Does the Outer Space Treaty Require Countries to Avoid Harmful Interference?

An August 24, 2020, Space Review article by Guoyu Wang, Deputy Director of the China National Space Administration (CNSA) Space Law Center and Legal Counsellor in Space Law at the CNSA Lunar Exploration and Space Project Center, says that the administration’s Artemis Accords proposal is wrong to say the Outer Space Treaty calls for countries to avoid harmful interference with each other:

First, the Accords hold that avoiding harmful interference is an important principle of the Outer Space Treaty. However, that is not the case. Article IX of the Outer Space Treaty stipulates that “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 consultation before proceeding with any such activity or experiment.” Clearly, Article IX does not expressly stipulate the obligation of avoiding harmful interference, but rather sets up the obligation of international consultation when a potential risk of harmful interference is recognized by the conducting state.

Mr. Wang appears to be correct.  Article IX only triggers an obligation to consult.  As I’ve said before, far from granting substantive rights, Article IX 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.

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 plans 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 a private 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.