geopolitics of outer space

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From the SelectedWorks of Sco Shackelford

February 2012

Governing the Final Frontier: A PolycentricApproach to Managing Space Weaponization andDebris

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Table of Contents

INTRODUCTION................................................................................................ 3I. THE IMPACT OF TECHNOLOGY,POLITICS,AND RESOURCE SCARCITY ONTHE GOVERNANCE OF OUTER SPACE............................................................ 10A. TECHNOLOGICAL ADVANCEMENTS IN SPACE TRANSPORTATION........ 10B. DEMAND FOR SERVICES AND RESOURCE SCARCITY ............................ 12C. FROM GEOPOLITICS TO ASTROPOLITICS ............................................... 13D. A COMPARATIVE ANALYSIS OF THE IMPACT OF TECHNOLOGY,SCARCITY,AND POLITICS ON ATMOSPHERIC GOVERNANCE........................ 14E. SUMMARY ............................................................................................. 15II. THE EVOLUTION OF SPACE LAW........................................................... 15A. EARLY REGULATION AND SOVEREIGNTY IN SPACE ............................. 15B. DEFINING OCCUPATION AND PEACEFUL USE.................................... 18C. THE EMERGING SPACE REGIME COMPLEX ........................................... 21D. APOLYCENTRIC APPROACH TO SPACE GOVERNANCE......................... 23III. PROPERTY RIGHTS AND THE NATIONAL REGULATION OF SPACE ....... 28A. SPACE,INC.:PROPERTY RIGHTS IN SPACE LAW................................... 28B. ANALYSIS OF NATIONAL SPACE LAWS................................................. 29

1. Commercial Space and the Market Rationalist Approach ................ 322. Liberal Institutionalists ..................................................................... 333. Communal Neorealists ...................................................................... 34

IV. AVOIDING THE ULTIMATE TRAGEDY OF THE COMMONS: MANAGINGSPACE WEAPONIZATION, JUNK AND PROMOTING PEACEFUL, SUSTAINABLEDEVELOPMENT.............................................................................................. 35A. THE TRAGEDY OF SPACE COMMONS .................................................... 36B. INTERNATIONAL COOPERATION AND CONFLICT IN SPACE................... 38

1. The U.S. Approach to International Space Cooperation and its Impacton Space Governance ............................................................................... 382. U.S.-Soviet Space Cooperation and the Role of Nuclear Non-Proliferation in Space Governance .......................................................... 403. The Second Space Race and Chinese Space Policymaking inInternational Relations ............................................................................. 43

C. THE END OF THE PEACEFUL USE OF OUTER SPACE?:WEAPONIZING THEFINAL FRONTIER AND ITS CONSEQUENCES................................................... 47D. SPACE JUNK AS A COLLECTIVE ACTION PROBLEM .............................. 51E. REGIME EFFECTIVENESS OF SPACE GOVERNANCE ............................... 56F. THE FUTURE OF THE FINAL FRONTIER .................................................. 64CONCLUSION ................................................................................................. 67


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Fifty years after the creation of NASA, our goal is nolonger just a destination to reach. Our goal is the capacityfor people to work and learn and operate and live safelybeyond the Earth for extended periods of time, ultimatelyin ways that are more sustainable and even indefinite.

1

President Barack Obama

Introduction

China performed a successful anti-satellite (ASAT) test onJanuary 11, 2007 destroying an aging Chinese weather satellite target atan altitude of more than 500 miles with a kinetic kill vehicle launchedon board a ballistic missile.2 At a stroke, the amount of total spacedebris was increased by 25 percent to more than 35,000 pieces largerthan one centimeter each traveling at as much as 17,500 mphtheequivalent of a 400-pound safe travelling at 60mph. 3 The eventcontinues to reverberate with resulting debris causing ongoing alerts forthe International Space Station (ISS),

4threatening satellites and

potentially hindering space commerce, tourism, and exploration.5 But

*Scott J. Shackelford is an Assistant Professor of Business Law and Ethics at IndianaUniversity, Kelley School of Business. Professor Shackelford graduated withdistinction from Stanford Law School, and has earned a Ph.D. in politics andinternational studies from the University of Cambridge. This article is based off ofchapter four of his 2011 doctoral dissertation, Governing the Global Commons inInternational Law and Relations (Nov. 15, 2011) (unpublished Ph.D. dissertation,University of Cambridge) (on file with University Library, University of Cambridge).A prior version of portions of this analysis may be found in the authors 2006 Mastersthesis, New Frontiers of International Relations and the Law of Special SovereigntyAreas (July 17, 2006) (unpublished M.Phil. thesis, University of Cambridge) (on filewith author) (analyzing applicable legal regimes to manage natural resources in specialsovereignty areas). The Article should be considered as a comparative case study toScott J. Shackelford, Was Selden Right? The Expansion of Closed Seas and itsConsequences, 47(1) STAN.J.INTL L.1 (2011) [hereinafter Closed Seas], which wasbased on chapter three of his doctoral dissertation and raises similar issues andarguments. The author wishes to thank Professors James Craford and MichaelOppenheimer, Dr. Markus Gehring, Dr. Sandra Bunn-Livingstone, Sergiy Negoda,Steve Doyle, and Michael Mineiro for their invaluable comments and advice on thistext, as well as the invaluable research support of Evan Sarosi. All mistakes are, ofcourse, my own.1NATIONAL SPACE POLICY OF THE UNITED STATES OF AMERICA5 (June 28, 2010).2See Craig Covault, Chinese Test Anti-Satellite Weapon, AVIATION WEEK, Jan. 17,2007, available athttp://www.aviationweek.com/aw/generic/story_channel.jsp?channel=space&id=news/CHI01177.xml.3United Nations Adopts Space Debris Mitigation Guidelines, 11(2) NASAORBITALDEBRIS Q.NEWS1, 2 (Apr. 2007) [hereinafter NASA Orbital Debris].4Clara Moskowitz, Space junk alert called off for space station crew, MSNBC,http://www.msnbc.msn.com/id/45407947/ns/technology_and_science-space/ (Nov. 23,2011, 10:29 AM).5See PHILIPA OLLA,COMMERCE IN SPACE:INFRASTRUCTURES,TECHNNOLOGIES,ANDAPPLICATIONS 288-289 (2008).


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the Chinese ASAT test is only the latest in string of incidents that hasled to the proliferation of orbital debris, which is becoming socommonplace that it may even be crashing through rooftops inMassachusetts.6 Governance regimes have thus far failed to effectivelymanage the interrelated problems of space weaponization and debris,raising concerns about a brewing tragedy of the space commons andunderscoring the need for sustainable development of the final frontier.7

During UNISPACE III, the first U.N. conference on space held

after the end of the Cold War, former U.N. Secretary General KofiAnnan called Earth, A tiny sanctuary of life in the midst of themagnitude of the heavens, an oasis beset by rising sea levels,deforestation, pestilence and war.

8 With the human population

continuing to grow and resource scarcity increasing, space technologywith myriad applications in health, education, disaster management,communications, and energy has been lauded as an essential tool forpromoting sustainable development.

9 As Anthony Dolman argues, the

key to the worlds wealth and power has shifted to the heavens.10 Thisfact renders global cooperation in space, including the proactivedevelopment of appropriate legal frameworks, a primary imperative for

policymakers. Thus far though, applicable governance regimes remainamorphous and outdated.11 This Article analyzes how and why this isthe case by investigating the impact of technology, politics, and resourcescarcity on space law, examining the growth and effectiveness ofpolycentric 12 networks to manage the pressing collective actionproblems of space weaponization and junk, and arguing for theapplication of sustainable development policies to better manage thespace commons.13

National and commercial interests are increasingly tied to spacein the political, economic, and military arenas. Beyond fanciful notionsof solar energy satellites, fusion energy, and orbiting hotels,

6Natalie Wolchover, Space junk? Mysterious object crashes into warehouse roof,MSNBC, (Dec. 2, 2011, 6:40 PM),http://www.msnbc.msn.com/id/45529518/ns/technology_and_science-science/.7The commons may be defined as resource domains in which common poolresources are found, which may be overexploited and degraded unlike pure publicgoods. See for example Paul A. Samuelson, The Pure Theory of Public Expenditure,36(4) REV.ECON.&STAT. 387 (1954).8Proc. Vienna Declaration Space & Human Dev., Vienna, Austria 1999, available athttp://www.un.org/events/unispace3/pressrel/e30pm.htm.9See Joseph Bosco,International Law Regarding Outer Space: An Overview, 55 J. AIRL.&COMM. 612, 621 (1990).10See ANTONY DOLMAN,RESOURCES REGIMES WORLD ORDER 17(1981).11Eric Sterner,Beyond the Stalemate in the Space Commons, in THE CONTESTEDCOMMONS116 (CNAS ed., 2010).12See, e.g.,Elinor Ostrom,A Polycentric Approach for Coping with Climate Change40(World Bank Policy Research Working Paper 5095, Oct. 2009).13See Closed Seas, supra note 1 (taking a similar approach to analyze the expansion ofclosed seas and its consequences).


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contemporary political issues such as nuclear non-proliferation,economic development, and human rights are also intimately intertwinedwith outer space. 14 Space is now instrumental in globalcommunications, trade, and the capabilities of the worlds leadingmilitaries.15 It has become vital to every nation relying on weather

forecasting, remote sensing, and satellite telecommunications, the latterof which alone was a more than $150 billion market in 2010.16 Tounderscore its importance, consider the early loss of a satellite in 1998

that affected 45 million people. Those impacted ranged from on-calldoctors who could not be contacted via their pagers to gas stationowners who lost pay-at-the-pump functions.17 The worldwide spaceindustry already has a tremendous degree of economic and politicalimportance and potential, employing over one million people andgrowing at an annual rate of 16 percent according to one study. 18Indeed, in some ways the commercial sector is overtaking nationalgovernmentsthe private sector has been spending more thangovernment in space since 1997, a sum that surpassed $250 billion in2008. 19 NASA officials applauded this development. FormerAdministrator Michael Griffin stated, Sooner rather than later,

government space activity must become a lesser rather than a greaterpart of what humans do in space.20 That process is now unfolding asnations around the world reassess, and in some cases reassert, nationalspace policies leading to an emerging polycentric system featuringgreater regionalization.

The United States continues to be dominant in space, accordingto one study spending 81 percent of total worldwide expenditures onspace operations.21 As such, U.S. space policy has a disproportionateimpact on space governance. President Obama announced a new U.S.Space Policy on April 15, 2010, which includes plans to contract withprivate companies to resupply the ISS and to build an advanced heavy-

14SeeTy S. Twibell, Space Law: Legal Restrains on Commercialization andDevelopment of Outer Space, 65 UMKC L.REV. 589, 591 (1996-1997).15Outer space is defined as the area above airspace. Since the composition of theatmosphere changes gradually as elevation increases, defining exactly where airspaceends and outer space begins has proven problematic. Proposals have ranged from 80 to100 kilometers, as well as simply the point at which artificial satellites may be placedinto orbit. See James Kraska,Indistinct Legal Regimes, in SECURING FREEDOM IN THEGLOBAL COMMONS 58(Scott Jasper ed., 2010).16See Keny Fuchter, Chinas Military Space Strategy, 12(2) RAF AIR POWER REV. 53,62 (Summer 2009).17See Mike Manor & Kurt Neuman, Space Assurance, inSECURING FREEDOM IN THEGLOBAL COMMONS100 (Scott Jasper ed., 2010).18W. HENRY LAMBRIGHT &SCOTT PACE,THE FUTURE OF SPACE COMMERCE:SPACEPOLICY IN THE TWENTY-FIRST CENTURY90 (2003).19See THE SPACE REPORT 2008:THE AUTHORITATIVE GUIDE TO GLOBAL SPACEACTIVITY1-2 (2008) [hereinafter THE SPACE REPORT].20Michael Griffin, Remarks at Center for Strategic and International Studies, Workshopon Space Exploration and International Cooperation (Nov. 5, 2005).21THE SPACE REPORT, supra note 19.


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lift rocket for human deep space exploration.22 Absent from the speechwere any references to the military use of space, though the ObamaAdministration has promoted a policy of banning space weapons thatinterfere with satellites.23 Nor did President Obama discuss the growingproblem of orbital debris,

24which is now at a tipping point according to

a 2011 U.S. National Research Council report.25

This speechunderscores both the changing nature, and continued difficulties of spacepolicymaking. Under the Presidents plan, the task of accessing near-

Earth space is given over to private firms, while security andenvironmental problems are sidestepped. This Article investigateswhether space is reminiscent of the other parts of the globalcommons,

26such as the deep seabed,

27in that it is transitioning from a

multilateral system centered on the United Nations to a polycentricregime complex, defined here as a collective of partially overlappingand non-hierarchical regimes

28that vary in extent and purpose but

embrace bottom-up governance. The basic idea of polycentricgovernance according to Professor Michael McGinnis is that a groupfacing a collective action problem should be able to address it inwhatever way they see fit, which could include using existing or crafting

new governance structures; in other words, the governance regimeshould facilitate the problem-solving process.29 If applicable to outerspace, this advent may represent a watershed moment in the history ofspace governance.

22See Remarks by the President on Space Exploration in the 21stCentury, John F.Kennedy Space Center, Apr. 15. 2010, available athttp://www.nasa.gov/news/media/trans/obama_ksc_trans.html.23See U.S.-China Joint Statement, THE WHITE HOUSE(Nov. 17, 2009), available athttp://www.whitehouse.gov/the-press-office/us-china-joint-statement; andTim Dobbyn,Challenges loom as Obama seeks space weapons ban, REUTERS, Jan. 25, 2009,available athttp://uk.reuters.com/article/idUKTRE50O15X20090125.24See NASA Orbital Debris Program Office (July 2009),http://orbitaldebris.jsc.nasa.gov/faqs.html (last visited Sept. 21, 2011); andJamesOberg, Space station dodges controversial junk, MSNBC, Feb. 3, 2009, available athttp://www.msnbc.msn.com/id/26441443/.25See LIMITING FUTURE COLLISION RISK TO SPACECRAFT:AN ASSESSMENT OF NASASMETEOROID AND ORBITAL DEBRIS PROGRAMS1 (Natl Res. Council, 2011) [hereinafterASSESSMENT].26See ROBERT O.KEOHANE &DAVID G.VICTOR, THE REGIME COMPLEX FOR CLIMATECHANGE10 (Harvard Kennedy School ed., 2009), available athttp://belfercenter.ksg.harvard.edu/files/Keohane_Victor_Final_2.pdf (arguing that aglobal commons is a descriptive term referring to a resource that it is difficult orimpossible to exclude others from enjoying but that is degraded by use.); andCHRISTOPHER JOYNER,GOVERNING THE FROZEN COMMONS:THE ANTARCTIC REGIME

AND ENVIRONMENTAL PROTECTION221, 255 (1998).27See Closed Seas, supra note 1.28Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources,58(2) INTL.ORG. 277, 277 (2004).29Michael D. McGinnis, Costs and Challenges of Polycentric Governance, Workshopon Analyzing Problems of Polycentric Governance in the Growing EU, HumboldtUniversity, in Berlin, Ger. (June 16-17, 2005), at 1-2.


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After the failure of the Moon Treaty due in part to resistance tothe Common Heritage of Mankind (CHM) concept requiring thepeaceful and equitable use of global common pool resources, 30consensus has been difficult to build in regulating space thereby limitingthe effectiveness of the U.N. Committee for the Peaceful Uses of OuterSpace (COPUOS) that had been central to the development of space law.Instead, many States are becoming increasingly active in regulatingspace nationally, with the number of national space laws tracked by the

U.N. Office of Outer Space Affairs (OOSA) quadrupling from the 1980sthrough the 1990s as shown in Figure 1.31 But these regulations havefailed to address mounting security and environmental problems. Forexample, the OST establishes space as being free from nationalappropriation, while setting out certain property rights in space, such asfor objects launched into space, structures built on planets and asteroids,and in situ resource utilization.

32 But it remains unclear to what extent

property rights exist for other activities, such as mining. Moreover,existing treaties are ambiguous as to exactly what weapons are permittedin space since the military use of space was not forbidden by the OST,only the placement of weapons of mass destruction in orbit and the

establishment of military bases on the moon or other celestial bodies.33The U.S. Space Commission Report has surmised that since air, land,and sea become battlegrounds, space will too.

34 U.S. General Joseph

Ashy, Commander-in-Chief of U.S. Space Command, agreed with theReports findings when he stated, Absolutelywere going to fight in

30SeeChristopher C. Joyner,Legal Implications of the Concept of the CommonHeritage of Mankind, 35 INTL &COMP.L.Q. 190, 190199 (1986). A precisedefinition of the CHM concept has never been specific as applied to outer space. In itsmost positive form, it fosters international cooperation to develop and equitabllydistribute the benefits to common pool resources. Most conceptions of the CHM sharefive primary elements. First, there can be no private or public appropriation of thecommons. Cf LAURIHANNIKAINEN,PREEMPTORY NORMS (JUS COGENS)ININTERNATIONAL LAW 562(1988)(noting that the global commons may in fact beappropriated under international law). Second, representatives from all nations mustmanage common resources. Third, all nations must share in the benefits acquiredthrough exploitation of the area. Fourth, the commons must be used for peacefulpurposes. Fifth, the commons should be preserved for the benefit of future generations.See Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed,Outer Space, and Antarctica: Will Developed and Developing Nations Reach aCompromise?, 21 WIS.INTL L.J. 409, 411 (2003); andLinda Billings,How Shall WeLive in Space? Culture, Law and Ethics in Spacefaring Society, 22 SPACE POLICY249,251 (2006).31See infra p.30.32The 1967 Treaty on Principles Governing the Activities of States in the Exploration

and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967,18 U.S.T. 2410, 610 U.N.T.S. 205, arts. 2, 4 & 7 (entered into force Oct. 10, 1967)[hereinafter OST].33SeeSee OST, supra note 32, art. 4; and Kraska, supra note 15, at 59.34See REPORT OF THE COMMISSION TO ASSESS UNITED STATES NATIONAL SECURITYSPACE MANAGEMENT AND ORGANIZATION,EXECUTIVE SUMMARY8-9 (Jan. 11, 2011);and MICHAELROMANCOV,FROM GEOPOLITICS TO ASTROPOLITICS5 (1999).


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space. 35 If the United States continues to exploit its militaryadvantages and rising powers such as China feel compelled to respond, aspace race could commence making China the third man in the fourthbattlefield.36 Similarly, orbital debris has not been mitigated, thoughnew bilateral initiatives show some promise such as the SpaceSituational Awareness Partnerships between the United States,Australia, and France.37 Indeed, it could be argued that given the factthat space law is not responding to the modern challenges of space

activities, effective governance is becoming increasingly bilateral.This Article analyzes the evolution of space law and builds a

contemporary picture of space governance by assessing how and whyspace law has developed in the way that it has along with examininghow effective emerging polycentric regimes have been in sustainablyand peacefully managing the final frontier.38 As such, this analysis maybe considered a first step in moving beyond the appeal of polycentricspace regimes in the abstract and begin to, in the words of ProfessorWilliam Boyd, offer more thick description of how these forms ofgovernance are taking shape, and pay more attention to the connectivetissues that bind and hold these forms together.

39 I argue that there is

not a legal vacuum in the regulation of space. Instead, the primaryquestion is regarding the application of vague rules in the face of strongnational and commercial interests that are engaged in buildingpolycentric systems.

Three variables are considered to answer Professor Boydscharge and to provide a useful analytical framework for investigatingwhether and how they are influencing the legal regimes governingspace, including regulatory responses to the collective action problemsof space weaponization and orbital debris.

40 These include: (1)

technological advancements opening up space to commercial operations

35Karl Grossman,Master of Space, THE PROGRESSIVE, May 1, 2005, available athttp://www.hartford-hwp.com/archives/27c/537.html.36See Strength of International Space Law to Prevent Militarization of Outer Space,U.N.GENERAL ASSEMBLY PRESS RELEASEGA/SPD/458, Oct. 14, 2010, available athttp://www.un.org/News/Press/docs//2010/gaspd458.doc.htm;and Scott J. Shackelford,From Asian Politics to Astropolitics: The History and Future Shape of Asian SpacePolicy, 58 PROC.INTL ASTRONAUTICAL FEDN8 (2007).37See, e.g., US, France to sign accord on tracking space debris, AFP, Feb. 7, 2011,available athttp://www.google.com/hostednews/afp/article/ALeqM5i1kZsPIpzSF0KIcer_ZZ26XtAu7g?docId=CNG.421844de3e38acde175203b0eacf6239.501.38Regime effectiveness studies, though, are limited to modest conclusions due to thepresence of confounding variables among other concerns and must not be interpreted asbeing causal, as is explained further below. See infra p.56.39William Boyd, Climate Change, Fragmentation, and the Challenges of GlobalEnvironmental Law: Elements of a Post-Copenhagen Assemblage, 32 U.PA.J.INTL L.457, 516 (2010).40See JOHN VOGLER,THE GLOBAL COMMONS:AREGIME ANALYSIS 101 (1995).


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and potentially dual-use military applications41, (2) growing demand forspace-based commercial services and orbital slots

42, and (3) the role of

domestic and multipolar politics in influencing space governance.43 Iargue that together these variables contribute to a more robustunderstanding of the reasons behind the growth of the space polycentricregime complex with significant implications for the peaceful andsustainable use of the area. Comparisons and contrasts with the deepseabed, atmosphere, and cyberspace regimes are offered to couch the

analysis in greater context and determine what if any trends may bepresent. Other outstanding issues in space law such as defining propertyrights are beyond the scope of this Article.

To summarize, this Article analyzes the evolution of spacegovernance and investigates how and why it is changing through theanalytical framework of technology, scarcity, and politics. The studythen moves on to examine what space governance is evolving intothrough the lens of polycentric analysis. Finally, I evaluate some of theconsequences of space governance remaining in flux, focusing on thesecurity and environmental problems of space weaponization and orbitaldebris. In economic terms, I ask how well current legal regimes are

functioning to avoid collective action problems. Legally, does theproliferation of national regulations represent a challenge to the CHMconcept in space, and might sustainable development be a more robustvehicle for managing the space commons than the CHM concept? Andpolitically, is a regime complex forming thereby challenging the centralrole of the U.N. in space governance, and if so, what have been theconsequences of this system to date? Significant scholarly attention hasnot been paid to the evolution of space law in this manner.44 ThisArticle thus makes an original contribution to the field by applyingpolycentric governance to the space commons including the analysis ofnational space laws,45offering new data on regime effectiveness in outer

space with necessary caveats due to the presence of confoundingvariables, and analyzing how and why space governance is changingthrough a novel analytical framework. This analysis is critical given theimportance of orbital space to economic and scientific development, as

41SeeDEV.CONCEPTS AND DOCTRINE CTR.,U.K.MINISTRY OF DEFENCE,STRATEGICTRENDS PROGRAMME:GLOBAL STRATEGIC TRENDSOUT TO 2040,at 11 (4th ed. 2010)[hereinafter DCDC] (noting that since most of the remaining unexploited resourcesacross the world are located within the global commons, technology could move theseareas long at the frontiers of international relations to the core).42Id.at 15, 40.43Cf. at 15.44See for example Kraska, supra note 15, at 58-59.45But see Charity T. Ryabinkin,Let There Be Flight: Its Time to Reform theRegulation of Commercial Space Travel, 69 J. AIR L.&COM. 101, 118 (2004) (notingthat space tourism exists within a polycentric universe of international obligations andeconomic limitations); and Ellen P. Goodman, Spectrum Rights in the Telecosm toCome, 41 SAN DIEGO L.REV. 269, 399 (2004) (noting that spectral pollution presentsthe kind of polycentric problem that courts have difficulty resolving).


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well as geopolitics. Space is in some ways the ultimate commons.Ensuring its sustainable development and peaceful use is a critical casestudy in commons management.46

The Article is structured as follows. Part One investigates theimpact of the variables of technology, scarcity, and multipolar politicson space governance. Part Two discusses the evolution of space lawfrom the OST to the present. Part Three analyzes the extent to which thegovernance structures of space are evolving, with increasing national

and private sector control. Finally, Part Four examines whether theemerging space regime complex is mitigating the collective actionproblems of space weaponization and junk, and discusses what moremight be done to help avoid the tragedy of the space commons.

I. The Impact of Technology, Politics, and Resource Scarcityon the Governance of Outer Space

Three variables provide a useful analytical framework forinvestigating the evolution of space governance. First, technologicaladvancements are allowing for increased commercialization and dual-use military activities. Second, growing demand for space-basedservices is driving intensified space operations. And third, the end of theso-called golden age of space law and the subsequent rise ofmultipolar international relations has made managing outstandingsecurity and environmental issues difficult.

47 Each variable is

introduced in turn, and returned to throughout the Article.

A.Technological Advancements in Space TransportationTechnological advancements are driving interest in the global

commons, which are spaces situated beyond the limits of nationaljurisdiction, open to use by the international community but closed toexclusive appropriation by treaty or custom.48 At its height the globalcommons comprised more than 75 percent of the Earths surface,including: the deep seabed, Antarctica, and outer space.

49 Advances in

46See Closed Seas, supra note 1, at 6.47The phrase golden age, while popular in the literature is misleading since thisperiod of progress in multilateral treaty making in the deep seabed and outer space wasalso marred by deep political divides and security concerns. It is used here merely asshorthand referring to the period extending from the 1967 Outer Space Treaty to the

1982 Moon Treaty.48JOYNER, supranote 26, at 255.49See Paul A. Berkman,International Spaces Promote Peace, 462(26) NATURE412,412 (Nov. 2009); U.S. National Oceanographic and Atmospheric Administration(NOAA), Ocean, available athttp://www.noaa.gov/ocean.html; and U.S.DEPT OFDEFENSE,THE STRATEGY OF HOMELAND DEFENSE AND CIVIL SUPPORT12 (2005),available athttp://www.defenselink.milinews/Jun2005 [hereinafter 2005 U.S.DEPT OF


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rocketry and the threat of intercontinental ballistic missiles and nuclearweapons in space have influenced space treaty making since the dawn ofthe Space Age. 50 While companies such as U.S.-based SpaceExploration Systems (SpaceX) are working to dramatically lower thecost of launching payloads into low-Earth orbit, which currently standsat approximately $10,000/pound.

51 Already, Virgin Galactic is

reportedly offering a lower rate of $1,000/pound for sub-orbital fights,52while NASA is working to develop a series of Next-generation Launch

Vehicles to lower this cost to $100/pound by 2025.53 Governments arealso directly supporting burgeoning space industry. For example,NASAs Commercial Crew and Cargo Program manages CommercialOrbital Transportation Services partnership with U.S. industry investingover $500 million in commercial cargo transportation, 54 and fundingeverything from launch vehicles to orbiting fuel depots.55 Boeing isdeveloping a commercial space taxi under this program as othercompanies are moving to mass-produce commercial space stationmodules. 56 Thus, space technology and industry are moving aheadrapidly, challenging space law to keep up.

57 Technological

advancements prompted Judge Manfred Lachs, former President of the

International Court of Justice (ICJ) to say, As science and technologyopen up space at an enormous speed, much more remains to be done. 58

Ultimately, technology may even help address the collective actionproblems that have resulted from governance lapses, such as orbitaldebris.59 But in addition to technological capabilities, space governanceis also influenced by commercial demand for space-based services andresource scarcity.

DEFENSE] (noting that international airspace and cyberspace are also often considered tobe extraterritorial areas of the global commons).50See SUSAN J.BUCK,THE GLOBAL COMMONS:AN INTRODUCTION138 (1998).51See SpaceX Company Overview, http://www.spacex.com/company.php (last visitedSept. 21, 2011).52See Jonathan Coopersmith, Obama in space: bold but not bold enough, SPACE REV.,Apr. 12, 2010, available athttp://www.thespacereview.com/article/1603/1.53See NASA Advanced Space Transportation Program: Paving the Highway to Space,http://quest.arc.nasa.gov/aero/virtual/demo/research/youDecide/advSpacTrans.html (lastvisited Sept. 21, 2011).54See Overview of NASA Commercial Crew and Cargo Program,http://www.nasa.gov/offices/c3po/home/ (last visited Sept. 21, 2011).55See NASA Offers $200 Million for Gas Station Depot in Space, Space.com, May 9,2011, http://www.space.com/11608-space-gas-stations-nasa-orbital-refueling.html.56See Irene Klotz,Boeing Tapping Heritage Programs for Space Taxi Design, SPACE

NEWS, Nov. 25, 2011, available athttp://www.spacenews.com/civil/111125-boeing-heritage-space-taxi-design.html.57See Remarks by the President, supra note 22.58

See NANDASIRI JASENTULIYANA,SPACE LAW:DEVELOPMENT AND SCOPE103 (1992).59See Charles Q. Choi,Earth-based Lasers Could Zap Space Junk Clear FromSatellites, Space.com, Mar. 17, 2011, available athttp://www.space.com/11157-nasa-lasers-shooting-space-junk.html.


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B.Demand for Services and Resource ScarcityFrom now ubiquitous GPS-enabled devices,

60 to the prevalence

of telecommunications satellites, space-based services are already ahuge and fast growing business with the overall market in Europe aloneestimated to be 21 billion in 2005.61 Going forward, this business willbe dwarfed by the demand for resources as commodity prices increase.

The global commons is increasingly a resource domain vital to the worldeconomy, securing access to which may be the signal securitychallenge of the twenty-first century.

62 A U.K. Ministry of Defense

think tank predicts, The economic prosperity of many states willdepend on functioning globalized markets and access to the globalcommons[and that] access to the global commons. will be apriority for virtually all states.

63 Some studies have determined that

three to five trillion barrels of oil remain on Earth, while contestedestimates suggest production will peak within 35 years. 64 Other

resources, such as silver, tin, and copper could conceivably be nearingexhaustion sooner depending on demand.

65 Technological advances

could alter these predictions, but the salient point remains: the Earthsresources are finite. Even if it takes centuries, at some point it will nolonger be economically feasible to acquire necessary resources fromtraditional sources. When the marginal cost is sufficiently high, privateand public entities will look to new resource areasto the deep seabed,and eventually the inexhaustible resources of outer space. According toone study, Halleys comet contains hydrocarbons comparable in quantityto the Earths entire reserves. 66 China is reportedly pursuing the

development of space-based infrastructure to access these resources.67Developing space industry could also help alleviate ongoing concerns

60See U.S. Space-Based PNT Policy, NATL EXEC.COMM., available athttp://pnt.gov/policy/.61See Charlotte Matthieu, Space-Based Services in Europe: Addressing the TransitionBetween Demonstration and Operation, EUROPEAN SPACE POL.INSTITUTE, Mar. 17,2009 at 10, available at http://www.eomag.eu/articles/896/espi-report-17-on-the-development-of-space-based-services-in-europe-online.62Patrick M. Cronin, Foreword:SECURING FREEDOM IN THE GLOBAL COMMONSix(Scott Jasper ed.,2010).63DCDC, supranote 41, at 15, 46.64See Jean-Paul Rodrigue, World Annual Oil Production (1900-2009) and Peak Oil(2010 Scenario), (Hofstra Univ., 2011), available athttp://people.hofstra.edu/geotrans/eng/ch5en/appl5en/worldoilreservesevol.html.65E.g., Thomas D. Kelly & Grecia R. Matos,Historical Statistics for Mineral and

Material Commodities in the United States, U.S.GEO.SURVEY SERIES140 (Jan. 10,2011), available athttp://minerals.usgs.gov/ds/2005/140/.66

SeeLOTTA VIIKARI,FROM MANGANESE NODULES TO LUNAR REGOLITH:ACOMPARATIVE LEGAL STUDY OF THE UTILIZATION OF NATURAL RESOURCES IN THEDEEP SEABED AND OUTER SPACE158-62 (2002).67See Wei Long, China Eyes Territorial Claim of Outer Space, SPACE DAILY, Jan. 21,2001, available at http://www.spacedaily.com/news/china-02f.html.


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over climate change by moving polluting industries off planet, impactingatmospheric governance. 68 The legal regime that the international

community creates now will govern the manner and rate at which spacedevelops. The question then becomes whether ambiguities in space laware impeding development, and whether it is politically possible toaddress this issue given the multipolar state of international affairs.

C.From Geopolitics to AstropoliticsBoth domestic politics and multipolar international relations play

an important role in space policymaking. For example, U.S. rejection ofand eventual support for a space weapons ban has been instrumental inthe slow progress in regulating this area.

69 The Cold War shaped space

policymaking for decades, as is explored in Part Four. The failure of theMoon Treaty due in part to its inclusion of the CHM concept has, as isdiscussed below, called into question the continued validity of the CHMconcept in space law,

70while the rise of multipolar politics has made it

increasingly difficult to reach consensus through the U.N. Office of

Outer Space Affairs.71

The U.K. Ministry of Defense sums up thesituation succinctly: Out to 2040, the locus of global power will moveaway from the United States and Europe towards Asia, as the globalsystem shifts from a unipolar towards a multi-polar distribution ofpower.

72 With the rise of multipolar politics and the Rest,

73

distinctions between West and East, developing and developedcountries, and even the North and the South are impacting internationallawmaking.74 This changing distribution of power among States is a

68See IPCC, Climate Change 2007: Synthesis Report, Summary for Policymakers (Nov.17, 2007), http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ar4_syr_spm.pdf.69E.g.,Turner Brinton, Obamas Proposed Space Weapon Ban Draws Mixed Response,Space.com, Feb. 4, 2009, available athttp://www.space.com/news/090204-obama-space-weapons-response.html.70But see Robert N. Haass, The Age of Nonpolarity: What Will Follow U.S. Dominance,87 FOREIGN AFF. 44, 44 (2008) (arguing for a nonpolar world order, and stating thatStates are being challenged from above, by regional and global organizations; frombelow, by militias; and from the side, by a variety of NGOs and corporations. Power isnow found in many hands and in many places.).71SeeGp. Capt. Ian Shields, Book Review: ASTROPOLITIK:CLASSICAL GEOPOLITICS INTHE SPACE AGE, 12(2) RAF AIR POWER REVIEW124, 124 (2009) (defining geopoliticsas the study of states as spatial phenomena, with a view towards understanding thegreographical bases of power, and astropolitics is the study of the relationship

between outer space terrain and technology, and the development of political andmilitary policy and strategy.).72DCDC, supra note 41, at 10.73Fareed Zakaria, The Rise of the Rest, NEWSWEEK, May 12, 2008, available athttp://www.newsweek.com/id/135380.74See S. CARLLSON,ET AL.,OUR GLOAL NEIGHBOURHOOD:THE REPORT OF THECOMMISSION ON GLOBAL GOVERNANCE 10(1995).


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major factor influencing the development of international law generally,and space law specifically.

75

D.A Comparative Analysis of the Impact of Technology, Scarcity,and Politics on Atmospheric Governance

To compare and contrast how the forces of technologicaladvancement, politics, and scarcity are playing out in different areas of

the global commons, consider atmospheric governance. During the 15thConference of the Parties to the United Nations Framework Conventionon Climate Change (UNFCCC) held in Copenhagen in December 2009,delegations from 192 nations came together to address the mountingproblem of global climate change.

76 With temperatures by 2100 set to

rise between 1.1 and 6.4 degrees Celsius, weather patterns changing, andglobal sea levels rising at twice the average rate, climate change is aproblem affecting the whole world but one in which benefits are diffuseand the harms concentrated.

77 As such, it is a classic collective action

problem in which it is in the best interest of individual nations to freeride. This behavior was on display at COP15, with the actions of a few

nations, including Saudi Arabia, Bolivia, and Nicaragua, able to blockprogress for days underscoring the difficulties of treaty making in amultipolar world. At the heart of the issue was how the atmosphereshould be governed: what form should regulation take, what is the mostappropriate level for regulation to take place, and how can compliancebe enforced? In the end, COP15 proved unable to answer thesequestions.

The issues that COP15 underscored are not limited to theatmosphere but also apply to outer space, including: the changing roleof the United Nations; the rise of multipolar global politics and its effecton commons governance; and rapid technological advancements

alongside growing scarcity. For example, COP15 demonstrated thedifficulty of reaching consensus between major emerging markets suchas the BASIC group (Brazil, South Africa, India, and China) with theother power centers comprising the United States, European Union, andthe G77. The difficulty in reaching consensus across such an array ofinterests has led to the development of more targeted forums both interms of membership and subject matter, what could be considered apolycentric approach to atmospheric management. Moreover, COP15demonstrated the extent to which negotiations over implementing the

75OSCAR SCHACHTER,INTERNATIONAL LAW IN THEORY AND PRACTICE9 (1991).76See Emma Duncan, Getting Warmer: Special Report on Climate Change,ECONOMIST, Dec. 5. 2009.77See IPCC Special Report on Climate Change,http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=55. See alsoIPCCWORKINGGROUP IIIIN CLIMATE CHANGE 1994:RADIATIVE FORCING OF CLIMATE CHANGE ANDAN EVALUATION OF THE IPCCIS92EMISSIONS SCENARIOS233 (J. T. Houghton et al.eds., 1995).


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exploration and use by all peoples.82 This principle is even broader thanthe original Law of the Sea (LOS) concept, prior to resource discoveriesand technological progress incentivizing layered jurisdiction.83 And likethe LOS, space law is based on multilateral treaties, bilateral accords,and national regulations due in part to the rapid pace at whichtechnology has opened up space to exploration and exploitation.

84 As

the proposed usages of outer space multiplies, so too do the complexityof claims and challenges to existing norms. Differing interpretations of

the general principles that guide space law abound. A brief review ofthese principles undergirding space law provides a useful framework foranalysis.

The first article calling for a legal regime for outer spaceappeared in 1910.85 Yet it was not until before the 1958 launch ofSputnik that the push for regulation commenced when the internationalcommunity began to realize the dangers of unregulated, open accessspace.

86 This process was crystallized by the International Geophysical

Year (IGY) 1957-1958. The superpowers were initially supportive ofinternational space cooperation, and sought to promote the peaceful useof space.

87 In 1957, the U.N. took the then radical position that outer

space was to be used only for peaceful purposes, also barring nationalappropriation. 88 Over time, this viewpoint was confirmed by Statepractice, which showed that outer space could be used for peaceful andscientific purposes without regard to subjacent sovereignty due to thehigh cost of enforcing national sovereignty in space and the benefits oforbiting satellites.

89

International lawmaking in space began with U.N. GeneralAssembly (UNGA) Resolutions creating the United Nations Committeeon the Peaceful Uses of Outer Space, which became the locus for theadvancement of international space law. 90 COPUOS became a

permanent U.N. committee in 1959 and now boasts 71 Member States,

82See BUCK, supra note 50, at 148.83See PHILIP C.JESSUP &HOWARD TAUBENFELD,CONTROLS FOR OUTER SPACE ANDTHE ANTARCTIC ANALOGY211 (1959).84But see BUCK, supra note 50, at 137; and MORRIS R.COHEN &FELIX S.COHEN,READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY12-13 (1954).85See Bosco, supra note 9, at 612 n.17; and BUCK, supra note 50, at 164, n.4.86See BUCK, supra note 50, at 138.87See ANDREW HALEY,SPACE LAW AND GOVERNMENT65-66 (1963).88See G.A. Res. 1148[XII] of Nov. 14, 1957, par. I[f]; and G.A. Res. 1348, 13 U.N.GABR Supp. (no. 18) at 5 U.N. Doc. A/4090 (1958).89See HALEY,supra note 87, at 73l; BUCK, supra note 50, at 141-42; and C. WILFRED

JENKS,SPACE LAW97-98 (1965).90These include G.A. Res. 1348, para. 13, U.N. GAOR, 13th Sess., Supp. No. 18, U.N.Doc. A/4090 (Dec. 13, 1958), G.A. Res. 1472, para. 13, U.N. GAOR, 14th Sess., Supp.No. 16, U.N. Doc. A/4354 (Dec. 12, 1959), G.A. Res. 1721, para. 16, U.N. GAOR,Supp. No. 17, U.N. Doc. A/5100 (Dec. 20, 1961), G.A. Res. 1802, para. 17, U.N.GAOR, 17th Sess., 1192d plen. mtg., U.N. Doc. A/RES/1802 (1962), and G.A. Res.1962, para. 18, U.N. GAOR, Supp. (No. 15) at 15 U.N. Doc. A/5515 (Dec. 13, 1963).


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with Thailand, Azerbaijan, and Tunisia joining in 2010.91 Throughoutthe 1960s and 1970s, COPUOS engendered cooperation and consensusbuilding, as seen in the five primary international treaties, six UNGAResolutions, and numerous bilateral and multilateral agreementsconcerning outer space that were enacted between 1962 to 1979.

92

Progress was made easy in part due to the fact that the technology foreconomical space travel had not yet been realized, underscoring thecentral importance of technology in developing space.

93 As with

Antarctica, scientists fought to have science become the currency ofpublic diplomacy in space. But the cost of space exploration limited thepool of nations that were capable of taking part.94 Other factors thatcontributed to the rapid evolution of space law included the fact thatprecedents in the form of the Antarctic Treaty and customary air lawalready existed.95

Table 1: Chronology of the Golden Age of Space Law96

Year Event

1957-58 International Geophysical Year

1957 USSR launches Sputnik I1958 U.N. Resolution 1348 (XIII) establishes the ad hocCommittee on the Peaceful Uses of Outer Space

1959 COPUOS becomes a permament UN body

1967 Treaty on Principles Governing the Activities of States inthe Exploration and Use of Outer Space, Including theMoon and Other Celestial Bodies (Outer Space Treaty) (inforce 1967)

1968 Agreement on the Rescue of Astronauts, the Return ofAstronauts, and the Return of Objects Launched into OuterSpace (Rescue Agreement) (in force 1968)

1969 Apollo 11 lands on the Moon

91United Nations Committee on the Peaceful Uses of Outer Space: Members,http://unoosa.org/oosa/COPUOS/members.html (last visited Nov. 7, 2011). Theoriginal COPUOS Member States included: Argentina, Australia, Belgium, Brazil,Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, theUnited Arab Republic, the United Kingdom, the United States, and the USSR. SeeBOSCO, supra note 9, at 613. Membership grew gradually, with China joining in 1980,and many developing nations becoming involved to increase regional representation.See BUCK, supra note 50, at 146.92

VIIKARI,supranote 66, at 87-89. See BIN CHENG,STUDIES IN INTERNATIONAL SPACELAW155-57 (1997). For a more complete analysis of the golden age of space law and

the failure of the Moon Treaty, see Scott J. Shackelford, The Tragedy of the CommonHeritage of Mankind, 28 STAN.ENVTL.L.J. 109, 131-36 (2009) [hereinafter Tragedy].93VIIKARI,supranote 66, at 13 (noting the role of scientists as well as militaryindustrial complexes in pushing space exploration and development).94BUCK, supra note 50, at 145.95Id.at 152.96Figure redrawn fromId.at 143.


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1972 Convention on International Liability for Damage Causedby Space Objects (Liability Convention ) (in force 1973)

1974 Convention on Registration of Objects Launched into OuterSpace (Registration Convention) (in force 1976)

1979 Agreement Governing the Activities of States on the Moonand Other Celestial Bodies (Moon Treaty) (in force 1984)

Today, the outer space legal regime is defined by five majortreaties: the Outer Space Treaty, the Rescue Agreement, the LiabilityConvention, the Registration Convention, and the Moon Treaty. Noneof these explicitly regulate orbital debris, effectively manage spaceweaponization, or define property rights. However, several of thetreaties, such as the OST and the Moon Treaty, bear some relation tothese topics and are examined next.

B.Defining Occupation and Peaceful UseSpace law broke new ground beginning after the launch of

Sputnik in 1958 by considering the welfare of humanity as a wholebreaking with traditional notions of Westphalian sovereignty. ConsiderArticles 2 and 4 of the Outer Space Treaty.

97 Article 2 bars national

appropriation of the moon and other celestial bodies by claim ofsovereignty, by means of use or occupation or by any other means,98leading to contrasting interpretations between commentators as to thesufficiency of property rights for commercial development. 99 Space

lawyers remain divided on the question of occupation. This dispute wasaddressed by UNGA Resolution 1721 and partially resolved by the OST,which proclaimed outer space to be the province of all mankind,100but

not a CHM.101 Indeed, the phrase common heritage of mankind is

only included once in all of the U.N. treaties, General AssemblyResolutions, and principles that comprise the corpus of space law. 102And its single iteration in Article 11(5) of the Moon Treaty was derailedby a combination of domestic politics and a growing rejection of thetraditional CHM concept by developed States due to concerns overdisincentivizing development by curtailing free enterprise.103 Instead,

97See OST, supra note 32, arts. 2 & 4.98See id. at art. 2; and Tragedy, supra note 90, at 132.99See, e.g.,Jonathan C. Thomas, Spatialis Liberum, 7 FLA.COASTAL L.REV. 579, 592(2006).100OST, supra note 32, art. 1.101See generally HALEY,supra note 87.102See United Nations Treaties and Principles on Outer Space, U.N. OOSA,http://www.oosa.unvienna.org/oosa/en/Reports/publications.html#treat (last visitedSept. 21, 2011).103See Treaty on Principles Governing the Activities of States in the Exploration andUse of Outer Space, Including the Moon and Other Celestial Bodies, art. 11(5), Jan. 27,


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nations including the United States have adopted resource distributionpolicies that bar the extension of national sovereignty to outer space butpermit the reasonable exploitation of resources under certain conditions.This diversity of approaches conflicts with the classic CHM approach,and may lead to growing tensions if the spacefaring powers of the U.S.,Russia, European Space Agency, Japan, India, and China were toexclude developing States from the benefits of accessing space-basedresources.

104 Such an outcome would prove detrimental to the space

commons, particularly with regards to peaceful use, and highlights theneed for equitable sustainable development policies as has beenrecognized by the Obama Administration.105

Analyzing the peaceful use of space may be broken down intotwo areasorbital space, and the moon and other celestial bodies.106Article 4(1) of the OST allows for the nonaggressive military use oforbital space, unlike the Antarctic Treaty,

107and prohibits the placement

in orbit around the earth any objects carrying nuclear weapons or anyother kinds of weapons of mass destruction.108 While Article 4(2) isreminiscent of Article 1 of the Antarctic Treaty in that it preserves theseareas exclusively for peaceful purposes.

109 As applied to the issues of

orbital debris and space weaponization, which may be described asplacing weapons in space that target either space-based or terrestrialassets,

110OST Articles 3 and 9 also come into play. Article 9 addresses

the harmful contamination of outer space, though the OST enteredinto force before orbital debris became a common concern as is shownin Figure 7, and was due to Cold War politics over U.S. experiments andSoviet high atmosphere nuclear weapons testing.

111 But Article 9 falls

short of requiring action to mitigate debris and merely requires that theoffending party undertake international consultations.

112 This due

regard standard as applied to orbital debris is both broad and vague, and

1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Moon Treaty]; and Tragedy, supranote 90, at 136-39.104See Statement of the G-77 and China during the Forty-eighth session of the Scientificand Technical Subcommittee of the United Nations Committee on the Peaceful Uses ofOuter Space, Feb. 7-18, 2011, delivered by H.E. Ambassador Ali Soltanieh, PermanentRepresentative of the Islamic Republic of Iran, available athttp://www.g77.org/vienna/OOSAFEB11.htm(arguing that nations should worktogether to ensure that all countries are able to have equitable access to the limitednatural resources of outer space).105See NATIONAL SPACE POLICY,supra note 1, at 5, 10.106Armel Kerrest, Outer Space as International Space: Lessons from Antarctica, SPACEDIPLOMACY133, 136 (2011)107See OST, supra note 32, art. 4; and Antarctic Treaty art. 1(1)., Dec. 1, 1959, 12

U.S.T. 794, 402 U.N.T.S. 72.108See OST, supra note 32, art. 4.109Id.110See Kerrest, supra note 104, at 136.111See infra p.69; and Id. at 137. Article 7(1) also addresses harmful contamination ofthe space commons during exploration activities. See OST, supra note 32, art. 7(1).112OST, supra note 32, art. 9.


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thus controversial.113 Article 3 is more generic but also is applicable topeaceful use since it calls on States Parties to carry out space explorationand activities in accordance with international law, including the U.N.Charter, so as to promote international peace and security as well asinternational cooperation.

114 ASAT testing may threaten international

peace and security and could run afoul of the U.N. Charter and thus OSTArticle 3.115 Thus far though, these OST provisions have not led to thesustainable, peaceful use of space. Nor has the CHM been a particularly

useful vehicle to equitably develop space, other than laying out commonbut differentiated responsibilities. Thus, the generation of space debrisis likely not illegal under international law, and according to ProfessorRam Jakhu, currently applicable international space law does notestablish a sufficient and appropriate legal regime to internationallyregulate the serious risks created by space debris.116

As a result of persistent resistance, only the moon and othercelestial bodies of the solar system as well as the deep seabed beyondnational jurisdiction are explicitly proclaimed as common heritage areasunder international law. 117 Thus, the international community has

rejected the two most direct tests of the CHMthe 1982 U.N.

Convention on the Law of the Sea (UNCLOS III) was, after all, onlysaved by the New York Agreement. 118 This rejection has souredinternational support for further multilateral efforts in regulating thecommons through the classic CHM concept featuring supranationalmanagement and mandatory technology transfer. Indeed, some havegone so far as to argue that the OST itself is destined to fail, and that thebenefit of all mankind language in the OST has created a space anti-commons. 119 The international community has proven unable to

113See Ram Jakhu, Towards Long-term Sustainability of Space Activities:Overcoming the Challenges of Space Debris, IAASS Legal & Regulatory Comm., at 10(Feb. 15, 2011), available athttp://www.oosa.unvienna.org/pdf/pres/stsc2011/tech-35.pdf.114Id. at art. 3.115See Sandeepa Bhat & Kiran Mohan V,Anti Satellite Missile Testing: A Challenge toArticle IV of the Outer Space Teraty, 2 NUJS L. Rev. 205, 211 (2009).116Jakhu, supra note 113, at 10-11 (noting that space debris may be illegal if it wasgenerated purposefully with the intent to interfere with the peaceful use and explorationof space).117See Declaration of Legal Principles Governing the Activities of States in theExploration and Use of Outer Space, G.A. Res. 1962, para. 18, U.N. GAOR, 18th Sess.,Supp. No. 15, U.N. Doc. A/5515 (Dec. 13, 1963); OST, supra note 32, art. 1;Declaration on Principles Governing the Seabed and Ocean Floor, G.A. Res. 2749, para.25, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (Dec. 17, 1970); and

Moon Treaty, supra note103.118United Nations Convention on the Law of the Sea art. 137, 2, Dec. 10, 1982, 1833U.N.T.S. 397 [hereinafter UNCLOS].119See Adam G. Quinn, The New Age of Space Law: The Outer Space Treaty and theWeaponization of Space, 17 MINN.J.INTL L. 475, 488 (2008). But see United NationsOffice of Outer Space Affairs,http://www.oosa.unvienna.org/oosa/SpaceLaw/treaties.html (last visited Sept. 21, 2011)


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produce any new multilateral instruments regulating space since theMoon Treaty, preferring the development of a space regime complexthat has important ramifications for the sustainable, peaceful use of outerspace.

C.The Emerging Space Regime Complex

Regime complexes occur when several different regimes coexistin the same issue area. Given the current state of international politics,loosely coupled regime complexes have significant advantages overunitary regimes such as some U.N. consensus-driven multilateraltreaties. In the context of climate change for example, ProfessorsKeohane and Victor argue, the structural and interest diversity inherentin contemporary world politics tends to generate the formation of regimecomplexes rather than a comprehensive, integrated climate regime.120States construct international regimes on the basis of their owninterests.

121 As a result they argue, rarely does a full-fledged

international regime with a set of rules and practices come into being at

one period of time and persist intact.

122

More often, internationalregimes emerge as a result of codifying informal rights and rules thathave evolved over time through a process of converging expectations ortacit bargaining. 123 Consequently, regime complexes are becomingmore popular due to divergent interests and multipolar politics, whichmay have some benefits since negotiations for multilateral treaties coulddivert attention from more practical efforts to create flexible, looselycoupled regimes to manage common problems such as orbital debris.

124

But there are also costs of regime complexes to consider. Inparticular, they must still meet standards of coherence, effectiveness,determinacy, sustainability, and epistemic quality.

125 And there are

moral considerations. For example, in the context of climate change,smaller forms may omit nations that are not major emitters, such as theleast developed nations that are the most at-risk to the effects of achanging climate.

126 Verification is also an issue, along with the myriad

problems associated with foregoing multilateral negotiation in favor ofmore targeted initiatives, such as incentivizing nations to become freeriders. Regime complexes are also laden with legal inconsistencies

(demonstrating that as of December 2011 the OST has had 100 ratifications and 26signatures giving it the strength of customary international law).120KEOHANE &VICTOR, supra note 26, at 1.121Id.at 2.122Id. at 3.123See ORAN R.YOUNG,GLOBAL GOVERNANCE:DRAWING INSIGHTS FROM THEENVIRONMENTAL EXPERIENCE10 (1997).124KEOHANE &VICTOR, supra note 26, at 2.125Id.126Interview with Steve Schneider, Professor of Biology, Stanford University, inCopenhagen, Den. (Dec. 8, 2009).


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because the rules in one regime are rarely coordinated closely withoverlapping rules in related regimes, causing negotiators to adopt broadrules that allow for multiple interpretations. 127 Consequently, thebenefits regime complexes must be critically analyzed as applied tospace governance.

128

The corpus of space law to date represents a regime in terms oflegal usage, but is not in keeping with Professor Keohanes definition ofregimes, i.e., sets of issues that are in fact dealt with in common

negotiations and by the same or closely coordinated bureaucracies.129Instead of a single governing entity or system of tightly knitbureaucracies, what have emerged are a number of overlapping, oftenuncoordinated and sometimes contradictory or competing regimes

130; in

other words, a polycentric regime complex.131 Whether the differentaspects of the system operate independently, work together, or are incompetition with one another is an empirical question taking intoaccount the regime effectiveness of space law, which is discussed in PartFour.132 This argument may be illustrated by examining the evolvingrole of COPUOS in space governance.

U.N. space-lawmaking is a cumbersome process requiring

COPUOS to approve a text by consensus, after which time it is sent tothe U.N. General Assembly. But despite some successes during thegolden age of space law,

133more recently the consensus required in

COPUOS has become a straight jacket though addressing that problemis politically difficult. 134 This became apparent in 1982 when theUNGA bypassed COPUOS in adopting a resolution regarding directtelevision broadcasting from space.

135 COUPOS was largely silent in

the early 1990s after the end of the Cold War led to a necessaryrealignment of interests, according to Sergei Negoda, Legal Officer atCOUPOS.136 But beginning with the UNISPACE III Conference in

1999,137COPUOS has made significant progress in certain areas, such

127Raustiala & Victor, supra note 28, at 277.128See infrap.35.129ROBERT O.KEOHANE,AFTER HEGEMONY:COOPERATION AND DISCORD IN WORLDPOLITICAL ECONOMY61 (1984).130EDWARDW. PLOMAN,SPACE,EARTH AND COMMUNICATION155 (1984)131See Vincent Ostrom, Charles M. Tiebout, & Robert Warren, The Organization ofGovernment in Metropolitan Areas: A Theoretical Inquiry, AM.POL.SCI.REV. 831, 831(1961).132See infra p.35.133Tragedy, supra note 90, at 135.134BUCK, supra note 50, at 147 (noting that majority rule can be used in COPUOSwhen consensus is impossible to attain, but this has never been done before).135See NATHANGOLDMAN,AMERICAN SPACE LAW:INTERNATIONAL AND DOMESTIC26(1996).136Telephone interview with Sergiy Negoda, Chief Counsel for the U.N. Office ofOuter Space Affairs, in Vienna, Austria, (Jan. 27, 2012).137See supra p.4.


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as with the non-binding 2007 Space Debris Mitigation Guidelines.138Some States were eager to convert this document into a binding treaty,but political resistance scuttled such talks. The Czech Republic, long aproactive leader in the arena of space debris, tried again for a bindingtreaty but met resistance from the European Union among other actorscalling for more national regulation.

With the announcement of the NASA Vision for SpaceExploration (VSE) and the Obama Administrations space policy, space

law has once again become a pressing topic.139 This time, however, thefocus is not on U.N. rulemaking, but on more informal soft lawapproaches as well as national action plans, bilateral, and regionalagreements.

140 This lack of multilateral cooperation is now threatening

core principles of space law as technology leapfrogs existing governanceregimes. Due to the influences of technological advancement, resourcescarcity, and multipolar politics, States have begun bypassing the U.N.consensus-driven system in favor of polycentric regulation. Thecurtailed scope of COPUOS is a phenomenon recognized by SteveDoyle, a member of the U.S. delegation to the OST and now anExecutive Vice President at Clean Energy Systems, who argues:

As COPUOS has grown, it has lost vigor andvitality. The initial problems dealt with were of broadscope and immediate concern. Over time, the issuesbecame narrower and with operational implications,which lead to real constraints on states Treaty writinggave way to principles drafting, which has now beenreduced substantially to discussions and expressions ofopinion for the record.

141

Yet the future of international cooperation in peacefully and sustainablymanaging space depends on the interactions within this regime complex,

and the ability of stakeholders to embrace best practices whileunderstanding the benefits and drawbacks of polycentric governance.

D.A Polycentric Approach to Space GovernanceProfessor Ostrom and others have argued for the adoption of

polycentric solutions to common pool resource problems stemming fromthe global commons, particularly in reference to global climate change.

138See COPUOS Space Debris Mitigation Guidelines (2010), available at

http://www.oosa.unvienna.org/pdf/publications/st_space_49E.pdf.139 See HENRY HERTZFELD,SPACE ECONOMIC DATA 9 (2002).140See David S. Weitzel, Where No Lawyer Has Gone Before? What A CyberspaceAttorney Can Learn from Space Laws Legacy, 10 COMMLAW CONSPECTUS191, 191(2002).141Electronic interview with Steven Doyle, Executive Vice President, Clean EnergySystems, in Sacramento, Cal. (July 3, 2006).


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This is because a single governmental unit is often incapable of dealingwith global collective action problems due to the problem of freeriders.142 The central problem, as identified by Ostrom, is that waitingtoo long could mean that global solutions negotiated at the global level,if not backed by a variety of efforts at national, regional, and locallevels, are not guaranteed to work well.

143 In other words, there does

not necessarily need to be one comprehensive global solution to theglobal commons: You dont need big brother to step in to protect the

commons, explained Stephen Schneider, the imminent late StanfordBiology Professor. 144 Instead, local institutions may be created topromote good governance. Such a polycentric approach would bemutually reinforcing at local, national, regional, and global levels. Thus,according to Professor Ostrom polycentric regulation is useful whenconsidering governance questions in the global commons as thecomplexity of these problems lends itself well to many small, issue-specific units working autonomously as part of a network It is anapplication of the maxim, think globally, but act locally.145

Proponents claim that, at least within these contexts, top-downplanning by national officials with extensive external resources is

unnecessary to build efficient regimes to sustainably govern commonpool resources. 146 If done correctly by incentivizing systems wheregovernmental and nongovernmental enterprises engage in diversecooperative as well as competitive relationships, such a bottom-uppolycentric management approach can lower transaction (ruleenforcement) costs relative to a monocentric hierarchy.

147 An example

is the reformation of the E.U. Common Fisheries Policy to encouragegreater stakeholder involvement.148 Polycentric governance thus buildsfrom the regime complex literature recognizing both the benefits anddrawbacks of multilevel regulation, and the importance of local self-organization, which is why this study uses the term polycentric regime

complex. Originally developed for the domestic commons, recentlyProfessor Ostrom and others including Professor Victor have worked toextend these principles to the atmospheric commons arguing for targetedmeasures through small, issue-specific forums to help manage globalcollective action problems lest inaction hasten a worst-case scenario.

149

142Ostrom, supra note 12.143Id. at 4.144Schneider, supra note 126.145Ostrom, supra note 12.146Elinor Ostrom, Polycentric Systems as One Approach for Solving Collective-Action

Problems 2 (Ind. Univ. Workshop in Political Theory and Policy Analysis, WorkingPaper Series No. 08-6, 2008).147Bruno S. Frey & Reiner Eichenberger, FOCJ: Competitive governments for Europe,16(3) INTL REV.L.ECON. 315, 315 (1996).148Doug Wilson, Predictions about European Commons, 77 COMMON PROP.RESOURCEDIGEST7, 8 (2006).149See Ostrom, supra note 346; and KEOHANE &VICTOR, supra note 26.


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However, there are both moral and political problems with thisapproach, including an application of Garrett Hardins lifeboatethics,150and the lack political will by some States to be pressured insmaller forums. Nevertheless, there is a potential for more targetedtreaties to emerge on the path to binding multilateral agreements.

151 But

there is no perfect forum in a multipolar world; both a top-downmultilateral approach and a bottom-up polycentric one have benefits anddrawbacks. To determine its applicability to space governance, the first

and most recent analysis of polycentric regulation in the globalcommons is within the context of global climate change. Thus it isinstructive to review the application of polycentric theory to the problemof global climate change introduced above.

Although the atmosphere is by its definition global, the effects ofclimate change vary from region to region, as do the causes at a microlevel including individuals, families, and firms.

152 Actions taken on a

small scale could have an impact on the climate change probleminsulating housing or buying more fuel-efficient cars could reduceenergy consumption worldwide by 30 percent alone.

153 Millions of

actors affect the atmosphere, just as they affect content and activity on

the Internet, and the health of oceanic ecosystems. Trying to solve theproblem of a public good is a classic collective action dilemma, whichcan vary in scale from very small problems involving only a fewindividuals to extremely large problems involving global resources, suchas the atmosphere and the oceans.154

No single country acting alone can solve climate change. Butwaiting for a consensus to emerge within the U.N. also hasdisadvantages since, at least for the near term, a coherent, effective andlegitimate comprehensive regime for climate change is politicallyunobtainable.

155 Disagreements begun during the Kyoto Protocol to

the UNFCCC continue to this day,156including over who should pay for

150See Garrett Hardin,Lifeboat Ethics: the Case Against Helping the Poor,PSYCHOLOGY TODAY(1974).151See, e.g., Christopher Joyce, Climate Strategists: To Cut Emissions, Focus OnForests, NATL PUB.RADIO, Dec. 10, 2011, available athttp://www.npr.org/2011/12/10/143454111/climate-activists-to-cut-emissions-focus-on-forests?sc=17&f=1001 (reporting that some nations such as Norway are looking outsidethe U.N. framework for action on climate change).152Aran Agarwal, The Role of Local Institutions in Adaptation to Climate Change ,WORLD BANK REPORT (2008).153See Michael P. Vandenberg & Anne C. Steinemann, The Carbon-Neutral Individual,82 N.Y.U.L.REV. 1673, 1674 (2007).154Ostrom, supra note 346, at 5. See generally UNDERSTANDING KNOWLEDGE AS ACOMMONS:FROM THEORY TO PRACTICE(Charlotte Hess & Elinor Ostrom eds.,2007).155KEOHANE &VICTOR, supra note 26, at 22.156W.J.W. Botsen, et al., Cumulative CO2 Emissions: Shifting InternationalResponsibilities for Climate Debt, 8 CLIMATE POLICY569, 569 (2008).


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the mitigation atmospheric pollution,157 and what the solutions shouldbe, such as afforestation

158or the Payment for Ecosystem Services

(PES). 159 Given the decades-long delay at the global level to findmechanisms for efficient, fair, and enforceable reductions of greenhousegas emissions, waiting longer may lead to tragedy. Likewise, given thepressing problem of space weaponization and orbital debris, inactionmay hasten the worst-case scenario.

Professor Victor joins Professor Ostrom in arguing that interim

measures should be taken short of a global agreement on climate change.His idea in essence is to assemble the major greenhouse gas emitters.Together, they could reach an agreement more easily than is possiblethrough the UNFCCC process, though COP17 underscored thecontinuing importance and potential of multilateral engagement as wellas the fluidity of multipolar politics with the alliance between theEuropean Union and less developed countries.

160 This approach is being

tried in the Major Emitters Forum (MEF), and at COP15 itself whenPresident Obama met with the BASIC group.161 Such efforts have latelymet with some success, which is why Professor Ostrom has argued thatpolycentric regulation is the best way to address transboundary

problems, be it the overexploitation of fisheries, or climate change.162Whether the same holds true for addressing the conjoined challenges ofspace weaponization and orbital debris is analyzed in Part Four.

163

In summary, the advantage of a polycentric approach is that itencourages experimental efforts at multiple levels, as well as thedevelopment of methods for assessing the benefits and costs ofparticular strategies adopted in one type of ecosystem and comparingthese with results obtained in other ecosystems.164 This is an importantlesson, in that simply recommending a single governmental unit tosolve global collective action problemsbecause of global impactsneeds to be seriously rethought and the important role of smaller-scale

effects recognized.165 There is no central authority at the global levelmaking authoritative decisions about payments for energy use andinvestments in new technologies, and enforcing those decisions.166 Nor

157A. Najam et al., Climate Negotiations beyond Kyoto: Developing CountriesConcerns and Interests, 3 CLIMATE POLICY221, 230 (2003).158SeeG. Bala et al., Combined Climate and Carbon-Cycle Effects of Large-ScaleDeforestation, 104(16) PROC.NATL.ACAD.SCIENCES6550 (2007).159Erik Nelson et al.,Efficiency of Incentives to Jointly Increase Carbon Sequestrationand Species Conservation on a Landscape, 105(28) PROC.NATL.ACAD.SCIENCES9471, 9472 (2008).160See, e.g., Climate Talks End with Deal, BBC NEWS, Dec. 11, 2011, available at

http://www.bbc.co.uk/news/science-environment-16124670.161Id.162Ostrom, supra note 145.163See infra p.35.164Ostrom, supra note 12, at 40.165Id.at 35.166Id. at 9.


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is there such a central regulator of outer space, and only the beginningsof one for the deep seabed through the International Seabed Authority(ISA).167 This is a fundamental problem of open access regimes.168

The move to polycentric space governance is a dramatic changeof affairs from the U.N. system that has long encouraged the progressivedevelopment of international law and its codification. 169 The

fragmentation of this system could foreshadow what would occur in thegovernance regimes of the global commons generally without concerted

multilateral action. It is imperative that traditional conceptions of theCHM concept give way to a modern system that guarantees propertyrights and stimulates sustainable development while also promotinginternational peace and security. This for example could includeinfusing sustainable development at multiple regulatory levels, includingnationally as the Obama Administration has recently attempted in its2010 National Space Policy. 170 Whether the existing space regimecomplex can foster such outcomes remains to be seen.

171

By way of conclusion, the 2010 COPUOS declaration isinstructive as to the current state of space governance. There, the UnitedStates argued, the international community must come together to

measure and reduce the risks to space operation for all,172while alsourging States to use national laws to implement needed reforms. Russiacalled for the implementation of existing agreements in the face oftechnological advancement and growing commercial interest lest a spacearms race commence. The former Libyan government stressed the needto address space junk. Pakistan argued that space was part of the CHM,and so all military activities should be forbidden. In the end, Zimbabwecalled for the resolution to be tabled, which it then was.173 This meetingunderscores that COUPOS is now little more than a talking shop asmaintained by Mr. Doyle, but also that there is recognition that spacelaw is incomplete, especially with regards to space weaponization and

space junk.174 Despite these failures, new norms may be emerging inspace to clarify legal ambiguities through the influence of state and non-State actors, including the private sector. Many of the space treaties,including the OST, are more aspirational political documents thanbinding accords laying out obligations. This leaves States to fill in

167See UNCLOS, supra note 118, art. 137.168See also Lon Fuller, The Forms of and Limits of Adjudication, 92 HARV.L.REV.353, 397-98 (1978) (noting the applicability of polycentricity to the law andadjudication).169U.N. Charter, pmbl & art. 13. See also Tragedy, supra note 90, at 135 (arguing that

the move away from UN-centered multilateral treatymaking is a dramatic change inaffairs in the governance of outer space).170See NATIONAL SPACE POLICY, supra note 1, at 5.171See infra p.35.172U.N.GENERAL ASSEMBLY PRESS RELEASE,supra note 36.173Id.174See infra p.35.


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governance gaps, resulting in movements to increase commercializationand national regulation in outer space, the extent and effectiveness ofwhich is investigated in the following sections.

III. Property Rights and the National Regulation of SpaceThis Part analyzes the evolution of property rights in response to

increasing commercial activity in space, and investigates the extent towhich national regulation is taking the place of COPUOS in regulatingthe final frontier as one component of an emerging polycentric system.Section A explores the current legal regime of property rights applicablein outer space, and how the Obama Administrations emphasis on thecommercialization of near-Earth space has added new urgency to thisvexing issue. Section B then analyzes the growth in the nationalregulation of space.

A.Space, Inc.: Property Rights in Space LawCommercial ventures in space are increasing even as regulatory

frameworks lag behind. This activity has been encouraged by theUnited States: In order to reach the space station, we will work with agrowing array of private companies competing to make getting to spaceeasier and more affordable, President Obama exclaimed in his speechon the future of NASA.

175 Indeed, Mr. Obama referenced the

importance of companies in developing space five times in his 15-minute address.176 This new space industry includes start-up companieslike SpaceX, branches of established multinational corporations likeVirgin Galactic, and some of the biggest names in Aerospace includingBoeing and Lockheed Martin. The United States is attempting to

unleash the power of private enterprise to drive down the costs ofaccessing space.

177 But are the legal regimes in space, most importantly

the OST and the Moon Treaty, up to the challenge of a suddenly morecrowded final frontier? I argue that sufficient property rights likely doexist in space law to support this burgeoning industry, but that they areoften ambiguous and in need of definition through polycentric regulationand multilateral collaboration to promote sustainable development andavoid collective action problems.178

The Moon Treaty does not prohibit the commercial utilization ofspace resources. 179 Indeed, existing space law establishes certain

175Obama, supra note 22.176Id.177See John Logsdon, The Decision to Develop the Space Shuttle, 2(2) SPACE POLICY103, 104 (1986).178See Tragedy, supra note 90, at 146-52.179Moon Treaty, supra note103, art. 11(7).


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property rights in space, such as for objects launched into space,structures built on planets and asteroids, in situ resource utilization, andscarce orbital slots. 180 Regarding the latter, the InternationalTelecommunication Union (ITU) allocates available spectra to satellites.Satellite frequencies cannot be separated from orbits since any changewould change the power of the frequency needed to reach the receiveron Earth, creating an indirect property right. The market administeredby the ITU is in some ways a model of effective polycentric governance,

though States are reluctant to relinquish regulatory control over theircommunications systems to external actors while problems of backlogand delay continue to plague the organization.181 Other States, such asTonga in 1990, have claimed orbital slots as bargaining chips for use inother policy arenas, rather than as efforts to pursue access underscoringthe influence of politics on regulating the space commons.182 And thedomestic situation can change such as with the importance of propertyrights in the Bush Administrations Commission on Space Exploration,compared to the Obama Administration, which omitted the issue in its2010 National Space Policy.

183 But it remains unclear whether

commercial enterprises would be able to operate effectively within

existing frameworks given confusion over the CHMframework found inArticle 11 of the Moon Treaty among other ambiguities. 184 Thesituation is further complicated by the widely differing geopoliticalbents of the spacefaring powers. 185 Examining differing national

interpretations of property rights is thus an effective vehicle not only toweigh the relative merits of these arguments as applied to the spacecommons, but also to gauge the growth of this component of the spaceregime complex.

B.Analysis of National Space LawsIn July 21, 1969, humans first set foot upon the moon. This

seminal moment in history was unique in more ways than one. Theoccasion marked one of the first times that a nation did not claim

180OST, supra note 32, arts. 2, 4 & 7181See, e.g., OECDINTERNATIONAL FUTURES PROGRAMME,SPACE 2030:TACKLINGSOCIETYS CHALLENGES189 (2005).182Id.183Presidents Commn on Implementation of U.S. Space Exploration Poly, Report,AJourney to Inspire, Innovate and Discover34 (Appendix A) (June 2004),

http://govinfo.library.unt.edu/moontomars/docs/M2MReportScreenFinal.pdf. See alsoJoel D. Scheraga,Establishing Property Rights in Outer Space, 6 CATO J.889(1987)(providing an early survey of theories about property rights in space).184Moon Treaty, supra note103, art. 11.185See Robert J. Samuelson, The Spirit of Capitalism, FOR.AFF., Jan. 2001, available athttp://fullaccess.foreignaffairs.org/20010101fareviewessay2001010112/robert-j-samuelson/the-spirit-of-capitalism.html; and Tragedy, supra note 90, at 140-41.


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territory when making landfall on an uninhabited area. 186 This wasbecause the OST was already in place barring such appropriation. Butthis and the other principal multilateral space agreements have notnegated the need for national legislation in space. In fact, national spacelaws are a valuable vehicle for assessing the direction and effectivenessof the emerging space regime complex. Analyzing national space lawsalso helps develop a culturally relative theoretical framework to aid inexplaining differing approaches toward space governance. Contrary

perspectives are apparent when comparing developed and developingcountries, though an East-West divide is also prevalent. In an effort toexplain this divergence, this section categorizes the space powers intothree camps: liberal institutionalists, market rationalists, and communalneo-realists. This is far from a perfect system, but it helps to illustratehow the varying legal cultures of these countries have and areinfluencing their national space policies. This also illuminates thedifficulty in international law of providing a cohesive, uniform approachto space governance within such a divergent culturally relativeparadigm.

187

According to the OOSA Compilation of National Space Laws

from the U.N. Nigeria Workshop on Space Law, 18 countries havepassed 45 relevant space acts or executive orders since the beginning ofthe Space Age.

188 The most active governments, defined as those that

have enacted three or more laws during this period, have been:Australia (4), Brazil (3), France (3), Italy (4), Russia, (6), Ukraine (3),and the United States (7).

189 The comprehensive mission statements on

national space activity passed in Canada, Chile, and China are alsorelevant.190 Together, the content of these decrees reveals how thesenational governments approach the issue of managing global CPRs, thegrowth of which is illustrated in Figure 1. Spacefaring countries such asFrance, Germany, Japan, Israel, India, Russia, China, and Brazil have

diverse economies and fall at varying points in the political-economicspectrum. This is reflected in how these governments approachregulating space activities. Through this lens, it is possible to gain newinsights into how space might unfold as an astropolitical arena ofinternational cooperation and conflict.

191

186BUCK, supra note 50, at 141.187See Astropolitics, supra note 36, at 3-4 (representing the first iteration of thisanalysis).188Hundreds more acts have also come into effect during this period, but do not dealwith international cooperation, the private sector or natural resources, and so are beyond

the scope of this case study.189Meeting International Responsibilities and Addressing Domestic Needs, UnitedNations Nigeria Workshop on Space Law, in Abuja, Nigeria (Nov. 21-24, 2005).190Id.191See generally NATIONAL REGULATION OF SPACE ACTIVITIES(Ram S. Jakhu ed.,2010). See Astropolitics, supra note 36, at 10-13 (publishing the analysis fromNewFrontiers in the IAF conference proceedings).


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Figure 1: Number of National Space Laws by Decade192

Space policies must fit within a States laws, as well as within its

political and economic interests.193

As these interests vary, so too do thecontent and style of space legislation. Belgium has passed laws onlaunching, flight operations, and the guidance of space objects,

194while

Germany has been more concerned with governing the transfer ofresponsibilities for space activities.195 One common area of legislativeaction is promoting international space cooperation. Belgium, Canada,Chile, China, Russia, the Ukraine, and the United States have allincluded such provisions in bills and executive orders.196 During the1980s and 1990s, many of these acts dealt with the ISS. 197 Nations suchas Chile have also been codifying these provisions to advocate forpeaceful use and as a way to reinforce the channeling of international

scientific, technological, and economic cooperation.198

This isconsistent with the original OST, and may bode well for multilateralprogress in managing common problems such as orbital debris.

Another important area, notably for Russia and the Ukraine, hasbeen national bans on placing weapons of mass destruction in space or

192Figure redrawn from data available at U.N. OOSA National Space Law Index,http://www.oosa.unvienna.org/oosaddb/browse_all_js.jsp?dims=COUNTRY_CODE|DATE (last visited Nov. 22, 2011).193Id. at 2.194See Law on the Activites of Launchi

geopolitics of outer space

Documents

commercial space

space transportation

impacton space governance

national regulation

tragedy of space commons

evolution of space law

emerging space regime

atmospheric governance