Outer Space
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A newly launched asteroid miner is looking to the history of deep sea mining as it attempts to navigate laws governing exploitation of space. "If you look at parallels, like deep sea mining, that went forward without a global treaty. The companies that wanted to do deep sea mining shook hands: 'We won't interfere with you if you don't interfere with us', that was the general approach going forward," said David Gump, Deep Space's chief executive officer.
[ More ]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.
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.
This is precisely the position taken by Bao Shixiu, a Senior Fellow at the Academy of Military Sciences of the People's Liberation Army of China. In his critique of the U.S. 2006 National Space Policy (NSP), Bao advances the notion of vertical sovereignty with the following curious statement: "[t]he NSP declares that U.S. space systems should be guaranteed safe passage over all countries without exception (such as 'interference' by other countries, even when done for the purpose of safeguarding their sovereignty and their space integrity).201 However, the statement in the NSP to which Bao refers is not limited solely to U.S. space systems. It reads: "The United States considers space systems to have the rights of passage through and operations in space without interference." Thus, the rights recognized in the U.S. space policy are applicable to all space systems, which is compatible with the Outer Space Treaty. However, the principal concern vis-A-vis potential Chinese claims of vertical sovereignty over portions of space above their territory lies not with a claim of complete sovereignty, but rather with the assertion that satellite navigation above Chinese territory is subject to Chinese "consent and control" as articulated by Professor Cheng. This space sovereignty position is directly analogous to China's assertion of sovereignty over the airspace above its seaborne EEZ.2° Recall that China alleges that military reconnaissance missions constitute an abuse of overflight rights.205 China may easily adapt and extend this same position to the space domain, applying it to overflight by American military satellites passing over Chinese territory. 
Legal scholar Ren Xiaofeng summarizes Beijing's sensitivity to reconnaissance and military activities in its exclusive economic zone (EEZ) and its adjacent airspace this way: "Freedom of navigation and overflight does not include the freedom to conduct military and reconnaissance activities. These things [military reconnaissance activities] amount to forms of military deterrence and intelligence gathering as battlefield preparation." These activities in the EEZ, according to Ren, connote preparation to use force against the coastal state. When Ren refers to the "adjacent airspace," he includes outer space and space reconnaissance.207
China's ostensible military objective for such action is denial, "the temporary elimination of some or all of a space system's capability to produce effects, usually without physical damage.208 This legal argument, if ultimately successful, would have the strategic effect of rendering American military satellites useless and could establish a lawful predicate for Chinese military action against those satellites.209 Given its increased military expenditures for research and development of counterspace 21 technology, China could contemplate action that would effectively blind the United States with regard to Chinese military actions. International acquiescence or acceptance of Chinese assertions of vertical sovereignty would effectively vitiate national means of verification of compliance regarding any existing or new arms reduction treaties, and would render meaningless any proposal to ban or limit weapons in space.
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.
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.
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.
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.
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.
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.
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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.
- China's use of lawfare to constrain US naval action may be precursor to how they will attempt same in outer space
- UNCLOS offers most practical legal model for outer space for several reasons
- Should apply lessons learned during UNCLOS negotiations over exploiting seabed to outer space
- UNCLOS model offers novel solutions to regulation of outer space domain
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