Outer Space
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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 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.
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 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
It is important to consider as part of the debate over U.S. accession to the Law of the Sea Treaty whether that action would have implications for other so-called “international commons” such as Antarctica, the moon, Outer Space more generally and the Internet.
In fact, the logic of LOST – with its supranational order for the control of a medium used by more than one country – will inevitably be seized upon by America’s foes to demand similar arrangements be instituted for Outer Space or even the Internet. And U.S. ratification of LOST will make it difficult for the United States to argue against accepting binding arrangements for other “international commons.” It was for this reason that President Reagan’s Ambassador to the UN, the late Jeane Kirkpatrick, warned the Senate in 2004 not to consent to ratification of LOST, in part on the grounds that America’s interests in Outer Space could be adversely affected by the LOST precedent.
It is of particular concern that the LOST model could be used to cripple America’s use of space for national defense. America’s military and intelligence communities have increasingly relied – in fact have become heavily dependent – upon space assets to gather information and support terrestrial forces. Far-sighted U.S. strategists appreciate that space can only become ever-more-important as a theater of operations, with control of activities (commercial as well as military) on earth being determined by control of space.
This country’s adversaries recognize this reality, too, and are attempting to inhibit our use of space – in some cases through active means, in others via the imposition of international laws and regulations (another example of “Lawfare”). U.S. endorsement of LOST would establish a precedent that would undercut American efforts to stave off the latter effort.
Finally, this accord will establish problematic precedents for “managing” other, no-less-strategically-important “international commons,” including Outer Space. A number of America’s adversaries have long sought to impose arms control or other treaty arrangements that could make it more difficult if not, as a practical matter, impossible for the United States to maintain the access to and control of space required by our national security interests. If this country joins LOST, it will invite these adversaries to adapt the Treaty’s International Seabed Authority as a prototype for determining permissible and impermissible activities in space – likely in ways that will prove inconsistent with the United States’ military and intelligence requirements.
The good news is we need not start from scratch. There already exists a body of law that can be adapted, perhaps easily, to the needs of outer space. The U.N. Convention on the Law of the Sea (UNCLOS) has provisions for managing the traffic on the surface and the resources on the deep seabed.85 Space, like the sea, has vast amounts of area that is impractical for any one nation to claim.
Hugo Grotius, a pioneer of international law, preferred the term res extra commercium in referring to the open ocean. He proposed the “freedom of the seas” doctrine, whereby the ocean is insusceptible of ownership as it cannot be occupied, and no one has the “right to appropriate things which by nature may be used by everybody and are inexhaustible.”86
Being incapable of ownership and available for everyone’s use are the very same concepts expressed in Article I of the Outer Space Treaty that allow freedom of access and exploration and grant freedom of movement throughout. The Law of the Sea Treaty contains the very same concepts and almost the very same words to describe the territories of the deep seabed as are used in the Preamble and Article I of the Outer Space Treaty to describe space. UNCLOS also speaks to the resources of the sea being the common heritage of mankind, requiring “the equitable and efficient utilization of their resources.”87
[T]he area of the seabed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States.88
UNCLOS, especially after its realpolitik redrafting, gives us an effective framework towards drafting a new Outer Space Treaty. Both treaties contain the concept of a lack of sovereignty and that resources of the deep sea and outer space are considered to be the common heritage of mankind. UNCLOS contains a detailed process by which a State or entity is granted limited access to hard-to-reach resources that can easily be adapted to the needs of outer space. The process that the drafters of UNCLOS underwent to gain global acceptance of the Convention shows us a way towards forming an internationally directed group, such as the ISA, to manage those resources that is perhaps less than entirely idealistic, but can gain the support of most, if not all, of the world’s nations.
When all is said and done, one can hardly consider an agreement that does not acknowledge the contributions of those nations at the forefront of space exploration and give them, or their corresponding corporations, every reassurance that resources garnered from space and returned to Earth can be traded freely in the world market for the benefit of all the nations of the world.