#13

The Geopolitics of Space Exploration after the Ukraine war

In the mid-17th century, the Europeans laid the foundations of international law on sea trade based on the so-called “natural law” or “res communis”. Within the book Mare Liberum, a classic text in the history of international relations, the innovative principle that the sea was international territory and that all nations were free to trade through sea routes, was definitively proclaimed.

This principle of the “freedom of the seas” had undoubtedly a double target: the first, to allow free trade, and the second to give an ideological justification for the breaking of some commercial monopolies among the Dutch, British and Spaniard fleets which fought against each other for dominance over world trade.

Since then, there were disputes and no international regulations regarding maritime domination, and coastal states applied the principle that the sea was an “extension of the mainland”, but in the 18th century the principle was established that dominion over water was limited to an area defensible by an artillery cannon on the mainland, and later this rule became universally adopted in the so-called “three-mile limit”.

Today many observers make the comparison between Space – a place by its nature unlimited and for the moment militarily indefensible – and oceans as a natural and normative term to inspire a regulation for the exploration of Outer Space.

The basic law regarding Space is the ONU Outer Space Treaty of 1967, which was heavily dictated by the res communis doctrine, stating that Space belongs to mankind and not to one individual or country. A noble principle which resulted to be out of the evolving political and economic context. Furthermore, it resulted to be unarmed before the technology innovations as well as the evolution of the socio-political global context.

Finally, this Treaty appears to be far from being a real safeguard.

In fact, in the 21st century the orbits around the Earth are being populated by an increasing number of satellites and spaceships, many for commercial purposes but most for military and intelligence purposes, as the global military and economic confrontation recurs from the seas of the planet to the oceans of the Universe.

The United States and China have started a new Space Race where the Moon, and the cislunar orbit, represents a strategic target rather than an operational one.

Modern states have always regulated their relations on the basis of rigidly drawn boundaries, and when this was not possible, diplomatic activity was often followed by military activity, as basically taught by the above-mentioned “natural law”.

But, is it possible to trace a “limes” in Space?

Obviously, this does not seem possible, as spaceships benefit of the absence of overflight sovereignty. A satellite can be put into orbit at different altitudes and fly over the whole world, curiously, some areas, parts of the spatial limes around the earth namely the geostationary orbits, are instead formally regulated.

So today there is a hybrid regulatory framework only for some type of orbits, but nothing for the case beyond the geostationary sphere, towards distant space or cislunar, where there is no international norm.

Earth’s orbits are dramatically populating tens of thousands of satellites and soon we will find ourselves in a situation comparable to a real stellar invasion. That would be comparable as if two centuries ago, a souverain state had suddenly found thousands of enemy vessels off its shores.

A part the absence of an international law there is the risk of eco-sustainability, something which seems distant but in reality, it is not. Satellites in orbit collide – sometime by chance and sometime on purpose – and pollute at different levels, producing an unimaginable volume of debris. Furthermore, there is another risk, linked to the global commercial pervasiveness of the new private corporations aiming at a terrestrial global profit by developing any sort of new space systems in absence of regulation and trade norm.

It would be necessary to immediately address the issue of applicable regulation and not wait to do so only following a critical event arises in terms of space eco-sustainability or space economy.

The current doctrine of international space law is unarmed and for a real progress the Outer Space Treaty should be rethought in terms of the realities of today.

Easy to say, harder to do.

It should be created an international Forum – and the EU should engage on that to stand as a global player – to involve legal think tanks to lay the foundation for the new era in international space law.

The idea to amend the Outer Space Treaty appears difficult as among the signatories there is no wide consensus, so the real option is to begin to shape within a selected nucleus of countries – EU, US, UK, Canada, Japan and Australia – a common space policy and regulation linked to the mutual cooperation agreement on security and defense in space. This should provide a platform to begin to reshape international space law by evolving into multilateral agreements with other countries.

The idea is that, over time, multilateral agreements born of domestic space policies would eventually reshape the thinking of international space law and either make the Outer Space Treaty redundant or encourage the international community to either rethink or redefine the res communis doctrine.

The nucleus of countries defined above Is not by chance, as it reflects the turmoil following the war in Ukraine. As Geopolitics is the analysis of the geographic influences on power relationships in international relations, it is clear that Space is now a eso-geographical element to be carefully taken into account, and so the countries which share common values are forced to look for a convergence.

Any delay to move in this direction should be pondered by thinking that an armed conflict happening in Space is going to be a reality quite soon.