Does Polaris Dawn mission violate 50-year old international treaty?

Cold War era treaty

“This is a mission which violates Article VI of the Outer Space Treaty (OST),” Tomasso Sgobba, executive director of the Netherlands-based International Association for the Advancement of Space Safety told Al Jazeera.

The ‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies’, or simply the OST, entered into force in October 1967, during the peak of the Cold War. It provides the basic framework on international space law that remains in place till date.

The fundamental principles laid out by the treaty are as follows:

• the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all humankind;
• outer space shall be free for exploration and use by all States;
• outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
• States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
• the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
• astronauts shall be regarded as the envoys of humankind;
• States shall be responsible for national space activities whether carried out by governmental or non-governmental entities (this is important for the purposes of this explainer);
• States shall be liable for damage caused by their space objects; and
• States shall avoid harmful contamination of space and celestial bodies.

The OST emerged from a similar agreement signed regarding the sovereignty of Antarctica in 1959, which put restrictions on territorial expansion, nuclear testing, and utilisation of the resources of the southern continent.

Article VI of OST

A major sticking point, when the treaty was being negotiated, was the role of private players in space. The USSR wanted to limit space exploration only to nation states whereas the US wanted to open it for private players. Eventually, a compromise was struck.

Article VI of the OST explicates this compromise. It reads: “The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate State Party to the Treaty.”

Effectively, the home country would be responsible for space activity that originated from their soil, and also be liable for any mishaps. “The Soviet Union in the end was willing to mitigate its point of view to the extent that whomever would happen to be active in outer space, one state or another should be held responsible for its activities,” legal scholar Frans G von der Dunk wrote in ‘The Origins of Authorisation: Article VI of the Outer Space Treaty and International Space Law’ (2011).

Notably, for the past two decades, the US Congress has limited the Federal Aviation Authority’s (FAA’s) oversight on private space players to only rocket and spacecraft safety on Earth. “Under federal law, the FAA is prohibited from issuing regulations for commercial human spaceflight occupant safety,” the regulator told Al Jazeera. Even NASA, the US space agency, does not have any oversight responsibility.

This, some scholars believe, is in violation to Article VI, and theoretically, Russia — the successor state to the USSR — can object to such missions. “I believe that Article VI does not leave much room to interpretation [and] the Polaris Dawn mission [which] is not currently subjected to authorisation and continuous supervision of any US government agency” violates it, Sgobba said.

Others disagree. “There exist no internationally binding regulations that provide precise definition of this term and no international technical standards and procedure for effectively implementing this obligation,” Ram Jakhu, former director of the Institute of Air and Space Law at McGill University, told Al Jazeera.

Updating the OST

But as private players become more prominent in space, the Cold War-era OST might need to be revisited, and ambiguities cleared. Some have suggested that an international, independent space safety institute that would provide third-party reviews for space companies must eventually be established.

This is because as things stand, players like Virgin Galactic and SpaceX can effectively do whatever they please in space. And that is not necessarily a positive, with the lack of oversight and regulation having potentially deadly consequences.

In November 2023, the US National Space Council (NSC) released a draft bill that assigns oversight responsibility for novel space activities and infrastructure, including private space stations, off-Earth manufacturing and space junk removal. This bill is yet to be passed.

Moreover, even if it were to be passed, private players could theoretically change their location to get around rules. This is why experts have called for an international solution to the matter.