Media Coverage and War Narratives

Securing Freedom in the Global Commons: The Model of the High Seas and Property Rights in Outer Space

Introduction

Land rights and air rights are commonly agreed upon concepts, but when it comes to the high seas and outer space, disputes have arisen about where one state’s rights begin and another’s end. This paper addresses the notion that “As the model of the high seas suggests, there is nothing unusual or unlawful about the assertion of property rights in relation to outer space resources”. The position of this paper is that the model of the high seas is idealistic in essence, as the sea lanes are a major subject of national security for powerful states. The same goes for outer space rights. In addition, the idea that “in time of peace” the high seas are open to all nations (freedom of the seas) is problematic because when can one point to a “time of peace” in a universal, global sense? Even when war is not specifically declared by one nation against another, proxy wars go on, economic wars in the form of sanctions are waged, and disputes over territorial rights persist. The model of the high seas is really an example of empire inscribing colonization into international law under the guise of securing freedom in the global commons—for it is might that “makes right” in the international order. But if the model of the high seas is not applied, what should the law look like? Should every sovereign nation be allowed to have property rights in outer space, just as it has land, air, and sea rights with respect to its borders? This does not provide a practical or equitable solution to the issue either, as the more powerful states will be able to argue that they are the only ones capable of utilizing outer space resources and therefore should be the ones to secure the rights over them. A more sensible solution may be found in a law based on the rights of nature. From a posthuman international law perspective, this idea could be a possible solution, as it harkens back to the medieval notion of the rights of God being above the rights of man. In the modern context, the rights of nature could place necessary constraints on sovereign claims or on corporate exploitation of resources.

Model of the High Seas

The doctrine of the high seas serves as the basis of the model of the high seas and was put forward by Grotius in the 17th century.[footnoteRef:2] Grotius made the distinction between inner and outer sea—much like today a distinction is made between inner and outer space. The main principle of Grotius’s argument was reflected in Article 89 of the UN’s Convention on the Law of the Sea.[footnoteRef:3] The Convention on the Law of the Sea, furthermore, reflects states’ rights to protect the security of their boundaries with regard to the inner sea, described by Grotius, via laws regarding trafficking, docking, use, and so on. With regard to the high seas, however, the Convention states that no claim of sovereignty is permitted. [2: Grotius H., 'Mare Liberum" (1609) Chaps V-VIII] [3: Rothwell D., The Oxford Handbook of the Law of the Sea (OUP 2015) 64]

Just as Grotius argued that no one nation could lay claim to the open outer sea, space law today states that no one nation can lay claim to outer space. There are stipulations as to who is responsible for operations that take place in space, or liable for damages when space equipment crashes in another state. However, international collaboration and acceptance of the fundamental principle applied by Grotius to the seas is maintained in international space law for the most part. The only substantial challenge to this claim so far came in the form of the Bogota Declaration of 1976, which was signed by seven equatorial states, but it largely failed to make much impact on the rest of the international community. Still, the Bogota Declaration made a valid point regarding the boundaries of space, which is of yet still not very clearly defined.

Numerous space treaties have come along, such as the Outer Space Treaty, the Rescue Agreement, the Liability Convention, and the Moon Treaty. The problem is that as space becomes weaponized through the military use of satellites or through the exploitation of space resources, the model of the high seas will deteriorate in terms of force just as it has with respect to sea lanes today. The most powerful states in the world, such as the US, China, Russia, and others, disagree over who has a right to certain seas—particularly the South China Sea—and this disagreement has the potential to turn into a military conflict. The issue is exacerbated by the fact that many companies are purportedly vying or planning to develop ways of extracting resources from outer space celestial bodies.

Property Rights in Outer Space

Property rights in outer space are an increasing concern because of the advancement of technology since the 1960s and 1970s when the space treaties were signed. The Outer Space Treaty suggests that no commercial space company can have a property right claim to outer space resources; however, the SPACE Act of 2015 in the US granted companies in the US the right to explore and mine resources from celestial bodies, which suggests that the US is not concerned about the parameters of the Outer Space Treaty. The Treaty indicates that no nation can appropriate resources from celestial bodies. The Treaty is specific in that it refers to “national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”[footnoteRef:4] Indeed, Gorove states that “it would appear by reasonable interpretation that the prohibition would also cover acquisition of a part of the moon or other celestial body. Any contrary interpretation would seem to make the prohibition of national appropriation largely illusory.”[footnoteRef:5] National appropriation, therefore, is clearly prohibited by international law—but what of private appropriation? [4: Gorove, S. (1969) Interpreting Article II of the Outer Space Treaty, Ford L Rev 37 349] [5: Gorove [n3] 350.]

The US SPACE Act does not lay claim of sovereignty, and so in the eyes of US legislators there is no legal ground for another country to challenge it. Just as any vessel flying the flag of a state may fish in international waters, the US suggests that any private company may “fish” in outer space without making a claim of sovereignty over the territory. Thus, there is the point that Gorove makes, which appears to be valid in this regard: “While further developments in space law, by international custom or treaty, may eventually prohibit spatial appropriations by an individual or a chartered company or the European communities, the Treaty in its present form appears to contain no prohibition regarding individual appropriation or acquisition by a private association or an international organization, even if other than the United Nations. Thus, at present, an individual acting on his own behalf or on behalf of another individual or a private association or an international organization could lawfully appropriate any part of outer space, including the moon and other celestial bodies.”[footnoteRef:6] This much is true—but does it not violate the spirit of the Outer Space Treaty, especially when one considers how powerful corporations have become? Corporations now have more control in determining the course of human events than states do to some degree.[footnoteRef:7] Why should they be permitted to appropriate outer space resources, which would likely serve as a national security matter at any rate, if nations are not permitted to make such appropriation? The US SPACE Act appears to be a way of implementing a legalistic loophole around the Outer Space Treaty. It does not violate the Treaty in legal terms perhaps, but it could be argued that it violates the spirit of the Treaty. [6: Gorove [n3] 351.] [7: Baars, G., (2019) The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy. Brill 3.]

Issue of the Global Commons

As Jasper points out, treaties and military coordination help to make the global common vector navigable for communications, transportation, military operations, and so on.[footnoteRef:8] Much in the same way NATO asserts that any attack upon a NATO member is an attack on all, the interwoven nature of the global commons—which includes the open sea and outer space—is such that were any country to seek to dominate or claim control of the sphere it would be felt as a challenge to the sovereignty and freedom of all other states that rely upon unfettered access to the same spaces. The global commons depends upon a united sharing of aims and pathways. [8: Jasper, S. (2010). Securing Freedom in the Global Commons. Stanford University Press 100]

However, when peace time gives way to large-scale war, the unity of intention with respect to the global commons is shattered. Even in peace time, problems arise—such as piracy off the coast of Somalia—and these problems cannot be construed as a localized issue but rather as an issue that affects the entire global system. Thus, when the equatorial states challenged space law and were later joined by Brazil, Gabon and Somalia, it was an attempt by sovereign states to extend their sovereignty upward over their territory. Had the international community assented to the Declaration it would mean that—much as fares are paid to states through which oil and gas pipelines pass—states would have to pay fares to nations who permit others the use of their outer space territory. It is no wonder that the large powers of the international community ignored the Declaration, since they are the ones most active in outer space: fares for use of outer space would be a drain on their budgets.

From a scientific and legal perspective, the Bogota Declaration signees contend, for example, that geostationary orbit is a result of gravity and not of any law pertaining to outer space and as such no object in geostationary orbit can be said to be governed by space law. The Declaration was, therefore, not so much a challenge to space law itself but a challenge to how space law is applied to a realm that is ostensibly more related to the inner sea idea than to the outer sea idea of Grotius. The Declaration further argued that the realm of orbital space over the open seas is a realm that should be respected as international and free to all humankind but that the realm of space through which geostationary orbiting objects pass is subject to state sovereignty as it is part of national territory. Air space over a state is considered national territory—so why is it that slightly higher altitudes are not? For that matter, why should outer space territory be any viewed any differently if the exploitation of that territory might come at the expense of another state’s security or sovereignty?

The Bogota signees have contended their right to orbital space with respect to the International Telecommunication Union; their claim is not over outer space but rather over the space used in geostationary orbit. The problem in viewpoint between the Bogota signees and the rest of the international community is that they define outer space differently. This matter pertains to satellite technology primarily. But what happens if this technology is used for further space exploration or appropriation by private companies or even by states in the future? Might not there be more states that see the merits of the Bogota Declaration?

If satellites are stationed above sovereign states that have not permitted or agreed to their use, and if these satellites were to be outfitted with advanced weapons capable of delivering tactical strikes, the issue of the Bogota Declaration would surely take on more significance with major powers. Indeed, it is one of the problems currently simmering in the conflict between the West and Russia. The escalation of tensions and the threat of using hypersonic missiles or satellite technology to conduct strikes is one that threatens to completely undermine the high seas model as it applies to outer space. This same logic can be applied with respect to space exploration and appropriation. The powerful states stand to gain substantially should their corporations be permitted to appropriate resources in outer space. The model of the high seas itself does not solve the problem of what happens when nations and corporations become so big and powerful that they dominate in international territory; much less will it provide an effective solution or guide for addressing interspatial territory.

Might Makes Right?

Some scholars argue that the anthropocentric view of international law is the reason so many disputes arise and that what is needed is a posthuman international law that observes the rights of nature over the rights of man.[footnoteRef:9] The problem here is that nature has no legal recourse to assert her rights; man does, and indeed does so through international forums; moreover, barring legal recourse man also has the means by which to assert his will over others—and does so—through the means of war. War as an extension of politics often leads to new treaties. Nature cannot declare war or assert her right or privilege; it is up to man to argue on her behalf or to defend or uphold her rights. Can there be any agreement among nations regarding the rights of nature with respect to outer space? Certainly there could be, and whether there ought to be is a reasonable question to ask. However, the history of mankind is not such that much hope for such a reasonable expectation can be held. Self-interest and rivalries often take higher position in the affairs of men than the rights of nature. [9: Jones, E., (2021). Posthuman International Law and the Rights of Nature. Journal of Human Rights and the Environment. 12 (0), 76]

It is important, nonetheless, to consider how contentious it can be if private organizations or corporations are permitted to make claims to outer space resources without respect to sovereign rights of states. Corporations are essentially like the new nations of the world today: they are more powerful than states in many ways, as Baars has shown.[footnoteRef:10] Some mechanism is required to keep corporations and nations in check or under some constraint. In the medieval world, the notion of the rights of God prevailed as a kind of check on society and nations. Rather than any one people asserting the rights of man (as happened in the Age of Enlightenment, when the Age of Faith had finally come to an end), people were admonished to think first of the rights of God and then act accordingly. [10: Baars [n6] 4.]

So today the argument of Jones is that nations should respect the rights of nature. One can see how the rights of nature serve as a stand-in for the rights of God, but the point is that the rights of nature act as a crucial curtailment to exploitation and appropriation. It may be idealistic in essence, but some ideal is needed in international law in order to give leaders a sense of boundaries, parameters, and spirit. The spirit of the law is often thwarted by legalistic interpretations of the law all the same—but it does not mean that a spirited law that focuses on the rights of nature cannot be developed and applied.

That is the main idea of Jones and the posthuman interntional law thesis. In order for a fair, balanced, and equitable future for the planet and all states, more focus needs to be on setting an ideal standard that binds all—people, nations, and corporations—and prevents any from gaining an unfair or undue advantage over others. The Outer Space Treaty was meant to prevent nations from controlling outer space. The Bogota Declaration raised the issue of how one defines outer space and what it means to have sovereignty over the space above one’s own borders. Today, with the US SPACE Act, it appears that corporations may be ready to lay claims to outer space resources whereas nations are unable to. Does it really matter that nations cannot? Not if corporations are the new nations of the world. But even this is beside the point. The real point is that the spirit of the Outer Space Treaty is not being followed.