UNCLOS regime sets a good precedent for governance of outer space
The solutions the international community worked out to resolve some of the most contentious issues over ocean governance -- specifically, how to equitably divide up a common shared resource, how to sustainably manage the global commons for the benefit of all, and how to ensure all states have the freedom to navigate a global common -- have potential to serve as the basis for a similar agreement for outer space.
[ Page 141-142 ]
Reliance on the absence of an explicit airspace-space demarcation ignores historical context by attempting to identify a minimum altitude at which space begins. In fact, there is no controversy that all current satellite orbits transit within the space domain.211 Irrespective of the demarcation argument, Articles I and II of the Outer Space Treaty (OST) expressly refute any conception of vertical sovereignty.212 Article I designates outer space, including the moon and other celestial bodies, as "the province of all mankind." This language has been universally understood to mean that "all nations have a nonexclusive right to use and explore space.213 Article II further prohibits in space any "national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Thus, the OST clearly permits all uses of the space domain short of an appropriation by claim of sovereignty or the like.214
It therefore seems clear that the plain language of the OST prohibits any claim of vertical sovereignty in space. Sovereignty denotes supreme authority within a territory,2l5 "the right to command and correlatively the right to be obeyed," with the term "right" connoting legitimacy.216 Thus, a claim of sovereignty over space, or any portion thereof, seeks, in some measure, to extend a state's territorial sovereignty into the space domain.217 The holder of sovereignty derives its authority for sovereignty from some mutually acknowledged source of legitimacy.218 In space, the OST's explicit prohibition on appropriation removes the essential support for legitimate sovereignty.219
In this sense, the vertical sovereignty argument is akin to the 1976 Bogota Declaration that geostationary orbit was not part of outer space since its nature depends specifically on gravitational phenomena from earth.220 Thus, the Declaration further argued, those portions of geostationary orbit directly above equatorial states are sovereign territory of those states rather than part of outer space.221 The international community rejected this argument222 Likewise, it should reject the vertical sovereignty argument.
[ Page 282 ]
However, heated discussions did not lead to any substantial improvement in the legal regime accommodating the commercialization of outer space. Existing space law does not provide any guidance enabling the creation of an effective regime fostering commercial space exploitation. Theoretical analysis did not come to any conclusion acceptable to all the parties. Nevertheless, even with the unstable legal status in place, various par- ties, foreseeing potential profit, have started their own projects aiming at commercializing outer space. For example, the IGA provides a specific model for multinational cooperation among active participants without an overarching international legal and governance regime." The United States has also executed a series of bilateral Memoranda of Understanding with Partner States concerning outer space activities."8 With no clear-cut rules and regimes in place, the activities are carried out subject to Partner States' own interpretations. This is increasingly det- rimental to the development of commercial activities in outer space. States can take actions at will and there are no defined rules governing their activities, which ultimately leads to the devastating result of a "gold rush" by space-faring states. Developing states will be completely left out of the game. Such a situation will fail to provide a predictable and stable environment which is necessary for the involvement of private entities, and will fail to win international approval.
[ Page 283-284 ]
While continuing upholding the concept of CHM, the free-market approach plays an important role in devising the regime for the deep seabed. Most scholars believe that only by making full use of the resources in the deep seabed rather than establishing a regime installing commercial exploitation, can the living standards in all the Nations be effectively improved.35 Acknowledging the benefits of commercial exploitation, all nations, developed and otherwise, have a basis to work together to find an appropriate resolution. Essentially, the same political and economic environment exists for outer space. A similar regime to that of the deep seabed could, thus, be possible for the exploitation of outer space resources. Consequently, the focus for now is to identify the legal mechanisms and political compromises that successfully resolved the CHM dilemma for the deep seabed and apply it to outer space. This is more efficient than developing new legal, economic, and political theories.
[ Page 287 ]
Realizing the commercial potential of outer space is an issue in need of urgent resolution. It is important to devise a regime for the exploitation of outer space by reaching a balance between protecting the profits of relevant exploiting entities and serving the interests of humankind.5 While previous discussions focused on the theoretical framework of the CHM concept, it is the purpose of the present paper to focus on establishing a governance regime based on the successful example of the Seabed Authority. Discussions concerning the use of CHM will continue, just like the situation regarding the deep seabed: heated discussions continued even after the Seabed Authority was established and commercial activities began. Nonetheless, the existence of a stable governance regime can, as in the case of the deep seabed, enhance the confidence of space investors and promote further development of commercial space activities.
[ Page 295-296 ]
A pragmatic approach is proposed in the present paper. The progress made on the UNCLOS led to an improved understanding of the CHM and suggests that the differences between developing and developed countries can be reconciled. While leaving the theoretical discussion of the term unresolved, formulation of an international body to address the use of outer space resources can begin. Whatever form it takes, the body should be able to address and further the common, equitable interests of the developing countries (the non-space powers), and the interests of developed countries (the space powers)."' The proposed governance regime will try to encourage the beneficial aspects of property rights and formulate rules that discourage conflict and predation."
While following the example of Seabed Authority, this paper proposes the establishment of an International Space Authority. The commercialization of outer space is no longer a fantasy. There is an urgent need to take a practical look at the issue and formulate feasible rules and organs to guard against taking the wrong direction. Humankind has taken the first tentative steps laying the technological foundation for commercial expansion. The challenge lying ahead is to build on the existing technological foundation and create the appropriate legal regime that will support and encourage this expansion.
[ Page 584 ]
In addressing the philosophical foundations for the medium of space, Hugo Grotius argued that the philosophical foundation of res communis should be applied to the seas. Grotius' ideas are equally persuasive as applied to the vacuums of outer space. Of the three major property endowment theories, res nullius, res publica and res communis, res communis will most effectively encourage outer space travel because the vacuums of outer space will not be subject to control, but will allow for the free passage of all people. In proposing a comprehensive law system for the corpusjuris spatialis for the medium of outer space, the United Nations Convention on the Law of the Sea (hereinafter "Law of the Sea Convention")35 offers the most practicable law system for outer space exploration. Specifically, the Law of the Sea Convention's provisions regarding territorial zones of seas, military use, environmental use, jurisdictional issues, and the general treatment of vessels and their inhabitants, should be incorporated into the corpus juris spatialis with ameliorated changes.
[ Page 603-604 ]
The Law of the Sea Convention offers novel solutions to arising issues concerning outer space exploration. Due to its well-thought out provisions, the Law of the Sea Convention has widely been acceptedand is considered international law.147 The Law of the Sea Convention should be adapted to govern the vacuum of outer space. The Law of the Sea Convention separates different territories of the seas in relation to states' baselines.148 States may exercise certain rights within each territory, allowing increased action in proximity to the state, and decreased action with greater distance from the state. This allows states to exercise their police powers, but encourages freedom of transit on the seas. This system should be applied to outer space because it would recognize sovereign claims and rights, yet encourage outer space activities. The Law of the Sea Convention offers practicable solutions in other highly debatable subjects pertaining to outer space exploration, such as military uses of outer space, environmental uses of outer space, jurisdictional issues, and the treatment of vessels and their inhabits. These issues will be discussed in the proceeding sections.
[ Page 622 ]
The militarization of outer space should depend on the categorical regions of space. In territorial space, states should be allowed to use whatever force is reasonably necessary to ensure their interests. Much like the Coast Guard in the United States, armed patrol vessels may be necessary to protect the state from threats of harm ranging from customs violations to people smuggling. However, presence in territorial waters should not be sufficient to detain those engaged in innocent passage to a space port in orbit or on the celestial body. Vessels will require supplies, repairs, food, fuel and other materials for voyages, necessities which should not be restricted. By allowing open uses of territorial space for innocent passage, vessels will be able to effectively obtain supplies and make repairs. This freedom will also provide pecuniary compensation to those states. In transitory space, vessels should not face constant intrusions of being boarded and searched. Like the high seas, transitory space should allow for the quickest passage of vessels and the most freedoms. By disallowing unprovoked arrests of vessels, more powerful states will not be allowed a virtual monopoly based on their military forces. Likewise, military and government vessels are prohibited from being arrested. These restrictions support the sovereignty of each state over its persons.
[ Page 624-625 ]
The Law of the Sea Convention offers some interesting solutions to these problems. First, it should be noted that the Law of the Sea Convention applies to "living resources" and the environment in which those resources live.240 Many commentators express token tribute, due to the heightened awareness of environmental damage, to environmental standards for space travel and extraterrestrial appropriation.241 This heightened awareness is ill-placed in most of outer space. The problem with assuming that all of outer space should be protected is that there is a lot of inanimate material in outer space. Even more importantly is that inanimate materials may provide solutions to increased populations by supporting the living population. On Earth, environmental protections are necessary to safeguard the long term habitability of this living planet and do as little harm as necessary to other living resources. On celestial bodies that have no life, not even microbial, there are no such incentives for environmental protections because there is nothing to protect. Of course, premature annihilation would defeat the ability to harvest those resources. The Law of Sea Convention attempts to place restrictions on fishery, which allow the maximization of resources over time.242 For example, over-fishing may lead to a short term increase in food production and profit, but substantial depletions will affect the ability of fish to reproduce, thereby causing shortages in the years to come. This method allows for the maximization of resources without affecting the rights of appropriators. This is a better method for the conservation of outer space. Extraterrestrial appropriation, therefore, may occur, but in a way to maximize those resources by not prematurely destroying a nonliving resource. Likewise, in outer space exploration, waste may not poise the same kind of threats as here on Earth.243 Outer space is a vacuum of matter. There are no living organisms in the "ethers" of space. Although there are possibilities thwastes may contaminate future explorers or haphazardly damage other systems of future generations, these concerns must be addressed in the context of outer space's huge amount of space. Under risk assessment analysis, these risks may be so insignificant that wide scale or even significant environmental protections would be unnecessary.
[ Page 628-629 ]
In order to take a small step for man, the corpus juris spatialis must accommodate rapid privatization of outer space exploration. The Outer Space Treaty fails to accommodate privatization in the postmodern world because it was the product of the Cold War era. It relies on the assumption that outer space activities will be carried on by states; however, multinational corporations are dominating the outer space industry while government presence is diminishing. In order to facilitate this rapid private growth, the vacuums of outer space should be declared as res communis. This will prohibit domination by a super power and increase world participation in outer space travel and exploration. The Law of the Sea Convention offers some practical solutions to outer space exploration. For example, the Law of the Sea Convention creates different categories of the seas and defines the states' rights in each category. Likewise, the corpus juris spatialis should be divided into territorial space, contiguous space, and transitory space. By making these divisions, states would be adequately protected against rogue space vessels, and space travelers would be encouraged to perform appropriation activities and travel in the great expanse. Accordingly, states would be allowed to exercise necessary military force in outer space. The Law of the Sea Convention offers solutions to other issues presenting the corpusjuris spatialis,such as environmental law, jurisdiction, and the treatment of space travelers. These proposals borrowed from the Law of the Sea Convention will be successful in facilitating the rapid growth of the outer space market, while ensuring state interests.