Cássius Guimarães Chai
RC26 Board Member
Full Law and Geopolitics Professor (PPGAERO/PROFIAP/UFMA & PPGD/FDV), Brazil
https://orcid.org/0000-0001-5893-3901
Abstract
This paper revisits the foundational promise of Article I of the 1967 Outer Space Treaty that outer space shall be explored and used “for the benefit and in the interests of all countries,” and tests that promise against contemporary governance practices through the critical lens of Third World Approaches to International Law (TWAIL). It argues that the formal language of universality functions increasingly as legitimating rhetoric for a legal order that reproduces global hierarchy. The analysis highlights how ostensibly neutral allocation mechanisms for geostationary orbital slots and radio frequencies—administered through the International Telecommunication Union and structured around practical first-mover advantages—enable early access to become durable control, effectively enclosing finite orbital and spectrum resources. The paper further examines how accelerated commercialization and militarisation, including the rapid expansion of private satellite mega-constellations, intensify congestion and debris risks while concentrating economic gains in a small group of wealthy states and corporate actors. These dynamics externalize long-term hazards—such as collision cascades associated with the Kessler Syndrome—onto countries with limited space capabilities, mirroring patterns of environmental injustice identified by TWAIL scholarship. The paper concludes that achieving the treaty’s egalitarian intent requires more than fidelity to dated treaty language: it demands procedural inclusion, substantive participation by developing states in regulatory bodies, and concrete mechanisms for technology transfer and capacity building.
Keywords: Outer Space Treaty, TWAIL, space governance, orbital debris
The grand promise enshrined in Article I of the 1967 Outer Space Treaty, that the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, constitutes one of international law’s most ambitious normative declarations. It proclaims space as the “province of all mankind,” a common beyond terrestrial sovereign claims. However, viewed from the critical perspective afforded by Third World Approaches to International Law (TWAIL), this foundational promise stands in stark and increasingly indefensible tension with present realities. The juridical architecture of space governance, far from guaranteeing equitable access and benefit-sharing, functions as a mechanism for consolidating the technological and economic primacy of a handful of wealthy states and their corporate proxies, thereby perpetuating the very structures of global inequality that TWAIL scholarship has long sought to unmask.
The TWAIL critique offers an indispensable hermeneutic for understanding why the “province of all mankind” remains a largely rhetorical flourish. It posits that international legal norms, including those governing outer space, were forged within a post-colonial order inherently reflecting the interests of powerful, developed states. The ostensibly neutral principle of equitable access is, in practice, subverted by operational realities. The prevailing regime for allocating geostationary orbital slots and radio frequencies, administered by the International Telecommunication Union, operates effectively on a “first-come, first-served” basis. This procedural framework creates an insurmountable first-mover advantage, allowing established spacefaring nations and their commercial entities to claim prime orbital real estate long before developing nations possess the technical and financial capacity to compete. The result is not a common management for universal benefit, but a de facto enclosure of a finite resource, sanctioned by a legal order whose structural biases TWAIL consistently foregrounds.
Furthermore, the accelerating commercialization and militarization of space exacerbate this foundational inequity. The deployment of vast satellite mega-constellations by private corporations, while offering global services, consumes enormous amounts of spectrum and orbital volume in Low Earth Orbit. This raises urgent concerns about the ability of non-spacefaring countries to ever achieve meaningful access. The orbital environment is rapidly becoming congested and polluted, predominantly by the actions of a few, yet the consequent risks of collision and debris proliferation fall disproportionately upon nations that have yet to launch their first satellite. This dynamic, wherein the costs and dangers of technological “progress” are externalized onto the global periphery, mirrors patterns of environmental injustice and resource extraction that TWAIL identifies as characteristic of neo-colonial legal and economic relations. The principle of the “province of all mankind” is thus inverted: the benefits are privatized and concentrated, while the long-term risks and burdens are socialized globally, with developing nations bearing a disproportionate share of the potential consequences of the Kessler Syndrome.
In conclusion, the intersection of space law’s foundational promise with TWAIL’s critical lens reveals a profound and disquieting juridical dissonance. The “province of all mankind” functions less as a binding normative commitment and more as a legitimating ideology for a system that entrenches global hierarchy. A genuinely equitable framework for space governance cannot be realized through a superficial adherence to dated treaty language; it demands a fundamental reimagination of the legal order itself. This reimagination must prioritize procedural inclusion, granting developing nations a substantive voice in the regulatory bodies that shape the future of the cosmos. It requires concrete mechanisms for technology transfer and capacity building that move beyond mere aspirational statements. Ultimately, the legitimacy of international space law hinges upon its capacity to transform the abstract promise of a shared celestial commons into a tangible reality of equitable participation and shared benefit. Without such a transformation, the law merely provides a veneer of legality to a new frontier of global disenfranchisement.