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Home , Excludability, Free good, Global commons, Rivalry (economics)

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How Simple Terms Mislead Us: The Pitfalls of Thinking about as a

Henry R. Hertzfeld Research Professor, Institute, George Washington University, Washington, DC; [email protected],

Brian Weeden Technical Advisor, Secure World Foundation, Washington, DC; [email protected]

Christopher D. Johnson Project Manager, Secure World Foundation, Washington, DC; [email protected]

I. ABSTRACT The space include several different phrases defining the exploration and use of outer space. These include: “...for the benefit of all peoples (countries)”, and “...shall be the “province of all mankind.” The Moon Agreement extends these ideas in the phrase, “the Moon and its are the common heritage of all mankind.” Various legal and economic terms are now used as parallels in outer space to these phrases (but do not appear in the treaties themselves). They include: “space is a ,” “common pool resources,” “anticommons,” “res nullius” and “res communis.” In reality, none of these terms clearly fits the full legal or economic conditions of outer space, and none of them provide an adequate framework for the future handling of space resources, space exploration, or even for resolving the unavoidable future issues when there will be competing interests or major accidents occurring in outer space. This paper will review the definitions that are often misused for space activities and suggest that more pragmatic ways of insuring that the outer space environment will be effectively managed to avoid misuse, overuse, or abuse be developed. These methods include the recognition of limited rights and developing new binding dispute resolution techniques.

II. INTRODUCTION with these new activities, and in particular the The space domain is currently undergoing a growing private sector presence in space. Within period of significant change. Part of this change this debate, legal and economic concepts that includes certain activities that were long involve the notion of outer space as a considered to be in the realm of science fiction “commons” are often cited. are now potentially becoming feasible. And The space treaties1 include several different certain space activities that were once solely the phrases defining the exploration and use of outer domain of will soon be performed by the private sector. 1 on Principles Governing the Activities of The space community is now grappling with States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. how to adapt the current legal regime to deal

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space. These include: “...for the benefit of all treaties only twice as an adjective, a descriptor, peoples (countries)”, and “...shall be the in the following way: “province of all mankind.” The Moon • Common interest3 Agreement extends these ideas in the phrase, 4 “the Moon and its resources are the common • Common heritage. heritage of all mankind.” And it also appears in various, related U.N. Nowhere in the treaties are the following phrases General Assembly Resolutions dealing with used: outer space issues as: Common procedures5 • Res communis • Common understanding6 • Res nullius • • Global commons None of the usages provides any direct guidance • Res extra commercium for the future handling of space resources, space • Common pool resources exploration, or even for resolving the • Anticommons unavoidable future issues when there will be • (s) competing interests or major accidents occurring • Free in outer space. Some of the above are legal terms, and some are The only possible exception to this is the use of economic concepts. They all have meanings and common heritage in the Moon Agreement. As connotations that extend the words in the space outlined in many other articles, this has been a treaties to fit many different conditions. Most of very controversial issue with many different these interpretations, this paper will argue, add interpretations. One must also note the lack of nothing to the treaty language and actually are acceptance of the Moon Agreement among used in ways that go beyond the directives of the major space-faring nations, as well as the history Vienna Convention on Treaties: “A treaty shall of Art. XI of the Convention on the Law of the be interpreted in good faith in accordance with Seas—where amendments were needed to the ordinary meaning to be given to the terms of clarify possible commercial use of the deep the treaty in their context and in the light of its seabed when technologies were developed to object and purpose.”2 allow this. It is also important to note that the noun, Another example of the overuse of the term, commons, never appears in any space treaty. global commons, can be found in U.S. military Furthermore, the word, common, is used in the statements about space. For example, “To enable economic growth and commerce, America, working in conjunction with allies 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter ]; The Agreement on 3 Preambles to the Outer Space Treaty, Liability the Rescue of Astronauts, the Return of Astronauts Convention, and Registration Convention, supra note and the Return of Objects Launched into Outer 1 (“Recognizing the common interest of all mankind Space, Apr. 22, 1968, 19 U.S.T. 7570, 672 U.N.T.S. in furthering the exploration and use of outer space 119; The Convention on International Liability for for peaceful purposes,”). Damage Caused by Space Objects, Mar. 29, 1972, 24 4 Moon Agreement, supra note 1, at art. II. U.S.T. 2389, 961 U.N.T.S. 187; The Convention on 5 Resolution 62/101 of 17 December 2007 Registration of Objects Launched into Outer Space, Recommendations on enhancing the practice of Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15; The States and international intergovernmental Agreement Governing the Activities of States on the organizations in registering space objects. Moon and Other Celestial Bodies, Dec. 18, 1979, 18 6 Space Debris Mitigation Guidelines of the I.L.M. 1434 [hereinafter Moon Agreement]. Committee on the Peaceful Uses of Outer Space, as 2 Vienna Convention on the Law of Treaties, art. Endorsed by the Committee on the Peaceful Uses of 31(1), May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. Outer Space at its fiftieth session and contained in 679. G.A. Res. A/62/20, annex.

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and partners around the world, will seek to them, and also that of celestial bodies protect freedom of access throughout the themselves, including the planets and minor global commons”7 bodies of our solar system. As mentioned above, within the legal discourse, the phrases “province Or, the following N.A.T.O. workshop release: of all mankind” and “common heritage of all “Termed the “connective tissue” of our mankind” are used. While these terms sound vibrant global economy, the four domains of similar and may have similar origins and the Global Commons - maritime, air, outer meanings, the use of multiple phrases adds space, and cyber space - constitute a confusion to an already complicated concept. universal public good…”8 A. Province of All Mankind

These types of broad-brushed uses of very 9 specific legal or economic terminology have led Article I of the 1967 Outer Space Treaty states to a misunderstanding of the treaties and that: subsequently to proposals for legal regimes and “The exploration and use of outer space, the management of space that are virtually including the Moon and other celestial impossible to achieve. bodies, shall be carried out for the benefit and in the interests of all countries, Therefore, these phrases and use of terms must irrespective of their degree of economic and be put into context and better understood before useful progress can be made in the next era of scientific development, and shall be the activities in outer space. province of all mankind.” The following sentence of Article I further The goal of this paper is to help clarify the origins and definitions of the commons elaborates this freedom to access space: terminology, and its applicability (or “Outer Space, including the Moon and other inapplicability) to outer space. It begins by celestial bodies, shall be free for exploration analyzing the existing language relating to the and use by all States without discrimination “commons” in current . The of any kind, on a basis of equality and in paper then delves deeper into the legal and accordance with international law, and there economic foundations of the commons. It shall be free access to all areas of celestial concludes by proposing that more pragmatic bodies.” approaches for viewing the legal framework for Consequently, it is not the physical domain of outer space be considered. outer space itself—the three dimensional expanse, beginning above airspace and III. LEGAL TERMS AND CONCEPTS OF A COMMONS APPLICABLE TO extending infinitely outwards – which is the province of all mankind, but the activity itself, OUTER SPACE the “exploration and use” of outer space, which A number of sources of international law is addressed. address the legal state of outer space, with outer space meant to include both “void space” such This subtlety seems all too often lost on those as the zones between planets and orbits around whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both 7 U.S. Dept. of Defense, Sustaining U.S. Global void space and celestial bodies) is free to be Leadership: Priorities for 21st Century Defense, Jan. explored and used by States Parties to the treaty. 2012. 8 Because the OST has been ratified or signed by North Atlantic Treaty Organization, Assured Access all space-faring nations and this particular to the Global Commons Final Report, Apr. 18, 2009, provision in Article I considered to have risen to available http://www.act.nato.int/globalcommons (last visited Sept. 18, 2015). 9 Outer Space Treaty, supra note 1, at art. I.

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the level of customary international law, all the formal documents. It might be defined States across the world (and by inference, all elsewhere, either within the body of peoples), enjoy this privilege to explore and use international law, or outside of the law, but outer space. All too often, commentators and because it is not defined within any of the valid pundits remark that outer space itself belongs to and applicable textual sources available to everyone. It is in fact just the opposite. Space provide an interpretation of it as a treaty term in itself belongs to no one and the right to access, the Outer Space Treaty, these secondary sources explore, and use space is granted to everyone. are of lessened value in interpreting its meaning. Black’s Law Dictionary defines province as “an The full of the treaty should also be noted. It administrative district into which a country has is the Treaty on Principles Governing the been divided,” and the Merriam-Webster Online Activities of States in the Exploration and Use dictionary gives a similar standard English of Outer Space, including the Moon and Other definition, as an “Administrative district of Celestial Bodies. Shortening the title to “Outer division of an country.”12 However, it is an open Space Treaty,” or even just the OST aids question as to what rights, or obligations, are brevity, but obscures the emphasis on exploring established by “province of all mankind”. It and using outer space. Exploration and use are might be that the phrase is hortatory in nature, contained in the very title, so as to highlight the akin to referring to astronauts as “envoys of all notion that States have the explicit right to both mankind13”. However, in light of the phrase explore space, and to use space. being used so prominently, in the first sentence The Outer Space Treaty entered into force on of the first article of the treaty, some special October 10, 1967. The treaty was signed by all weight must be afforded to it. In light of the the major space powers, including the United freedoms established elsewhere in the Article, States of America, the U.S.S.R., and by the and across the rest of the treaty’s text, major European spacefaring States, along with “province” must reflect some forward-looking China, India, Japan, and many others. Today, of vision of humankind’s use and exploration of the 193 sovereign States in the United Nations outer space, and of that use and exploration held system, 103 States have fully accepted the rights by all States and their peoples. and obligations of that treaty (as a source of treaty law) and 25 more have singed it.10 B. Common Heritage of Mankind Additionally, commentators have expressed the view that significant portions, including Articles However, the province of mankind must be I through IV, have passed into the realm of contrasted with a phrase contained elsewhere, customary international law, reflecting both and often repeated, of space as the “common State practice and opinio juris.11 Consequently, heritage of mankind.” This phrase is contained the treaty is both a source of law as binding in the 1979 Agreement Governing the Activities treaty rights and obligations, and as a text of States on the Moon and Other Celestial Bodies (often shortened to “the Moon reflecting principles of customary international 14 law. This then is the weight to which we should Agreement”) in its Article 11. Article 11.1 attach to any understanding that the use and reads: exploration of outer space is the province of all “The Moon and its natural resources are the mankind. common heritage of mankind, which finds its However, within the context of space activities, expression in the provisions of this “province of all mankind” is not defined within Agreement, in particular paragraph 5 of this article.”

10 United Nations, United Nations Handbook (2014- 12 15). A GUIDE TO TERMS 97 (Henry 11 Francis Lyall & Paul B. Larsen, SPACE LAW – A Hertzfeld ed., 2012). 13 TREATISE 54, 180 (2009) [hereinafter Lyall & Larsen Outer Space Treaty, supra note 1, at art. V. – Treatise]. 14 Moon Agreement, supra note 1, at art 11.

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As stated previously, the phrase “common commons. This is also emphasized in Article XI heritage of mankind” is often substituted for, itself when a principle of equity is stated— used interchangeably with, and otherwise clearly indicating the difference that recognizes conflated with “province of all mankind”. national investments and capabilities that are not However, there is no legal justification for the equal across space-faring nations. use of this phrase as dispositive law. It should be reserved only for academic treatises and IV. THE HISTORICAL CONTEXT FOR historical discussions. LEGAL CONCEPTS OF THE COMMONS The Moon Agreement is seen, rightly, as a failed A full description of the development of the exercise in treaty-making. Its negotiation and concept of a commons is well beyond limits of drafting was complex and was and still is this short paper. However, it is important to controversial, taking over 5 years between when highlight that the origins of deeming territory as it was opened for signature in 1979, and 1984 a commons to benefit all peoples of a particular when it entered into force. Even today, only 20 region or nation likely goes back into pre- nations have ratified or signed it.15 Juxtaposed to historical times and traces its use and these 20 States are the remaining 173 States development to reasons of necessity, mainly for (89.6%) in the international political system, , fishing, and farming. which have refused to accept the Moon By Roman times the development of property Agreement. rights (separated from ) had become This speaks clearly to its failure, in any fashion, very complex, with classifications including to constitute either a successful treaty or , , whether customary international law.16 As such, any property was in commercio or extra commercio, discussion of the phrase “common heritage” in and if it was outside of commerce, whether it the context of space activities is of minor and was res divine (in the control of the gods), res academic importance.17 publicae (things open for public use and regulated by the and not available Those who propose using the provisions of for private ), res omnium communes Article XI of the Moon Agreement to establish a (things legally not property because they were regime of collaborative (among nations or incapable of dominion and control); and res through the United Nations) oversight of the use nullius, (things not possessed by an individual or exploitation of celestial bodies must keep in but capable of possession).18 Beyond these mind the limits of the existing treaty system in categories there are others, including various attempting to treat all of outer space as a legal servitudes, which are similar to what we currently call , the right of a person to 15 Committee on the Peaceful Uses of Outer Space, use another’s property. Similarly in English Status of International Agreements relating to Common Law, the development of common activities in outer space as at 1 January 2015, areas was complicated, involved many caveats A/AC.105/C.2/2015/CRP.8*, Apr. 8, 2015, available and different legal terms and conditions. at http://www.unoosa.org/pdf/limited/c2/AC105_C2_20 What is important to note is that all of these 15_CRP08E.pdf. legal concepts of a commons need (1) a 16 See also LYALL & LARSEN – TREATISE, supra sovereign power to grant the territory to open note 11, at 178-179. use and to then grant whatever limited property 17 Ibid, at 196 (“It is unsurprising that no currently rights are necessary for the continued existence space-competent state (i.e. one able to get to the of the commons over time, (2) an area of or Moon by its own efforts) has committed itself to the MA [Moon Agreement], and the history of the developing countries’ argumentation makes future 18 Lynda L. Butler, The Commons Concept: An commitment to it by space-faring states unlikely. The Historical Concept With Modern Relevance, 23 WM. concept of ‘common heritage’ hinders rather than & MARY L. REV. 835 (1982), available at encourages development.”). http://scholarship.law.wm.edu/wmlr/vol23/iss4/8.

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a region with well-defined borders, and (3) an incorporated into concepts in international law.20 economic foundation that requires or facilitates This question on the continuing precedential some basic human need (often ) that is more value, or usefulness, of these ancient Roman productive or efficiently performed collectively. property concepts is perhaps more salient today Outer space has note of the above. By treaty for those from non-western countries, such as language, there is no in space, the Asia or Africa, who may have alternative legal edges of space are not defined (either where and cultural traditions and values. space begins above the or the outer limits Commentators have grappled with this tension of space), and the terrestrial economy may and sought ways around them, including fine benefit from, but does not need outer space for distinctions between legal title and , the survival. right to use and exploit.21 Certainly these ancient Another important point is that all commons are Roman concepts can have persuasive value, as fragile over time. They are created in a time and they have been used to order the development of place. As technology and populations change, past societies for many centuries. However along with political changes, they fail to be comforting ancient concepts may be, perhaps maintained or fall victim to the pressures of they should not be mechanically dispositive or developing private market use of the territory. bindingly precedential in their conceptions, nor And, when governments collapse, are taken of their outcomes. over, or public will changes, so may the In distinction to this is the negative prohibition governance of any commons. on national appropriation of the physical In international law, early scholars looked for domain of space itself, whether void space or what they perceived as “natural law” (unwritten celestial bodies (i.e., Outer Space Treaty Art. II). but discoverable law), and found signs of it in Those physical places are not subject to national both medieval church law, and from earlier appropriation. Roman law that survived and influenced various European and British legal traditions.19 In this A. Res nullius fashion, the artifacts from Roman law were As discussed above, the Latin phrase res nullius is a term borrowed from Roman law, and means a thing (res) without an owner. It is used in 19 J.L. BRIERLY, THE LAW OF NATIONS 13 (3rd international law to mean a thing outside the ed. 1942) (“Thus Roman law reduced the of a subject of international law, and difficulty of finding the contents of natural law hence susceptible in law to being acquired by a almost to vanishing point; and in fact the founders of international law turned unhesitatingly to Roman law for the rules of 20 Ibid, at 119 (3rd ed. 1942) (“Territorial their system, wherever the relations between sovereignty bears an obvious resemblance to states seemed to them to be analogous to those ownership in private law, less marked, however of private persons. Thus, for example, the rights to-day than it was in the days of the patrimonial of a state over territory, especially when state, when a kingdom and everything in it was governments were almost everywhere regarded as being to the king very much what a monarchical and the territorial notions of landed estate was to its owner. As a result of this feudalism were still powerful, bore an obvious resemblance early international law borrowed resemblance to the rights of an individual over the Roman rules for the acquisition of property property, with the result that the international and adapted them to the acquisition of territory, rules relating to territory are still in essential the and these rules are still the formation of the law Roman rules of property… We have to inquire on the subject.”). 21 further, however, whether this foundation is LYALL & LARSEN – TREATISE, supra note valid for us today.”). 11, at 197, and footnote 94.

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subject of international law (such as a State).22 This phrase does not appear in the Outer Space The term does not appear in either the Outer Treaty, or in any other treaty related to outer Space Treaty, or in any other treaty applicable to space. outer space. However, it is used within the The phrase res communis, or res communis academic discourse related to international law omnium, relates to a thing held by all. However, concerning a State’s territorial rights, and in the in general international law, there is no res discourse in space law. communis omnium—no thing which is under the Because res nullius (or a terra nullius, when joint sovereignty of all subjects of international pertaining to land) is not under the jurisdiction law. of a State, but is subject to appropriation—and In light of the discussion above on “province of therefore the potential to be appropriated, this all mankind”, res communis omnium might be term does not apply to the physical domain of the more applicable Latin term since it more space. Article II of the Outer Space Treaty pointedly suggests that the “use and exploration” prohibits the conception of space as a res nullius of outer space, specifically the activity of or a terra nullius. This preventative step was human or robotic presence in space, is the res taken to prevent a “colonial” land rush on communis omnium celestial bodies.23 Although controversial and subject to interpretation by nations, res nullius C. Res extra commercium does not address the use of resources on celestial bodies. Since exploring and using space is Res extra commercium is a concept which is specifically encouraged in the treaties, the similar but distinct from res nullius and res extraction and use of and other communis. While res nullius can come under the resources on or in celestial bodies implies that sovereignty of a singular State, and res they may be taken or owned by a nation in the communis is under the joint sovereignty of all course of their use of space, even though the States, res extra commercium is not subject to actual celestial body is not under the sovereignty national appropriation by any State. It cannot be of any nation. held by any one State, nor is it held by all States together. It is held by no one, and it cannot be B. Res communis held by anyone. Analyzing the Outer Space Treaty’s phrase Like the high seas, it is territory that cannot be “province of all mankind”, especially in light of appropriated. Writing immediately after the the rights and obligations enshrined in that entry into force of the Outer Space Treaty, Bin article and across the Treaty, elucidates that the Cheng asserted the suitability of this term for activity of exploring and using outer space is a both void space, and celestial bodies themselves: right held by all, and that no State can lawfully “Thus, under international customary law, deny another State’s freedom to access space. whilst outer space constitutes res extra The most closely-related legal term for this commercium, that is to say, areas not subject freedom to conduct activity, as a right is held by 24 to national appropriation, celestial bodies all, is that it is a res communis. are res nullius, that is to say, areas which may be subject to national sovereignty. However, as among contracting States [to the Outer Space Treaty], however, the status 22 Bin Cheng, STUDIES IN INTERNATIONAL SPACE of the latter has now been changed. Under LAW Glossary - liii (1997) [hereinafter BIN CHENG]. the treaty, both outer space and celestial 23 Ibid, at 229. bodies are declared res extra commercium, 24 A subtlety to this exists. A res is a thing, and thus forestalling any possible recurrence of here we are concerned with a right to explore and use. Perhaps the term quasi (Latin: as if) might be amended to this conception.

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colonialism in extraterrestrial space, as some Municipal law qualifies res in the context of delegates did not fail to point out.”25 its institutions – in particular of real rights established. Though the notion has also been As Article II of the Outer Space Treaty prohibits adopted by international law, one can hardly national appropriation, while Article I declares argue that outer space and celestial bodies, that the use and exploration is the province of all through physically the latter may be mankind, it seems to follow that outer space is a reminiscent of some parts of the globe, can res extra commercium. be encompassed by this term. None of them However, rather than being a place where State being a res, they cannot in fact become res sovereignty is absolutely prohibited, some extra commercium or communis.”27 components of state sovereignty exist. They are Consequently, it appears that again, res extra enshrined in Article VIII of the Outer Space commercium does not perfectly fit either void Treaty, extending state jurisdiction into space in space or celestial bodies. an extraterritorial fashion. While Article II prohibits territorial jurisdiction, both personal V. ECONOMIC TERMS EXTENDED TO and quasi-territorial jurisdiction persist over both THE IDEA OF OUTER SPACE AS A space objects and personnel thereof (with quasi- COMMONS territorial jurisdiction overriding personal jurisdiction, in cases of conflict).26 Just as with legal terms, there are economic terms used in association with a concept of a In a similar fashion, other aspects of state commons that are also used incorrectly. This sovereignty persist. Keeping in mind the ample adds to misconceptions and may also lead to freedoms and expansive rights expressed in questionable public policy. This section provides Article I, space itself, as a physical domain of a brief overview of some of these terms and why void space and celestial bodies, may be res extra they are ill suited for direct application to space commercium. Looking to other domains called resources and activities. res extra commercium gives many examples. The high seas are res extra commercium. A. Public Goods Notably, fish in the sea do not belong to fisherman, but once caught, they can be sold. is the study of the distribution and allocation of goods and services that satisfy However, as Judge Manfred Lachs asserted in human wants and that provide utility. 1972: Economists classify goods into categories that “It has been suggested that outer space and are measured by (1) (the degree to which celestial bodies be considered res extra one person’s use of a good prevents others from commercium, res communis, or res using the same good) and (2) exclusivity (the communis omnium. It is true that some of difficulty of preventing users from benefiting these definitions have been accepted in other from a good). areas of international law. However, their application to outer space and celestial These categories of goods have implications for bodies is conditioned by a reply to a basic both pricing and for effective management. The question: ‘Is outer space with the celestial differing degrees of rivalry and exclusivity lead bodies a ‘thing’ – res within the meaning of to different incentives, which in turn have an the law?’ It is this that raises serious doubts. impact on regulatory and government policy. The term itself has many meanings. For example, private goods are left to compete in a free market system while those goods and

25 BIN CHENG, supra note 22, at 229, See LYALL & 27 LARSEN – TREATISE, supra note 9, at 184 (“The Manfred Lachs, THE LAW OF OUTER SPACE – AN Moon and other celestial bodies are res extra EXPERIENCE IN CONTEMPORARY LAW-MAKING 46 commercium, to use the Roman law term.”). (Tanja Masson-Zwaan & Stephan Hobe eds., 2010) 26 Ibid, at 77-79. (1972).

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services that would not be forthcoming in a price under some conditions, most notably when a system but are deemed to benefit all, are often sovereign government oversees the use and managed by governmental intervention. develops a system for resolving disputes peacefully. Outer space is sometimes referred to as a public good, i.e. that the use of space () is A less recognized challenge with economic and not rival and users cannot be easily excluded legal management of a defined area is the from engaging in space activities. Non- concept of an anticommons. The seminal article arises from the Outer Space on the anticommons was written in 1998 by Treaty, which states that outer space is free for Michael Heller and discusses the “tragedy of the exploration and access by all countries. anticommons” where multiple owners are each endowed with the right to exclude others from a Since countries are free to explore and access scarce , and no one has an effective space, not individual consumers (the basis of the privilege of use. When there are too many theory of free markets and economic owners holding rights of exclusion, the resource competition) and nations are very easily able to is prone to underuse—a tragedy of the exclude citizens and even other nations from anticommons. Legal and economic scholars space activities through technology and have mostly overlooked this tragedy, but it can pricing,28 neither condition of a true public good appear whenever governments create new exists when applied to outer space. property rights.30 There already exist a number of policy and legal mechanisms in the world that exclude certain B. Common Pool Resources users or uses. Some recent analyses have attempted to view There is no single governmental entity that can particular space activities and usage as a form of exert control over all users of space. While some common pool resources (CPR) instead of a may wish to see the United Nations become that distinct public good.31 A CPR is a resource that entity, the reality is that the current international is sufficiently large that it is difficult, but not system of governance precludes it. The core unit impossible, to define recognized users and also of sovereign behavior is the nation state, and difficult to exclude others. CPRs also exhibit a states only subject themselves to UN authority high level of competition among users. Some when it suits their interests. classic examples of CPRs are , , 32 The , a phrase coined by underwater basins, and systems. , is the result of the overuse of an CPRs have long thought to be the “ideal” case of area that is open to all to use.29 The most a tragedy of the commons, but recent research common example is defined acreage available to such as that of Nobel Prize winner Elinor all citizens to use for cows. When too Ostrom has demonstrated that is not always the many take advantage of the area, clearly case. She showed that the tragedy of the crowding occurs and none of the users can fully commons could be avoided. Ostrom argued that benefit from that land. Managing and governing many CPRs have been successfully governed a commons is difficult but has proven possible

30 Michael A. Heller, The Tragedy of the 28 Note that these exclusions are practical and Anticommons: Property in the Transition from Marx technological, not legal; the treaties call for to Markets, 111 HARV. L. REV. 621-688 (1998). nondiscrimination in the freedom of access to outer 31 Brian Weeden & Tiffany Chow, Taking a space for all nations a principle that still applies, even common-pool resources approach to space in the context of economic differences among sustainability: A framework and potential policies, 28 nations. SPACE POLICY 3, 166-172 (2012). 29 Garrett Hardin, The Tragedy of the Commons, 162 32 Encyclopedia Britannica, Common-pool resource, SCIENCE 3859 (1968), available at http://www.britannica.com/science/common-pool- http://www.sciencemag.org/content/162/3859/1243. resource.

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without resorting either to a centralized context of space, just like there are many on government or a system of , and Earth. cites cases where resource users have effectively Moreover, we cannot characterize all of outer self-organized and sustainably managed a CPR space and its various activities and usages as a in spite of centralized authorities and without single type of economic good which then instituting any form of private property.33 requires a single type management structure. Ostrom developed an eight-principle framework Outer space and the applications with clear that outlines the conditions necessary to market demand that are derived from using outer sustainably manage commons resources without space (e.g. , direct broadcast a centralized government or private property TV, etc.) are clearly not public goods. regime. They are: Space is also not a . Again, the treaties 1. Clearly defined boundaries of the CPR; call for the freedom of access for all nations to 2. Congruence between rules and the explore outer space. But that free access has a resource context; high cost in terms of launch and operational 3. Collective-choice arrangements that allow technology and risks. In fact, in economics, most resource appropriators to participate there are virtually no free goods. Many years in the decision making process; ago air and were considered to be free, but 4. Effective and accountable monitoring today it is clear that clean, breathable air and 5. Graduated sanctions for resource unpolluted, abundant water do not come without appropriators who violate community a cost. rules; 6. Low-cost and easy-to-access conflict VI. SUMMARY resolution mechanisms; 7. Self-determination of the community, History has shown that the idea of a commons, recognized by higher-level authorities; let alone a global commons, is fragile: none have 8. In the case of larger common-pool survived throughout time: some for reasons of political and economic upheavals and some resources, organization in the form of 35 multiple layers of nested enterprises.34 through major technological advances. Perhaps the only component of a commons with The particular usefulness of Ostrom’s approach any traction has been the concept of freedom of is that it is developed for situations where passage on seas. But even that has been limited neither of the two traditional solutions to the by the term, “innocent passage.” tragedy of the commons, complete or a Leviathan to impose rule of law, are The notable Dutch scholar, Grotius, eloquently feasible, as is the case for Earth orbit. advanced the concept of the freedom of the seas.36 But even in the 1600s there were many However, even Ostrom’s principles do not discussions and dissents from the idea that the address all the challenges of the future of a space sea is a commons; not so much when applied to regime. They provide only broad outlines of the rights of freedom of passage, but when potential frameworks and each solution needs to applied to territorial fishing rights. These be individually crafted for a specific CPR and its arguments have been expounded in legal users. That itself requires prior identification of a specific CPR, of which there are many in the 35 Even Hardin’s tragedy of the commons is recognition of this instability and temporary nature of a commons. His examples of various commons are 33 , GOVERNING THE COMMONS. 1998. local or regional, not global. Clearly, if a commons 34 B. Weeden and T. Chow (2012) Taking a common- cannot be stable for a small area, how can it be for a pool resources approach to space sustainability: A very large area? 36 framework and potential policies, Space Policy, HUGO GROTIUS, MARE LIBERUM (Richard 28(3), pp. 166-172. Hakluyt trans., Liberty Fund, 2004) (1609).

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literature before Grotius and still prevail today. sovereignty are not the same as limiting There really is no authoritative agreement on ownership, property rights, and establishing the how to allocate resources on the open seas, even concept of national liability for activities and with the modern technologies that have depleted human behavior in space. the supply of some species. Attempts to develop some sort of overall In the world of the law of outer space, “governance” of space based on a res communis fortunately we have in the Outer Space Treaty principle will not succeed in today’s political Art. I, which guarantees the “freedom for any environment. (Or, quite likely in any form where nation to access, explore, and indeed use outer nations have the ability to interpret treaty space.”37 language differently and where different forms of government exist.) Furthermore, there is a logical contradiction in this discussion about outer space being treated as VII. RECOMMENDATIONS a commons. If a commons needs a sovereign government to grant the open territory to the use This discussion is not an argument that leads to of all people, it is that government that has to anarchy in space. The authors fully accept and oversee, regulate, and enforce that charter. Art. advocate taking whatever steps possible to bring II of the OST prohibits national sovereignty in uniform, fair, equitable, and responsible outer space. Thus, it is an area without a behavior norms to the realm of outer space. And, government. Even if all nations regard outer we fully support the current efforts to put in space as a “commons,” it is a very different place guidelines for transparency, best practices, concept from any commons that has been and peaceable workable methods for resolving established in the past. There is no real legal the inevitable common problems and issues that precedent, no true means of oversight or will occur both among governments and among enforcement, and therefore should not be commercial endeavors. confused with any of the many ways that Outer space is neither a commons nor a public concept has been applied to the territory or good. It is a geographic location with many of the Earth. different regions. Exploring and using each Thinking about space as a global commons may region of interest to humankind will require be a laudatory ideal, and one that perhaps can be different legal and practical approaches. regarded as a very long-term goal for society. Those may include: But, it is hardly a practical solution or goal for the problems we face today, witnessed by at • Extending the already present concept of least a thousand years of precedent in law and limited property rights in space beyond GEO practice coupled with radically different orbit positions and space objects as they technologies, exponential transition from science to economic goods. growth from 500 million people (at most) in • Studying the applicability of Ostrom’s Roman times and the Middle Ages to over 7 framework to high value, commonly used billion people today,38 and other radical political areas of space with delimited borders as and social changes. CPRs. • Using established contract law as well as But all of the ways we try to phrase “benefits to national licensing procedures to develop a all mankind,” “province of all mankind,” etc. binding and enforceable regime of dispute have their limits. Treaty guarantees such as no resolution procedures.

37 Outer Space Treaty, supra note 1, at art. I. 38 Census, World Population- Historical Estimates of World Population, https://www.census.gov/population/international/data /worldpop/table_history.php (accessed 9/6/2015).

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