Star Trek got it right when they said space was the final frontier. Very little that applies on earth matters once you enter orbit, even the omnipresent and fundamental political realities that people assume exist everywhere. And for the most part, they're right: concepts like sovereign control of territory (or territory at all for that matter) that are just part of life on earth, don't, or even can't, matter in space. This blog post will outline the realities of outer space (politically speaking), current policy towards space by the space powers, and where things could go from here. I will also discuss some of the unique dangers and threats posed by space technology.
As it stands, outer space is considered the Common Heritage of Mankind, which means everyone owns it…which of course means no one owns it (and no one CAN own it), as we would conceive of ownership. Everyone can freely use Outer Space, which begins at about 62 miles above sea level. Traditional notions of Sovereignty end at this point. A state can decide who can enter its airspace, but an orbiting satellite can go overhead six times a day and no one can complain, they do not control the space over a state. This is partly functional, most orbits are not stationary and will cross many boundaries, usually more than once, over the course of the day. Of course, since no one can control where a satellite goes once it is up there, it is also perfectly legal to park a geo-synchronous satellite (which orbits at the same rate the earth rotates, thus remaining stationary from our perspective) over any country. The US has done exactly that with many satellites: some of the best positions for communications satellites are around the equator, and as one of the first states to achieve space flight, we have taken those spots. Several countries in Africa and South America were not happy about this development, they actually tried to declare that the orbits over their territory were under their sovereign control and we had to move (and first-world policymakers all had a good laugh about that.)
Because Outer Space is not under the control of anyone, there isn't much law out there. A few treaties have been signed, mostly to make life easier for spacefaring states. Astronauts must be protected and returned to their home countries if they land in another state's territory. Whatever you put in outer space is still yours. If a state or its nationals do damage to someone else's property (by accident or on purpose), the state is liable. You can't bring nuclear weapons into outer space (when these were written the Cold War was a big deal, and no one wanted space weapons platforms.) The weaponization of space is for the most part banned (article IV of the outer space treaty: "The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden." Keep in mind that this does not rule out military equipment, etc. that is not on a celestial body but instead is self propelled, or maybe in orbit. Even with that caveat, it is frowned upon.) Though space is obviously used for military purposes, it is always indirect: communications, GPS and the like, not orbiting bombs or space lasers, etc.
Until recently, most discussions of Outer Space were academic. Almost no one could go there, and it was incredibly expensive even for those who could. Actually USING Outer Space for a purpose other than exploration for its own sake, and some specific science, was not a consideration. In recent years however, the idea of making space profitable has emerged. Everything from mining to tourism to exploration is being mooted. Different groups are considering actual colonization missions to Mars. Capturing and mining asteroids is a possibility. How do we analyze these new possibilities within the current space paradigm?
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As an aside, and one that will eventually be relevant to this blog post, I have been thinking about the "common heritage of mankind" idea and how it is used. The idea was put forth originally by 3rd world nations, first about high seas. It gives all people (really all states) a right to something by birth. One could maybe make this claim about the seas: we all should have access to it and no one can take exclusive rights over the high seas, they are for everyone to benefit from equally. Just because some states are richer and more powerful than others right now does not give them the right to take all the oceans resources for themselves.
However, we know that the profit motive is powerful, and when it is taken away, less development happens. Very little has been BUILT for the benefit of all mankind. By making an area the property of everyone, it makes it difficult to economically exploit that area. This might be a slight exaggeration, but when a territory is owned by everyone, the profitability might drop to zero. So, from a poor nation's perspective, whether an area is developed or not seems to make no difference, they make no money either way. The common heritage claim is more about "fairness" than material benefits, then. Poor states don't want rich states to gain a further advantage by using some new resource, even if they are not taking anything away from poor states by doing so (because poor states can't use it anyway). This makes common heritage a relative gains argument, realist thinking using a fundamentally liberal concept of universal ownership.
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Common heritage might be able to apply to the oceans, but does it apply to space? By what right can humanity as a group claim ALL OF SPACE as ours?!? It's absurd thinking, for most of our existence we did not know "space" existed, and for most of the remainder actually traveling there was the height of fantasy. And yet we somehow can claim it as our common heritage, that use of space, all of space, every planet, every solar system, is the birthright of every human. The arrogance, if you'll excuse me, is of truly stellar proportions. Far more easy to conceptualize is that space and celestial bodies are the property of no one until they are claimed.
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