Good fences make good (space) neighbours

Abstract

Humanity has reached a critical point in its history. Technological advancements herald a great renaissance for humanity’s reach to the stars. States and private companies plan commercial and other activities in space and upon celestial bodies, demonstrating that humankind can become an inter-planetary species. Such planning occurs in accordance with the prevailing space law regime and, notwithstanding the undeniable ambition of the planners, it is evident this space law regime does have gaps and ambiguities that must be addressed before these endeavours can be meaningfully fulfilled. This article examines the legal regime encapsulated by the 1967 Outer Space Treaty (‘OST’) (ratified by all major space-faring nations) and explores ways in which specific OST provisions can give rise to temporary proprietary and jurisdictional rights, which can be used to avoid future conflict in space. The authors contend that these provisions provide rights of control to States so as to manage ‘facilities’, to exercise jurisdiction and to observe rights of ‘due regard’ that in turn establish basic legal boundaries. Such boundaries, it is argued, permit confidence and certainty in the conduct of commercial and other activities upon celestial bodies, enabling competing States and companies to delimit areas in which they conduct their operations. Additionally, the article examines the capacity of military forces to operate on these celestial bodies so as to undertake a peacekeeping type role consistently with the provisions of the OST. Such a function is argued to be necessary, given the unique attribution mechanism of the OST that can give public legal significance to the acts of private companies. It is an underlying theme of this article that respecting legal boundaries on the Moon and other celestial bodies while engaging in commercial activity can create good neighbours which in turn can underpin a peaceful, stable and cooperative space environment.