Galactic I trademark Jim Davidson

The Iconoclast in Space

Occasional essays on significant topics from the Iconoclast's perspective.

Goring sacred oxen is my specialty.

Property in Space

The 1967 Outer Space Treaty signed by both the United States and the Soviet Union establishes that no signatory nation may claim sovereignty over any territory on planets beyond Earth. This amusing notion doesn't entirely account for the distribution of lunar landing sites shown below.

the shape of lunar territorial claims circa 1967 If the space superpowers had no designs on claiming sovereign territory, it must be a stunning coincidence that not a single Soviet lander launched to the Moon from 13 February 1966 to 9 August 1976 landed within the pentagonal shape defined by Surveyor 1, Surveyor 7, Apollo 11, Apollo 17, and Apollo 15. An entirely related coincidence places not a single American lander from 28 July 1964 to 19 December 1972 beyond the line defined by Luna 9, Luna 2, Luna 21 and Luna 16.

Are there lander missions that defy this analysis? Not Surveyor 2 which crash landed near the Copernicus crater. Not Surveyor 4 which failed minutes before landing in the Sinus Medii, which takes its name from its position astride the equator and the Moon's prime meridian. The first 6 Ranger missions failed to reach the lunar surface.

Luna 1 flew past the Moon in 1959, as did Luna 3 the same year. Luna 4 flew past in 1963. Luna 5 experienced a retro-rocket failure and crash landed in the Sea of Clouds. (Curiously, Luna 5 is not listed among the accepted list of landing sites, presumably because it was not deliberately landed at its site.) Luna 6 missed the Moon in 1965. Luna 7 and Luna 8 both experienced failures and crash landed in the Sea of Storms. (Again, curiously, Lunas 7 & 8 aren't listed as landing sites.) It may be appropriate to assume that both Luna 7 and Luna 8 were targeted for the same landing area where Luna 9 touched down in 1966. Luna 10, 11, 12, 14, 15 were all orbiters. Luna 18 was an orbiter which was deliberately braked to impact near the Luna 16 landing site. Luna 19 was an orbiter. Luna 22 was an orbiter.

The crashed remains of Luna 5 in the Sea of Clouds represent the single territorial incursion of Soviet lander equipment inside the "American Pentagon" shown at right. To exclude this crash site would require connecting the landing sites for Surveyor 1, Surveyor 3, Ranger 7, and Ranger 9, then extending a pseudopod from Ranger 9 to Surveyor 7 and back to Apollo 16. Of course, we don't count shipwrecks on Earth for territorial claims.

Given the interesting pattern of landing sites on the Moon, it is surprising that both the US and the USSR signed the Outer Space Treaty in 1967. On the other hand, anticipating the negotiation of the Outer Space Treaty and having some uncertainty over whether it would be signed by the other party, it is not entirely surprising that the US and the USSR were each motivated to stake their claims to territorial sovereignty, as shown on the map.

Outer Space Treaty Must Go
The
Outer Space Treaty of 1967 is tremendously flawed. Its provisions are entirely without merit. So it must go. To demonstrate this fact, the following analysis is provided:

One cannot argue that there are great prospects before mankind as a result of our entry into space. However, these prospects don't seem to have opened up during the time since the ratification of the Outer Space Treaty. It is my contention that the Outer Space Treaty stands in the way of men, individually or in groups, realizing those prospects.

Further, I shall endeavor to demonstrate that the Outer Space Treaty serves to retard the progress of the exploration and especially the use of outer space for peaceful purposes. As well, I do not believe that the exploration and use of outer space should be carried on for the benefit of all peoples, but should be carried on for profitable purposes of individuals, companies, and other groups. To suggest that such exploration and use of outer space will be carried out by all peoples irrespective of the degree of their economic or scientific development is clearly poppycock. Those who carry out the exploration and use of outer space should be the ones to benefit. Any other approach is socialism.

The most useful mechanism for fostering international cooperation is commerce. Trade and industry do more to strengthen ties among peoples than any other activity. Accordingly, what stimulates space commerce will stimulate friendly relations between States and peoples. The Outer Space Treaty, unfortunately, works to deter commerce in space.

The resolutions of the United Nations General Assembly are not binding on the member nations, as no enforcement mechanism exists to ensure compliance. A review of the resolution referenced above indicates that its terminology is entirely consistent with the Outer Space Treaty itself, so a separate analysis would be superfluous.

Access to the aforementioned resolution is not available at the time of this writing. However, the issue of weaponry is dealt with in the treaty provisions below.

The ideals of freedom of speech and of the press are clearly not widely held by UN member nations. Nevertheless, the issue of propaganda by nation states is not one over which I wish to shed much effort.

In my view, the case has not been made that a Treaty of this nature is needed. Certainly the Outer Space Treaty as written does not further the purposes and principles of the Charter. Those purposes and principles are best enhanced by the encouragement of trade and commerce, which the Outer Space Treaty clearly deters.

To the extent that this first sentence means anything, it is the sort of language that inhibits investment. Why should anyone in the private sector invest her funds in a venture to exploit the resources of outer space if this provision of the Outer Space Treaty were to be carried out? Those who invest in the exploration, development, and settlement of space should be the ones to benefit. If the increase in trade and commerce and standards of living spills over into the rest of the world, so much the better.

Clearly, not all nations, irrespective of their degree of economic or scientific development, are going to be equal participants in the exploration and use of outer space. Why cut everyone in for an equal share? Let those who pay be the ones to benefit. If this situation serves as an incentive for nations to enhance their economic and scientific development, great. If not, why make that our problem?

The term "province of all mankind" shows up again in the Moon Treaty in the phrase "common heritage of all mankind." Fortunately, the efforts of the L5 Society helped prevent the US ratification of the asinine Moon Treaty. It has been ratified by none of the spacefaring nations, and is effectively a dead letter.

Such language is indicative of the influence of bloodthirsty socialism among the diplomats and member nations of the UN. Perhaps these tendencies will wane in coming decades.

One of the interesting issues to be contemplated in this particular sentence is the nature of celestial bodies. The Earth is, after all, a celestial body. Since the term isn't defined elsewhere, perhaps we should assume that free access to all areas of Earth is included as a feature of this Treaty. Naturally, I object to such language. After all, free access to my home is not a matter over which I will negotiate. It isn't permitted.

My home and my business are areas of the celestial body "Earth." Free access to my home or your home, my business or Walt Disney's business is clearly deleterious to individual liberty and to commerce. Such free access further violates the Purposes and Principles of the UN Charter, especially with regard to respecting the territorial integrity and individual sovereignty of member nations.

If one agrees that the application of the Outer Space Treaty to Earth presents unacceptable conditions deleterious to commerce, industry, and freedom, one must assert the same objections with regard to the application of the Outer Space Treaty to other celestial bodies.

The concept of freedom of scientific investigation certainly sounds meritorious. One must ask what it means in practice, however, before determining whether it is, taken on the whole, worthwhile. If it means that scientific investigation is paramount, and that commercial or individual purposes take a back seat, this language is entirely unacceptable. Property rights are the basis for commerce and commerce is the sine qua non for international peace and prosperity.

Here, by any analysis, is the most fatal flaw of the Outer Space Treaty. Any nation which signs away its right to appropriate territory on the Moon or other celestial bodies is, by previous discussion, also signing away its claim to sovereignty over any place on Earth, since Earth is a celestial body. Clearly, that violates the Purposes and Principles of the UN Charter, as above.

Worse, by eliminating claims of national sovereignty by signatory nations, the Outer Space Treaty eliminates national protection for individual and commercial claims of property rights. One of the few potentially useful purposes of nation states is their protection of property claims. The Outer Space Treaty forces any claimant to develop a separate mechanism for establishing and protecting his property claims. Claim jumping and piracy are thus facilitated. Clearly, such language is counterproductive to all commercial and individual use of space.

The Moon Treaty attemted to go further in eliminating all private property rights. However, its efforts in this regard are as superfluous as they are unratified. Without the mechanism of national sovereignty and the associated common law and other means which nations provide for establishing and maintaining property claims, the hurdle has been set beyond reach. Who will invest in a lunar ice mine if the company running the mine cannot establish a claim on the materials it is mining?

If the UN were to establish a patent and trademark office which provided for patenting claims to territory in space, on the Moon, and on other celestial bodies beyond Earth, it might be possible to provide for commercial development and individual settlement of space without national sovereignty. I consider such a development highly unlikely.

These words are flowery and pleasant sounding. To the extent that the Charter recognizes the national territories and sovereignty of member nations, one would expect the Outer Space Treaty to do likewise. Unfortunately, the opposite seems to be the case. Further, international peace and security are best served by the enhancement of trade and commerce. The Outer Space Treaty is not good for trade or commerce or peace or security.

Intercepting and deflecting a comet or asteroid on a collision course with Earth may be the only means to prevent our species from going the way of the dinosaurs. An intercept mission using the Orion launch vehicle concept requires carrying nuclear weapons into space. Orion is the only launch vehicle concept capable of taking large payloads into space on high delta-v missions.

Deflecting or destroying a comet headed for Earth may also require nuclear weapons. Stationing such weapons in orbit or on other celestial bodies may be the only practical approach to protecting our planet from the cataclysm of cometary impact. The UN cannot talk this danger away. Perhaps if the UN were to establish an international Space Watch force to handle such eventualities, this term of the Outer Space Treaty could be bearable. Again, that would seem unlikely.

Nuclear terrorism and the proliferation of nuclear weaponry suggest the need for a ballistic missile defense is greater than ever. While India and Pakistan demonstrate their capacity to detonate nuclear weapons and carry them on missiles, nobody seems to be doing much beyond talk. A ground- and space-based missile defense system is possible with today's technology.

One important element of a space missile deterrent system would involve detonating nuclear weapons in orbit to charge high powered laser and particle beam weapons. Such a system may well require stationing nuclear weapons in orbit or on other celestial bodies.

We have lived for over 50 years with the threat of nuclear war. The break-up of the Soviet Union may have reduced tensions among the superpowers, but it has also led to the wider dissemination of nuclear technology. Some nuclear weapons may be missing from the stockpiles of former Soviet states.

With the detonation of a series of nuclear weapons in May 1998, Pakistan became the first Islamic state to demonstrate its nuclear capabilities. In so doing, it has signaled the transition of nuclear arms from the political to the religious domain. The secular nations of Great Britain, France, Russia, China, and the United States are now joined by the Islamic nation of Pakistan and the Hindu nation of India. There is widespread agreement that Israel also has nuclear capabilities; her missile capabilities including satellite launching technology have been demonstrated.

Any reasoned analysis must conclude that the religious fervor of non-secular governments may be a destabilizing influence. Armed with nuclear weapons, would the PLO implement its long-held preference for the destruction of Israel? Would Pakistan? Would a nuclear war between India and Pakistan be contained, or would China enter any major conflict in its region, potentially bringing Russia and the United States into a wider war?

If Pakistan declares jihad or Holy War, against India, perhaps over the long-heated conflict in the Kashmir region (yep, where cashmere was first developed; a very wealthy province India wants to keep in spite of what the population there wants), might that jihad spread to other aggressive Islamic nations? If anyone lobs a missile at Israel, you can expect retaliation will be swift. Enough damage throughout the Mideast could also bring the US into a wider war.

Madness is the only way to describe the concept of Mutual Assured Destruction. We can no longer be satisfied with such a high-risk approach to safety. We must pursue a ballistic missile defense system. Accordingly, the United States should repudiate the Outer Space Treaty.

Unfortunately, the Outer Space Treaty takes the position that war can be outlawed. Conflicting territorial claims have been avoided thus far. As I write this essay, Japan is planning a series of lunar missions that may place claims in conflict with American territory staked out on the map above.

Is it safe to presume that no military bases or forts will be needed to secure private property claims? Will piracy and claim jumping be eliminated without police? The history of the exploration, settlement, and development of Earth is, in no small way, the history of military fortifications on Earth. The military can serve trade and commerce by protecting trade routes and property claims. Whether there will be military forces in space is not an issue. There will be, and nobody doubts it. The question is whose forces they will be.

Finally, I note that the above paragraph provides for the use of equipment and facilities for peaceful exploration, but does not mention whether the use of equipment or facilities necessary for the use or settlement of the Moon and other celestial bodies shall be prohibited. Again, this language would seem to have a chilling effect on investor interest in space exploitation.

When the language of this paragraph was first written in 1963 as part of the UN Resolution known as the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, the number of people who had traveled in space was consistent with the concept of "envoys of mankind." There had been not more than two dozen Americans and Russians in orbit. Even by 1967 when the Outer Space Treaty was adopted, no more than a hundred people had flown in space. At the time, there were far more delegates to the United Nations.

Today, that situation has changed dramatically. We have somewhat routine access to space with the shuttle. We anticipate space tourism in the very near future with thousands and then tens of thousands traveling in space. Surely we aren't all going to be "envoys of mankind."

It is a nice thought to render assistance in the event of accident, distress or emergency. The issue of payment is not mentioned, although in practice it has come up.

An issue which has not yet come up is whether traveling through space is a valid approach to defecting from one nation to another. Suppose an officer in the military of the People's Republic of China (PRC) wishes to defect and lands his spacecraft in the Western United States. The provisions of the Outer Space Treaty to which the United States is party require us to "safely and promptly" return him to the PRC.

Suppose a space tourist from the United States goes to Australia and travels into space on a craft registered to Australia. That vehicle then lands in the United States as part of its normal flight plan. The US, as a state party to the Outer Space Treaty is required to safely and promptly return that passenger to Australia.

Clearly, in an era of routine space travel, the process of returning flight crews and passengers to the state of registry of their space vehicles will become untenable. Since I'm an advocate of greatly increased travel opportunities for ordinary people, I'd like to see barriers to commerce such as this one eliminated.

Again, the sentiment expressed here is pretty. It may have been appropriate at the time this language was adopted, over 30 years ago. It is not consistent with routine access to space by thousands or hundreds of thousands of people. Burdening state parties in this way, who may be expected to burden space travel service providers for similar costs, is unrealistic.

While you are vacationing on the Moon, you will be considered, for the purpose of the Outer Space Treaty, as an astronaut. Are you then to render all possible assistance to the astronauts of other States? Is that your obligation as a concerned human being, or a treaty obligation to be enforced by the other States Parties?

Individuals pursuing private and commercial purposes should be entitled to make their own decisions as to whether they are obligated to render all possible assistance to others. This treaty obligation will be difficult to enforce. It also tends to hamper the exploration, development, and settlement of space.

Another noble sentiment, written for a time when astronauts were few and far between. Suppose you operate a tourist destination on the Moon. You have staff who, on a routine basis, inspect the facilities for life-threatening phenomena. An airlock improperly secured or a fire extinguisher improperly stowed may constitute a danger to the life or health of astronauts. Is it reasonable to require these personnel to "immediately inform the other States Parties to the Treaty or the Secretary-General of the United Nations" if they come across such phenomena in their routine activities?

Would the discovery of a quantum black hole in our outer Oort cloud be a phenomenon which could constitute a danger to the life or health of astronauts? Certainly. One might want to secure that property and file a valid claim on it before telling other parties. The same would be true of any number of phenomena or resources.

Of course the Secretary General would insist on knowing first, and getting in ahead of you to make a claim on such phenomena. Why would we want to hand him such an opportunity? It isn't like the UN has proven to be a worthwile investment.

Again, we see here a concept which may have seemed appropriate when spaceflight was rare. Unfortunately, in the face of increasing interest in space travel opportunities, this language remains in force.

The responsibility provisions of this article combined with the liability provisions of the next have had a chilling effect on space investment. The entire body of regulations governing commercial space transportation in the United States are derived from the obligations and authority provided under the Outer Space Treaty. Let's look at why they are a bad thing:

[More to come]

Imagine how this language would have looked 500 years ago. In 1498, there were plenty of people from Europe operating in the New World and exploring the coast of Africa. While the monarchs of Europe might have preferred that all these people have continuing supervision, nobody had the manpower or the energy to keep track of all the different ongoing efforts.

Imagine how this language would have looked 150 years ago. In 1838, there were tens of thousands of people from the Eastern United States heading into the frontier. Who provided "authorization?" Nobody. Who was going to stop it from happening?

Keep in mind that in 1776, one of the issues over which Thomas Jefferson said we should declare war was that King George wouldn't allow us to settle territory West of the Appalachian Mountains. "He has endeavoured to prevent the Population of these States; for that Purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their Migrations hither, and raising the Conditions of new Appropriations of Lands, (Jefferson, Thomas, Declaration of Independence, 1776)."

So who wants authorization? Who wants continuing supervision? Who needs it? These are issues of no importance to ordinary people with private purposes. These ideas are estimable only to tyrants and their bureaucrats.

The problems with this language are many and varied. To begin with, there is no attempt to establish limits to the liability incurred. Thus, a strict liability standard has been imposed upon all space flight activities. Again, that may have been appropriate in the 1960s when a lot of the rockets being developed had a tendency to blow up. With routine access to space, it is unacceptable.

The airline industry could not exist today in its present form with a strict liability approach. Nor could any of the other major transportation or industrial activities. Law experts tell me that the strict or absolute liability approach is reserved to inherently dangerous professions, like demolishing buildings with high explosives.

Spaceflight has become routine, it is no longer appropriate to treat it with an absolute liability standard. Instead, a limited liability standard needs to be adopted. The airline industry worldwide benefits from limited liability standards established by, among other mechanisms, treaties.

Unfortunately, the Outer Space Treaty makes no attempt to establish a limited liability standard. Thus, liability insurance is much higher and the governments of the spacefaring nations are determined to regulate the space industry into a shadow of its potential, if not entirely into oblivion.

Forget for a moment that some of the personnel within an object launched into outer space might wish to defect. Consider only the issue of how "control over such object, and over any personnel thereof" can be established and maintained. Space is very large. As Douglas Adams has said, it is really, really tremendously large. Much larger than a walk to the corner pharmacy. It takes radio frequency communications many minutes to reach Mars. During the interval while control statements are being sent, objects and people on the surface of Mars are not under the control of any nation on Earth, no matter whether that nation is a State Party to the Treaty or not.

Right now, today, there are objects outside our Solar System put there by the United States. It takes radio communications hours to reach the Voyager spacecraft. There are strong indications that NASA won't keep those channels open indefinitely. There are already dozens of spacecraft placed into outer space whose power supplies have failed. The US is already in violation of the Treaty, because it does not control many of the objects placed into space.

And it cannot control people and objects lightyears away, or even light minutes away. The idea is ludicrous. It suggests a power beyond reason. There is no hope of enforcing this Treaty obligation, and no penalty for failing to enforce it, so why allow it to exist?

Here we have an effort to eliminate the concept of salvage. The international laws governing salvage of seagoing vessels have provided tremendous opportunities for treasure hunters, entrepreneurs, and ship owners. Without salvage laws, it would be difficult in many instances for a ship owner to find assistance in recovering his foundering vessel.

We are creating a huge amount of space junk in Earth orbit. Already there is tons of it out there. Yet the Outer Space Treaty has put all this garbage beyond the reach of salvage operators. Unless those salvage operators aren't from any of the States Parties to the Treaty.

It sounds pretty, but what does it mean? What penalties inure if a State violates this aspect of the Treaty?

The spirit of free enterprise relies upon the concept of competition. To the extent that competitive interests are not consistent with "co-operation and mutual assistance" then these provisions of the Treaty should be repudiated, repealed, or ignored.

Now, what does it mean "their harmful contamination?" We're going to the Moon and we're going to harmfully contaminate it? It is a dead, nearly airless, completely lifeless planetary body. Nothing we do to it can be harmful contamination. So why agree to such a provision?

There are no spotted owls on the Moon. There are no whales on Mars. The last thing we need gumming up the space frontier is a bunch of environmentalist wackos backed by a Treaty organization or the UN trying to shove a bunch of property restrictions down everyone's throats.

So, if the competitive interests of a company from one nation might "potentially" cause some harmful interference with the activities of another nation, everybody has to stop for consultations. What a waste of time, money, and opportunity.

And what if the consultations result in every party saying "screw off" to the other parties? No harm done? Certainly no penalties are provided. So there is no teeth to this thing, even if one wanted it enforced. It might as well be obliterated.

So, who is going to stop anybody from observing the flight of space objects? Up they go. Around they fly. If you can't focus your telescopes on them, is that my problem? I don't think so.

We already make allowances for principle investigators to have first dibs on data from spacecraft carrying their experiments. So, it seems obvious that this provision of the Treaty has no real meaning, no enforcement mechanism, and no reason for existing. Suppose a company or person wanted to keep what she found out about a certain part of space private? Nothing in the Treaty prevents her, although any number of whiners might try to brandish it in her face.

The idea that we all ought to agree to share all our knowledge with each other is really silly. Your information may want to be free. My information is much more clear on its role in life. My information wants to be dear.

Why on Earth would anyone want to provide inspection rights to visitors from another country? Since Earth is a celestial body, all stations, installations, equipment, and space vehicles on Earth are subject to this requirement. It is asinine, unenforceable, and anti-competitive. It must go.

Fortunately, there is no penalty for failing to enforce the provisions of this Treaty. Unfortunately, there are a lot of diplomats and lawyers in the world who will want to try, anyway.

In other words, we can expect a lot of talk resulting from questions. And if no agreement is reached, the talks continue. On the whole, a stupid way to arrange things. Not in the least practical. But you can see where plenty of diplomats and lawyers have a secure career path.

Let us hope that no more States are stupid enough to sign this thing.

You know, for a Depositary Government, the United States of America's Government has not been at all forthcoming in response to my polite inquiries with regard to which nations have signed and ratified and acceded to this Treaty. I wonder why not?

The UN claims that something over 90 governments have agreed to this idiocy.

Which argues for delay if ratification is inevitable in your chosen jurisdiction of convenience.

But apparently informing their own people is optional.

[More to come]

I have an amendment to propose: Strike Articles I through XIII. Substitute the following language: "Space is an open frontier. Revel in it."

Let's get that withdrawal effort together here in the US. Since 1969, at least, we've been entitled to withdraw from the Treaty. It is high time we did.

To summarize in regard to the Outer Space Treaty, it is bad because:

Also discuss SpaceDev, space travel companies, Dennis Hope, etc.



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