Montreal Space Symposium 2019

As the Outer Space Treaty (OST) enters its sixth decade, an evolved understanding of its ‘province provision’ at Article I is proposed. This Article declaring that the “exploration and use of outer space . . . shall be the province of all mankind” has the potential to be interpreted literally, with the full territorial implications ordinarily associated with the word “province”. This interpretation is based not only on the ordinary meaning of the word province, but primarily on the long associations of the activities of both “exploration” and “use” with territorial appropriation under international law.

This proposed ‘territorial conception’ of the province provision sees humankind as an emerging subject of international law appropriating those areas of outer space where humanity ventures. The result of which being that those regions of space where the human species extends its presence comprise the literal “province of all mankind”, with ultimate title and residual sovereignty over territory explored and utilised invested in all of humankind. Importantly this interpretation presents no conflict with Article II of the OST, which prohibits only “national appropriation” of outer space and not appropriation by humankind itself.

As every human being is collectively a member of humankind, sharing territorial title over all areas of outer space subject to its “exploration and use”, all persons should be guaranteed as a human right freedom of movement throughout humankind's province. The eventual development of such an open border regime could become one of the most unique and important governance features of outer space. For it ensures that unlike here on Earth, the ability to migrate, settle and work in space is not entirely dependent on the “birthright lottery” of nationality. For in “the province of all mankind” no human should ever be considered “illegal”.