The Outer Space Treaty and related agreements have created a system that hinders commercial development on the Moon and elsewhere in space, some believe. (credit: Phil Smith courtesy of Sam Dinkin)

It’s time to rethink international space law

by Michael J. Listner
Tuesday, May 31, 2005

Since the inception of the Outer Space Treaty of 1967, international law regarding the use of outer space by nations and individuals has been dominated by the res communis doctrine, the concept that space belongs to mankind and not to one individual or country. While the doctrine is a noble one and is likely the offspring of the political and economic environment of the time, strides in technology as well as the evolution of the socio-political and economic environment makes the treaty more of a hindrance than a safeguard.

The fact is that although some of the principles espoused by the treaty have merit and have resulted in some child treaties that are certainly beneficial to the progress of space exploration, the underlying premise of res communis effectively limits expansion and innovation in the realm of outer space. Two areas in particular are national security and property rights and commercialization.

National security

The res communis doctrine of the Outer Space Treaty precludes at least some military activity in space. While the interpretation of this ranges from absolutely no military activities in space to allowing activities that are passive in nature, the result is that military activities are curtailed and limit space as a realm for employing national security activities. The environment of the Cold War between the United States and the former Soviet Union certainly motivated this ban on military activity at a time when fractional orbital bombardment and other orbital nuclear delivery systems were being considered.

However, the utilization of space has increased dramatically since the Cold War to the extent that everyday activities from telecommunications to financial markets to civilian navigation rely heavily on space infrastructure. Protecting these space assets is important given that their destruction would not only affect the military but could also effectively cripple economies.

The prime danger to these space assets are anti-satellite weapons. Although technically the treaty does not allow these types of weapons (considering the ban on military activities), the fact is that these have been under development at times in the past, and may be so today. In order to protect these assets, it may be necessary to claim zones around these space assets as national territory in order to protect them. However, such a notion would clearly fly in the face of the res communis doctrine of the Outer Space Treaty.

Furthermore, there is the additional danger of terrorism. One of the lessons of the 9/11 attacks on the United States is that terrorist activity has become increasingly sophisticated and it stands to reason that, eventually, terrorist groups may gain the technical ability to affect US space-based assets or even use space itself as a launching point for their attacks. To that end, it is necessary to develop the means to impede that activity but that would require more military activity in space, something the res communis doctrine of the Outer Space Treaty discourages and eventually looks to eliminate.

Property rights and commercialization

The res communis doctrine resounds most prominently when dealing with property ownership rights in outer space. The Outer Space Treaty not only forbids claiming of territory by nations, but its child, the Moon Treaty, attempts to extend that prohibition to private legal entities also. Although the United States is not a signatory to the Moon Treaty, it has not taken open actions to actually refute its legal viability. The result is that the Moon Treaty and its res communis doctrine has slowly crept into the realm of accepted international law.

It is worth mentioning that at the time of the ratification of the Moon Treaty, the signatories did not have an equal or greater space capability than the United States, the Russian Federation (formerly the USSR) , or the People’s Republic of China, none of whom have ratified the Moon Treaty. In essence it was designed to extend the reach of res communis so that private individuals or entities could not take advantage of the Outer Space Treaty’s shortcomings and start a wave of staking claims to extraterrestrial real estate. However, this presents a major roadblock to the commercialization and exploitation of extraterrestrial resources given that, in order to acquire those resources, a property interest, whether a license or actual ownership, in an extraterrestrial body would need to be acquired.

Interestingly, the Moon Treaty does not forbid mineral exploitation, but rather forbids staking claims on extraterrestrial property while allowing the exploitation under the oversight of an international body. Furthermore, the Moon Treaty requires that the means to acquire extraterrestrial mineral wealth be given to countries that cannot develop it on their own. It’s no wonder that private enterprise is loath to invest in technologies to exploit space with these conditions hanging over their heads.

While it can be argued that the issue of property rights and exploitation of minerals from space is premature given the current level of technology, the res communis juggernaut is already wielding its weight in the budding civilian space industry. Doubtless the resistance being felt by Burt Rutan and the proponents of the commercialization of space from policymakers is at least partially influenced by the Outer Space Treaty and its progeny.

Solutions

As with all things, it is easier to point out problems with the Outer Space Treaty and the res communis doctrine than it is to offer solutions. The fastest and most efficient solution is to withdraw from the Outer Space Treaty. However, while it may eliminate a lot of the problems that the Outer Space Treaty creates, the political fallout would be great and it is highly doubtful that such an action would be palatable.

A second option is to amend the Outer Space Treaty to try and work around the res communis doctrine and shape the treaty more in line with the present day global realities. However, it is difficult to imagine that there will be enough support among the signatories to the treaty to amend it so that res communis is rendered more user friendly.

A third option is to begin to shape domestic space policy and regulations to provide a platform to begin to reshape international space law. Domestic space policy could evolve into multilateral agreements with other countries regarding the use of space. The idea is that, over time, multilateral agreements born of domestic space policies would eventually reshape the thinking of international space law and either make the Outer Space Treaty redundant or encourage the international community to either rethink or redefine the res communis doctrine.

Conclusion

The current doctrine of international space law is restrictive and suffocating. For real progress in space to be made, the Outer Space Treaty and its res communis doctrine must be rethought in terms of the realities of today.

However, to be effective, the goal of rethinking international space law must be one of action rather than talk. It will require time and investment into space policy and legal think tanks to lay the foundation for the new era in international space law. However, taking the path of “let’s wait and see what happens” is not the one to take. The goal of revising international space law will be a difficult one, but the time to start working toward that goal is now.

Michael Listner is a 2001 graduate of Regent University School of Law and is licensed to practice law before the state and federal courts of New Hampshire. He has been published on the topic of space law and space property rights. He can be contacted at michlis@metrocast.net.

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