My posts on this blog have been few and far in-between over the past couple months, but that doesn’t mean I haven’t been giving a lot of thought to the current space legal and policy environment. Most notably in my thoughts has been the Outer Space Treaty and specifically how it is becoming more of an impediment to outer space development than a positive force. Recent developments in the legal and policy environment regarding so-called space resource rights in particular have highlighted this.
The Outer Space Treaty was created in a time when two prominent space powers stood at the cusp of extending territorial claims to outer space. Specifically, the Outer Space Treaty was a product of concerns by both the United States and the Soviet Union one would beat the other to making a manned landing on the Moon and subsequently make a territorial claim. The ratification of the Outer Space Treaty and the successive customary reinforcement by the United States created by the Apollo lunar landings ensured that the res communis principle of the Outer Space Treaty would be honored by the two space-faring nations.
The outlying issue of property rights was not given much consideration at the time, and the United States, embroiled in a continuing Cold War with the Soviet Union, appeared content to maintain the status quo and effectively ceded the issue of space property rights to the non-spacefaring nations of the time, which resulted in the much maligned Moon Treaty of 1979. That being said the United States did take a customary stance on property rights when it addressed the Bogata Declaration of 1976 whereby it put forth as custom that U.S. commercial entities could utilize outer space resources. This policy stance forms the juxtaposition for the space resource law signed into law by the United States, which is purported to allow private entities to exercise possession over resource rights.
The law passed by the United States essentially is trying to create a customary principle that attempts to bypass Article II of the Outer Space Treaty and focus on the sovereignty the United States exercises over its citizens’ activities via Article VI and Article VIII. In other words, the law as proffered attempts to create a customary end-run around of the res communis principle, which lies at the heart of the Outer Space Treaty, and at the same time attempts to preserve the integrity of the Outer Space Treaty. Notwithstanding this approach defies the fundamentals of property law drilled into first-year law students, the approach implicitly acknowledges the Outer Space Treaty is not up to the task of space property rights. Considering the nonsensical narratives being spun and supported by prominent space lawyers and political consensus both by legislative bodies and non-governmental organizations, it stands to reason there is an underlying understanding the Outer Space Treaty is in-congruent to the task of space property rights, but also exhibits an unwillingness to admit it.
Despite the public relations spin, the time is coming where the political courage must be mustered to admit the Outer Space Treaty is not up to the task of outer space development. That is not to say the principles within the Outer Space Treaty are all archaic, but rather the res communis principle with regards to property rights belongs to another geopolitical era and has served its purpose. Other principles within the Outer Space Treaty still have merit and could survive as custom not to mention through its progeny, including the Liability Convention, The Rescue Agreement and the Registration Convention.
Many who hold the Outer Space Treaty as sacrosanct will doubtless balk, including those who stretch the Outer Space Treaty to try and justify space resource rights. Yet, the epitome being created by those who are legitimizing space resource rights via the Outer Space Treaty are opening the door to plethora of customary interpretations that will eventually lead to degradation of the Outer Space Treaty much in the same way China’s interpretation of UNCLOS will de-legitimize that accord. Remaining legally bound to the Outer Space Treaty thus becomes not the analogy of going down with the ship but rather entangled in the anchor chain and being dragged along with the whims of those driving the ship. The consequence is there are two choices: continue to pretend the Outer Space Treaty says what it doesn’t say about property rights or cease the legal gymnastics, admit the Outer Space Treaty isn’t up to the task of space property rights, put the other principles of the Outer Space Treaty into the realm of custom and retire the res communis principle so outer space development can begin in earnest.