Revision of UNCLOS regime sets a good precedent for governance of outer space from Sat, 07/20/2013 - 23:34
Quicktabs: Arguments
The Law of the Sea Convention is a good model for jurisdictional issues pertaining to outer space travel and exploration. Even in territorial waters, states are precluded from exercising civil jurisdiction on foreign vessels. This assures and encourages transitory passage and freedom on the seas. However, states may exercise criminal jurisdiction for ships not engaged in innocent passage.245 Each vessel is required to sail under the flag of its nationality.246 Jurisdiction of the vessel is determined by the flag of the state.247 Vessels are prohibited from flying more than one flag.248 In cases where there is an incident on a vessel, penal and disciplinary action may only be taken by the flag state.249 These strict standards for jurisdiction encourage the non-interference with vessels. In many ways, vessels are treated as islands unto themselves within the territory of the flag state. Its persons cannot be disturbed, boarded, or arrested in international waters except under very limited circumstances, such as piracy.250 Even in territorial waters, coastal states may only assert jurisdictional authority where harm has incurred.251
These provisions in the Law of the Sea Convention would solve many problems which might arise from outer space exploration. Outer space vessels will require crews who have varying expertise and are from various states. By only allowing one state to be sovereign over that vessel, it avoids the problems associated with anarchy or, in the alternative, judging persons by the laws of their nationality. Additionally, no state can enforce its own laws on foreign vessels in any territory in outer space. This policy ensures that states will not abuse laws in order to bar passage to foreign space vessels or to confiscate their cargos. The Law of the Sea Conventions' requirement that "ships shall sail under the flag . . . "252 would be problematic in outer space for obvious reasons. Flags put other ships on notice of their nationality. This would be important for outer space in cases of malfeasance, wrong doing, negligence, rescue, organization, recognition of pirates, etc. Therefore, states should be required to emit a beacon which announces the sovereignty of the vessel.253
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
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.
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.