The “Non-Interference” Provision of Article IX of the Outer Space Treaty and Property Rights

March 31, 2017 18 Comments

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.

 

18 thoughts on “The “Non-Interference” Provision of Article IX of the Outer Space Treaty and Property Rights”

  1. Laura,

    Article I of the OST says “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law . . . .” Non-interference is a general principle of international law, and an inherent right of national sovereignty. The following analysis discusses the distinction between non-intervention and non-interference, but it appears that the terms are often used interchangeably: http://pesd.princeton.edu/?q=node/258

  2. I love reading passages like “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.”

    It’s lines like these that make me realize that I am, in fact, living in the future that I read about in science fiction as a youngster.

    Despite the fact that I still don’t have my flying car.

    Thank you for enriching my life.

    2. All cars can fly. It’s just that they use ballistic trajectories and their suspension systems don’t handle the landings well.

  3. Is there a definition of what ‘an activity or experiment’ is?
    I.e., does establishing a community with private ownership of land and/or commercial use of land or minerals constitute an ‘experiment or activity’ in how free market capitalism can be practiced on the Moon?

    1. I have not found one yet, but I am just starting this project, so we shall see. I think the likely answer is no, there is no definition, because there isn’t one in the Treaty itself, but I’m also looking at the historical documents–what the international law types call the travaux preparatoires–to see if there are any clues there.

      However, a lot of people will tell you that operating a habitat and mining are definitely activities. Are they the kind of activities that trigger the consultation provision? If you are about to interfere with someone else’s actvity, then, sure, it could arguably make your government have to consult with the interfered-with government.

      As for free market capitalism, I don’t believe the treaties that the United States has signed address that. The Moon Treaty, which we haven’t signed–thank goodness–is not very free market.

      I am approaching the question of whether there can be private ownership of extraterrestrial territory one step at a time, so there will be more discussion of the issue of private ownership, which is certainly one of the underpinnings of a free society and a free market.

      1. “As for free market capitalism, I don’t believe the treaties that the United States has signed address that. ”

        Certainly the Outer Space Treaty, conceived in the LBJ era where he assumed his NASA was rightfully the sum and total of US activity outside the military, would not pay attention to such a hot button topic in trying for an agreement with the Soviet Union

        “The Moon Treaty, which we haven’t signed–thank goodness–is not very free market.”

        Technically, this may not be true. I believe that Jimmy Carter had our UN ambassador of the time, Andrew Young, sign the Moon Treaty which he did so much to push through, for us. However, one of the first political campaigns of the national L5 Society was the successful campaign, alongside others, to keep the US Senate from ratifying that Treaty.

  5. People wanting to compose space law should be chary about technical terms, the International Astronomical Union has tried to define “Planet”, technically, and the new definition is still not universally accepted, even among astronomers. The key phrase “cleared it orbit”, which is what down graded Pluto’s status, appears to have issues. An asteroid has been found in Jupiter’s orbit, orbiting retrograde. Arguably then, by the new definition, Jupiter isn’t a planet either. I doubt that is going to stand, so I expect another pass at defining “Planet” to be made.

    Going on to the normative, what would sane and just space law look like. I think something like Article II will stand, it would be ludicrous for an astronaut to land on the Moon, or Mars, plant a flag, declaim “I claim this world in the name of the Grand Duchy of Fenwick!” and be taken seriously. On the other hand, making a territorial claim one or two kilometers in radius, that doesn’t strike me as ridiculous. On the gripping hand, claiming an asteroid (or icy body) a few kilometers in diameter doesn’t seem ridiculous either. But claiming asteroids you’ve neither been to, nor even sent an instrument package to, is ridiculous (and has actually been tried).

    As I’ve pointed out elsewhere, the practical examples from the Age of Exploration all involved establishing settlements (actually occupying territory) and being able to defend it from raiders. We might also draw on American examples from “land rush” occasions, although there the Federal government already claimed sovereignty over the land in question.

    1. Yes, the Homesteading Act applied to U.S. territory if I recall correctly.

      As for settlements, one of the things I want to look into, and law school was a while ago, is the role of possession and occupation. Asteroids make a good case. Just looking at it doesn’t seem sufficient grounds to claim it. Does getting your robot to it suffice? Or, do you need people there. In the context of space requiring a human presence when robots will do seems unlikely.

      1. What does it mean, to possess an asteroid? And this is where the Homestead Act might provide useful precedent. Just sending a robot there to look, is just scouting or prospecting. Planting a marker, seems at best notification of intent. To possess, to own, one must DO something with it. Change its orbit, start mining it, “make improvements”. Occupation will come, robots can’t handle the unexpected, the unforeseen. As Nassim Taleb (Antifragile: Things That Gain From Disorder) would put it, robots are fragile, people are anti-fragile.

        1. What if the robot mined? Or, what if your robot defended the asteroid against someone else’s robot? You could have some sort of slow motion, remotely operated, telemetry delayed battle. Ok, that might be a little far fetched, but your robot might keep another robot from landing. That seems kind of possessory.

          My own preference is not to define these things statutorily in advance. We have no idea how the technology will work, or how much control a human person will be able to exercise. What will seem right or fair under those circumstances might not be something we can predict now.

          1. Not such a far off future, perhaps. http://nypost.com/2017/04/06/goldman-sachs-is-ready-to-crash-the-world-economy-through-space-mining/

            In this case, the precious metals are “mere” iron and nickle. But a metallic asteroid is incredibly high quality ore, basically just a mix of the the un-oxidized metals. But cutting off a piece of iron-nickle isn’t simple. It’ll be like cutting off a piece of armor plate.

            It doesn’t sound like these early attempts at space mining will actually involve “claiming” an asteroid, just bringing back down chucks of it. A big enough chunk would be worth it.

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