UNCLOS regime sets a good precedent for governance of outer space
The solutions the international community worked out to resolve some of the most contentious issues over ocean governance -- specifically, how to equitably divide up a common shared resource, how to sustainably manage the global commons for the benefit of all, and how to ensure all states have the freedom to navigate a global common -- have potential to serve as the basis for a similar agreement for outer space.
Quicktabs: Arguments
A pragmatic approach is proposed in the present paper. The progress made on the UNCLOS led to an improved understanding of the CHM and suggests that the differences between developing and developed countries can be reconciled. While leaving the theoretical discussion of the term unresolved, formulation of an international body to address the use of outer space resources can begin. Whatever form it takes, the body should be able to address and further the common, equitable interests of the developing countries (the non-space powers), and the interests of developed countries (the space powers)."' The proposed governance regime will try to encourage the beneficial aspects of property rights and formulate rules that discourage conflict and predation."
While following the example of Seabed Authority, this paper proposes the establishment of an International Space Authority. The commercialization of outer space is no longer a fantasy. There is an urgent need to take a practical look at the issue and formulate feasible rules and organs to guard against taking the wrong direction. Humankind has taken the first tentative steps laying the technological foundation for commercial expansion. The challenge lying ahead is to build on the existing technological foundation and create the appropriate legal regime that will support and encourage this expansion.
In addressing the philosophical foundations for the medium of space, Hugo Grotius argued that the philosophical foundation of res communis should be applied to the seas. Grotius' ideas are equally persuasive as applied to the vacuums of outer space. Of the three major property endowment theories, res nullius, res publica and res communis, res communis will most effectively encourage outer space travel because the vacuums of outer space will not be subject to control, but will allow for the free passage of all people. In proposing a comprehensive law system for the corpusjuris spatialis for the medium of outer space, the United Nations Convention on the Law of the Sea (hereinafter "Law of the Sea Convention")35 offers the most practicable law system for outer space exploration. Specifically, the Law of the Sea Convention's provisions regarding territorial zones of seas, military use, environmental use, jurisdictional issues, and the general treatment of vessels and their inhabitants, should be incorporated into the corpus juris spatialis with ameliorated changes.
The Law of the Sea Convention offers novel solutions to arising issues concerning outer space exploration. Due to its well-thought out provisions, the Law of the Sea Convention has widely been acceptedand is considered international law.147 The Law of the Sea Convention should be adapted to govern the vacuum of outer space. The Law of the Sea Convention separates different territories of the seas in relation to states' baselines.148 States may exercise certain rights within each territory, allowing increased action in proximity to the state, and decreased action with greater distance from the state. This allows states to exercise their police powers, but encourages freedom of transit on the seas. This system should be applied to outer space because it would recognize sovereign claims and rights, yet encourage outer space activities. The Law of the Sea Convention offers practicable solutions in other highly debatable subjects pertaining to outer space exploration, such as military uses of outer space, environmental uses of outer space, jurisdictional issues, and the treatment of vessels and their inhabits. These issues will be discussed in the proceeding sections.
The militarization of outer space should depend on the categorical regions of space. In territorial space, states should be allowed to use whatever force is reasonably necessary to ensure their interests. Much like the Coast Guard in the United States, armed patrol vessels may be necessary to protect the state from threats of harm ranging from customs violations to people smuggling. However, presence in territorial waters should not be sufficient to detain those engaged in innocent passage to a space port in orbit or on the celestial body. Vessels will require supplies, repairs, food, fuel and other materials for voyages, necessities which should not be restricted. By allowing open uses of territorial space for innocent passage, vessels will be able to effectively obtain supplies and make repairs. This freedom will also provide pecuniary compensation to those states. In transitory space, vessels should not face constant intrusions of being boarded and searched. Like the high seas, transitory space should allow for the quickest passage of vessels and the most freedoms. By disallowing unprovoked arrests of vessels, more powerful states will not be allowed a virtual monopoly based on their military forces. Likewise, military and government vessels are prohibited from being arrested. These restrictions support the sovereignty of each state over its persons.