High Seas Model 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 sea lanes are a major subject of national security for powerful states. The same applies to outer space rights.

In addition, the idea that "in time of peace" the high seas are open to all nations—the principle of 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 continue, 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 Hugo Grotius in the 17th century.¹ 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 Convention on the Law of the Sea.² 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, as described by Grotius, through 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.

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 principle 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 are as yet still not very clearly defined.

Numerous space treaties have followed, 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—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 military conflict. The issue is exacerbated by the fact that many companies are 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 US SPACE Act of 2015 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."³ 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."⁴ National appropriation, therefore, is clearly prohibited by international law—but what of private appropriation?

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 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."⁵

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.⁶ 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 may not violate the Treaty in legal terms, but it could be argued that it violates the spirit of the Treaty.

Conclusion

From a posthuman perspective on international law, the rights of nature could be used to place necessary constraints on sovereign or corporate claims and exploitation of resources in celestial bodies. The model of the high seas is based upon the 17th-century doctrine of Grotius, and while it does have an idealistic essence to it, the model has not prevented disputes or tensions over who has rights in the high seas or what the borders should be between state territory and international waters. The same problem would occur in outer space were the model to be applied. In fact, the problem has already arisen to some extent, with regard to orbital space, as the Bogota Declaration has shown.

With the appropriation of resources in celestial bodies, some new model, constraint, or ideal is needed to ensure that no state or corporate entity is allowed an unfair advantage over others on the planet. That new model, constraint, or ideal could come in the form of an international law based on the rights of nature. If in the past the rights of God were used to place a constraint on social behavior, it stands to reason that a similar ideal-based constraint could be used today as well. It worked during the Age of Faith; would it work today in an Age of Science, in which nature replaces God as something more important than any human ambitions? Perhaps it could, but in the end the spirit of the law would have to be acknowledged and enforced judicially, as it is the spirit of law that states often seek to evade through legalistic interpretations. Legalism is not something that is likely to ever be completely eradicated, but by adopting a rights-of-nature-based model for international law, the problem of outer space claims could be addressed more adeptly than would be the case if the model of the high seas were applied to this situation.

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