Abstract
Questions of ownership and control are key issues in international relations and international law. They have been addressed to a certain extent in the context of outer space. However, as humanity expands into space it will become obvious that there are still many unanswered questions regarding who should control the vast resources of space.
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References
Quinn, Adam G. “The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space.” Minnesota Journal of International Law 17.2 (2008): 487–496.
Indeed, Freeland and Jakhu argue that the principle of nonappropriation found in Article II of the Outer Space Treaty has “become a significant norm of general international law (in fact a jus cogens norm)”. Steven Freedland and Ram Jakhu. “Article II of the Outer Space Treaty” Cologne Commentary on Space Law, Vol. I. Eds. Stephan Hobe, Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl. Cologne: Carl Heymanns Verlag, 2009: 55.
Except to say that they are accountable to their home States, and such States are responsible for their actions, about which more will be said later on in this chapter. See Bohlmann, Ulrike M. “The Need of a Legal Framework for Space Exploration.” Humans in Outer Space — Interdisciplinary Odysseys. Eds. Luca Codignola and Kai-Uwe Schrogl. Vienna: SpringerWienNewYork, 2008: 182–195.
Surely a potentially lucrative activity, given that the metals contained in one small asteroid could have a market value of U.S.$20 trillion. Fountain, Lynn M. “Creating Momentum in Space: Ending the Paralysis Produced by the ‘Common Heritage of Mankind’ Doctrine.” Connecticut Law Review 35 (2003): 1785. In fact, as Quinn points out, ‘[t]he resources in the [asteroid] belt alone have an estimated value of $100 billion for every person on Earth.’ Quinn, Adam G. op. cit. 487.
However, the International Institute of Space Law appears to claim that the current regime, as outlined in the Outer Space Treaty, mandates a common heritage of mankind approach: “The clear goal of such a regime is to preserve outer space, including the Moon and other celestial bodies, for the exploration and use of all mankind, not only for those States and private enterprises that are capable of doing so at any particular time” [emphasis added]. “Statement of the Board of Directors of the International Institute of Space Law (IISL)” 22 Mar. 2009. International Institute of Space Law. 22 July 2009. http://www.iislweb.org/docs/Statement%20BoD.pdf. In fact, there seems to be split between spacefaring nations — who see a clear distinction between the prohibition on States making sovereignty claims, which is clearly prohibited in the Outer Space Treaty, and removal of resources by non-State actors, which is not mentioned — and developing States, who support the common heritage principle, thus preventing any actor from taking resources for purely private gain. Quinn, Adam G. op. cit. 480–1. Although, according to Freeland and Jakhu, “[t]here is no room for classification in terms of ‘national’ (State or public) or non-governmental (private) beyond the requirements of Article VI of the Outer Space Treaty” (which says that States parties are responsible for non-governmental actors) (Steven Freedland and Ram Jakhu. op. cit. 51).
Laver argues that the treaty has little effect, and von der Dunk argues that “its relevance in legal terms is therefore to be severely doubted,” while Peterson argues that the principle of res communis humanitatus “has been expressed and has enough supporters to make a political difference, though the remoteness of lunar or other space mining makes judging the principle’s practical effects difficult. The principle stands as a point of appeal….” Laver, Michael. “Public, Private and Common in Outer Space: Res Extra Commercium or Res Communis Humanitatis Beyond the High Frontier?” Political Studies XXXIV (1986): 359–373; von der Dunk, Frans G. “Space Law in the Age of the International Space Station.” Humans in Outer Space — Interdisciplinary Odysseys. Eds. Luca Codignola and Kai-Uwe Schrogl. Vienna: SpringerWienNewYork, 2008: 148–61; Peterson, M. J. “The use of analogies in developing outer space law.” International Organization 51.2 (1997): 265.
Quinn, Adam G. op. cit. 483–486; Fountain, Lynn M. op. cit. 1757–9; 1769–74. On UNCLOS see also Steven Freedland and Ram Jakhu. op. cit. 61–3. They argue that “the creation of the international regime similar to that established under UNCLOS is, at least at this stage, premature for the governance of regular and widespread exploitation of these natural resources of outer space” (Ibid. 63).
Doyle, Mister. “Antarctica: The next North Pole?” The New York Times. 1 Feb. 2008.
Chivers, C. J. “Russians Plant Flag on the Arctic Seabed.” The New York Times 3 Aug. 2007.
Hickman, John. “Still Crazy after Four Decades: The Case for Withdrawing from the 1967 Outer Space Treaty.” 24 Sept. 2007. The Space Review: Essays and Commentary about the Final Frontier. 12 Feb. 2009. http://www.thespacereview.com/article/960/1. Fountain suggests a regulated free-market approach. Fountain, Lynn M. op. cit. 1174–782. Quinn advocates a similarly regulative framework to encourage the development of resources in outer space. Quinn, Adam G. op. cit. 498–500.
Hardin, Garrett. “The Tragedy of the Commons.” 3 Dec. 1968. Science 162 (3859): 1243–8. 3 Mar. 2009. http://www.sciencemag.org/cgi/content/full/162/3859/1243. For a critique of the tragedy of the commons see Dolman, Everett C. Astropolitik: Classical Geopolitics in the Space Age. London: Frank Cass, 2002: 101–5.
Although, as Freeland and Jakhu point out, a celestial body, such as a small asteroid, could not be “exploited ‘out of existence’,” since the interests of other States and future generations must be taken into account. The question might then become where to draw the line between appropriate and inappropriate use of resources. Steven Freedland and Ram Jakhu. Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl. Cologne: Carl Heymanns Verlag, 2009 op. cit. 53–54.
Laver, Michael, op. cit.
Carswell, Bill. “The Outer Space and Moon Treaties and the Coming Moon Rush.” 18 Apr. 2002. Space Daily. 3 Mar. 2009. http://spacedaily.com/news/oped-02c.html.
In 1976 eight equatorial States tried to claim that “synchronous geostationary orbit, being a natural resource, is under the sovereignty of the equatorial States.” However, this claim was not taken seriously. Laver, Michael, op. cit. 369. Alexander Harris and Ray Harris argue that there is need to demarcate where air space ends and outer space begins. Harris, Alexander and Ray Harris. “The Need for Air Space and Outer Space Demarcation.” Space Policy 22 (2006): 3–7. Should it be a vertical demarcation — so many miles above sea level — or a functional demarcation — perhaps the height at which airplanes can no longer fly because they cannot get the respective lift under their wings from the air? The space shuttle renders this definition problematic since it is a spacecraft when it launches, even though it is going through air space through which airplanes may fly, and functions as an airplane, using the lift from the air under its wings to facilitate its landing. Further, what if there is a space between the upper limit of aircraft and the lower limit of satellites?
And Freeland and Jakhu are clear that effective control has been clearly forbidden by Article II of the Outer Space Treaty as a legal argument for sovereignty (Steven Freedland and Ram Jakhu. Bernhard Schmidt-Tedd, and Kai-Uwe Schrogl. Cologne: Carl Heymanns Verlag, 2009 op. cit. 54).
Camilleri and Falk define the’ sovereignty discourse’ as ‘a way of describing and thinking about the world in which nation-States are the principle actors, the principle centres of power, and the principle objects of interest.’ Camilleri, Joseph A. and Jim Falk. The End of Sovereignty? The Politics of a Shrinking and Fragmenting World. Brookfield, VT: Ashgate Publishing Company, 1992: 2.
Fountain, Lynn M. op. cit. 1756–1767. See also Steven Freedland and Ram Jakhu. op. cit. 61.
“International Space Station Legal Framework.” 24 Oct. 2008. European Space Agency. 3 Mar. 2009. http://www.esa.int/esaHS/ESAH7O0VMOC_iss_0.html. See also Dunk, Frans von der. op. cit. on issues of criminal and other legal jurisdiction on the ISS. He points to the novel questions of “the nationality of space-born babies, the applicability of human rights to outer space, and the validity of contracts drawn up in outer space on outer space matters,” as well as the question ofwhether jurisdiction, which is currently not possible on a territorial basis, should be structured so as to ensure that law will actually follow man into outer space. Or will jurisdiction based on the nationality of the humans involved suffice — but then, what about these future space-born humans? Von der Dunk also points out that previous space stations owned by a single country ‘qualified as their quasi-territory for legal purposes,’ while the multi-national character of the ISS makes things much more complicated legally.
Ruggie, John Gerard. “Territoriality and Beyond: Problematizing Modernity in International Relations.” International Organization 47.1 (1993): 165. Jill Stuart further discusses this idea of unbundling sovereignty in the context of outer space. Stuart, Jill. “Unbundling Sovereignty, Territory and the State in Outer Space.” Securing Outer Space. Eds. Natalie Boormann and Michael Sheehan. London: Routledge, 2009.
Broad, William J. “Debris Spills into Space After Satellites Collide.” The New York Times. 11 Feb. 2009.
Stuart argues that “Westphalian sovereignty as a concept is inadequate for analysing outer space politics. The concept does not provide a language through which to understand spaces outside of the traditional territorial state.” Stuart, Jill. Michael Sheehan. London: Routledge, 2009 op. cit. 9.
Indeed, Freeland and Jakhu argue that “the primary intent of Article II [of the Outer Space Treaty] was to… [confirm] that principles of territorial sovereignty do not apply to outer space” (Steven Freedland and Ram Jakhu. op. cit. 48).
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Mills, K. (2011). Who will own outer space? governance over space resources in the age of human space exploration. In: Landfester, U., Remuss, NL., Schrogl, KU., Worms, JC. (eds) Humans in Outer Space — Interdisciplinary Perspectives. Studies in Space Policy, vol 5. Springer, Vienna. https://doi.org/10.1007/978-3-7091-0280-0_2
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