolutions was passed usually requiring a simple majority. (50 percent of all votes plus one to pass) This does not mean that all nations have agreed to and adopted as part of their sovereign law, the United Nations Resolution.
[1] https://en.wikipedia.org/wiki/Air_sovereignty
[2] https://www.linkedin.com/pulse/u-2-vertical-boundary-sovereign-territory-h-bertil-nordin/
[3] Google Books - Defining he Limits of Outer Space for Regulatory Perposes by: Olavo de Oliveira Biencourt Neto
[4] http://nasawatch.com/archives/2014/02/who-owns-the-mo.html
[5] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html
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