UNCLOS regime is not a viable model for governing outer space
The Law of the Sea Treaty retains its coercive, collectivist philosophical underpinnings. It will have a negative impact on entrepreneurship even if no mining ever occurs. The worst principle is the declaration that all seabed resources are mankind’s “common heritage” under the control of a majority of the world’s nation states. American ratification would help validate some of these discredited collectivist principles.
Moreover, the treaty could set a bad regulatory precedent for the commercial development of space. Subjecting private space exploration and development to a similar regulatory system would discourage private ventures. By punishing entrepreneurship directed at transforming the great “frontiers” of the oceans and space, the Law of the Sea Treaty threatens potentially enormous losses well into the future.
Moreover, the LOST could set a bad regulatory precedent for the commercial development of space. The U.N.’s Moon Treaty, which is technically in force, mimics the LOST’s common heritage rhetoric, but establishes no institutional regulatory framework. Subjecting private space exploration and development to a LOST-like system would discourage private ventures.
With the only economically viable private space operations limited to launching satellites, the impact of an intergalactic LOST might seem slight. Nevertheless, serious entrepreneurs are entering the industry.15 Making a profit while exploring space is a daunting enough prospect. Attempting to do so when subject to an aggressive regulatory agency likely would be impossible. Mankind would lose not only new technologies, but the very possibility of reaching the heavens.
Many of LOST’s costs are obvious, and reason enough to reject the treaty. But the agreement’s potentially greatest costs are unknown today. By punishing entrepreneurship directed at transforming the great frontiers of the oceans and space, LOST threatens potentially enormous losses well into the future. The exact impact of the regulatory regime might be unpredictable, since the treaty’s exact operation is not certain. But the magnitude of the loss would be enormous.
The same is likely to true of the Internet – an immeasurably important engine of American technological and commercial competitiveness and, increasingly, a key component of U.S. national security. Other countries have already demanded global Internet regulation. For example, in March 2005, China’s ambassador to the United Nations called for international management of the Internet. Seven months later, the UN hosted a conference at which many delegates insisted on an end to this country’s exclusive control over the assignment of web addresses and e-mail accounts, in favor of having such roles performed by one or more UN agencies.
The problems with such an arrangement are obvious. The Washington Post pointed out that any such agencies would inevitably be caught between free societies that want low barriers to Internet access, and countries such as China and Saudi Arabia, that insist on limiting access. The Post went on to observe: “These clashes of vision would probably make multilateral regulation inefficiently political.” As it happens, the same is true of LOST – and would certainly apply with devastating effect to the Internet if LOST becomes the template for multilateral management of the ether’s “international commons.”
It is important to consider as part of the debate over U.S. accession to the Law of the Sea Treaty whether that action would have implications for other so-called “international commons” such as Antarctica, the moon, Outer Space more generally and the Internet.
In fact, the logic of LOST – with its supranational order for the control of a medium used by more than one country – will inevitably be seized upon by America’s foes to demand similar arrangements be instituted for Outer Space or even the Internet. And U.S. ratification of LOST will make it difficult for the United States to argue against accepting binding arrangements for other “international commons.” It was for this reason that President Reagan’s Ambassador to the UN, the late Jeane Kirkpatrick, warned the Senate in 2004 not to consent to ratification of LOST, in part on the grounds that America’s interests in Outer Space could be adversely affected by the LOST precedent.
It is of particular concern that the LOST model could be used to cripple America’s use of space for national defense. America’s military and intelligence communities have increasingly relied – in fact have become heavily dependent – upon space assets to gather information and support terrestrial forces. Far-sighted U.S. strategists appreciate that space can only become ever-more-important as a theater of operations, with control of activities (commercial as well as military) on earth being determined by control of space.
This country’s adversaries recognize this reality, too, and are attempting to inhibit our use of space – in some cases through active means, in others via the imposition of international laws and regulations (another example of “Lawfare”). U.S. endorsement of LOST would establish a precedent that would undercut American efforts to stave off the latter effort.
Finally, this accord will establish problematic precedents for “managing” other, no-less-strategically-important “international commons,” including Outer Space. A number of America’s adversaries have long sought to impose arms control or other treaty arrangements that could make it more difficult if not, as a practical matter, impossible for the United States to maintain the access to and control of space required by our national security interests. If this country joins LOST, it will invite these adversaries to adapt the Treaty’s International Seabed Authority as a prototype for determining permissible and impermissible activities in space – likely in ways that will prove inconsistent with the United States’ military and intelligence requirements.