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Hertzfeld, Weeden, Johnson Global Commons FINAL IAC-15 - E7.5.2 x 29369 How Simple Terms Mislead Us: The Pitfalls of Thinking about Outer Space as a Commons Henry R. Hertzfeld Research Professor, Space Policy 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 treaties 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 resources 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 global commons,” “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 property 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 governments will soon be performed by the private sector. 1 Treaty 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 IAC-15 - E7.5.2 x 29369 Page 1 of 11 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 • Public good(s) competing interests or major accidents occurring • Free goods 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 Outer Space Treaty]; 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. IAC-15 - E7.5.2 x 29369 Page 2 of 11 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 international law. 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.
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