Does the World Really Need New Space Law?
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
Eventually a compromise was formed that, understandably, recognized certain political and economic realities by giving more power to the wealthier nations and securing the rights of private and intellectual property over redistribution. The United States and Russia were given permanent seats on the Council without being specifically named.
An amendment to Article 161 of the Convention under Section Three of the Agreement’s Annex facilitates this permanent seat without actually naming the United States as its occupant: “The Council shall consist of . . . the State, on the date of entry into force of the Convention, having the largest economy in terms of gross domestic product.” Russia, another industrialized State, is virtually guaranteed a seat on the Council as well, by the requirement that chamber (a) include the “State from the Eastern European region having the largest economy in that region in terms of gross domestic product.”104
A Finance Committee was created, consisting of the five largest contributors to the ISA budget, which would effectively give these nations veto power over any of the Councils decisions.105 The Committee would remain in effect until the ISA became “cost- effective.”106 And a consensus of the Committee was required to approve “any decision by the Council or Assembly with budgetary implications.”107
But most importantly, the teeth of the Enterprise were effectively removed. The changes to the treaty in Annex III of UNCLOS regarding the rules of prospecting, exploration, and exploitation completely remove any obligation to freely share information or technology with the Enterprise.
“[Annex III] removes the requirement that parties contracting with the Authority agree to make methods and technology available to the Authority. The Agreement instead provides that the Authority may request cooperation from contracting parties.”108 It only requires it share those willingly, perhaps at a fair market price. “The Agreement also makes clear that contractors entering into joint venture agreements with the Enterprise are under no obligation to finance any part of the Enterprise’s mining operation.”109
With these changes. UNCLOS better reflects the political and economic realities of today’s world. Although these compromises might have put most of the ISA’s power in the hands of the developed world, they have also created an agreement the whole world can live with.
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.