Westphalia in space? It’s not going to fly. When the great powers signed the treaties of Westphalia in 1648, they created a system in which sovereign states recognized each other’s borders and agreed not to change them or to interfere in each other’s domestic affairs. One thing they didn’t have to bother agreeing on was the question of how high up those borders had to extend. Almost 400 years later we do—but we haven’t managed it yet.
It’s one of many questions that have become pressing as a golden age of space exploration beckons over the limitless horizon. Can anyone “own” space? By what law can you say a state cannot position a laser-armed satellite above your country or begin mining on the Moon? The usual response to such questions is The 1967 Outer Space Treaty or The 1979 Moon Treaty, but these documents are years behind current technologies and haven’t been ratified by most countries. They were drawn up in a time when people thought of outer space as a featureless void. However, space has its own geography. As the astropolitik theorist Everett Dolman puts it, there is a “a rich vista of gravitational mountains and valleys, oceans and rivers of resources and energy alternately dispersed and concentrated, broadly strewn danger zones of deadly radiation.”But defining this geography is more difficult than agreeing demarcation points in the Himalayas that separate China and India, and even those are subject to dispute from time to time.
The issue of “vertical sovereignty” shows this difficulty. In 1902, at the dawn of powered air travel, a French official at the Institute of International Law proposed that the sovereign airspace should extend up to an altitude of 1,500 meters. For years the British view was that there should be no upward limit. Now it’s generally agreed that vertical sovereignty extends to where space begins, but there’s disagreement on where exactly that is. Our atmosphere doesn't just vanish, it becomes thinner over hundreds of kilometres. Nasa says space begins 80 kilometres from sea level, the Swiss-based Federation Aeronautique Internationale says it’s 100 kilometres. Other definitions are available, but uniformity would be useful. The most likely eventual global agreement will be the Karman line, named after the Hungarian-American aerospace pioneer Theodore von Karman. He calculated that the altitude above which traditional aircraft could not fly was roughly 100 kilometres up.
Once into low-earth orbit more questions arise. How close can my satellite be to yours? Can my space station have defensive weapons? If, for example, Virgin Galactic moves from plans for sub-orbital space tourism flights (which only venture into space for a few minutes) to low-earth orbit flights, as a commercial company, which nation’s laws must it adhere to?
Low-earth orbit is a relatively narrow belt around the world where our communication and military satellites are placed. If a dominant space power controlled the belt, it would have a huge military advantage. As a commander in China’s People’s Liberation Army put it: “If you control space, you can also control the land and the sea.” Low-earth orbit is also where, in a few years’ time, spacecraft may be able to refuel for long-distance journeys. More energy is required to get from the Earth’s surface to low orbit than from low orbit to Mars. If one country gained control of this corridor it would become the gatekeeper to space. This is a rough equivalent of the geopolitical chokepoints on earth, such as the Strait of Hormuz or the Suez Canal. Without an up-to-date legal framework governing these strategic points in space, we may end up competing for them as we did for control of those on Earth.
There is also land to consider. Last year the US, UK, Italy, Canada, Australia, UAE and Japan signed the Artemis Accords, governing the exploration of the moon, setting up of bases and extraction of resources. It contains an article allowing signatories to establish “safety zones” and asking them to respect the zones in order to “prevent harmful interference.” However, China and Russia were not invited to join the Accords and yet both have their own plans to establish lunar bases. The legal validity of, for example, Tokyo complaining if China set up a base in Japan’s safety zone is dubious.
In another age, in another “New World,” Spain and Portugal agreed the 1494 Treaty of Tordesillas, neatly dividing the Americas between them. A line was drawn north-to-south in the Atlantic Ocean. All still-to-be discovered lands east of it were claimed by Portugal; all lands to its west were claimed by Spain. However, the other great powers were not consulted (nor indeed were the people living either side of the line), an omission later dealt with by force by both France and Britain.
If we are to avoid such scenarios in the future, the outdated and unratified space treaties need a serious overhaul. The Outer Space Treaty, which makes no reference to commercial activity, does say “outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” But a safety zone looks an awful lot like national appropriation. The mantra of the new US Space Force is that “space is a war-fighting domain.” Work to avoid that coming true is overdue.
The Power of Geography: Ten Maps that Reveal the Future of Our World by Tim Marshall is published in hardback by Elliott & Thompson on 22 April 2021, at £16.99
