Sovereignty in Space

Forum STAFF

The People’s Republic of China (PRC) fired off a letter to the United Nations in December 2021 complaining it had been forced to maneuver its newly occupied space station twice in four months to avoid colliding with two Starlink satellites, part of the constellation launched by United States-based SpaceX to bring the internet to underserved areas of the globe.

In its complaint letter the PRC selectively interpreted the terms of the U.N.’s Outer Space Treaty and did not admit that it failed to proactively consult with other nations as outlined in the treaty. Countries are to consult with one another if they see a collision is possible. The treaty also specifies that anyone placing an object in space must be prepared to adjust its orbit with respect to other established satellites. At the time, hundreds of Starlink satellites were in place and the PRC even acknowledged it had known the path of the two satellites in question. They already were in orbit when the PRC launched the inaugural three-member crew of its Tiangong 3 space station. 

Moreover, the PRC made no complaint to the U.N. a few weeks earlier when Russia deliberately destroyed an inoperable satellite in a test of a ground-based missile. The blast shattered the satellite into 1,500 pieces of “long-lived debris” that threatened lives aboard the International Space Station (ISS). The much larger ISS has a crew of a half-dozen and 16 modules compared with the three modules that will make up Tiangong.

In its letter, the PRC did more than call out SpaceX. It targeted “Space Exploration Technologies Corporation (SpaceX) of the United States of America.” Under the Outer Space Treaty, responsibility for the things and the people launched into space, and liability if something goes wrong with them, lies solely with a sovereign nation: “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” The full name of the Outer Space Treaty, which took effect in 1967 and has been ratified by 112 U.N. member states, reflects this sovereignty provision: “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies.”

But once in space there are no sovereign borders, no protectorates or territories or geographies carved out as exclusive zones to defend at all costs against incursion from other countries. The Outer Space Treaty forbids possession and emphasizes sharing among nations. Article 1 declares space “the province of all mankind,” saying “there shall be free access to all areas of celestial bodies.” Article 2 reads, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Space, to put it simply, is different.

Still, a history of hard experience on this planet with competing regional and ideological self-interests attunes every sovereign nation to the potential for conflict in space. They prepare for a new domain of battle, driven by a familiar motive — to keep the enemy from the gate through satellite-enhanced command and control of Earth-based forces — but also, for the signers of the treaty, by an extraterrestrial priority: Ensure no one covets the path and the destination that is space. 

Defending the Peace 

In a 2022 essay in Air University’s Aether magazine, Lt. Gen. John E. Shaw, U.S. Space Force deputy commander, described one of the missions of the nation’s newest military branch and its newest combatant command, U.S. Space Command (USSPACECOM): “the protection and defense of space to ensure free and unfettered access to the domain and continued delivery of space-enabled capabilities to the terrestrial spheres.” In the same way that they work to protect freedoms on Earth, the U.S. military and its partners are developing strategies and devices to protect sanctioned activity in the commons of space. Today, that chiefly means safeguarding the satellites that orbit along varying paths and altitudes to help enable life on Earth — tracking weather, steering people and cargo, and providing internet connection, among other vital functions.

In a future where an orbiting space gateway, mining on the moon and colonization of Mars are envisioned, that military role is likely to change. One reason: a growing call to recognize the need for private ownership in some form to encourage the kind of entrepreneurial investment that will help humankind make the most of space. Under terms of the Outer Space Treaty, sovereign nations, to whom militaries attach, are the only players in space. It’s time now to invite private and commercial entities to the table, too, many in the space community argue.

“They offer expertise, practical knowledge and experience that lawyers and politicians lack,” Dr. Michelle L.D. Hanlon, co-director of the Air and Space Law Program at the University of Mississippi and a founder of the nonprofit space heritage group For All Moonkind, told a subcommittee of the U.N. Committee on the Peaceful Uses of Outer Space in 2019. Private entities are spearheading advances in technology that make space more accessible and improve life on Earth. Consider the Starlink constellations, a network that will consist of 42,000 small satellites, and the reusable rockets pioneered by SpaceX and by Rocket Lab USA with its roots and launch center in New Zealand. What’s more, three companies in the U.S. alone are considering building private space stations. 

Space Commercialization

Accelerating commercialization of space is an important strategy for USSPACECOM, its leader told the annual Space Symposium in Colorado in April 2022. “This is because partnering with commercial entities enables us to adapt faster, innovate more readily and integrate cutting-edge technology,” said U.S. Army Gen. James Dickinson. “We can also bolster space architecture resilience, better understand the space domain, expedite decision-making, and devise economical solutions to strategic problems.”

To encourage entrepreneurship, among other reasons, the U.N. faces pressure to revisit the Outer Space Treaty, regarded as the Magna Carta of space law but now more than 50 years old. Nuclear nonproliferation was a driving consideration for the U.S. then as it joined the then-Soviet Union and the United Kingdom in sponsoring the treaty. Another reason for a new look: to erase the apparent contradiction between the prohibition against possession in space and the right to property ownership outlined in the U.N. declaration on human rights. “There has to be some concept of ownership,” Hanlon told FORUM. “Do we call that ownership? I don’t think we can because of the baggage it carries.”

As traditional powers such as the PRC, Russia and the U.S. take the lead in exploring the new domain, developing nations warn against a repeat of the oppressive colonialization that marked human history in centuries past. Hanlon is among those who see a future in space that transcends the need for nationhood. “I hope we never use the term sovereign in space,” she said. “We need to kick out the concept of colonialization that everyone fears so much. We’re very different than we were in the 15th, 16th and 17th centuries, for the most part.” Who would manage human activities in space is a discussion still in its infancy. Some authorities point as possible models to the U.N.’s International Telecommunication Union, which oversees the allocation of satellite orbits, and to the International Seabed Authority, born from the U.N. Convention on the Law of the Sea but largely rejected so far as a guide to updating the Outer Space Treaty.

Hanlon spoke of future colonists on Mars, trusting that they’ll be inspired by principles such as freedom and democracy. “At some point, they’re going to be tired of answering to the United States, Russia and China, and they’re going to create their own civilization with their own norms,” she said. “It’s our job today to make sure that the people that end up on Mars, with the capacity to become independent, are people who will respect human rights and human freedoms.”

Expanding Space Alliances

Meantime, nations pursue their agendas in space individually and in blocs while their militaries prepare for the possibility of conflict. India, for example, plans to again attempt landing a spacecraft on the moon in 2023 after an earlier effort achieved lunar orbit but ended in a hard landing. New space alliances have emerged with varying degrees of capabilities, including the African Space Agency with 55 member states, the Latin American and Caribbean Space Agency with seven member states, and the Arab Space Coordination Group with 12 Middle Eastern member states. The PRC leads the Asia-Pacific Space Cooperation Organization, formed in 2005 and including Bangladesh, Indonesia, Iran, Mongolia, Pakistan, Peru, Thailand and Turkey. Developing and launching satellites is the broad goal, but the organization also works to expand and normalize the use of the Chinese version of Global Positioning System (GPS). 

The ISS, one of the most ambitious international collaborations ever attempted and visited by astronauts from 18 nations, continues to expand as it approaches its 25th year. Russia announced in July 2022 that it would leave the ISS by late 2024 and begin building its own orbital base. This represents another move away from the West, accelerated by international resistance to Russia’s invasion of Ukraine. Still, the U.S. space agency NASA has reiterated that it continues working with the Russian space agency Roscosmos, its biggest partner in the ISS. In addition, the European Space Agency’s 10 members have joined NASA in the Artemis Accords to pursue sustainable lunar exploration and to prepare for a human mission to Mars. Artemis is open to all nations, but Russia and the PRC have stayed away from what they claim is an attempt at a U.S.-led international order in space. The regimes are partnering to pursue their own manned missions to the moon, also open to all nations. No Artemis countries have joined.

The U.S. has forged key space defense partnerships, too, chiefly with Australia, Canada, France, Germany, New Zealand and the U.K., all operating or collaborating with the Combined Space Operations Center at Vandenberg Space Force Base in Southern California. In total, the U.S. has more than 30 space situational agreements with other nations. The PRC, by contrast, has shied away from formal military alliances but in recent years has expanded joint exercises with countries including Iran, Pakistan and Russia. A broader look at nations sharing the PRC’s values emerged in December 2021 with a U.K.-introduced U.N. resolution to reduce the chances of dangerous miscalculations in space. Opponents in the 164-12 vote were largely authoritarian regimes: Cuba, Iran, North Korea, the PRC, Russia, Syria and Venezuela. The PRC and Russia are rapidly developing space capabilities that “threaten the stability and security of the domain,” USSPACECOM’s Dickinson said during a speech in May 2022. But he emphasized that the command’s top objective is to “deter conflict from beginning or extending into the space domain” and that, in the end, space “need not be hostile.”

Domain Awareness

Whatever the future holds, Hanlon sees a vital role for the military. “I really think that we will get peace from space, and I think that the U.S. military has a huge role in promoting that peace. … Not just to lead by example and be peaceful ourselves but to make sure we’re bringing emerging nations with us and to make sure that nobody feels like they’re being left behind.” The first steps into space were taken for purposes of national defense. Military spending has yielded great advances in space technology, including the promise of space solar power — a potential game changer for humankind. Domain awareness, meanwhile, is vital in space, and a USSPACECOM component tracks and communicates to the public any potential collisions through the website Space-Track.org.

“We need to have space traffic management, and the fact is that defenses around the world have the best capabilities and the most eyes,” Hanlon said. A space “guard” may be necessary, she said — a concept being explored by the U.S. Air Force Research Lab.

The military will need to evolve to answer the challenges space presents, which are unlike any faced before and distinguished by the seemingly infinite layers in space, Hanlon said. The crowding of orbit adjacent to Earth’s atmosphere, for example, will require a different approach than exploration in the distant asteroid belt or beyond.

Expanded forays into the domain are producing questions of sovereignty and national defense. More than 70 countries have space agencies, with 14 capable of orbital launch. Just two years after the Outer Space Treaty took effect, pioneering space law professor Stephen Gorove suggested private ownership in space might be allowed under the treaty because it isn’t expressly prohibited. Seven equatorial nations in 1976 declared sovereignty over geostationary orbit — the track 35,400 kilometers above the equator where certain communications, intelligence and missile-warning satellites are placed because they can remain fixed on one Earth location. Met with widespread opposition, the sponsors backed off the Bogota Declaration and asserted lesser “preferential rights” to space. Even afterward, though, Ecuador claims geostationary orbit through a provision of its rewritten 2008 constitution.

Ownership Possibilities

Among other questions emerging: The Outer Space Treaty requires that nations not interfere with objects launched by others, so does this amount to sovereign ownership of a particular orbital slot? Would it constitute possession if military forces act to protect an object in space against threats? Key provisions of the treaty refer to “space, including the moon and other celestial bodies.” Lacking further definition, does this mean every speck of cosmic dust must be respected as a celestial body?

The PRC was poking at these cracks in the treaty when it sent its complaint about Starlink to the U.N. The Committee on the Peaceful Uses of Outer Space is grappling with the complexities of the Space Age, wrestling with how to record satellite launches that once sent aloft a single object but now deploy dozens, while also dabbling in farther-reaching issues such as space resource utilization. But each turn of Earth highlights how little the foundational Outer Space Treaty addresses human activity in space today. Who will have standing? How will it be managed?

For now, the world uses the tools available. The U.S. responded to the PRC complaint with its own letter to the U.N. outlining measures in place to address the at-times conflicting concerns of sovereign nations in the commons of space. The response boils down to this: Update your contacts, pay attention to readily available data and talk to one another. These steps are vital as space gets busier with private sector activity. Since November 2014, the response noted, the U.S. has provided emergency notifications about high-risk collision hazards between crewed and robotic PRC spacecraft and other space objects. In the case of the Starlink satellites, USSPACECOM didn’t see a significant probability of collision. But to put its mind at ease, the response advised, the PRC should reach out directly rather than declaring an international incident — and avail itself of the free Space-Track.org website.