The Great Unknown of the Outer Space Treaty: Interpreting the Term Outer Space

By Miller, Zach | Denver Journal of International Law and Policy, Summer 2018 | Go to article overview

The Great Unknown of the Outer Space Treaty: Interpreting the Term Outer Space


Miller, Zach, Denver Journal of International Law and Policy


"Look again at the dot ... On it everyone you love, everyone you know, everyone you ever heard of, every human being who ever was, lived out their lives.... The Earth is a very small stage in a vast cosmic arena."

CARL SAGAN, PALE BLUE DOT

I. INTRODUCTION

In 1990, the Voyager 1 spacecraft sailed towards the outer fringes of the solar system. At about four billion miles away from Earth, authorities at NASA's Jet Propulsion Laboratory ("JPL") decided to turn the spacecraft around for one last look at the planetary neighborhood of the solar system. (1) One photograph features Earth as a tiny pixel shrouded by light rays from the sun, described poetically by Carl Sagan as "a mote of dust suspended in a sunbeam." (2) Generally speaking, where was Voyager 1 when it took this photograph? Most people--if not all--would agree that Voyager 1 is in outer space.

In 2014, the Curiosity rover turned its camera towards the sky after a hazy blue sunset on Mars. (3) Earth hangs in the murky sky, portrayed as a pinpoint of light caught in the blackish-blue fade of a Martian horizon at dusk. (4) At the time, Curiosity was roughly ninety-nine million miles from Earth. (5) Again, generally speaking, where was Curiosity? Some might say that the general location of Curiosity was on Mars, and others might say that Curiosity was in outer space. But is it possible to be both on Mars and in outer space, or are Mars and outer space mutually exclusive? How do the cosmic whereabouts of persons, things, and activities change for different planets, moons, asteroids, and other celestial bodies?

These questions serve as examples of why outer space is such a fascinating subject of study across a wide variety of disciplines. Outer space becomes particularly fascinating when studied through the lens of the law. As a spatial area, outer space serves as the final frontier of legal development; unlike land, sea, and air, it is the last medium of existence that the human civilization has yet to truly conquer. (6) Outer space is the newest domain of human existence, and humans have only just begun to scratch the surface; this is why outer space is so difficult to comprehend, even for simple questions such as "Where is Curiosity?".

It is difficult enough to establish the cosmic location of robots as either on Mars or in outer space, but it is even more difficult to describe the cosmic location of humans. The legal questions posed by human settlement of outer space are fundamental in nature, yet extremely hard to comprehend. Consider the following hypothetical:

   The year is 2061, and it's a beautiful day in New Columbia, the
   newest of five large-scale settlements constructed near the western
   base of Olympus Mons. (7) The artificial light has finally begun to
   feel natural, but Mark hasn't quite adjusted to the sensation of
   the fan-generated breeze on his cheeks. He quite enjoys his walk
   through the arboretum in the mornings; the thin canopy of limbs
   blocks out the black hexagons that stretch overhead. (8) After
   almost a full year--today marks the anniversary, in fact--since his
   arrival on Mars, Mark can still feel a knot forming deep in his
   chest when he imagines the dome high above him: only a few inches
   of glass between life and death-by-atmosphere.

   When he arrives at Aldrin Centre, he takes the first elevator to
   the top floor. Mark is a citizen relations representative for the
   Mars Alliance Settlement Administration ("MASA"). MASA is the face
   of the government to nearly 450,000 people living and working on
   Mars. The territory of colonized Mars spreads across about 500,000
   square miles, with each of the five major settlements making up a
   corner of a pentagon shape. (9) Most people live in the five
   settlements on the perimeter, but many work in the outdoor
   propellant plants and launch facilities towards the interior of the
   state. A sharp tone pings in Mark's headset--an email from a
   colonist inquiring about improvements being made to the health
   facility. … 

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