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Claiming That Space Is not a Commons Is a Bad Strategy

A recent U.S. House Bill, H.R.2809 – American Space Commerce Free Enterprise Act, includes a section stating, “Notwithstanding any other provision of law, outer space shall not be considered a global commons.”

I share some of the concerns underlying this move, but question whether it is the most effective strategy to legally defend either American national freedom to act in space or private enterprise in space.

The term “global commons” is not necessarily the most apt when applied to space. I haven’t been in the practice of using the term “global commons” in my own writing. It is not on the globe, why not just “commons” or “international commons” or “res communis”? However, in context the attack on the terminology seems part of a rhetorically and legally confusing push against “common” language which is not sufficiently careful to differentiate the different senses in which things have been called “common”.

Scott Pace (former director of the Space Policy Institute at George Washington University and current Executive Secretary of the National Space Council) said in a speech in late 2017, “Finally, many of you have heard me say this before, but it bears repeating: outer space is not a ‘global commons,’ not the ‘common heritage of mankind,’ not ‘res communis,’ nor is it a public good. These concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space.”

My impression is that much of Scott Pace’s work with the administration has been good and I agree with the majority of the material in the just-quoted speech, but I think this particular statement is both bad strategy and inaccurate. Firstly, the U.S. has not consistently opposed these terms, it has used them, as can be seen by looking at an article from 2015 (Henry R. Hertzfeld, Brian Weeden, Christopher D. Johnson, How Simple Terms Mislead Us: The Pitfalls of Thinking about Outer Space as a Commons) which appears to be connected to Mr. Pace’s speech (either as a source or through being part of the same policy discussion milieu); the article cites a U.S. Department of Defense document from the previous administration which, in a paragraph referring in part to space, states that the U.S. and associated countries “will seek to protect freedom of access throughout the global commons” (pages 2-3), and the article cites a NATO document listing space among public goods (page 3). The U.S. has indeed refused to ratify two treaties which included the term “common heritage of mankind”, though there were other, more specific issues in both cases.

The article, as I understand it, expresses a desire not to classify space as something which is owned jointly (pages 3-4), but as something which is unowned and for which the right of access is shared. I don’t find this particularly objectionable (and the article makes a good point when it highlights a distinction between the phasing of “province of all mankind” –grammatically referring to activities in the Outer Space Treaty – and “common heritage of mankind” – referring to the moon and its natural resources directly in the Moon Agreement), but this is one way we could describe the “commons” status of the high seas—can opponents of describing outer space using the term “commons” name one thing allowed private or governmental actors in space under the Outer Space Treaty that is not allowed to such actors under the traditional “commons” status of the high seas?

The 2015 article makes more distinctions than does the quote from Pace’s speech, however it overly distances the status of outer space from other common areas which have existed. It talks about “commons” as traditionally requiring a sovereign to grant it (and thus claims the lack of sovereignty in space makes “commons” either unsuitable to or applicable only in a unique and unprecedented sense to space). The article states, “there is a logical contradiction in this discussion about outer space being treated as a commons. If a commons needs a sovereign government to grant the open territory to the use of all people, it is that government that has to oversee, regulate, and enforce that charter. Art. II of the OST prohibits national sovereignty in outer space. Thus, it is an area without a government. Even if all nations regard outer space as a ‘commons,’ it is a very different concept from any commons that has been established in the past. There is no real legal precedent,” (page 11).

However, if we turn to the Institutes of Justinian, from the early 500s A.D., we see the common status of certain things based on nature. “By the law of nature these things are common to mankind—the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations.”

Far from the common status of the ocean being based on a grant of a sovereign, we see this late Roman treatise basing its reckoning of the seas (and seashore, and rivers) as common in nature and in the law of nations, which it had previously categorically said was different than the sort of laws established by a particular polity: “Civil law is thus distinguished from the law of nations. Every community governed by laws and customs uses partly its own law, partly laws common to all mankind. The law which a people makes for its own government belongs exclusively to that state and is called the civil law, as being the law of the particular state. But the law which natural reason appoints for all mankind obtains equally among all nations, because all nations make use of it. The people of Rome, then, are governed partly by their own laws, and partly by the laws which are common to all mankind. We will take notice of this distinction as occasion may arise.”

So the anti “global commons” provision of H.R. 2809 is based on policy advice which defines the term “commons” incorrectly by providing an errant (or at least critically incomplete) history of its historical context. The idea of a commons not granted by a human sovereign is not unique to space—it can be found both in classical legal thought and of course in Hugo Grotius’ famous work Mare Liberum (The Freedom of the Seas)—Grotius argues that some things are naturally common, so in these two examples separated by over a millennium we can find commons defined in a way which is not based on a grant of sovereignty.

It is true, as noted by the authors of the 2015 article (pages 10-11), that Grotius, in arguing for the sea as a commons, was not unopposed (Grotius himself a few years after anonymously publishing Mare Liberum had his own arguments used against his country’s position on a trade monopoly). The point is not that there was only one approach to the high seas, but that the idea of a commons outside the area of state sovereignty is well-established in international law and is not a recent innovation.

A background fear that I suspect some have is that they fear that by calling something “common” it will be taken to mean that all states have a property interest in it such that individuals don’t own things taken from the common area. Grotius’ work defending the freedom of the seas makes a clear distinction between the common status of the sea and that of extracted resources, he uses a discussion found in a play from the 200s B.C. to illustrate that what someone with his own hooks takes from the common sea belongs to the person who removes it. To illustrate that Grotius was not inventing the distinction, let’s look at the play itself (T. Maccius Plautus, Rudens, or The Fisherman’s Rope):

“Which fish in the sea will you say ‘is my own?’ When I catch them, if indeed I do catch them, they are my own; as my own I keep them. They are not claimed as having a right to freedom nor does any person demand a share in them. In the market I sell them all openly as my own wares. Indeed, the sea is, surely, common to all persons.”

In the play, the danger of conflating a common area with resources derived from it was described as follows: “then fishermen would be ruined. Inasmuch as, the moment that the fish were exposed upon the stalls, no one would buy them; every person would be demanding his own share of the fish for himself; he would be saying that they were caught in the sea that was common to all.”

Modern international litigation makes similar distinctions. For example, the International Court of Justice case Fisheries Jurisdiction (United Kingdom v. Iceland): “‘the freedom of the high seas comprises, inter alia, both for coastal and non-coastal States, freedom of navigation and freedom of fishing.’” (Quoting “The Geneva Convention on the High Seas of 1958, which was adopted ‘as generally declaratory of established principles of international law’”.)

So, we see both common areas outside sovereignty and a distinction between property rights in extracted resources through over a millennium of documents.

This distinction is not limited to maritime law. It is often feared or hoped that space law will result in space being treated like Antarctica. It should be remembered that with Antarctica, the Treaty freezing claims to national sovereignty was not sufficient to ban mining. It took an additional Environmental Protocol to do that. Likewise, restrictions on the deep seabed are not a mere result of these resources being outside of national territory. So, whether on the high seas, the deep seabed, or an uninhabited continent, a ban on resource extraction is not the default status for a common area.

It is counterproductive to try and attack “commons”—it might encourage opponents of national authorization of commercial resource operations to claim that “commons” means mandatory sharing of extracted resources. Better to use the history of “commons” to show that the default in an international commons is for extraction to be generally allowed. Attempts to argue for a moratorium or for mandated resource sharing can be refuted both by pointing at history and by pointing at recent legal developments.

For example, the 1996 U.N. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries states that, “States are free to determine all aspects of their participation in international cooperation in the exploration and use of outer space on an equitable and mutually acceptable basis.” (Under accepted rules of treaty interpretation, subsequent state practice and subsequent agreements are supposed to be taken into account when interpretating a treaty, this provides evidence that the Outer Space Treaty should not be interpreted to require mandatory sharing of extracted resources.)

Legal opposition to commercial resource extraction does not appear to be coherent. Russia has been a vocal opponent of the U.S. and Luxembourg’s space mining laws, however its own law, while not addressing mining, is in some respects more aggressive than U.S. law insofar as it asserts a right to jurisdiction over foreign nationals in the vicinity of Russian space objects. Russia’s position does not appear to be legally consistent and we can presume it will change as political expediency shifts.

The United Nations Convention on the Law of the Sea declares the deep seabed the common heritage of mankind and connects that concept to an authority to manage resource extraction from the deep seabed. The Moon Agreement describes the Moon and its resources as the common heritage of mankind and mentions an international regime to be established to deal with resource extraction, with the phrasing of the provision about an international regime leading to legitimate concerns about a moratorium (though the negotiation history contains statements that the treaty does not impose such a moratorium, see e.g. Manual on Space Law, Volume IV, Travaux Préparatoires and Related Documents, Nandasiri Jasentuliyana & Roy S. K. Lee ed., 129). The U.S. has not ratified either treaty. If the U.S. government does not wish to trust in the 1994 agreement narrowing the reach of the seabed mining regime and does not wish to sign UNCLOS, it might substitute “common heritage of mankind” for “global commons” as the attacked legal doctrine in H.R. 2809. If the U.S. might possibly wish to sign UNCLOS in the future, it should work to interpret common heritage of mankind in a non-expansive way, which might be undermined by attacking that terminology legislatively.

What are our goals? To allow resource extraction under the Outer Space Treaty, or to modify the Outer Space Treaty? In either case, attacking the term “commons” is bad legal analysis and bad strategy. The Outer Space Treaty sets up a legal situation similar to the default rule for international commons (with some additional restrictions on military activity and some vague language about the benefit of all countries), a direct defense of resource extraction in a common area is the best way to defend the legality of mining under the Outer Space Treaty.

Expansive claims regarding international law are common among opponents of free enterprise in space, a detailed study of the law will often refute them. (For example, there are many broad claims about customary international law that need to be subjected to scrutiny.) I’ve defended the legality of space mining in great detail elsewhere — see here for a somewhat shorter defense, and here and here for non-paywalled defenses, with some of the same ground being covered concisely in the interview published in a first and second piece on this website.

I am confident that many of the opponents of “commons” language just want to defend free enterprise in the area subject to the Outer Space Treaty’s non-appropriation rule, but I think that the push against “commons” language includes some people with broader goals. If celestial bodies or certain areas in space (say, Lagrangian Points) are deemed unsuitable for a non-territorial appropriation regime, it is best not to make this push by garbling the legal terminology or doctrines surrounding international commons—resource extraction is, by default, legal in common areas. If we envision a future in which human space settlement or high-density robotic projects on celestial bodies make non-interference rules and safety zones an unwieldy system compared to real property rights, it is better to state this frankly rather than muddy the water on the meaning of “commons.”

Again, I agree with many of the space-related policy goals that opponents of “global commons” language are supporting, and I think the present administration’s overall space policy is moving in a good direction. However, the proposed law, while on the whole good, is relying on analysis of “commons” language which errs at crucial points—that is, opponents of commons language make some good points, but their errors are at precisely the points which determine whether or not “commons” is an appropriate way to describe the Outer Space Treaty’s treatment of outer space and celestial bodies.

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