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.
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The good news is we need not start from scratch. There already exists a body of law that can be adapted, perhaps easily, to the needs of outer space. The U.N. Convention on the Law of the Sea (UNCLOS) has provisions for managing the traffic on the surface and the resources on the deep seabed.85 Space, like the sea, has vast amounts of area that is impractical for any one nation to claim.
Hugo Grotius, a pioneer of international law, preferred the term res extra commercium in referring to the open ocean. He proposed the “freedom of the seas” doctrine, whereby the ocean is insusceptible of ownership as it cannot be occupied, and no one has the “right to appropriate things which by nature may be used by everybody and are inexhaustible.”86
Being incapable of ownership and available for everyone’s use are the very same concepts expressed in Article I of the Outer Space Treaty that allow freedom of access and exploration and grant freedom of movement throughout. The Law of the Sea Treaty contains the very same concepts and almost the very same words to describe the territories of the deep seabed as are used in the Preamble and Article I of the Outer Space Treaty to describe space. UNCLOS also speaks to the resources of the sea being the common heritage of mankind, requiring “the equitable and efficient utilization of their resources.”87
[T]he area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.88
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UNCLOS, especially after its realpolitik redrafting, gives us an effective framework towards drafting a new Outer Space Treaty. Both treaties contain the concept of a lack of sovereignty and that resources of the deep sea and outer space are considered to be the common heritage of mankind. UNCLOS contains a detailed process by which a State or entity is granted limited access to hard-to-reach resources that can easily be adapted to the needs of outer space. The process that the drafters of UNCLOS underwent to gain global acceptance of the Convention shows us a way towards forming an internationally directed group, such as the ISA, to manage those resources that is perhaps less than entirely idealistic, but can gain the support of most, if not all, of the world’s nations.
When all is said and done, one can hardly consider an agreement that does not acknowledge the contributions of those nations at the forefront of space exploration and give them, or their corresponding corporations, every reassurance that resources garnered from space and returned to Earth can be traded freely in the world market for the benefit of all the nations of the world.
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Both China and the United States agree that the EP-3E aircraft and the Impeccable were operating outside China's territorial sea but within China's EEZ.184 Despite the unambiguous language of the UNCLOS treaty, China continues to pursue a strategy of gradually extending its strategic depth or sovereignty in order to support offshore defensive operations.185 China's adherence to this flawed legal interpretation, reinforced by aggressive military action, demonstrates that "through an orchestrated program of scholarly articles and symposia, China is working to shape international opinion in favor of [its preferred] interpretation of the Law of the Sea by shifting scholarly views and national perspectives away from long-accepted norms of freedom of navigation and toward interpretations of increased coastal state sovereign authority."186 By doing so, China is not only distorting the settled law of the sea, but perhaps also preparing to deploy a similar strategy in the space domain.
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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.
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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.
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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.
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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.
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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.
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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.
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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.