Antarctica and Outer Space

 

What does Antarctica have to do with space law? The Soviet Union launched the first artificial satellite, Sputnik 1 into orbit on October 4, 1957. This was not only the entrance of mankind into outer space; it was also the event that triggered the emergence of Space Law. Coincidentally the Antarctic Treaty was signed on December 1, 1959 by the twelve countries whose scientists had been active in and around Antarctica during the International Geophysical Year (IGY) of 1957-58.

           The Antarctic Treaty System (signed into force in 1961) states as its primary purpose to ensure “in the interests of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”

Other Provisions of the Treaty state:

Antarctica shall be used for peaceful purposes only (Art. I).

Freedom of scientific investigation in Antarctica and cooperation toward that end … shall continue (Art. II).

 Scientific observations and results from Antarctica shall be exchanged and made freely available (Art. III).

If these provisions seem familiar that is becuase they are very similar to the Outer Space Treaty which believes, "that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development."

The exploration and use of outer space...be carried out for the benefit and in the interests of all countries… and shall be the province of all mankind (Art. I)

There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation (Art. I).

Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means (Art. II).

States Parties to the Treaty shall carry on activities in the exploration and use of outer space… in the interest of… promoting international cooperation and understanding (Art. III).

Antarctica, like outer space is considered to be an extreme and remote environment. So much so that the Mars Society, is conducting a 2,000 mile trans-Antarctic expedition "to test how extreme and remote environments affect human physiology, providing important insight into the challenge of sending humans to the Red Planet." The two year mission will focus on a variety of analog research, including:

Prolonged periods of complete isolation (7-9 months in duration)

Experiencing altered day-night cycles (including 3-4 months of complete darkness)
Exposure to extreme cold and weather (in the coldest desert with extremely low humidity)
Encountering chronic hypobaric hypoxia (including altitudes of up to 3,200 meters)

Antarctica and outer space are similar on a number of levels whether it is between the treaties that define the parameters of their use or the "extreme and remote" conditions. The other similarity is that both Antarctica and outer space are sovereignless. This was discussed in the following case regarding the Federal Tort Claims Act (FTCA):

Smith v U.S. 507 US 197 (1993)

In Smith, the court was asked to decide if the U.S. can be held liable under the Federal Tort Claims Act (FTCA) for a wrongful death that occurred in Antarctica. The court held that the ordinary meaning of foreign country included Antarctica even though it had no recognized government. If Antarctica was not a foreign country then the plaintiff would have limited legal options because the court would have to look to the laws of Antarctica which has no law to determine the liability of the U.S. The Court points out that legislation of the U.S. is meant to apply only within the territorial jurisdiction of the U.S. unless there is contrary congressional intent.

Justice Stevens acknowledged Antarctica's similarity to outer space in his dissent:

"The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946."

    
     Antarctica, like outer space, is sovereignless, remote, and of scientific and military interest. The biggest differenc is when you slip in Antarctica you fall. When you slip in outer space you float.