Sometimes when you start a new project or line of inquiry it’s helpful to knock out the deadwood first. Then you can work on the bits that will get you somewhere. I want to understand private property rights in outer space, and lots of people say the Outer Space Treaty forbids a private person’s rights in “real property,” namely, land. Article II of the Outer Space Treaty isn’t deadwood. It forbids national appropriation in outer space. Article IX, however, might be. I want to address it first because I have heard theories floated about how it may protect some property interests.
In law school we learned that property rights were a collection of rights, which one could separate and parcel out. My property professor called them a bundle of sticks. You could have a lifetime interest in a bit of land but no ability to sell it. That’s not the whole bundle, but it’s not nothing. You could lease someone’s land for a year, but then have to leave it. (That’s more of a twig.) Both the lease and the lifetime interest constitute limited property rights. My question then is: does Article IX afford some form of property right, not all of them, necessarily, but some?
It’s always nice, when practicing law, to read what the words say, since they are the best expression of what someone meant. When you’re writing a law or regulation, you’re supposed to say what you mean and mean what you say, so we’ll figure that applies to treaties, too. Given the Supreme Court’s propensity for treating treaties like contracts, this is likely a sound approach. So, what does Article IX say?
If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party i outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.
Consultation rights and obligations. To paraphrase in brief, it seems to say that if a country that signed the treaty, the “State Party,” knows that one of its own activities or an activity of one of its private citizens might cause harmful interference to the space activities of another State Party, the State Party that might cause the interference has to consult with the other country before starting the activity. Likewise, if the first State Party doesn’t set up consultations but the second State Party learns of potentially harmful interference in some other way, the second State Party has a right to request consultation.
In other words, potentially harmful interference triggers a consultation obligation between nations. Far from granting substantive rights, it appears to create a process that does not even attempt to “avoid”—as the harmful contamination provision elsewhere in Article IX would have it—interference. With one minor exception, this spells out no more than what nations can already do, namely, call each other up and either a) warn each other or b) complain. Then their diplomats will talk.
Timing. The minor exception may be more important than I give it credit for. Article IX would have the interfering state call the other state before it starts the potentially harmful interference. Perhaps this would allow the interfered-with State Party to persuade the other State Party not to go forward with its experiment or to employ mitigation measures. Given that this is another non-self-executing provision, the question arises as to how, in the United States at least, the government would attempt to stop the activity. Ultimately, however, the pause doesn’t seem to do much more than add an opportunity to persuade, and then only if the “interfering” State Party gives the interfered-with State Party notice.
Protection of private persons? Where do private persons fit into this analysis? On the one hand, the treaty includes them in the affirmative obligation: if a State Party knows one of its nationals might interfere with another State Party, the first State Party must consult. However, Article IX does not mention the private persons of the other State Party in the affirmative obligation to consult. For example, if Luxembourg were to learn that the activities of one of its nationals could cause potentially harmful interference with the activities of the U.S Government in space, Article IX calls for Luxembourg to consult with the United States. However, if Luxembourg were to learn that the activities of one of its nationals could cause potentially harmful interference with Pepsi’s lunar operations, the treaty doesn’t call for Luxembourg to reach out.
Weirdly, the converse obligation—the right to complain—seems like it could be implemented more narrowly in one context and more broadly in another. On the one hand, a State Party that learned of an activity “planned by another State Party” that could cause interference gets to consult. This is narrow because the complaints apply only to governmental, not private, activities. On the other hand, this provision is broader than the one imposing an affirmative obligation because it might apply to anyone’s activities. In other words, if Germany noticed that France’s space activities looked to interfere with the United Kingdom’s space activities, Article IX would cover the situation and Germany could raise the issue of France interfering with UK activities.
My initial impression, without reading any articles or looking at the travaux preparatoire (what we would call legislative history if we were talking about a law), suggests that trying to fashion substantive property rights out of this “non-interference” provision might not get very far. It appears to be a provision about a diplomatic protocol, about consultation. Please feel free to leave information to the contrary in the comments.
If, as I pursue the inquiry into property rights further, it turns out there is more to the non-interference provision than I was able to perceive, I will report back. We’ll call this practicing law in public.