New spacefarers

An increasing number of countries are looking to satellites to facilitate development, for example to monitor the climate, locate resources, prevent natural disasters, and improve agriculture.71 However, there is a significant head start for established spacefaring nations which already possess the technological and economic means to exploit positions in Geostationary Orbit (GEO). Moreover, there are differing interpretations of the OST, which may favor the interests of major space powers over other actors.72

The Outer Space Treaty was drafted in the context of the era and space exploration at the time, reflecting tensions between the United States and former Soviet Union.73 Its key objectives were to prevent state appropriation and war in space, particularly nuclear conflict.74 It is therefore intended to apply broadly and does not account for rapid commercialization and the diversity of actors and space activities in new space. 75 It is also worth considering that the Treaty was dated around the same time that many former colonies sought independence from their former colonizers.76 It therefore seems even more important to consider the perspectives of all nations and prevent inequity in space.77

The 1976 Bogotá Declaration saw several equatorial countries attempt to stake claim to sections of GEO located above their national territories.78 Colombia, the Republic of Congo, Ecuador, Indonesia, Kenya, Uganda and The Democratic Republic of the Congo initially entered the agreement, with Brazil signing as an observer, and Gabon and Somalia joining later. 79 The claims made under the Declaration were backed by the argument that these segments of GEO are linked to these territories by Earth’s gravitation, and hence fall under their national sovereignty as natural resources.80 This understanding does not consider GEO part of outer space – particularly as the OST lacks a clear legal definition of outer space – but as a part of airspace above equatorial territories.81

The United Nations Outer Space Legal Subcommittee debated the Declaration in 1977, with several equatorial countries expressing that the OST did not account for their interests and that a rejection of their sovereignty claims could lead to neo-

71 Durrani (2018). 72 Pershing (2019). 73 Pershing (2019); Wrench (2019); Brehm, Andrew (2015). Private Property in Outer Space: Establishing a Foundation for Future Exploration. 33 Wisconsin International Law Journal 353. https://repository.law.wisc.edu/s/uwlaw/item/77011 74 Pershing (2019); Wrench (2019); Brehm (2015). 75 Pershing (2019); Lim, Jonathan (2018) The Future of the Outer Space Treaty – Peace and Security in the 21st Century. Global Politics Review. Open Access Journal of International Studies 4(2), 72-112. https://www.globalpoliticsreview.com/publications/24649929_v04_i02.pdf#page=72 76 Durrani, Haris (2019) Is Spaceflight Colonialism? The Nation. 19 July 2019. https://www.thenation.com/article/world/apollo-spacelunar-rockets-colonialism/ 77 Thornburg (2018). 78 Giacomin (2019). 79 Giacomin (2019). 80 Agama (2017). 81 Agama (2017).

colonialism of outer space.82 It was suggested that there is an need for a definition of outer space that takes into consideration the special position of equatorial countries.83 However, the claims of sovereignty were widely rejected by the established spacefaring community and have not altered the international legal status of GEO.84 Signatories have since reformulated their claims, invoking preferential rights instead of sovereignty, although these claims are still widely considered inconsistent with the principles of the OST.85

Some scholars suggest that the Declaration was simply an attempt to apply political pressure to spacefaring nations using GEO and prompt questions regarding equitable space access.86 Nonetheless, the Bogotá Declaration presents a unique case, raising questions about history, colonialism, exploitation, and equitable access to outer space.87 The issues raised in the Declaration are testimony to the wider concerns of non-spacefaring countries regarding the major powers’ uses of the domain.88

The OST’s lack of definitions could become a greater problem, for example, without a clear legal boundary between airspace and outer space.89 The existing ambiguities and loopholes in the OST could permit opportunistic or harmful behaviors, particularly as we move to a future of space

82 Agama (2017). 83 Agama (2017). 84 Agama (2017). 85 Giacomin (2019). 86 Agama (2017). 87 Durrani (2018). 88 Giacomin (2019). 89 Secure World Foundation (2017); Lim (2018). 90 Rathore & Gupta (2020). 91Lim (2018); Rathore & Gupta (2020). 92 Pershing (2019). resource extraction. Generally, nations that benefit from space most favor the broad national interpretations of OST principles.90 Some countries, including the United States via the Artemis Accords, have implemented unilateral efforts to protect their national interests and enable the private exploitation of natural resources in outer space. Such actions are perceived by many to push the boundaries of the OST in anticipation of future technological capabilities and strategic interests.91

The fundamental principles of the OST remain valuable. If the Treaty were repealed or replaced by a free-for-all allocation of space property rights, this could result in rapid, chaotic and inequitable access to resources disfavoring developing countries in particular. 92 Rather than scrapping what little legal framework there currently is for space, there is a need to build on the existing principles and adapt to the developing space domain.