Revision of UNCLOS regime sets a good precedent for governance of outer space from Sat, 07/20/2013 - 23:34
Quicktabs: Arguments
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.