The Bogotá Declaration: A Case Study on Sovereignty, Empire, and the Commons in Outer Space

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Space debris and the refuse of space launch rocket stages in geostationary orbit. Courtesy ESA/ID&Sense;/ONiRiXEL, CC BY-SA 3.0-igo/ Wikimedia

The Bogotá Declaration of 1976 presents a unique case of transnational resistance to imperial order that appears to subvert how historians, anthropologists, lawyers, and policymakers think about the relationship between asymmetric power, sovereignty, and the commons. Although the Declaration did not succeed as a legally-authoritative document—as Dan St. John and Ferdinand Agama discuss—it presents interesting questions about the relationship between territory and empire.

In the Declaration, a coalition of equatorial nation-states (Colombia, Congo, Ecuador, Indonesia, Kenya, Uganda, Zaire, and Brazil) attempted to resist the Outer Space Treaty of 1967‘s (OST) non-appropriation principle, as established in Article II of the OST. With the Declaration, the signatories claimed sovereignty over geostationary orbital slots above their national territories by declaring these slots as natural resources extending from those territories. This allowed the Declaration’s parties to use the jus cogens principle that a state’s natural resources are inherently its territory. Geostationary orbit was, and remains, among the most valuable orbits due to its use for telecommunication satellites. In that context, the Declaration’s parties argued that the OST promoted an implied first occupation principle with regard to the use of orbital slots, such that spacefaring nations would occupy valuable slots before developing states could develop the technological and economic means of doing so. Hence, according to the Declaration, the OST’s non-appropriation principle enabled the de facto sovereignty of dominant, global north states in geostationary orbit.

Various anthropological, historical, political, and legal discourses regard territorial and property claims as assertions of sovereignty by dominant powers. Thus, these discourses treat resistance to such claims as anti-imperial or anti-colonial. There are numerous examples of this. Historians and anthropologists have described the shari‘a concept of the waqf, or charitable religious endowment, as a legal space that resisted colonial and imperial regimes’ attempts to use private property laws as extensions of power. For instance, Ekaterina Pravilova has argued that “Islamic models” of landholding, including the waqf, resisted the Russian empire’s use of private property in Transcaucasia and Central Asia during the late nineteenth century. Similarly, Paul Frymer and Michael Burger show that European theories of private property allowed for the encroachment of  American empire into commons spaces, such as indigenous lands in western territories and plant genetic resources via patent laws governing agricultural resources in the global south. In Rule of Experts, Timothy Mitchell makes similar claims regarding the use of private property to extend state power in colonial Egypt.

Even in legal disputes over resource extraction in extraterritorial domains, many interlocutors sympathetic to the concerns of developing nations seek to resist claims by global north states that such resources should be free for exploitation according to European property theories such as first discovery/occupation or labor.  In the context of space mining, these interlocutors claim that space resources are a form of “global commons” (although this is a disputed reading of the OST), thus requiring equitable distribution between all states party to a space mining agreement. The Moon Agreement of 1979 attempted to declare space “the common heritage of humankind” and establish a governance regime for space resource extraction, but this failed because no major spacefaring nation signed the Agreement. Developing states attempted a similar regime under the initial deep seabed provisions in Part XI of the third U.N. Convention on the Law of the Sea (UNCLOS), to similarly negligible effect due to the resistance of global north states. The pressure to acquiesce to global north interests resulted in a modified governance regime under the 1994 Implementation Agreement that satisfied the commercial interests of dominant states, as Surabhi Ranganathan suggests in Strategically Created Treaty Conflicts and the Politics of International Law. Carol Thompson, Edwin Egede, and R.P. Anand directly forward this argument. Space lawyer Ram Jakhu formulates these concerns of this nature in terms of “the global public interest.” In such contexts, attempts to designate spaces as “commons” take on the character of a kind of legal resistance to asymmetric property regimes.

In the context of these discourses, the Declaration is an interesting example in which anti-colonial legal activity takes form as a territorial claim, rather than resistance to such a claim. Under the Moon Agreement and Part XI of UNCLOS III, developing nations resisted global north states by designating extraterritorial spaces as commons, but under the Declaration, resistance adopted an opposing form. Space in general and the deep seabed hold no direct connection to postcolonial states, but geostationary orbit arguably bears a natural connection (“a physical fact linked to the reality of our planet,” as discussed above) to a particular set of postcolonial states along the equator.

In this approach, a claim of sovereignty appears, perhaps, anti-imperial. Mark Neocleous, briefly discussing the Declaration, has argued that the legal boundaries of air and space facilitate the global police power of dominant states.

The Declaration’s position that the non-appropriability of geostationary orbit facilitates imperial order seems to align with a strand of historical and anthropological scholarship on the use of similar spaces as means to extend empire. Broadly, Gil Anidjar, in Blood, builds on Carl Schmitt’s The Nomos of the Earth and Zygmunt Bauman’s Liquid Modernity to argue that the commons approach to the law of the sea actually allowed for the extension of colonial state power by treating the sea and indigenous lands as zones free for exploitation. Likewise, Vandana Shiva argues that the designation of spaces as terra nullius justifies the colonization and control of such spaces.

Although the International Telecommunication Union now allocates orbital slots, only a few geostationary satellites are from developing nations, as Agama notes. Many global south states are increasingly looking toward satellites to facilitate development through telecommunications and surveillance capabilities that would improve data that is vital to assessing climate, preventing natural disasters, locating valuable resources (like water), and improving agricultural and urban projects.

The Declaration shows how—contrary to many discourses on the anti-imperial values of the OST and generally on colonialism, development, and the (global) commons—a territorial claim can take on an anti-imperial character. It is telling that several disputes in space law at the moment, such as space mining, the regulation of military activity in space, and the transparency and sharing of space debris data, involve disputes between dominant states and their formal colonial subjects. Indeed, writing on property law in extraterritorial domains such as the deep seabed and outer space, Scott Shackelford argues that such historical and ongoing tensions between developing and global north states have caused irresolution about the definition of the common heritage of humankind. Hence, it is important to revisit unique historical examples like the Declaration in order to accurately characterize and fairly resolve such continuing disagreements.

Haris A. Durrani is a second-year J.D. student at Columbia Law School and also holds an M.Phil. in History and Philosophy of Science from the University of Cambridge and a B.S. in Applied Physics from Columbia Engineering. He is the author of Technologies of the Self, and his fiction, essays, and academic works have appeared in McSweeney’s, The New Inquiry, Analog Science Fiction & Fact, Lightspeed, Catapult, Mithila Review, The Lifted Brow, Comparative Islamic Studies, Poet’s Country, and more.