THE GREAT UNKNOWN OF THE OUTER SPACE TREATY: INTERPRETING THE TERM OUTER SPACE.

Author:Miller, Zach
 
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"Look again at the dot ... On it everyone you love, everyone you know, everyone you ever heard of, every human being who ever was, lived out their lives.... The Earth is a very small stage in a vast cosmic arena."

CARL SAGAN, PALE BLUE DOT

  1. INTRODUCTION

    In 1990, the Voyager 1 spacecraft sailed towards the outer fringes of the solar system. At about four billion miles away from Earth, authorities at NASA's Jet Propulsion Laboratory ("JPL") decided to turn the spacecraft around for one last look at the planetary neighborhood of the solar system. (1) One photograph features Earth as a tiny pixel shrouded by light rays from the sun, described poetically by Carl Sagan as "a mote of dust suspended in a sunbeam." (2) Generally speaking, where was Voyager 1 when it took this photograph? Most people--if not all--would agree that Voyager 1 is in outer space.

    In 2014, the Curiosity rover turned its camera towards the sky after a hazy blue sunset on Mars. (3) Earth hangs in the murky sky, portrayed as a pinpoint of light caught in the blackish-blue fade of a Martian horizon at dusk. (4) At the time, Curiosity was roughly ninety-nine million miles from Earth. (5) Again, generally speaking, where was Curiosity? Some might say that the general location of Curiosity was on Mars, and others might say that Curiosity was in outer space. But is it possible to be both on Mars and in outer space, or are Mars and outer space mutually exclusive? How do the cosmic whereabouts of persons, things, and activities change for different planets, moons, asteroids, and other celestial bodies?

    These questions serve as examples of why outer space is such a fascinating subject of study across a wide variety of disciplines. Outer space becomes particularly fascinating when studied through the lens of the law. As a spatial area, outer space serves as the final frontier of legal development; unlike land, sea, and air, it is the last medium of existence that the human civilization has yet to truly conquer. (6) Outer space is the newest domain of human existence, and humans have only just begun to scratch the surface; this is why outer space is so difficult to comprehend, even for simple questions such as "Where is Curiosity?".

    It is difficult enough to establish the cosmic location of robots as either on Mars or in outer space, but it is even more difficult to describe the cosmic location of humans. The legal questions posed by human settlement of outer space are fundamental in nature, yet extremely hard to comprehend. Consider the following hypothetical:

    The year is 2061, and it's a beautiful day in New Columbia, the newest of five large-scale settlements constructed near the western base of Olympus Mons. (7) The artificial light has finally begun to feel natural, but Mark hasn't quite adjusted to the sensation of the fan-generated breeze on his cheeks. He quite enjoys his walk through the arboretum in the mornings; the thin canopy of limbs blocks out the black hexagons that stretch overhead. (8) After almost a full year--today marks the anniversary, in fact--since his arrival on Mars, Mark can still feel a knot forming deep in his chest when he imagines the dome high above him: only a few inches of glass between life and death-by-atmosphere. When he arrives at Aldrin Centre, he takes the first elevator to the top floor. Mark is a citizen relations representative for the Mars Alliance Settlement Administration ("MASA"). MASA is the face of the government to nearly 450,000 people living and working on Mars. The territory of colonized Mars spreads across about 500,000 square miles, with each of the five major settlements making up a corner of a pentagon shape. (9) Most people live in the five settlements on the perimeter, but many work in the outdoor propellant plants and launch facilities towards the interior of the state. A sharp tone pings in Mark's headset--an email from a colonist inquiring about improvements being made to the health facility. Turning towards the window, he takes a deep breath and sighs at the thought of traveling 33.9 million miles to send emails--bureaucracy at its finest. From his corner office, Mark has a fantastic view of southwest New Columbia. Aldrin Centre is the administrative headquarters of the settlement--every major Terran space agency and company has a representative here, from NASA to Roscosmos, SpaceX to Nanoracks. Mark particularly fancies the design of the Homestead building, where a large portion of New Columbia's 90,000 colonists reside; the building is terraced at a sharp incline, and each row of patios is lined with short green trees and vibrant flowers. Most of the other facilities are research laboratories, communications centers, mess halls, or recreation facilities. Towards the edge of his view, Mark can see the southern air lock, large enough to allow ten people passage at each use. He remembers the first time he felt the change in pressure through the thick fabric of his suit, and he has a slight rush of adrenaline as he recalls the first moment he took his helmet off inside the dome, breathing air on another planet. "The radiation treatment system will be up and running again in three days, " Mark types. Just as he sends his reply, another inquiry drops into his inbox: someone from Earth asks about the next rendezvous shuttle arriving in April. (10) Lawyers can identify a myriad of legal issues in the above scenario, but one issue is so fundamental that it may escape the inquisitive mind: where is New Columbia? Certainly it is on Mars, but it does not seem to be in outer space; New Columbia does not feel like an outer space environment. After reading these hypotheticals, most people would agree that Mark and New Columbia are only on Mars and not in outer space. Digging deeper, it is unclear why the answers are different for the location of Curiosity and the location of New Columbia. This concept is very difficult to express, but the pivotal factor seems to be the description of the environment. For some reason, the presence of a larger human settlement on Mars makes New Columbia feel less like outer space.

    This Note is intended to tackle a large-scale concept embedded deep within the heart of international space law: the legal interpretation of the term outer space. At a glance, this may seem like a trivial issue, but the definition of the term outer space will be of immense importance when the time comes for human settlement in outer space. The definition and interpretation of the term outer space affects core tenets of international space law and challenges the regime that has been set up to govern activities in outer space.

    Part I provides a background of the Outer Space Treaty and its principles. Part II describes the geocentric model as the ordinary meaning of the term outer space under authoritative methods of treaty interpretation. Part III describes the intermediary model as an alternate interpretation of the term outer space and explains its flaws. This Note concludes with a discussion of the implications of the geocentric and intermediary models in light of future human settlement of outer space and celestial bodies.

  2. BACKGROUND: THE OUTER SPACE TREATY (11)

    The field of international space law contains five multilateral treaties developed across three decades. (12) The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies--commonly referred to as the Outer Space Treaty ("OST")--is the foundational document for the field of space law. (13) The United States and the Union of Soviet Socialist Republics ("USSR") were the primary drafters of the OST. (14) Its bureaucratic roots lie in the United Nations General Assembly in a series of Space Resolutions from 1960-1963 that drew attention to the idea of providing principles for state activities in outer space. (15) At the time the OST was drafted, only the United States and the USSR were capable of undertaking space activities, and the two countries were in the midst of the Cold War. (16) Spurred largely by the threat of state conflict in outer space and by the successfulness of the International Geophysical Year of 1957, the OST contains principles of nuclear disarmament and noncompetitiveness. (17) The OST was modeled off of the Antarctic Treaty of 1959, which forbid sovereign claims and nuclear activity on the continent of Antarctica, as well as the Nuclear Test Ban Treaty of 1963, which banned nuclear weapons testing in space and among other areas. (18) The United Nations Committee on Peaceful Uses of Outer Space ('UNCOPUOS') supervised the treaty drafting process as proposals and draft texts resulted in the final adopted version of the Outer Space Treaty. (19) UNCOPUOS still exists in the present day as the main institution of the United Nations devoted to the development of international space law. (20)

    The formal title of the OST reveals its true character as a set of broad principles. (21) The OST was not intended to provide clear, precise regulations of state activities in outer space; this function was the responsibility of states parties. (22) Rather, the OST was meant to provide fundamental principles guiding the development of human activities in the realm of outer space. (23) The fundamental nature of the OST has given it a rather generous nickname as the Magna Carta of Outer Space. (24)

    In its fifty years of existence, the OST has remained unchanged and is widely considered to be a successful work of international law. (25) As of November 16, 2017, ninety-eight states have ratified the OST and twenty-seven additional states have signed the OST for a total of one-hundred and twenty-five states. (26) There are strong arguments to be made that certain articles of the OST have become customary international law. (27) Since its inception, and particularly in the modern era, the Outer Space Treaty has drawn much attention, with...

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