The Article VI Problem

Copenhagen Suborbitals has discovered it.

At ISPCS last week, I was talking to another space lawyer about the need to deal with this, sooner than later (though Planetary Resources and other mining companies don’t seem to understand the problem). As I noted in the conclusion to my property-rights piece in The New Atlantis last year, The words “continuing supervision” open us up to all manner of mischief:

it is worth noting that, while the OST arguably does not prevent the recognition of property claims per se, it may prove to be a hindrance to any kind at all of large-scale space activity, not just settlement. In that regard, this is the most troublesome sentence in the entire treaty: “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”

Consider the implications of the words “continuing supervision,” if taken literally. It could be argued that satisfaction of this requirement would demand that any person operating off the planet would be required to have a government minder with him at all times. Prior approval — for example, a launch license — might not be sufficient, because supervision could be argued to imply not just observation, but physical control. This wording in the treaty could imply that even the remote monitoring of private activity in space, which itself would be a significant hindrance for space settlement, would be insufficient.

With new affordable spaceflight technologies on the horizon, extensive private activity in space will be a serious possibility in the near future. If we wish to see humanity flourish in space, we have to recognize that the Outer Space Treaty is a relic of a different era. Fresh interpretations may not suffice: we may soon have to renegotiate and amend the treaty — or even completely scrap it and start from scratch — if we want not just to protect space as a mere scientific preserve but to open it for settlement as a grand new frontier. [Emphasis added]

I think my next project may be called “The Article VI Project.”

42 thoughts on “The Article VI Problem”

  1. For them the real obstacle (as noted by a Slashdot commenter) is going to be Article VII which puts liability for any damage they do in space on their country of origin (here, Denmark). That means most likely that they’ll have to post a large bond or have some sort of humongous insurance policy in order to launch anything to orbit in the off chance that they damage a billion dollar satellite or such (including via space debris).

    1. In the US, commercial companies have been launching satellites for decades. Article VII does leave room for government micromanagement of space activities due to the liability issue.

      Article I also contains language that’s potentially problematic:

      Article I
      The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
      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, and there shall be free access to all areas of celestial bodies.

      That first sentence is similar to that in the rejected (by the US) Law of the Sea Treaty. Some read that to mean that is someone finds a way to make money from space resources, they have to share the proceeds (but not the costs or risks) with all other nations even (especially) if they have not contributed anything to the effort. The second sentence seems to prohibit private property in space since you can’t stop anyone from exploring where you may have operations. Article II prohibits national appropriation but this sentence may not allow private property.

      In addition, Article VIII makes any attempt at cleaning up space debris more difficult. Perhaps it could be amended to allow removal of non-functional objects in orbit. As new, more sensitive space surveillance sensors come online, thousands of new objects will be tracked for the first time. It’ll be difficult to trace them back to their country of origin.

      Article VIII
      A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

      1. No, “the province of all mankind” has a very different meaning than “common heritage of mankind,” which is the phrase in the Moon Treaty. It isn’t a problem.

      2. There is already private property in space. Richard Garroit owns the Lunokhod 2, the first privately owned hardware on another Celestial Body.

        http://www.npr.org/templates/story/story.php?storyId=124956591

        [[[“As soon as I saw this new data, I did a recheck of the findings, and there’s no question that they have the right target. It’s my Lunokhod 2,” Garriott says.

        Garriott says he’s thrilled to finally have photos of his “private flag sitting on the moon.”]]]

        So the legal precedent for private ownership of facilities on Celestial Bodies has already been quietly established. The same is true for samples collected on a Celestial Body when Russia sold a gram of its lunar samples to a private party years ago. And when the U.S. government used laws designed to prosecute folks who steal government property to recover stolen Moon rocks.

        So the legal framework to protect private property in space already exists in a form very favorable to private firms as long as no one goes messing it up by getting new treaties passed that will undermine it.

          1. Rand,

            I was responding to this statement in Larry’s post.

            [[[The second sentence seems to prohibit private property in space since you can’t stop anyone from exploring where you may have operations.]]]

            Pointing out private property is not only allowed in space, but the legal precedent for it has already been established. You really need to start reading some of the replies more carefully instead of skimming the first few sentences.

          2. Your comment had nothing to do with Larry’s either. The only property rights that have been established in space is to sell the products of your activities. Preventing someone else from working your claim is completely unestablished.

          3. Rand,

            Which illustrates one of the key problems with space advocates, transferring ideas about the American West to space. Its not a frontier like the American West and never will be.

            Since claims are not allowed in space, because filing a claim requires exercising sovereignty, the rules will be similar to those of the open ocean, or were until someone got the bright idea we needed to establish property rights mining for the seafloor and triggered the events that led to the LOS Treaty, you won’t be defending your claims against anyone.

  2. That is why if you are serious about working in space you develop your firm, and its technology, under a flag of convenience like the Isle of Man. The alternative, a new international agreement designed to ‘promote” space commerce, will just produce a new international authority that will stifle competition. Think of what the ITO did for comsats. Think of the Moon Treat on steroids. The current system where you are able to pick and choose your “host” nation is really much more favorable to space commerce once space advocates mature beyond being nation bound and decide to manage their firms like other multinationals.

    Also I feel sorry for Copenhagen Suborbitals. Being in Denmark they are under a “code” systems of law instead of the common law enjoyed by nations that derived their legal system from England. This means they need permits and permissions before they attempt anything new, hence their fear of “continuing supervision”. Add to that is how several European nations have recently signed and ratified the Moon Treaty and are pushing for a “space code of conduct” its understandable they are starting to see legal issues. What they need to do is flee Danish law and incorporate under the laws if the Isle of Man. Then they will have a favorable business environment to move forward.

  3. Rand, if you do take on such a project, could you address the question of what activities require “continuing supervision”? Does the authorization requirement mean a person needs a license to brush his teeth in space? No? How about his hair? There has to be room for individual countries to decide for themselves the answer to the question of what to authorize and supervise. Then, the usual policy questions should govern. Is something a hazard to other people or not? If it isn’t, does Article VI require authorization and continuing supervision? (And, even if it is, is it worth the commitment of resources?) Some countries might regulate economic activity. Others might not.

    1. That’s exactly the issue. Bottom line is: Does it mean that everyone in space requires a government minder at all times? I think it’s the “continuous” that’s the problem. Just removing that word might help quite a bit. PR and others don’t seem to appreciate the potential here for someone to file a complaint against them under Article VI on this basis.

    2. Laura,

      Commercial activities have been taking place in space for decades without such continuous supervision, why would it suddenly be needed now? Its just another non-issue based on a false understanding of the OST by folks who have never bothered to study law.

        1. Rand,

          So have I, including taking classes on space law from an expert.

          Again, its a false understanding of the uniqueness of Article IV of the OST. Nations have long been held responsible for the actions of their nationals when in extra-territorial areas. Why do you think King Phillip was so mad at Queen Elizabeth that he built the Spanish Armada? Because he didn’t think England was legally responsible under existing conventions of international law for Capt. Drake’s action with his privately own ship?

          So why should space be any different? If you are a U.S. citizen and you hijack a foreign satellite its no different than if, as a U.S. citizen, you hijack a foreign ship. Now in terms of accidents its less serious, but there are still liabilities involved that make the U.S. government involved. That is why FAA AST exists. And the problem for Copenhagen Suborbitals is that Denmark hasn’t reach that stage yet in their regulation of space activity.

  4. So every private venture or project in space would need to take along a government minder? Why exactly is this a bad thing? I see nothing at all requiring them to bring them back.

    🙂

    1. Does every commercial flight on an aircraft require a government inspector on board? Really.

      The problem is that Copenhagen Suborbitals has run into the realities of the lack of flexibility of a code base legal system like the Danish legal system to deal with new business opportunities or technology. The BIS ran into the same problem in pre-WW II Britain in terms of trying to do rocket experimentation which is why they turned to more theoretical studies while the Russians, Germans and Americans built rockets.

      The options for Copenhagen Suborbitals are simple. They could continue to beat their head against the medieval Danish legal system or transfer their business to a location like the Isle of Man, or the U.S., where the environment is much more favorable. Its what normal businesses do all the time when local laws become a barrier.

      1. Does every commercial flight on an aircraft require a government inspector on board? Really.

        No. But once again, you have made a completely non-sequitur comment.

        1. Rand,

          No, its a good analogy as the U.S. is responsible for certifying aircraft involved in international commerce under international agreements. Yet no one expects FAA inspectors to fly on every flight. So why would you expect an inspector to have to fly on every space mission that is commercial? Again you are looking for bogeymen that don’t exist. Please, study some international transportation law, space is not being singled out as you think it is. Its just being held to the similar standards. And its not a problem if you pick a good flag of convenience to fly under.

          1. Rand,

            Sorry, Article VIII of the Antarctic Treaty

            Article VIII — Jurisdiction

            In order to facilitate the exercise of their functions under the present Treaty, and without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica, observers designated under paragraph 1 of Article VII and scientific personnel exchanged under sub-paragraph 1(b) of Article III of the Treaty, and members of the staffs accompanying any such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions.
            Without prejudice to the provisions of paragraph 1 of this Article, and pending the adoption of measures in pursuance of subparagraph 1(e) of Article IX, the Contracting Parties concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall immediately consult together with a view to reaching a mutually acceptable solution.

            Contracting Party is the treaty term for the nation signing the Treaty. So if you go to Antarctica as an American you are under U.S. jurisdiction and the U.S. will be accountable for you. Yes, the OST is a lot clearer, but the responsibility is still the same.

            Here is the full treaty, Every space advocate should be familiar with it as it had a strong influence on the OST.

            http://www.antarctica.ac.uk/about_antarctica/geopolitical/treaty/update_1959.php

          2. So you continue to cite irrelevancies and non-sequiturs.

            The Antarctic Treaty was a model for the OST, but nothing you wrote has any relevance to my concern expressed in this post, or any comment on it.

          3. Rand,

            And your concern has nothing to do with reality. The FAA AST has existed for decades, has it ever practiced continuous supervision in its history? Why do you think it will now all of a sudden? Because a European firm has run head long into the medieval based legal system of the nation it is located in? What has that got to do with firms in the U.S.?

          4. The FAA AST has existed for decades, has it ever practiced continuous supervision in its history?

            What a bizarre question. When in its history has it been dealing with people in space?

    2. As my comment appears to have been perhaps taken seriously, I thought I ought to clarify; it’s an attempt at humor. I was trying to say that I wouldn’t mind having government minders sent along into space, provided that they were left there permanently. (sans life support, of course…)

  5. A perfect demonstration for the need of iron men (and woman.)

    Is everybody born on earth born into slavery? The property of their governments?

    Is there any place beyond the jurisdiction of faceless government’s reach?

    History is on the side of making claims and defending them. This is a war that must be fought. Especially because government has no real interest. It’s all just worthless remember.

    1. Ken,

      Since all the habitable areas of Earth belong to one government or another the answer is yes, everyone is a citizen of one nation or another. But at least you are not the personal property of kings/emperors as used to be the case. There is a difference between being a citizen of a government and its property. Progress is being made in individual rights, but it is slow progress. Space settlements will be a step forward, but not as long as space advocates keep looking for NASA to pay the bills.

        1. Ed,

          Yes, and as your Wikipedia link shows there are many problems with being driven from your nation and becoming stateless.

      1. There is a difference between being a citizen of a government and its property.

        That’s a distinction without a difference. The difference is how much the rulership is tied to the rule of law. There are two types of laws. Natural [God given?] and man-made.

        Man made law can and does do foolish things… like making citizen their defacto property. They can make pi equal to 3 or overrule gravity. Natural law doesn’t have quite that much flexibility.

        I am not the property of any government no matter how coercive. A few dozen of us 30 light minutes away could make that stick. Over time it get set in law. But only iron men need apply.

        1. Ken,

          Nope, but you are a citizen of the U.S., unless you have renounced your citizenship.
          Which brings us full circle to flags of convenience. If you are planning to be independent then why not set up your business in a nation that has more favorable laws? Seems that is a logical interim step to your free Mars Republic 🙂

  6. Or to put it another way, what is a ‘Declaration’ of ‘Independence?’

    Isn’t that a violation of law? How is that possible? Aren’t we all bound by laws we had nothing to do in creating? Isn’t that the arguments being made?

    Then we have this fiction of ‘government by consent.’ It is a fiction. I do not consent.

    I am a citizen and I obey most laws. But I refuse to be property.

  7. There was a similar OST discussion on NSF a while back concerning the “jurisdiction and control” sentence in Article VIII, the essence of the discussion being the meaning of “control.” Naturally, nothing was resolved, but in the course of the back-and-forth it was pointed out that the OST exists in six equally valid versions (Arabic, Chinese, English, French, Russian, Spanish) and that insight into the intended meaning of “control” might be gained by examining the other five versions.

    In the spirit of that and with no expectation that it will resolve anything here either, here’s the “continuing supervision” bit from Article VI in four of the languages. I’d love to include Arabic and Chinese but am clueless about them — maybe someone else can add those passages and comment.

    EN: shall require authorization and *continuing supervision*
    FR: doivent faire l’objet d’une autorisation et d’une *surveillance continue*
    RU: должна проводиться с разрешения и под *постоянным наблюдением*
    ES: deberán ser autorizadas y *fiscalizadas constantemente*

    Having done a fair amount of Russian-English translation, I’ll comment that the phrase there would ordinarily be translated as “constant/permanent observation”, where the “observation” is of a fairly passive nature. (Russian has another word for observation, надзор, that is stronger than наблюдение, more like “oversight.”) I have the impression that that’s pretty much the case with the French, too.

    The Spanish seems to be somewhat in legalese, but I found this:

    Diccionario Espasa términos jurídicos © Espasa Calpe 2007
    Fiscalizar: vtr (inspeccionar)
    To investigate or examine something.

    All in all, I’d say that the intended meaning appears to be, basically, “Keep an eye on it (to make sure it stays within the law).”

    1. Egad,

      A better source than imperfect translations into languages other that English would be to review the debate in the UN on the relevant resolutions that proceeded the OST and review the proceedings of the conferences on space law held at the time the treaty was written. Both are available in any major law school library. The writers of the OST weren’t as vague about what was meant as many folks believe they were.

      But the entire tone of the presentation shown in terms of orbital space is who will monitor orbital traffic to avoid accidents. Currently USAF Space Command does that for U.S. government assets like the ISS, but what about commercial stations? Or tourist flights? In short how do you ensure the safety of multiple commercial spacecraft in orbit? Imagine what the North Atlantic airspace would be like if there was no air traffic control conventions to govern international flights.

      1. > A better source than imperfect translations into languages other that English…

        Er, not everything starts out in English and then gets translated. In the case of the OST, I’d guess the parts of present interest were likely drafted in another language (Russian comes to mind, maybe French) and then got imperfectly translated into English.

        > to review the debate in the UN on the relevant resolutions that proceeded the OST and review the proceedings of the conferences on space law held at the time the treaty was written. Both are available in any major law school library. The writers of the OST weren’t as vague about what was meant as many folks believe they were.

        You would do us a great favor if you’d conduct such a review and post a gist, or provide one or more URLs to such reviews, or just examples.

  8. Doing a bit of looking, it appears that Article VI and the related Article VIII go back at least to 1963, in a General Assembly resolution called “Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space.”

    So some more digging is needed to find out where the language of that declaration came from — was it introduced by the Soviets, or just taken up by them from an originally American draft?

    ==========================

    http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1002&context=spacelawdocs

    THE EVOLUTION OF THE OUTER SPACE TREATY
    by Paul G. Dembling, General Council, National Aeronautics and Space Administration and Daniel M. Arons, Attorney-Adviser, Office of General Counsel, National Aeronautics and Space Administration

    Published in JOURNAL OF AIR LAW AND COMMERCE 33 (1967), pp. 419-456;
    reprinted in SPACE LAW, edited by Francis Lyall and Paul B. Larsen (Ashgate, 2007), pp. 151-18

    Article VI was taken almost verbatim from Article VI of the Soviet draft, which was in turn based on Paragraph 5 of the Declaration of Legal Principles[*]. The United States draft contained no comparable provision but the United States delegate readily acceded to the Soviet version subject to changing the term “nongovernmental bodies corporate” to “nongovernmental entities,” the word “corporately” not being adequately descriptive…

    Article VIII was taken from Article V of the Soviet draft which virtually repeated Paragraph 7 of the Declaration of Legal Principles. Article 7 of the United States draft was a similar provision but was concerned with control of persons and ownership of objects only on celestial bodies. Also, the United States version did not contain a provision for the return of objects. However, the United States delegate readily acceded to the Soviet version, applicable to both outer space and celestial bodies, subject to a few minor drafting changes The most noticeable change was the substitution of the word “landed” for “delivered to” in the second sentence.

    ==========================

    [*] daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/186/37/IMG/NR018637.pdf
    UN General Assembly Resolution 1962 (XVIII), Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space
    1280th plenary meeting, 13 December 1963

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