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Of course, many nations have a vigorous interest on both sides of this dichotomy, but none more so than the United States. With the largest claimed EEZ of any nation (due in part to the long coast of Alaska, the Aleutian islands and Pacific territories) the U.S. is a coastal nation and as such demands protection for its coastal natural resources. From this perspective, the United States may wish to limit transport by other nations in its EEZ to protect habitats or to ensure that illegal fishing is not occurring. Indeed, the United States has imposed mandatory ship reporting requirements to protect right whales12, and is seeking approval of the International Maritime Organization for limitations on transit in the northwest Hawaiian islands, which has recently been designated a National Monument. But with the largest and most wide ranging blue water Navy, the U.S. is a maritime nation that must maintain its existing rights to passage throughout the world’s oceans and seas. Moreover, the U.S. is reliant on international shipping imports and restrictions on navigation will raise costs to U.S. consumers. These conflicts are concentrated in nations’ territorial seas and straits, although conflicts in the wider boundaries of the EEZ are emerging.
A natural effect of this split interest is that any one sided argument about the perils of the U.S. joining the Convention is immediately contradicted. For example, alarmist arguments that Convention nations have or will impose limitations on transit are contradicted by the fact that the U.S. does impose some limits to transit in our own EEZ and has plans to continue to do so. Indeed, the very fact that the U.S. has perhaps the world’s strongest interest in both protection of coastal resources and right of free transit on, under and above the ocean, is the most compelling reason to join the Convention. As four former U.S. Coast Guard Commandants stated in a letter urging the Chairman of the U.S. Senate Foreign Relations Committee to support accession to the treaty:
As a global maritime power and a nation with one of the longest coastlines, the United States has strong interests both in preserving freedom of the seas and in protecting our own coastal areas, including offshore marine resources. The Convention strikes the right balance between these sets of interests13.
The Law of the Sea Convention is a good model for jurisdictional issues pertaining to outer space travel and exploration. Even in territorial waters, states are precluded from exercising civil jurisdiction on foreign vessels. This assures and encourages transitory passage and freedom on the seas. However, states may exercise criminal jurisdiction for ships not engaged in innocent passage.245 Each vessel is required to sail under the flag of its nationality.246 Jurisdiction of the vessel is determined by the flag of the state.247 Vessels are prohibited from flying more than one flag.248 In cases where there is an incident on a vessel, penal and disciplinary action may only be taken by the flag state.249 These strict standards for jurisdiction encourage the non-interference with vessels. In many ways, vessels are treated as islands unto themselves within the territory of the flag state. Its persons cannot be disturbed, boarded, or arrested in international waters except under very limited circumstances, such as piracy.250 Even in territorial waters, coastal states may only assert jurisdictional authority where harm has incurred.251
These provisions in the Law of the Sea Convention would solve many problems which might arise from outer space exploration. Outer space vessels will require crews who have varying expertise and are from various states. By only allowing one state to be sovereign over that vessel, it avoids the problems associated with anarchy or, in the alternative, judging persons by the laws of their nationality. Additionally, no state can enforce its own laws on foreign vessels in any territory in outer space. This policy ensures that states will not abuse laws in order to bar passage to foreign space vessels or to confiscate their cargos. The Law of the Sea Conventions' requirement that "ships shall sail under the flag . . . "252 would be problematic in outer space for obvious reasons. Flags put other ships on notice of their nationality. This would be important for outer space in cases of malfeasance, wrong doing, negligence, rescue, organization, recognition of pirates, etc. Therefore, states should be required to emit a beacon which announces the sovereignty of the vessel.253
In order to take a small step for man, the corpus juris spatialis must accommodate rapid privatization of outer space exploration. The Outer Space Treaty fails to accommodate privatization in the postmodern world because it was the product of the Cold War era. It relies on the assumption that outer space activities will be carried on by states; however, multinational corporations are dominating the outer space industry while government presence is diminishing. In order to facilitate this rapid private growth, the vacuums of outer space should be declared as res communis. This will prohibit domination by a super power and increase world participation in outer space travel and exploration. The Law of the Sea Convention offers some practical solutions to outer space exploration. For example, the Law of the Sea Convention creates different categories of the seas and defines the states' rights in each category. Likewise, the corpus juris spatialis should be divided into territorial space, contiguous space, and transitory space. By making these divisions, states would be adequately protected against rogue space vessels, and space travelers would be encouraged to perform appropriation activities and travel in the great expanse. Accordingly, states would be allowed to exercise necessary military force in outer space. The Law of the Sea Convention offers solutions to other issues presenting the corpusjuris spatialis,such as environmental law, jurisdiction, and the treatment of space travelers. These proposals borrowed from the Law of the Sea Convention will be successful in facilitating the rapid growth of the outer space market, while ensuring state interests.
The Law of the Sea Convention offers some interesting solutions to these problems. First, it should be noted that the Law of the Sea Convention applies to "living resources" and the environment in which those resources live.240 Many commentators express token tribute, due to the heightened awareness of environmental damage, to environmental standards for space travel and extraterrestrial appropriation.241 This heightened awareness is ill-placed in most of outer space. The problem with assuming that all of outer space should be protected is that there is a lot of inanimate material in outer space. Even more importantly is that inanimate materials may provide solutions to increased populations by supporting the living population. On Earth, environmental protections are necessary to safeguard the long term habitability of this living planet and do as little harm as necessary to other living resources. On celestial bodies that have no life, not even microbial, there are no such incentives for environmental protections because there is nothing to protect. Of course, premature annihilation would defeat the ability to harvest those resources. The Law of Sea Convention attempts to place restrictions on fishery, which allow the maximization of resources over time.242 For example, over-fishing may lead to a short term increase in food production and profit, but substantial depletions will affect the ability of fish to reproduce, thereby causing shortages in the years to come. This method allows for the maximization of resources without affecting the rights of appropriators. This is a better method for the conservation of outer space. Extraterrestrial appropriation, therefore, may occur, but in a way to maximize those resources by not prematurely destroying a nonliving resource. Likewise, in outer space exploration, waste may not poise the same kind of threats as here on Earth.243 Outer space is a vacuum of matter. There are no living organisms in the "ethers" of space. Although there are possibilities thwastes may contaminate future explorers or haphazardly damage other systems of future generations, these concerns must be addressed in the context of outer space's huge amount of space. Under risk assessment analysis, these risks may be so insignificant that wide scale or even significant environmental protections would be unnecessary.
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.
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.
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.
Overfishing is a tremendous problem facing the world's oceans.n320 The problem is perpetuated by individual national conservation efforts.n321 Although aimed at curbing overfishing, these programs have little effect if they apply only to one nation. n322 Fish are a resource that knows no boundaries. A limit on fishing by one nation does nothing to stop overfishing by another nation that exploits the same fishery. It also can lead to international conflict, as is evidenced by the "cod war" between Iceland and the United Kingdom. Only a joint effort by the world's largest fishing nations can bring the problem under control.
UNCLOS III is not perfect. Still, it is the strongest comprehensive environmental law agreement ever created. Its provisions dealing with fisheries conservation and management stress cooperation and coordination. The Convention also provides a framework necessary to implement conservation and dispute settlement. These provisions are essential for the world to begin to solve the overfishing problem. For example, by legitimating the EEZ and other zones of control, the Convention actually encourages nations to work together. Nations must agree on boundaries and on conservation plans.
Widespread support of UNCLOS III is necessary to control overfishing. Even widespread support, however, is not enough if large fishing nations still do not adhere to the agreement. The United States and Canada have not yet ratified the convention. Without their support, the international agreement cannot be effective.
UNCLOS III provisions played a key role in the resolution of a major conflict in the Central Bering Sea in 1994. n285 The problem arose in the mid1980s, when the vessels of several nations began to fish a stock of pollack in an area of the Central Bering Sea just outside the U.S. and Russian 200mile EEZs. n286 The fish stock was largely associated with the U.S. zone and its fisheries.n287 The international fishery grew quickly, with the annual harvest soon reaching 1.5 million metric tons or more.n288 American fishermen increasingly called on the U.S. government to control international fishing in the Central Bering Sea, also known as the "Bering Sea Donut Hole."n289 By 1991, negotiations began among the nations that used the fishery: Russia, Japan, South Korea, China, Taiwan, Poland, and the United States.n290 These nations debated over whether the United States and Russia had a special right to the stocks.n291 The result was the "Donut Hole Convention,"n292 which has been described as a "precautionary approach to stock management."n293 Ambassador Colson has argued that UNCLOS III did not hinder the Donut Hole agreement; in fact, "the Donut Hole Convention could not have been negotiated without the framework and foundation provided by the Law of the Sea Convention."n294 Among the requirements of the Donut Hole agreement is that fishing vessels must use realtime satellite positionfixing transmitters while in the Bering Sea so nations can ensure that vessels are there only to navigate to and from the fishing ground.n295 The agreement also provides for boarding and inspection of fishing vessels by any party, and it establishes procedures to "ensure that no fishing occurs in the Donut Hole except in accordance with sound conservation and management rules."n296 While the Donut Hole Convention was negotiated with UNCLOS III in mind,n297 according to Ambassador Colson, "the Law of the Sea Convention can help the Donut Hole Convention by providing an alternative enforcement mechanism to ensure than no vessel undertakes conduct in the Central Bering Sea contrary to the provisions of the Donut Hole Convention."n298 The dispute settlement provisions of UNCLOS III would enable the parties to "ensure enforcement of multilateral fishery conservation arrangements on the high seas ... The Law of the Sea dispute settlement option can act both as a deterrent and as a means to bring about final resolution should problems arise in the Donut Hole in the future."