The Final Frontier
Establishing an Outer Space Organisation
A feasible concept for the future?
Master Thesis in
International and European Relations.
Author: Egill Örn Thorarinsson
June 2014
Department of Management and Engineering
Division of Political Science
Supervisor: Jörgen Ödalen
Abstract
Interest in the outer space has been growing over the last couple of years
after few years where nothing else than routine trips made by US and Russian
space shuttles to the ISS. With rapid technological development and the
Columbia disaster, private actors have been playing bigger and more
important role in the space. More states have as well started their space
programs, mainly to launch satellites into the crowded orbits. The newest
activity in outer space are private companies that want to mine the asteroids
passing the Earth for minerals, water and gases and use it to build up assets
in outer space as well bring some of it down to Earth.
The aim of this thesis is to provide arguments for altering the outer space
regime by creating an Outer Space Organisation that would oversee how the
resources of outer space are used. The focus is to provide arguments built on
economics and philosophical grounds to explain how the Outer Space
Organisation should work.
This thesis is a normative theory making on how the author visualizes the
preferred management of outer space affairs.
Keywords:
Outer
Space,
Asteroid
Mining,
Organisation, Property Rights, Orbital Slots
Word Count: 23.278
Outer
Space
Acknowledgements
I would like to express my great appreciation to my thesis supervisor Jörgen
Ödalen, Ph.D. and Senior Lecturer in Political Theory at Linköping University
for his guidance, and creative ideas during the planning and development of
this thesis. His inputs and comments have been very much appreciated. I
would also like to thank Per Jansson, Ph.D and Senior Lecturer at Linköping
University for his comments on the early stages of the research.
I would also like to thank my family and friends for their valuable inputs and
critics on content, setup and language, without them this thesis would not
been published in time. Without Facebook and Twitter this thesis would have
been finished in March.
“Try not. Do… Or do not. There is no try”
Yoda
4
Table Of Contents
ABBREVIATIONS ................................................................................................................ 5 I. Introduction ..................................................................................................................... 6 I.1. Research problem ............................................................................................................... 6 I.2 Thesis aim and research question .................................................................................. 8 II. Methodology .............................................................................................................. 10 III. Technological background ................................................................................... 14 IV. Legal Background ..................................................................................................... 18 V. Reform Proposals ...................................................................................................... 23 V.1. Astropolitik ..................................................................................................................................... 23 V.2. Meta-­‐geopolitics ............................................................................................................................ 24 V.3. Establishing a Legal Framework for Property Rights to Natural Resources in Outer Space .............................................................................................................................................. 26 V.4. A Proposal of a Space District ................................................................................................. 27 V.5. Discussion ........................................................................................................................................ 28 VI. Creation of an Outer Space Organisation ......................................................... 36 VI.1. Introduction ..................................................................................................................... 36 Outer Space, a functioning market ................................................................................................ 37 Property Rights ...................................................................................................................................... 39 Taxation policy ....................................................................................................................................... 43 VI.4. Creation of supranational organisation ................................................................. 47 Key resource rights for establishing the new regime ............................................................ 48 Why should a supranational entity hold the rights? .............................................................. 49 VI.5. Political reality ................................................................................................................ 51 VII. Discussion ................................................................................................................. 53 VIII. Conclusion ............................................................................................................... 65 Bibliography ..................................................................................................................... 70 5
ABBREVIATIONS
ABM – Anti-Ballistic Missile Treaty
ASAT – Anti-Satellite Weapon
ESA - European Space Agency
EU – The European Union
GDP – Gross Domestic Product
GEO – Geostationary Orbit
GPS – Global Positioning System
ISA – International Seabed Authority
ISS – International Space Station
LDC – Least Developed Country
LEO – Low Earth Orbit
MEO – Medium Earth Orbit
NASA – The National Aeronautics and Space Administration
OST – The Outer Space Treaty
OSO – Outer Space Organisation
UN – The United Nations
UNCOPUOS – United Nations Committee on the Peaceful Uses of Outer
Space
UNOOSA - United Nations Office for Outer Space Affairs
US – United States
6
I. Introduction
I.1. Research problem
The presence of humans in outer space is a rather new phenomenon. The
first manmade object in space, Sputnik 1, was launched to orbit in 1957 by the
Soviet Union. The launch triggered the space race, where the Soviet Union
and United States competed in launching satellites and manned missions to
outer space.
Ever since then, more and more states have joined the space arena,
which now contains Russia, having inherited the Soviet Union’s space
program, Japan, India, China, the European Space Agency (ESA),
representing the member states of the European Union, and the United
States.
Human activity in outer space is not limited to communication satellites
as there are around 11.000 functioning manmade objects in our planet’s orbit
and elsewhere adding up to roughly €210 billion market, which is nearly twice
than the EU budget for 2014 (Moltz, 2014; loc. 1762; European Commission,
2014). The most famous are probably the International Space Station (ISS)
and the US Global Positioning System (GPS). Apart from that there are
numerous scientific satellites that monitor climate change, deforestation,
atmospheric behavior, weather forecasts, telescopes to look further into space
and other unmanned missions to explore the universe.
After the US space shuttle Columbia disintegrated when coming back into the
atmosphere in February 2003, killing all of the seven crew members, NASA
put all further manned space flights on hold while investigation of the disaster
was carried out (NASA, 2006). The space shuttle program was finally shut
down in 2011 without having any replacements, relying on Russia to carry out
crew changes in ISS.
All those recent changes have opened up new opportunities for private
companies to take over missions that NASA otherwise would have carried out.
SpaceX was the first company to dock with the ISS with supplies on behalf of
7
NASA. NASA’s policy now includes the use of private subcontractors in order
to get supplies to the ISS and carry out launches for them, as they can do that
for only a fraction of the cost (SpaceX, 2013). Apart from SpaceX activities,
technological development is rapidly increasing human potential in outer
space, with numerous companies and states reaching their goal to bring
humans into space, creating different launch techniques and therefore
causing more traffic and increased activity in outer space (Virgin Galactic,
2014). Two companies have declared their interest in outer space mining,
mainly on asteroids that are passing the Earth. Those rapid changes have
raised the question of what is legal, what is possible and how this new
situation should be handled.
The regime itself and how it works will be better explained in chapter IV.
where I go through the legal background and the countries forming the outer
space regime and how it working today. Chapter II will be dedicated to the
methodology used in this thesis. Chapter III will give us brief inside to the
technology behind the field. In chapter V will I introduce four different reform
proposals, made to alter the space regime, where all of them are unique but
still fit the subject and my own proposal of establishment of Outer Space
Organisation, which I will explain in chapter VI. Chapters VII and VIII will then
be discussion and conclusion.
The space arena is though very focused on military strategy and most of the
literature existing on outer space affairs is in a one way or another connected
to security related questions and military analysis (Moltz, 2013; p. 27).
Therefore I am using a new approach by approaching the subject more from
philosophical and economic way of thinking and how outer space affairs ought
to be by challenging the current regime with establishing an Outer Space
Organisation, a supranational organisation that would be in charge of
economic activities and property aspect of outer space. I will try to keep
security related questions to the minimum, though it is impossible to skip the
subject by all, as the outer space is and has always been heavily securitized.
8
I.2 Thesis aim and research question
Within outer space politics there have traditionally been two major actors: the
Soviet Union, later Russia, and the United States. Recently, more actors have
been entering the field, emerging actors as the European Union, China, Brazil,
India, Israel, Iran, both North and South Korea and other smaller actors are
contributing to increased activities on orbit. Now when cutbacks have been at
NASA and ESA, private actors have been entering the stage with ambitious
aims and plans. This will probably be the development, i.e. that more and
more actors will enter the arena with possible increasing of disputes which
could lead to international conflict (Moltz, 2014; loc. 1793).
The regime has not been traditionally known for altering itself in the
terms of changing any of the treaties existing on the subject. This brings me to
the aspects whether the legal regime standing behind the Outer Space Treaty
from 1967 needs to be altered in order for private companies to engage in
asteroid mining and to secure property rights in outer space, and if so, how it
needs to be altered. If the regime should remain the same, what are the
arguments for status quo? The other major treaty on outer space is the socalled Moon Treaty, which the space faring nations have not signed, which
technically makes it a dead treaty. This makes me think about how these two
major treaties work together in order to frame outer space affairs.
The space regime has been changing in small steps since the US
withdrew from the 1972 Anti-Ballistic Missile Treaty (ABM) in 2002 under
George W. Bush’s administration (Moltz, 2008: Su, 2010; p. 83). Despite this
withdrawal, the US have not deployed any space-based weapons, but more
likely they did this to keep their options open. This withdrawal was the first
sign of change within the space regime. As the regime is changing, the
technological and economic development is making it possible to conduct
more thorough exploration of outer space, and a rising number of activities in
orbit are conducted by private players which are all on the responsibility of
their home state. At the same time, the treaties are unchanged and the major
players have not signed all the treaties, which raise a doubt about the proper
functioning of the system when private players will challenge the current
regime and the concept of the common heritage of mankind. There is a room
9
for discussion of whether there is willpower to reform the regime and treaties
to keep up with the technological end economic development that is
happening or whether the status quo will be kept. Which brings me to the true
research question on if the outer space regime should be altered, how should
it be altered and if not, what are the arguments for status quo?
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II. Methodology
This thesis is an entirely theoretical study. Therefore there will not be a
specific chapter dedicated to theory as is usually the case in a master’s thesis
in this field. Instead, I will use applied theories in the form of reform proposals
in chapter V. This chapter will describe different reform suggestions, with both
their possible downsides and benefits. In chapter VI I will then present my own
applied theory based on analysis of the current regime and arguments that fit
the topic from philosophical and economics perspective.
The challenge for a research of this kind, i.e. a technical topic
embedded in social sciences, is how little is written on the subject and how
only a few reform proposals have been published so far. On one hand, this
makes it easy to browse the ideas already presented. On the other hand, the
description of the debate about the outer space regime will be limited as well.
In the same time, the lack of research shows the necessity for works as my
thesis: first, all reform proposals are biased in the sense that they are too
focused on the security discussion instead of looking specifically on the
commercial side. This model states that the more commercial presence there
is in a given area, the less military presence there is. Second, a combination
of security and commercial topics shows that this is a reform proposal that
should be kept in mind if we as humans want to keep the space as a peaceful
place. Third, private companies and national space agencies have already
planned missions to extract materials from celestial bodies and asteroids
passing Earth. This fact is mostly ignored by existing literature. Last but not
least, this thesis will address the fact that not all of the major space faring
nations have not signed all of the outer space treaties. Some nations have
withdrawn from others as more and more nations are building up space
capabilities and entering the arena. The Outer Space Treaty is the main
framework around the legal regime, which will be further explained in chapter
IV.
The lack of published material on the subject resulted in the need of
doing comparative reading with topics that could be related with this topic. The
limited analysis that is written on the Outer Space Treaty was compared with
11
an analysis that has been done on the Law of the Seas, the airspace and
Antarctica treaties. Analysis on outer space affairs were mainly derived from
security related material on the subject, but it has been written quite
extensively on securitization of the space without touching up on property
rights and outer space mining. Building up my philosophical arguments I used
philosophical theories on ownership over natural resources. I use Hugo
Grotius, the father of international law in the beginning to explain the legal
structure for the current regime. Grotius’ ideology is then revisited in the
formation of Outer Space Organisation where his work is used to reform the
regime.
I will follow Ronald Dworkin’s methods of constructive interpretation of social
practice. This needs an analytical distinction in three different stages of the
interpretation. A certain amount of consensus is needed within a community
for the interpretative attitude to flourish. The first stage is the so-called “preinterpretative” stage. I will discuss the literature and laws and establish a
common object of interpretation (Dworkin, 1998; 65-66), following two tracks.
In the first one, I will show how the outer space regime looks like, what its
problems are and how its problems might evolve to in the future. I will, on a
second track, address what the regime already agrees on. The second stage,
according to Dworkin’s methods, is interpretative: I will provide a general
justification for the main elements of the practice identified in the first, preinterpretive stage and explain why the regime exists in the first place.
Furthermore, I will go through the arguments and why it is worthwhile to alter
the regime (Dworkin, 1998; p. 66). The second stage will also contain legal
interpretations
of
the
regime,
both
international
treaties
and
legal
interpretation. Also, I will show the reasoning for the regime, how it was
established. Next, I will introduce different reform proposals, analyze and
criticize them in accordance to relevance and quality.
Finally, according to Dworkin’s structure or on the “post-interpretive” or
“reforming” stage, I will introduce my own reform proposal, which will be
based on philosophical, political and economic research and explanations. I
will examine whether the outer space regime needs any altering, whether a
12
change is possible and how the transition can be done. (Dworkin, 1998: p.
67).
This thesis is not a legal study. However, I will be using legal
documents and interpretations to explain the regime, as it is the characteristic
of international legal and regulatory regimes to have legal documents. These
legal documents are necessary to suggest how the regime could possibly be
altered. By using philosophical, political and economic approaches, I am
confident that I will be able to show in a concrete way how the regime should
be in the future, in order to meet the technological demands and future
possibilities.
Following Dworkin’s methods rather than using theoretical perspectives
of positivists and/or realists might not be every reader’s first choice.
Admittedly, Dworkin methods are first and foremost legal methods and this
thesis focuses on politics of outer space, though, Dworkin’s methods are often
used as well by normative political theorists. The reason why I decided not to
apply positivist perspectives is mainly they are not suited for the reform I want
to research if is needed. No international system acknowledges a sovereign
body other than theirs, and because of that, the powerful states of the system
cannot be forced to act against their will. Despite international law, positivists
try to separate law from everyday politics and the moral debate, and therefore,
as the international law is not applied, it cannot be considered as true law
(Armstrong, Farrel and Lambert 2012; p. 83).
Realism, looks more like anarchy, where, rather than cooperate
between states, there are countless ongoing power competitions. The world is
too dangerous for moral way of thinking and states should only think about
survival. States that follow the realism recipe look at themselves as not being
bound by any legal or moral principles, and cooperation between them will
always be limited and short term (Armstrong et.al, 2012; p. 83).
Despite the obvious differences between realism and positivism, both
methods share some common ground. For example, both are very state
centric and use a structural approach to explain their objects (Armstrong,
2012: pp. 84-85). On the other hand, realism is a more descriptive theory,
while positivism is aiming to know the reality (Armstrong et.al, 2012: p. 110;
Della Porta&Keating, 2008: p. 32). Dworkin’s methods go past these
13
theoretical limits and apply both theory and practice. This fits the topic and
circumstances very well because by using Dworkin’s methods I can avoid the
dilemma realism would put me in where I would be obstructed to suggest my
own reform proposal as Dworkin’s methods are well suited for liberal thinking,
which believe that changes and reforms in the international system is
possible. Realism would however, discourage any changes of current system,
as the spacefaring superpowers desire status quo and therefore no reform
needed. By using realism there would not be any moral question of how the
system ought to be and I would be stuck with the question of power and
security in my writings.
14
III. Technological background
For many people the amount of technical details might seem overwhelming
and for others even completely unnecessary. Reading about the physics and
the technical details of space missions, watching numerous videos and not
stopping until I understood how mission launches and asteroid mining have
possible helped me a lot, both to write this thesis and to keep me motivated.
That is the reason I find it relevant to address the fast pace of this technology
and to get a common understanding of the commercial activity that is already
taking place in the space. Next to the already discussed privately-owned
rockets to launch the cargo to the ISS, one can also name manned tourist
trips to the edge of the space. Both of these are an important part of the
development of science. In my opinion, this is all relevant in order to
understand how the space regime was created and how the market has
developed while the regime has been still or been under low priority to alter
itself. It is necessary to understand as well how fast the development is and
how that could affect the policy making and possibly our life in the near future
if we do not try to use this resource effectively.
Figure: III.I.
Satellite Orbits
(Flylib, 2014)
The newest activity is asteroid mining. It includes a space shuttle docking to
an asteroid that is passing Earth and mining it for valuable metals, such as
gold and platinum, gases, such as helium-3, which has only been found on
Earth in limited quantity, along with water, which can be used to produce fuel
15
(Moltz, 2014; Loc 2090). This might all sound like a script for a Hollywood
movie, but two American companies, Planetary Resources and Deep Space
Industries, have made plans about reaching asteroids that will pass close
enough to Earth in order to mine samples from it and return to Earth with the
samples by 2020 (BBC, 2012). NASA has a similar goal for 2025 (NASA,
2013) and the ongoing mission has a robot that is collecting drilling samples
from the moon (Klotz, 2014). These show that the technology to carry out
those missions is closer than the average citizens, and many citizen, realize.
These missions are still technically challenging. For instance, to reach the low
Earth’s orbit1 (LEO), which is 300km above the Earth’s surface, it takes a
certain amount of rocket propellant. However, to travel the next 35.000km to
the geosynchronous orbit2 (GEO) will only take 8% of the rocket propellant it
took to make it to LEO. Still, to bring this extra 8% to LEO will take four times
the original amount of extra propellant. For example, if the idea were to reach
Mars as NASA has already done with the Opportunity and Curiosity rovers or
even other planets in our solar system, it would only take 4% of the original
load of propellant. However, to bring those extra 4% to outer space the rocket
would need close to 13 times the original amount of propellant to bring those
4% through the atmosphere into LEO, through MEO3 and finally to GEO and
finally wherever in solar system we want to go. (SpaceX, 2013b: Nasa, 2013b:
Planetary Resources, 2013). It is very expensive, difficult and dangerous to
launch a rocket with all this propellant on-board from Earth, each and every
time when states or private companies want to reach outer space. Imagine if
states and companies were able to launch their vehicles only onto LEO, refill
their rockets and then carry on with their missions to wherever they want to.
This is one of many reasons why states and companies want to mine
asteroids. The space vehicles could be smaller and more powerful and
1
LEO is low Earth orbit and is up to 2000 km. In comparison the International Space Station
(ISS) is 340 km above Earth
2
Geostationary orbit rotates follows Earth at the same speed. For example if a satellite is
launched into GEO it rotates with Earh and stays exactly over the territory it was launched into
without rotating any furhter and is therefore popular for communication satellites, TV
broadcasts and meteorological pictures.
3
MEO is the Earth’s medium orbit, sometimes called intermediate circular orbit. MEO
stretches from 2000 km to 35.000 km up to GEO. MEO is mainly used for the US GPS
system, the Russian GLONASS and European Galileo positioning systems, among
communication satellites.
16
therefore carry out their missions faster and be safer, both for the crew and
the environment. (Soucek, 2011; p. 11: Planetary Resources, 2013b).
While technological process accelerates, it is very difficult to have a clear
overview over the different innovations in space technology. It is certain
though that companies and national space agencies are increasingly left in
uncertainty whether they will be able make their missions come true. Different
interpretations of international law give actors different working principles
where some say there are no limitations or at least very little, while on the
other end of the spectrum it is illegal to carry on these missions.
A common pattern I have encountered when discussing the topic for this
thesis is that most people find the subject fascinating, but their interest is
shifted towards concerns when they hear what would be mined on the
asteroids. Helium-3 and similar gases exist in very low quantities on Earth, the
other substances that would be mined are water, gold, platinum metals and
other metals that could be extracted if we would run low on Earth, such as
iron. Nearly everyone involved has asked me the same question: ‘would the
price of gold and platinum not drop drastically if a sudden increase in supply
were introduced to the market, and therefore the operation would fall by itself
due to costs?’.
The economics try to explain this with a phenomenon that is called
supply shock, which explains how markets react if a sudden increase in
supply happens. I will now explain four different scenarios of possible
outcomes if supply shock should happen;
The first scenario happens if the supply shock is an isolated event. In
this case, the prices rise, and actual output falls below expected output. If the
government decides to do nothing about the situation, the prices fall back to
the same level and output gets back to expected output. Secondly, if the
government decides to intervene and change the money supply in order to
fight the price changes, the prices continue to rise and stabilize on the new
price and actual output rises to expected output. In the third scenario the
supply shock is repeated. The government reacts by changing the money
supply in circulation through the central bank, which creates the condition for
17
the prices to rise continuously, and actual output remains at or below
expected output (Lipsey et al. 1999; pp. 654-656). In the fourth scenario
operational costs keep the prices high as the demand already is high. In this
environment entrepreneurs see potential use for suddenly new and increased
supply for the material and therefore drive up the demand (Lipsey et. al. 1999;
p. 551).
Since 1648 we have used the same system to determine sovereignty and to
explain who is in control over a certain territory. This system has been
challenged a couple of times to explain who is in control over the high seas,
air space, Antarctica and now most recently, the Arctic, not to mention wars
that states have fought. The Westphalia system seems to be rather inflexible
for space age though the nation states have managed to adjust it with different
conventions. However, how far can we stretch the Westphalia system? Can it
be stretched up to 36.000 km where geostationary orbit begins or even further
up to the Karman line of 100.000km above sea level. In international law
there is an agreement over the fact that states have sovereignty over their
airspace. It is however not clear where this agreement ends. (Wallace, 2002;
p. 101).
18
IV. Legal Background
In international law there is one major treaty governing outer space activities:
The Outer Space Treaty (OST)4. The Moon Treaty5 is often referred to in
addition to the Outer Space Treaty despite being a dysfunctional treaty with
none of the major spacefaring nations have neither signed nor ratified the
treaty (United Nations Office for Outer Space, 2013: Walter, 2011; p. 506).
The remaining three treaties6 addressing outer space are not relevant to my
subject though it is important to mention all treaties adopted by the UN. Other
agreements created and not adopted by UN are usually discussing
communication satellites and are not related to the subject and will therefore
not be part of the discussion (United Nations Office for Outer Space, 2014).
The foundation for the Outer Space Treaty is derived mostly from the Law of
the Sea where the main principles of the common heritage of mankind and res
extra commercium are the backbone of the treaty. The Law of the Sea has
well been applied to the Antarctica treaty system and air laws (Kopal; 2011;
pp. 221-222: Murthi, Gopalakrishnan, Datta, 2007: Coffey, 2009; p. 131). The
high seas are based on several assumptions: First the sea cannot be the
object of private or state appropriation. Second, the resources of the sea are
inexhaustible. Third, the use of the high seas by one state should leave the
medium available for us by others. Fourth, humankind is not capable of
seriously impairing the quality of the environment and they are exceptionally
vast and actors capable to use the resource are limited, that serious conflicts
of interest are almost impossible. (Kerrest, 2011; pp. 247-250: Schrijver, 1997;
p. 214).
Both areas, space and the high seas, are outside of state’s territorial
jurisdiction and not a matter of national appropriation. Both are vast and
dangerous places and fatal for the human race if not equipped and trained
4
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies
5
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies
6
The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space, Convention on International Liability for Damage Caused
by Space Objects and Convention on Registration of Objects Launched into Outer Space.
19
accordingly. All states are free to explore both areas in their own will.
Furthermore, there are great similarities with how the moon and celestial
bodies and the seabed can be exploited, with the only difference that the
regulatory regime for seabed mining is more advanced (Kerrest, 2011; pp.
249, 251: Schrijver, 1997; p. 215: Goedhuis, 1978; p. 582).
The legal regime for outer space was established shortly after the Soviet
Union launched Sputnik I on orbit. The UN established an ad-hoc committee
in 1958 and one year later a permanent Committee on the Peaceful Uses of
Outer Space (UNCOPUOS). The latter contained two subcommittees: the
Scientific and Technical Subcommittee and the Legal Subcommittee. The
UNCOPUOS and its subcommittees use the rule of consensus, which means
that there is no need for voting there within. The Outer Space Treaty has been
ratified by all of the traditional space powers, the emerging space powers and
the smaller actors in space, except Iran, which has signed the treaty but not
ratified it (Kopal, 2011; pp. 221-226: United Nations Office for Outer Space,
2014).
The Outer Space Treaty is still considered the basis for any spacerelated activity. The treaty clearly states in Article VI that the nation states are
the main actors in outer space affairs:
“States Parties to the Treaty shall bear international
responsibility for national activities in outer space…” (UN
Resolution 2222 (XXI), 1966).
When a non-governmental entity is mentioned in the treaty, it is clearly stated
that the responsible actor is always in the launching state;
“…The activities of non-governmental entities in outer space,
including the moon and other celestial bodies, shall require
authorization and continuing supervision by the appropriate
State Party to the Treaty...”
1966).
(UN Resolution 2222 (XXI),
20
The Outer Space Treaty is mainly focused on exploration and the principle of
common heritage of mankind and is not a subject to national appropriation by
claim of sovereignty of any kind, as it is stated in articles I to III in the Outer
Space Treaty;
“The exploration and use of outer space, including the moon
and other celestial bodies, shall be carried out for the benefit
and in the interests of all countries, irrespective of their
degree of economic or scientific development, and shall be
the province of all mankind.”, “Outer space, including the
moon and other celestial bodies, is not subject to national
appropriation by claim of sovereignty, by means of use or
occupation, or by any other means.”, and “States Parties to
the Treaty shall carry on activities in the exploration and use
of outer space, including the moon and other celestial
bodies....” (UN Resolution 2222 (XXI), 1966).
The Moon Treaty echoes the Outer Space Treaty in most ways while being
more specific when it comes to natural resources that could be found in outer
space and how to treat the extraterrestrial. The Moon Treaty is more detailed
when it comes to differentiate between actors. The treaty prevents any kind of
ownership over these. In Article 11, paragraph 3, non-governmental or
governmental entities have no right to perform activities related to mining on
the moon or asteroids, unless to be in accordance to the common heritage of
mankind:
“Neither the surface nor the subsurface of the moon, nor any
part thereof or natural resources in place, shall become
property of any State, international intergovernmental or nongovernmental organization, national organization or nongovernmental entity or of any natural person. The placement
of personnel, space vehicles, equipment, facilities, stations
and installations on or below the surface of the moon,
including structures connected with its surface or subsurface,
21
shall not create a right of ownership over the surface or the
subsurface of the moon or any areas thereof…” (UN
Resolution 34/68, 1979).
This paragraph of the Moon Treaty prevents any activity carried out directly by
a private company, or governments in accordance with economic activity with
the intention of profit from the extraterrestrial (Soucek, 2011; pp. 356-359).
The treaty addresses that parties of the treaty should establish an
international regime to govern the exploitation of the natural resources on the
extraterrestrial:
“States Parties to this Agreement hereby undertake to
establish an international regime, including appropriate
procedures, to govern the exploitation of the natural resources
of the moon as such exploitation is about to become
feasible...”
“The main purposes of the international regime to be
established shall include:
(a) The orderly and safe development of the natural resources
of the moon;
(b) The rational management of those resources;
(c) The expansion of opportunities in the use of those
resources;
(d) An equitable sharing by all States Parties in the benefits
derived from those resources, whereby the interests and
needs of the developing countries, as well as the efforts of
those countries which have contributed either directly or
indirectly to the exploration of the moon, shall be given special
consideration….” (UN Resolution 34/68, 1979).
These last paragraphs of the Moon Treaty define aim of the treaty and how
the moon and extraterrestrial should be governed. The treaty mentions as well
how the aim of the treaty should be carried out by establish a regime, which
could be difficult, if not impossible as all major spacefaring nations are not
22
members of the treaty (United Nations Office for Outer Space, 2013: Walter,
2011; p. 506).
Different interpretations of outer space laws and number of signatory states
have made it difficult to reach a consensus of what is allowed when new
actors are entering the field. Most theorists, both in legal and political field of
the space branch, agree on sovereignty cannot be extended ad infinitum apart
from being technically difficult (Goedhuis, 1978; p. 582). Other theories claim
it is possible for private companies to conduct mining missions, it might
though be difficult for those companies to get their government’s permission to
conduct the space flight. Those theorists base their assumption up on the
anarchy that exists in the international system, and as no one has jurisdiction
over space it would be difficult for the international community to follow the
legal path.
Despite similarities between OST, the Law of the Sea and Antarctica treaty
system we have to look into that fact that one area is more difficult to reach
than other and little is known about the outer space, apart from the low Earth
orbit. The status quo within the legal regime is worrying as OST was signed in
1967 and the Moon Treaty in 1979, which was en the two superpowers had an
ongoing cold war. Since that time technological developments have been
remarkable in many ways, apart from what has been done in outer space, due
to governmental monopoly over the field. Now when private space flight is just
around the corner and asteroid mining is on the agenda, the human race is
ready to take the next step in discovering and using the space. However, the
current treaty system is not well suited for future activities where we will see
increased activities where the current legal framework will not be able to deal
with outer space mining conducted by private companies.
23
V. Reform Proposals
As explained earlier in this thesis, the amount of reform proposals is limited
and therefore more important to examine those which already exist. The
reform proposals are part of the second stage of Dworkin’s methods which
help me analyze the current regime by seeing how the regime could be
changes. The proposals available are often more focused on security threats
rather than possible solutions to this future problem of what outer space
mining and using the resources the space offers could be. This applies for
instance to the first two proposals I describe, which go deeper into the security
dilemma the spacefaring countries are dealing with. The third one is more
solution-focused in the sense that the work examines how the regime ought to
be and possible solutions to achieve that goal. The fourth proposal is more
focused directly on the legal regime and how it ought to be altered. The last
two proposals are more in line with how my own proposal will be and dealing
with the same problems and I am, while mostly leaving the philosophic and
economic aspects aside.
V.1. Astropolitik
Everett C. Dolman is the author of Astropolitik, a plan of how the United States
should design their space strategy. Mr. Dolman is a US military scholar, with a
focus on space policy. His proposal is, as he claims, an extension of the
global geopolitical theory and how the human should conquer the outer space
(Dolman, 2002; pp. 1-3). Dolman’s strategy is a three step plan for the U.S. to
withdraw from the space regime and fully militarize the low orbit and control all
activity in outer space. Dolman claims that this is necessary in order to
prevent other states to carry out similar missions (Dolman, 2002; p. 6, p. 156).
His beliefs are that the one who controls LEO7 controls near-Earth space, and
the one who controls that area, will dominate Terra or Earth (Dolman, 2002; p.
8). Consequently, Dolman states the following points:
7
Low Earth Orbit see chapter III for furhter explanations and strategy placement of LEO.
24
1. The United States should withdraw from the space regime and
announce that they are establishing free-market sovereignty in space
(Dolman, 2002; p. 157).
2. The United States should seize control of LEO, as from that high
ground advantage, Earth’s gravity would allow the US to have spacebased laser or kinetic energy weapons pointed towards Earth at all
time. That could prevent any other state to deploy assets to outer
space. Other states should be able to enter space freely as long as the
intention of the mission being commercially minded only. This would
allow the US to monitor all traffic in and out of space (Dolman, 2002; p.
157).
3. Establishment of a “national space coordination agency” which could
define and coordinate the efforts of commercial, civilian and military
space projects. As well the agency would define the US critical needs
and where possible shortcomings in defense system could occur
(Dolman, 2002; pp. 157-158).
V.2. Meta-geopolitics
This proposal takes traditional geopolitical views and applies it to the outer
space. The space is traditionally an area that states want to securitize and
where the question of securitizing the space simultaneously as commercial
activities emerges with new technology and the human mind wanting to
explore unknown land.
According to the author of Meta-geopolitics, Nayef R. F. Al-Rodhan, the
book differs from the traditional geopolitics as it proposes a multidimensional
view of power. It includes all of the soft- and hard-power tools that states can
employ to create or keep their power (Al-Rodhan, 2012: p. 1). Al-Rodhan
especially mentions how space assets can and should be used in order to
fight social and health problems by mapping the population. This is possible
with modern technology and satellites where the spreading diseases that are
mapped and their future path predicted in order to prevent them to spread
further. These tactics would then automatically work towards maximization of
25
economic gain, not only observe the nature as the technology has been used
until now (Al-Rodhan, 2012; p. 20, p. 26).
Despite Al-Rodhan’s view on outer space’s future power system, where
he creates the need for states to create full soft and hard power regime
around their space assets, for those challenging situations facing nations’ and
their space assets. He puts forward a policy recommendation in order to
prevent space to become a battlefield and ensure sustainability both down on
Earth and in outer space, his recommendations are:
1. Soft laws such as code of conducts should be implemented and with
voluntarily rules the superpowers might behave differently.
2. All kinds of development and testing of ASATs should be banned
including lasers, jamming and other cyber techniques.
3. To sharpen the legal implications of commercial space activity for
issues such as property, liability and definitions of launching state.
4. Space traffic control where the US, with their technological
superiority, could take leadership and develop it further to prevent any
kind of collisions in outer space when it comes to space debris, and
with human-made objects.
5. Increase resources and support for civil society and scientific
community to create solutions that could take out debris to maximize
economic gain from any space activities and prevent any unnecessary
harm.
6. Increase space cooperation and coordination between the
multilateral bodies dealing with space matters and remove the artificial
barriers used by states to separate their military, civilian and
commercial space operations.
7. Space policy and space exploration must be guided by the eight
principles of good global governance, a) effective multilateralism, b)
effective multilateral institutions, c) representative multilateral decisionmaking structures, d) dialogue, e) accountability, f) transparency, g)
burden-sharing and h) stronger partnerships between multilateral
organizations and civil society (Al-Rodhan, 2012; pp. 219-221).
26
V.3. Establishing a Legal Framework for Property Rights to
Natural Resources in Outer Space
Sarah Coffey proposes a creation of a new regime that is based on article
11(5) of the Moon Agreement. This agreement states that an international
regime would be created to govern the exploitation of natural resources on the
moon when such exploitation becomes feasible. She suggests a new regime
as the current Moon Agreement does not address the possibilities of mining
operations successfully. She quotes Professor Carl Christol, an expert in
international space affairs, who states that an international organization is
needed to manage exploitation of lunar resources for safety and fair
distribution of profit and other benefits derived from the exploitation (Coffey,
2009; p. 133).
While creating a legal framework to govern the exploitation of natural
resources in outer space, a look at current authorities that are governing the
seabed and exploitations on natural resources in the High Seas might provide
useful insights. The International Seabed Authority (ISA) is overseeing rules
and regulations for deep-sea mining to provide plans, oversee compliance
with rules and define how revenues should be shared. In Coffey’s proposal,
nations or companies would not need any form of permissions to prospect
resources, but they would need to obtain permission to have exclusive rights
for the exploration and exploitation of discovered resources (Coffey, 2009; p.
134).
After the establishment of an international organization that would
oversee the exploitation, every space-faring nation would get a permanent
seat in the organization with limited seats for developing nations. Every nation
with a seat in the organization would receive certain amount of credits that
would represent the amount they would be allowed to extract from space. The
developed nations would also get some credits, which could be traded freely
in an open market between the nations, similar to the Kyoto credit system
(Coffey, 2009; pp. 144-145). Private companies would not be excluded in this
system, but would need to go through appropriate channels in their operating
countries, because the state, where the company would be operating, would
eventually be responsible for its activities. After that, the states negotiate what
each credit represents, what mineral it stands for and how big a quantity they
27
would be allowed to mine. When the actor holding the credits decides to use
it, that actor will automatically be given an exclusive economic zone over that
particular quantity or area. (Coffey, 2009; pp. 145).
Any disputes that arise would need to be solved among the states
themselves, as the number of space missions will remain low in the
foreseeable future and therefore it is not necessary to create any special outer
space tribunal. If states fail to solve their disputes diplomatically they could
turn to the International Court of Justice. However, when activities in outer
space have increased, an international space tribunal can be created at that
time (Coffey, 2009; p. 146).
V.4. A Proposal of a Space District
Zach Meyer is an attorney in the US with general interests in outer space
affairs. His proposal is probably the most forward looking of the proposals I
have introduced here in this thesis.
As the title suggests, he wants the international community to establish
a space district that would be a completely new national entity. This new entity
would be unique on the basis that it would not be created through rebellion or
secession, but through a peaceful process and cooperation between states in
favor of mankind. Another specialty of this new entity is that it is neither
international nor exactly national, but a supranational organization that would
be autonomous in its actions (Meyer, 2010; p. 259). Meyer does not see any
problem with commercial companies going to outer space and operating now,
as there are no legal obstacles, which is in line with some other scholars in
this field. Despite that fact, he states that the existing regime in outer space
promotes a legal regime that is seemingly inhospitable to commercialization of
outer space. The two treaties refrain from private ownership, though they do
not challenge the ownership completely. Meyer comes to the conclusion that
the treaties permit private ownership as long as international interests are
given their due consideration (Meyer, 2010; p. 250).
The Moon Treaty forbids any kind of exploitation as the treaty states the
natural resources “are the common heritage of mankind”. Meyer asks a more
28
philosophical question whether “heritage” is exploitable, and if so, who can
exploit it. To Meyer’s understanding there should be two exceptions from the
Moon treaty, based on international consensus. First, celestial bodies in the
solar system other than Earth and the Moon are no longer subject to the
restrictions of the Moon Treaty. Second, if an appropriate international regime
is created, then exploitation of the natural resources of celestial bodies may
proceed (Meyer, 2010; pp. 251-252).
Meyer suggests that a new international regime should be created to
prevent any international law being bent or broken when private companies
launch their first vehicles to outer space for exploitation. As Sara Coffey, he
suggests to apply rules and regulations of offshore drilling for outer space
mining that could encourage private companies to engage in operations.
Finally, a separate regime should be established to determine what
equitable sharing of space operation should be. The states would then have to
take decisions if their citizens were allowed to have a double citizenship, and
therefore being a part of the new space district and their country of their origin,
or if they were only a part of the newly established community. The new space
district would then be responsible for encouraging private enterprises to
exploit celestial bodies and in order to secure its future and prevent any
misuse of resources, the space district would be given exclusive rights over
the natural resources in outer space (Meyer, 2010; pp. 256-257).
V.5. Discussion
Dolman’s proposal is aimed towards securing US dominance over space and
promoting the US to a space empire. Astropolitics is an offspring of a
geopolitical theory. Dolman uses a version of the theory and applies it to the
terrain of space, both Earth’s orbit and beyond. Some of Dolman’s ideas are in
line with the law of the high seas where commercial activity is extensive
without being controlled by military power.
The proposals made by Dolman have been heavily criticized, mainly for
the realism and German realpolitik behind the proposals, including deploying
weapons to near-Earth’s orbit and the thought of an empire in making if these
proposals would become true. If we look closer at his proposal from a
29
classical realism point of view, it would mainly be seen as greed for anyone to
exercise a full hegemony of the Earth’s low orbit. Dolman’s desire of creating
an empire could come back to them and instead of being the liberating
democratic power they would become the tyrant they have been fighting in the
recent years (Nye, 2011: pp. 26-27).
If this were to become the reality we could see numbers of proxy wars
and send us back in time to the Cold War where, while the two superpowers
did not fight any wars, a number of wars were ongoing in the world. Another
very possible threat of fully militarized Earth’s low orbit is that it would make it
feasible for other states to challenge the United States or any other state with
the control of low orbit to seize the control. Not only would that lead to a space
race but also to an arms race where space-based weapons, such as
antisatellite missile system (ASAT) would be used to shoot down the enemy’s
weapons. This may sound like a far-reaching reality, but China has already
said that it would not accept US dominance in outer space and would
challenge it. Chinese authorities have even demonstrated that they are fully
capable of challenging US supremacy in outer space by developing their own
ASAT system, both deployable from land and off shore. To this day, China is
the only state apart from United States that has carried out testing on their
ASAT systems by shooting down their own weather satellite that did not serve
its purpose anymore, causing a large amount of new debris being added to
already a great deal of it, causing danger to other satellites or other manmade objects going through orbit (Mutschler and Venet, 2012). If the United
States followed Doleman’s proposal, it would most likely cause an arms race
that would have unforeseeable consequences for our future and us as
humans. If states keep the realistic way of thinking, developing new weapon
systems that make the states capable of shooting down each other’s satellites
and other space infrastructure would have catastrophic consequences. If the
United States seized control of the lower Earth’s orbit it would likely cause
unbearable tension between states, both those who have space capabilities
and other states fearing this kind of supremacy. Secondly, by shooting down
the satellites in orbit and cause space debris, which, if nothing is done to clean
it up, will eventually jeopardize our future of further space exploration.
30
Dolman’s proposal has a sense of neo-liberal economical way of
thinking. As long as space would only be open for free commercial activity,
other actors would be allowed to take part of the outer space commercial
regime. Although neo-liberal economics have advantages, when discussing
commercial activities, it is the implementation that I believe could be
problematic for many of the states. Nevertheless, when Dolman introduces
“The National Space Coordination Agency”, an economic heaven controlled
by the US military, he sweeps ideas about free trade and neo-liberalism
completely off the table.
Dolman’s understanding of the world structure in an anarchical system,
where he wants the US military to take control of the system, and have
complete hegemony over the space, is understandable. His assumptions
about the United States’ power are that the US are more powerful and
technically capable of seizing control of the low orbit and that they should, as it
would shift the power structure down on Earth dramatically in the
unforeseeable future. Another assumption that Dolman makes about the
world’s structure is that other states might be technologically capable in the
near future to take over the low orbit and that is the reason why the United
States should make the first attempt instead of being too late. This idea is
nothing else than a blueprint for a US empire and maybe a reminder of how
the anarchical system we live in today works (Havercroft & Duvall, 2008: pp.
45-6). Al-Rodhan, The author of Meta-geopolitics even goes as far as to call
Dolman “an extreme space nationalist” that puts forward this idea to push the
United States to seek this goal to remain a super power for an unknown future
(Al-Rodhan, 2012; p. 8).
Dolman might not be so far off with his ideas if we take a look on what exists
in the outer space: a high quantity of valuable natural resources. By seizing
control of the low orbit, which on one hand might sound controversial but on
the other hand might as well show the US being foreseeable by securing their
access to valuable energy resources when Earth runs out of fossil fuel or
other resources. If any of those scenarios were bound to happen it might
come in handy to have secure access to those resources instead of rising
security threats (Smith, 2010: pp. 230-231). The changes of US to seize
31
control of LEO or other states are highly unlikely, simply for the cost. It is
estimated to cost somewhere from three to five trillion dollars to seize control
over LEO, which is a number that US cannot afford and might even too much
for emerging China (Moltz, 2014; loc. 3276: Dolman, 2003; p. 95).
In Al-Rodhan’s proposal he implies that space can never stay neutral from
states’ power tools and tactics, which is similar thinking as in Dolman’s
proposal. This is close to today’s reality, where most of the powerful states
with any space capabilities have their satellites in orbit and either have or are
developing their own navigation systems. That leaves us with having fully
capable systems to shoot down enemy satellites. Those systems already exist
and it is very unlikely that states that have those systems will destroy the
technology that they already have developed. Consequently, this would have
other states wanting similar technology, causing a classical realism power
dilemma. The states would, if not receiving the technology from their allies, try
to develop their own and conduct necessary tests themselves, causing even
higher number of debris in outer space. What I am missing from Al-Rodhan’s
proposal is how the private sector and non-state actors can step in and act. It
seems like he is waiting for the states to take voluntarily steps towards having
the space a permanently weapon-free area. This is the case now to our
knowledge but there is nothing preventing the states to deploy their arsenals
to orbit.
Al-Rodhan seems to forget that civil society does not always have to be
civil according to western standards, that is, terrorist organizations are a part
of the society, despite our tendency of seeing them as outlaws. Those groups,
with the right technology, could, for example, jam satellites, causing the
satellites to not be operative for a shorter period or longer. Or even worse,
they could completely take the satellite over, use it as a weapon and steer it
into another man-made object in orbit in order to create a collision. Apart from
the obvious reasons of managing to take down two man-made objects it would
as well create a lot of new debris in orbit, causing danger to even more manmade objects. (Dowd, 2009).
32
Sarah Coffey brings worthy arguments into the discussion on how the future
playground of the human race should be reformed in order to keep peace and
a common agreement in outer space affairs.
Certainty and stability is what those companies are seeking when it
comes to determine their next missions and if that is not provided they might
hesitate to carry out their missions. It is worth mentioning, though, that the
payoff is high and therefore the actors, operating in such systems, are willing
to take greater risks, though they might want to know beforehand if their
assets were seized when returning down to Earth. It would not only be for the
companies’ sake to have the legal framework clear when deploying their
missions, but would be vital for the human race in whole to have a clear
existing legal framework. It would create guidelines about who would be
responsible to repair the damages and if something happens, who should
save the astronauts and what they can exactly extract from the asteroids.
Coffey, however, proposes two systems that she wants to combine in
order to create a new international organization that would oversee affairs
related to outer space mining and other related operations. The first is to form
an international organization on a similar structure as the ISA. She mentions
that an establishment of a new international body to oversee the problem
would both be very expensive to start and maintain. It would exclude many
non-space-faring nations from participating and therefore exclude them from
influencing the decision-making (Coffey, 2009; p. 136).
My main concerns about establishing an international body based on our
experience provide by the high seas is that history shows us how poorly we
have been managing this natural resource.
The high seas are vital for the global economy as we use the sea to
fish, mine for oil, gases and other minerals and transport cargo between
countries. These are factors that drive the globalization. This tradition of how
we have decided to manage the high seas is now causing massive pollution,
over-exploitation of fishing stocks that already are endangered. All in all, the
high seas are a good example of the tragedy of the commons. Despite the fact
that ISA’s mining codes concerning the seabed are very up-to-date and
mining codes are decided before the operations begin, the coastal states do
33
not want to repeat their mistakes that were done with the fishing stocks.
Despite the effort of creating the ISA to regulate mining operation on the
seabed, the countries forming ISA have failed to answer the question on how
profits should be distributed. The factor that the high seas are, by treaties, a
common heritage of mankind obviously makes it more complicated to
determine how possible profits should be distributed (The Economist, 2014).
In Coffey’s proposal she propose a policy change of the ISA mining module to
make it fit better with mining in outer space. The policy change is not a major
change as ISA already have it written in their codes what effective protection
of the seabed entails, which ISA has still have not implemented. Nevertheless,
Coffey’s proposal of copying ISA’s model for outer space mining would mean
that these guidelines of effective protection would need to be enforced in
order to be usable (Byers, 2013; p. 192).
Coffey rightfully points out that it would simply take too long to negotiate and
form a new regime or alter the existing one. It would probably take years, if not
decades, and that would mean that the new regime would not exist by the
time the first mission would be deployed (Coffey, 2009; p. 136). This raises
the question whether it is too late to form an international organization that
would oversee mining activities in outer space. Besides, there is an even
bigger obstacle, namely the question of how that organization could be
capable of observing and regulating the companies or in that scenario, the
states that are operating on celestial bodies. Furthermore, if an international
organization is capable of observing and regulating both states and
companies, operating in outer space, how could that organization be capable
of enforcing the rules of such activities?
Using a similar credit system as the Kyoto protocol does not appear to me as
the best feasible solution. First of all, we have to look at the Kyoto protocol
and take into consideration the states that are part of the protocol. Also, we
have to take a closer look at the states that are not part of the protocol and
how they behave anarchically and do what they want, regardless of the
interests of others.
34
The credit system that Coffey proposes has one major flaw. It assumes
the amount of minable resources in outer space, when nobody really knows
how much is extractable. By limiting the opportunities on this stage the system
would be hindering the companies and their possible growth and further
exploration. This could also be altered on later stages by lobbying for more
credits change in the system. I believe though that a system should not have
upper limits when it is not necessary from the beginning.
The system, as Coffey presents it, favors nation states. The nation
states would hold all the credits where private companies would have to buy
them from the states in order to be able to operate. If this system were to
become the reality, it would be an example of the Westphalia system
converting itself and spilling over to outer space. The only addition is the
presence of a supranational organization that holds all the rights and
distributes licenses for mining operations and has a clear mandate on how
profits, gathered trough selling licenses or taxation are spent, while having no
direct affiliation from the nation states.
Coffey fails to provide information on how the credits are to be initially
distributed, i.e. whether all states get an equal amount of credits, whether it is
in correlation to their GDP or population size. Therefore, the proposal is much
less realistic. She might deliberately have done so in order to avoid criticism
on the distribution system and to only open up on the dialogue.
As previously mentioned, Meyer comes to the conclusion that private
ownership in outer space is not forbidden and that there are few obstacles for
private companies to proceed with their plans, at least when he examines the
legal text that exists about the subject. Yet, it is very likely that parts of the
current regime will try to prevent them from proceeding. Meyer explains this by
taking the Moon Treaty as an example and showing how it provides a default
rule, generally prohibiting any exploitation of the aforementioned natural
resources of any celestial bodies in our solar system, other than Earth (Meyer,
2010; p. 251)
Meyer’s arguments are that the treaties do not prohibit any kind of
exploitation. The treaties might, however, need to change in order to allow
exploitation. This alone supports my own interpretation that any kind of
35
exploitation is forbidden and needs either to be changed or an establishment
of a new international regime overseeing the exploitation is necessary (Meyer,
20120; p. 252). What is remarkable about Meyer’s arguments is that, on the
one hand, he states that exploitation of celestial bodies is not forbidden
according to international treaties, and on the other hand, however, it is
impossible to exploit them unless a new regime is created or if the treaties are
changed.
Meyer’s ideas about space district are very original. They assume that
a person can abandon his or her nationality and take up a new ‘nationality’,
the so-called space identity that would be created to ensure neutrality among
the nation states. This is a modern way of thinking, which could be argued as
an offspring of globalization and a challenge of the already outdated
Westphalia system as well. This new identity would, though, be created by
actors of that new system and therefore reduce the changes of the space
district to become reality as the nation states might be hesitant to recognize
this new supranational power.
Meyer claims that he has the answer to how to encourage the nation
states to participate in establishing the space district. It is by creating a
monopoly for the space district on natural resources in the solar system, and
therefore creating an equal opportunity for all states and the private
companies to access this new pool of natural resources. However, for the
space district to become a reality, states have to be willing to give up certain
sovereign powers to a supranational state. A supranational entity that can limit
actions, regulate and control the biggest area known to mankind.
36
VI. Creation of an Outer Space
Organisation
VI.1. Introduction
This chapter will discuss the possibility to establish an Outer Space
Organisation that has rights to both control the resources and collect taxes
from these resources’ future revenues. This is in accordance with third stage
of Dworkin’s methods, or the “reforming” stage, where I suggest reform on the
current regime. The question about sovereignty is the obstacle to which most
nation states are likely to object. However, the creation of an Outer Space
Organisation with the purposes of possessing sovereignty over outer space is
not the objective of the creation. Its purpose is merely to create a trustworthy
entity that would manage the resources in a credible way and manage to build
up a common investment fund, which would oversee any future tax revenues.
The reason I exclude the question of sovereignty right away is simple: none of
the big superpowers would even listen to the idea of losing any part their right
of self-determination even though do not have sovereignty over the area.
This idea is as well controversial from our basic understanding how we
have managed the commons until now. As Hugo Grotius said in Mare
Librum8, the whole sea, including territorial waters, was unfit to be the object
of any sovereign rights because of its very nature. Hence in De Jure Belli Ac
Pacis9, the argument that sea cannot be occupied was abandoned. Grotius
declared it possible to obtain sovereignty over regions of the sea either by
domination with a fleet or by use of power exercised from the adjacent coast
(Goedhuis, 1978; 577).
If those same arguments are taken and applied to outer space, then no
state should be able to exercise sovereignty over the area. But Grotius’
arguments from De Jure Belli Ac Pacis does not rule out the option for states
to exercise their powers to seize control over the area, as happened when the
8
9
e. The Freedom of the Seas, written in 1609
e. On the Law of War and Peace, written in 1625
37
states moved their territorial waters from the reach of cannon, to 12 nautical
miles and today all the way up to 250 nautical miles. That scenario is not
unfamiliar with Doleman’s proposal, where he suggested that the US should
seize control over LEO. Those arguments are though far-stretched as they do
not fit together with the attached based claims I will go through later in the
chapter.
If the establishment of the Outer Space Organisation would be
considered from a business perspective only, then the question is not if but
how fast it is possible to establish the entity. The traffic that would occur in
outer space would then simply turn towards the services that are possible to
provide to the space-faring companies and states (Goedhuis, 1978; 580)
Other scenario is if the states would be facing a great danger, such as nuclear
war and put under great pressure, then the history shows us that they could
create a new treaty and/or new regime in considerable little time (Hope, 2011;
p. 476).
Outer Space, a functioning market
The outer space is an environment that the human race yet has to master and
might take decades if not centuries until we manage to learn how to use it for
economic development other than satellite information. We have seen
numerous successful attempts of space launches and exploration of the
space and also numerous failed attempts. As the system is built up now, the
nation state has a monopoly over most activities in outer space, mainly
because of how closed the market and how expensive the technology is. The
market is opening up a bit; it is no longer only the United States and Russia
that have an oligopoly over the space. At the same time, private companies
are challenging the power structure by entering it. The situation is fairly
unique: not only do the companies perform tasks that have never been done
before, but they also might be able to produce something that could benefit
the whole human kind sometimes in the future.
Those ideas introduced to the outer space market by private
companies are clearly new, challenging and innovative. The last concept,
innovation is exactly what I am focusing on as we live in a capitalist world,
38
where innovation is one of the system’s main pillars (Baumol, 2002; p. 1).
Under these conditions the market is able to grow and create wealth, which
then creates better living conditions for everyone. The exact opposite happens
when someone has a monopoly, especially if the monopoly is not challenged.
In that case, there is much less likelihood of any innovation, and stagnation
will most likely happen (Erber & Hagemann, 2002; pp. 270-273). When it
comes to innovation in fields where the state has a monopoly, the state is very
unlikely to change anything and stay with its outdated technology (Lipsey
et.al. 1999; p. 400). This is the case with the two major space powers today,
using old technology and only changing their technology now when new
actors are entering the market. Though most of the new actors are states,
private companies are emerging into the market as well. Capitalist theories
claim that market economy performs better than planned economy. It is more
efficient and cheaper and the sooner states realize that fact, the better,
according to capitalism theories (Lipsey et.al. 1999; p. 384). NASA realized
this: it stopped using its space shuttles and outsourced its duties to SpaceX, a
private company. SpaceX provides the same services and to some extend
better as NASA did delivering twice as much cargo to the ISS for only the
fraction of the cost10, and therefore creates a better payoff for the state. This is
exactly the reason why authorities should change their position and make it
easier for new companies to enter the market. New companies would create
new wealth and eventually the payoff for the state would increase (Lipsey
et.al. 1999; p. 736).
When the states outsource their work to private actors they will still
have to make sure they do not transfer their monopoly over to the private
company as that would not resolve the problem. The state has to create a
system where everyone has access to the market as to the capitalism
thinking, because another company might be able to execute the task more
efficiently (Baumol, 2002; p. 23). Another risk would be when one company is
10
NASA’s estimations of their mission costs to the ISS were around $350 million, while
SpaceX’s cost for pressaruised cargo for the same route is around $80 - $125 million. SpaceX
can still not send astronauts to the ISS, which makes NASA still dependent for two to three
years longer on the Russian Space Agency to deliver their personell to the space station. It
has to be taken into consideration that NASA space shuttles were capable of operating
multible mission in outer space, such as fixing satellites, which Space X is still not capable of
doing (Moltz, 2014; loc. 2027, 2044).
39
granted the task, then it would create entry barriers for new companies in the
future, and therefore that single chosen company would stick to its outdated
technology even though new technology becomes available (Lipsey et.al.
1999; p. 384).
According to the economics, we should not fear multiple companies
trying to enter the market and fail. Most of the companies that fail would do so
in the developing stage of their operation, e.g. when developing their vehicles,
launch systems and mining devices. Those same companies would therefore
not fail when in orbit and therefore creating debris or risk to other missions.
The companies which would fail after entering orbit will either be in the form of
going bankrupt or unfortunate failures with catastrophic consequences for the
mission itself, possibly creating debris that could affect other man-made
objects in outer space. Those high risks will drive the companies forward and
when a company fails, it will still have the knowledge onboard which could
spin off to other space related activities within the same field, customizing
their knowledge for use in different markets and for future benefits for human
life on Earth (Lipsey et.al. 1999; p. 736 and Baumol, 2002; p. 5: Moltz, 2008;
p. 31).
Property Rights
Many economists, including Nobel laureates, say that markets would fail if it
were not for property rights, and competitive markets would not exist without
property rights (Arrow, 1984; p. 217). Uncertainty is another condition that
supports the theories that property rights are needed, as uncertainty creates
problems and prevents growth (Arrow, 1962; p. 614).
Ronald Coase is one of the most famous theorists within the
economics regarding property rights. The ‘Coase Theorem’ claims that
property rights have to be well defined in order to secure an effective
outcome. His theories say that property rights are, however, not enough and
regulations and definitions have to be clear on what is allowed and what is not
(Lipsey et.al. 1999; p. 388).
Adam Smith introduces property rights with a similar approach. He
states that if property rights are not assigned to the scarce resources, it will
40
inevitably lead to an inefficient use of the resources (Scheraga, 1987; p. 893).
This situation is often referred to as the “tragedy of the commons”. The
condition for this to happen is when resources are common as, for example, in
the case of outer space. If that particularly area does not have anyone, an
individual, company or a state that has the property rights to control it or
regulate the area, then there could be more actors using the resources than
the area can handle. It is not rational for the actors to think about sustainability
and have the incentive to overuse the resource for their own advantage
(Lipsey et.al. 1999; p. 392).
Even though outer space has plenty of resources, it might come to the
point where the human race uses up all the available resources. Even for
different asteroids, not all might be operational or reachable. Another option
would be that if the property rights are not clear and on what terms these
companies are bringing the material back to Earth, they would not be willing to
risk it if everything is seized back upon arrival.
Different types of ownership
According to Risse, an entity may have four different types of ownership.
•
No ownership
•
Joint ownership
•
Private ownership
•
Common ownership
The last concept, common ownership, is the point of focus. When it comes to
the outer space, a common ownership would need some kind of privatization
or outsourcing on behalf of the states, in order to process the resources to
indeed produce and transform the resource into valuables (Risse, 2012, pp.
110-111). The question I am asking myself in this part of the thesis is if the
outer space can fall under definitions of common ownership.
I will go through arguments in favor of and against common ownership,
though the aim is to answer how we, the human race could take decisions on
how to manage this resource.
41
In Risse’s three claims for common ownership he states the definitions the
resource has to fulfill in order to be considered as being under common
ownership. First, resources of the Earth are valuable and necessary for
humans for survival. This definition cannot be stretched to outer space as is.
This would also collide with the fact that not all resources are necessary for
humans to progress or for their survival and therefore not a matter of common
ownership. Even though Risse addresses the possibility of human habitants in
outer space, this first condition might need to be reformulated to include only
resources necessary for survival (Risse, 2012; p. 113). His second claim is
that the humanities needs are more valuable morally and matter more than
any environmental value. If we have a resource and we need to exploit it
despite any sentimental value, we should be allowed to exploit it, as long as it
to support our survival (Risse, 2012; p. 114). The third claim is that those
resources and spaces have come into existence without human interference.
That means that nobody has any claims to the resources based on any
contributions to their creation. This should be applied when the resources’
ownership status is at stake. Since nobody can have such claims about the
outer space, nobody can claim that resource in order to prevent anyone else
to use it (Risse, 2014; p. 114). These three claims support the idea of why
nobody or even in that sense, anybody could own resources in outer space. If
we are realistic and assume that LDCs are not going to give up on the idea of
common ownership and that the more technological advantaged states are
going to keep their development ongoing. We might as well go ahead and
think about how we can solve the dilemma that is likely to be formed when the
developed states are going to challenge the system.
I can follow the module of Cara Nine to answer the question of how states or
private actors ought to be granted rights to exploit resources that are in outer
space. In today’s system nation-states claim ownership when the resource is
attached to their sovereign territory and to ensure the basic needs (Armstrong,
2014; p. 18). Then we get to the question of the commons and how a state
could claim rights over a territory that is considered a ‘commons’ on the basis
to meet their members’ basic needs (Armstrong, 2014; p. 19).
42
It is difficult to argue that the resources in outer space would fall under
the category to sustain basic needs of humans, yet. However, we should take
a closer look at the improvement-based claims. This argument is valid when a
national entity would outsource the rights to private companies. The private
companies should only be eligible if they manage to prove that the exploitation
would add value to the resource.
According to Armstrong, the first claim presented would have to be
attributed back to the national community to some degree. Those claims might
be matter of objection, as the national community may perhaps be unsuitable
when those decisions have been taken. The best example for these claims
might be the example of continuing act of China buying up resources in
African countries, where the governments have sold China or publicly owned
Chinese companies the exploration rights, which may then lead to extraction
(Armstrong, 2014; p. 9) This raises concerns that the nation state should not
be able to decide who can and who cannot mine asteroids, and blows all
quota based ideas off the table.
The second of Armstrong’s improvement-based claim concerns
resources that are extremely difficult to access, for example resources that are
buried deep underground. Here Armstrong questions the attachment-based
right of the nation states, as the nation has not done anything to earn an
entitlement to them. Even though the nation state would get back its
investment that was put into discovery and exploitation, the nation state will
not be the one creating the capital and therefore it should not be able to use
the improvement-based claim (Armstrong, 2014; p. 10). In this argument I
have to disagree with Armstrong. If the nation state invests in the extraction of
the resource, they are improving the resource. There are of course different
opinions about whether some resources are improved by leaving them
untouched or make the investment to exploit them.
This argument is very suitable for asteroid mining. The nation state has
claimed control over asteroids and other celestial bodies through treaties and
legal regimes. Those asteroids contain tremendous amount of different
resources. However, there are no obvious reasons to use attached-based
claims. That leaves us with improvement-based claim for outer space mining.
If the human race decides to engage in such activities, the states should not
43
have an improvement-based claims on those resources, as they neither lay
within their sovereign territorial boundaries or their activities is not for
improvement-based claims as private companies would be carrying out the
missions.
Armstrong’s third claim, which he describes as the most significant
problem of improvement-based arguments, reasons about who should be
allowed to allocate exclusive and full resource rights to nation states. He
questions the necessity of a global regime for allocating the resources,
especially if the nation state has claimed those resources. David Miller argues
that if a group has added a value to a certain territory, they will not be able to
enjoy the continued enjoyment of their creation and would always be insecure,
unless a political institution would be created to represent the group (Miller,
2012; p. 263: Armstrong, 2014; p. 11). In my own proposal, there are no
arguments supporting the fact of a nation state controlling who should be
allowed to engage in outer space mining. Nevertheless, the argument
supports that some agent should be given stable jurisdiction over the
resource. A Kantian might say that rights over objects such as natural
resources are never ultimately secure until the civil authority of states is
nested within a universal international order (Armstrong, 2014; 12). This
leaves us with that complex situation: states would have to secure their rights
of those companies that want to mine in outer space, without being able to
make any property claims, and those companies are dealing with the fact that
it is technically forbidden to enter into mining operation in outer space, unless
it is for the common use of the human race.
Taxation policy
When it comes to new markets, politicians struggle to find ways on how to
handle tax policies. Globalization has made it more difficult for some
authorities to gain tax revenues of certain services, such as the internet. My
reform proposal takes the position that it would be highly criticized if these
new companies did not pay any taxes of their profits and has narrowed down
to what the taxes should go to. At the same time my reform proposal is also
critical towards the Westphalia system and its efforts to lock its claws on outer
44
space. The new Outer Space Organisation would collect fees from all manmade objects launched into space after its creation, in order to clean up the
space from man-made debris, to invest in technology to do it more efficiently
and to operate their space controlling system, familiar to air control as we
know it today. For other missions focused on space mining the Outer Space
Organisation would be allowed to tax their profits. In exchange, the Outer
Space Organisation, in cooperation with other space fearing nations, would be
obliged to build up a system that identifies possible natural hazards in outer
space and prevent them if possible. That could include exploring the space
even further and operating space stations. Finally, the Outer Space
Organisation would be obliged to create an investment fund to promote further
innovations in the field.
In order to guaranteeing that the nation states abide by these rules, it is
necessary to define clearly what is taxed in the beginning of the creation of the
Outer Space Organisation.
This change of the space regime and the creation of this new entity that
oversees every subject, which is related to private companies that operate in
outer space, could create a social contract about these affairs, as the goals of
the new entity would be clear from the beginning. They could be formulated as
not only driven forward by profit, but as good visions on how the human race
could prevent possible natural hazards and fulfill the human curiosity of what
is out there by conducting research and exploration missions.
My proposal’s aim is not to dismiss the regime, as I believe we need a
property regime to oversee the outer space. Besides, an overwhelming
majority of today’s nation states has accepted the idea of having an outer
space regime to control the global commons. My aim is rather de lege ferenda
and if we should dismiss our understanding of the outer space commons as
they are understood today (Baslar, 1998; pp. 90-91).
The lex lata of the capitalism system is that commercial activities are always
motivated by a desire to make profit. Those same companies will lack the
motivation to invest capital and participate in common regime if they are not
guaranteed mining sites and quotas (Baslar, 1998; p. 180).
45
As our system functions today, natural resources are under sovereign
protection, either through attached-based claims or through regimes
(Armstrong, 2014; p. 1). My objective is to propose a new regime that would
oversee affairs related to outer space mining. We need a regime to protect the
commons on a global level. David Miller states: “If a group has added value to
territory, its continued enjoyment of the value it has created will always be
insecure unless the territory is controlled by political institutions that represent
the group.” (Miller, 2012; p. 263: Armstrong, 2014; p. 11).
This might raise the question of whether we could simply avoid having
a governmental regime or some other body overseeing the mining activities.
In many economists’ and philosophers’ opinion it would end up with a tragedy
of the commons and prevent sustainability if no authoritative body would be
involved in the decision-making structure of this resource (Armstrong, 2014; p.
24). This argument is similar to the economic argument that a regime should
be in place in order to secure an equal access to the resource and the market,
in order to prevent imperfect competition.
One of the biggest obstacles for outer space affairs and mining in that vacuum
is the common heritage of mankind. This concept has been applied to the high
seas, the seabed, Antarctica, and during the Cold War, the outer space.
This simple fact makes it reasonably certain that there were other
players that drafted the treaties that are in place today. Europe, China, Japan,
India are among those nation state that entered the space race, among
private players that are filling up the vacuum the Russia and US have left
open while they have had cut-backs in their space programs.
Another reason why we should review the fact of the space being a
common heritage of mankind is the fact since the treaties were written, the
Soviet Union has collapsed, China has evolved towards market economy and
communism almost only exists in history books. This should leave us
considering altering our own values and how we reach them when the world
order is different (Baslar, 1998; 161, pp. 177-8). In addition to a different world
order we have had the technology changing at the same time, often
challenging the nation state and its capabilities to control their own sovereign
area. This shows as well how well the Westphalia system is capable of
46
adapting to new scenarios. A good example is the use of airspace: the
technology it possible to fly between two sovereign areas without the parties
involved knowing what to do. The process of airspace technologies evolved to
the nation states creating a convention on airspace that would rule out any
possible misconduct of airspace.
The same story goes with seabed mining. As long as it was
technologically impossible to mine the seabed, nobody thought about
regulating it. When it became technological possible, the nation states
regulated the activity, right as was done with outer space, airspace and the
high seas from the beginning through treaties, conventions and norms. Today,
the times are different, other actors than the states are involved in the
process, which means that the regime should be able to alter itself in order to
service all the actors involved (Risse, 2012; pp. 193-194, pp. 199-200).
Even though the US are not a member of the Moon treaty, they are not
opposed to the idea of sharing the resource with other actors, if they would be
the first one to encounter it. What the US are opposed to is sharing the
resources with the less developed countries in the way the treaties are written,
as to their opinion the treaties are too socialistic and the US actions might be
considered contra legem if they would not act according to the treaty. At the
same time the less developed countries (LDCs) would define US actions as ex
aequo et bono in order to impose increased controls and limitations,
technology transfers and extraction taxes on US if they were the actor in
extracting the asteroids (Baslar, 1998; p. 173).
If I use the often cited definition that the outer space is terra nullius and the
same concept should be applied to the outer space as is used to define the
high seas, which are defined as res communis humanitites, which is derived
from Roman law where res communis omuais comes from (Baslar, 1998; pp.
42-4). Those concepts are in favor of the laissez-faire ideology and would be
considered rather aggressive towards joint ownership and more dependent on
individualism. The size of and extreme living conditions in outer space and the
high seas are another theory that tries to explain why those two areas should
fall under the same definition (Baslar, 1998; p. 45). Therefore today’s
47
technology has made it easier for those who are willing to control even bigger
areas of space. This is in line with my establishment of the Outer Space
Organisation, which explains why the treaties and therefore the legal regime
need to be changed.
The Grotian approach to the problem would define the sea to be big
enough for everybody’s use, and as it is big enough for everybody, a property
regime is not needed. By applying the same terms to the outer space we
should assume that the same concept could be used for establishment of new
regime on outer space (Risse, 2012; 98).
As I have mentioned in my arguments, the Grotian approach is not an option.
It has been proven over and over again that when a resource where
everybody has access to, the well-known terms of the tragedy of the
commons can be applied. The same reasoning goes for the seabed where the
nation states did not agree but were not willing to risk the tragedy of the
commons to happen, which resulted in them to create a property regime that
would oversee the seabed (Risse, 2012; p. 99). However, if I go by Risse’s
approach to the fact the space is not owned by anyone11, then the states
should not be able to regulate the outer space for their sole purpose to
regulate it. On the same grounds everyone should be allowed to travel to
outer space and use the resources s/he finds and use it for his/hers own use
(Risse, 2012; p. 100). Risse’s other theories claim that if we want changes on
our system, we should challenge the system. Changes occur under
occupancy and the rights that the first occupant gets might be worth the work
behind it (Risse, 2012; p. 99).
VI.4. Creation of supranational organisation
The idea of creating a supranational organisation that would take care of outer
space affairs is not a completely new idea. Scholars have suggested the
creation of some kind of entity that would manage outer space affairs, as laid
11
There is no state that can make an attached-based claim to anything in space and still it is
very difficult for the states to make improved-based claims as well. That could however
change in the next ten to twenty years when the states enter the race to land on asteroids and
if states start to build space station on the moon and collect solar energy to beam down to
Earth.
48
out in the previous section about reform proposals. The Soviet Union under
the leadership of Mikhail Gorbachev suggested the creation of international
space authority to ensure peace and help drafting new treaty to prevent
weaponizing of outer space. It was merely a thought game to undermine the
world order and shift the power balance in the outer space. This new regime
was not meant to be an authority in space mining operations, as at that time
this idea was very far-fetched. The creation of the new regime was more
thought to be an authority to manage orbital slots around the Earth, radio
frequencies and launches of the satellites (Baslar, 1998; p. 183, Scherega,
1987; p. 893: Moltz, 2014; Loc 2822). As the system was when the creation of
the regime was suggested, and as it still is today, the price of an orbital slot is
zero and is on first come – first served basis. (Scherega, 1987; p. 897). If the
slots were owned by somebody and managed from the beginning, today’s
reality would be different, the resource would be used in a better way: nobody
could just launch their satellite into orbit without owning a slot (Scherega,
1987; p. 899). Furthermore, by having a private property we would manage to
eliminate congestion and avoid possible disputes due to collision with other
satellites and therefore avoiding unnecessary tension to build up in the world
system (Scherega, 1987; p. 894). Under the above-mentioned mechanism,
nation states receive certain amount of orbital slots which could then be
bought and sold by a bidding system. However, this would mean that the
states value the slots differently. And those states that value the orbital slots
the most would purchase them for future uses. Summa summarum, this would
result into the status quo (Scherega, 1987; p. 899).
Key resource rights for establishing the new regime
Elinor Ostrom put forward an interesting resource rights scheme: there are
eight rights, split up in two different sets. The first set contains the right to
access (1a), which gives the actor the right to interact with the resource and to
enjoy ‘non-subtractive’ benefits from it. These are benefits with pure public
good which do not prevent anyone else from use the resource. The second is
the right to withdraw (1b), which is the right to obtain and indeed to remove
resource units for one’s use, or to enjoy subtractive benefits. The third one is
49
right of alienation (1c), which is the right to sell the resource or what you gain
from using the resource. The fourth and last right in the first set is the right to
derive income (1d), or to obtain proceeds from the sale of a resource or to
extract some other income by using the resource. The second set of Ostrom’s
key resource rights contains first the right to exclusivity (2a), which gives the
actor the right to determine who can access and withdraw a resource. The
second right is the management right (2b), which is to set rules how the
resource can be accessed or withdrawn or in some cases, ought to be
protected. The third right is the right to regulate income (2c), to set rules about
how and who can derive income from the resources they have a right over
and the ability to levy taxes on benefits. The fourth and final right in the
second set is the right to regulate alienation (2d), which includes setting rules
how the rights over resources can be sold or transferred (Armstrong, 2014; p.
6).
Ostrom’s second set of key rights can be used to found the basis of the
new supranational organization, created as a cooperation of the private
companies that are already working towards industrialization of the outer
space, the national space agencies and UNOOSA. All in all, this would
constitute a new property regime of outer space. That new organisation would
then grant both private companies and nation states a permission to extract
material from extraterrestrial bodies on the ground of Ostrom’s first set of key
rights.
Why should a supranational entity hold the rights?
The
question
here
is
extremely
complex
considering
the
current
circumstances: Changes of establishment of a supranational entity is rather
low. I will look for the arguments of what the company or states need to
provide in order to get permission to mine (Armstrong, 2014; p. 7).
As I have already mentioned earlier, the exploitation of outer space
would, in my opinion, fall under the improved-based claim (Armstrong, 2014;
p. 8). We are all responsible to make it possible for future generations to have
access to natural resources to sustain basic human needs, right as past
generations have been using the Earth’s resources and how we have been
50
exploiting them in order to survive and improve our lives. A supranational
entity would provide structure to avoid the tragedy of the commons to happen
in outer space, right as it has often proven to happen on Earth. It might be farfetched to defend that approach to create a supranational organisation to
manage outer space mining and other outer space resources, for the simple
reason that the asteroid belt is so big that it might be big enough to sustain
human activities until we go extinct. However, we have to learn from our
mistakes in the past, because mistakes in outer space mining might have
drastic consequences for us, the humans.
It has been criticized that any regime on property rights in outer space would
always favor the more technologically advantaged countries. My proposition
probably does as well, as it would favor any company that was bold enough to
create and develop the technology for space travels and operate in outer
space (Shcrijver, 1997; p. 215). The same arguments have been used for the
coastal states and their advantages on landlocked states. Coastal states have
an advantage when the sea technology becomes available. The same
happens when somebody invests in new technology: the investor should
benefit from his investment if and when the new technology starts to give
returns (Shcrijver, 1997; pp. 212-213).
When establishing an international organization or in this case a supranational
organisation, the question of and concerns about who should be in control is
always raised. My proposal of an Outer Space organisation would adopt Zach
Meyer’s concept of a Space District. Meyer argues for a special citizenship to
ensure neutrality to other states and protect that person’s integrity. This new
way of thinking can be seen as offspring of a globalized way of thinking that
could challenge the Westphalia system and is more in line with Held’s idea of
cosmopolitan sovereignty. The new identity, despite it being created by the
actors of the current regime, could both be argued to be the Westphalia
system stretching its way into the newly established supranational
organisation and showing their ability to adapt to new circumstances (Meyer,
2010; pp. 256-257, Stuart, 2009; pp. 15-17).
51
VI.5. Political reality
The landscape in outer space affairs is changed due to more actors where the
big superpowers are losing the field to growing number of non-governmental
and intergovernmental actors that are getting involved in the outer space
(Newlove-Erikson and Erikson; p. 280). This means that the current regime
either has to let these new actors enter the regime and alter itself or abandon
the ideas on which the current regime was built and create new ideas where
all the new actors could come to the table equally.
However, this is complicated as most of the new space-faring nations
are not traditional players in space militarization and weaponization. They are
more focused on socioeconomic and other utilitarian benefits of space
activities, such as innovation, access to information, science, exploration of
the outbound solar system and access to the knowledge-based economy
(Burzykowaska, 2009). Though these states are more focused on other
factors than militarization most of their space assets can be used for military
purposes, such as for high-quality image and data collection of neighboring
countries, jamming 12 other satellites with their ground stations or in most
extreme cases convert them into conventional weapons to collide with other
space assets. This would create a big amount of new debris13. Admittedly, the
last part is a very wide definition of what space weapons are and how space
assets could be used, not to mention that all those new space debris would be
negative for all space-faring countries and global stability (Evers, 2013; p. 9:
Rider, Findley and Diehl, 2011)
Public-Private Partnerships (PPPs) remain a common structure. The problem
with this connection is that the politics are more state-centric, rather than
complex commercial or quasi-commercial constellations and therefore more
12
Jamming a satellite refers to the attempt of an enemy state, terrorist or other actors to
owerflow information through the satellite without hijacking it. This would cause the satellite to
be out of function or to be slower than usual. Most new satellites are protected against this
threat, though it is not impossible to break through that protection.
13
Currently it is estimated that there are 21.000 objects larger than 10 centimetres, 20.000
objects larger than 1 centimetres and about 600.000 objects larger than 1 millimetres. This
manmade debris is a growing problem for space security since it may damage space assets
and is a considerable threat to the present and future use of space for all states (Evers, 2013;
p. 16).
52
focused on military and security issues (Newlove-Eriksson and Eriksson, 2013
p. 280). This has caused many of the PPPs relationships to break up due to
poor
decision-making
procedures,
poor
risk
management
and
little
transparency and not to mention the lack of competition, which is important to
create a healthy market. (Newlove-Eriksson and Eriksson, 2013 p. 281).
Despite the state-centric outer space governance, it is unlikely to keep
being as state-centric as the space is not immune to the emergence of
features of globalization and global governance, especially the sudden rise of
commercial activity in the area (Newlove-Eriksson and Eriksson, 2013 p. 287).
President Obama has stressed that the US would need more partnerships,
both with other countries and with the private sector in the otherwise 67.8
billion dollar industry that is growing year by year (Newlove-Eriksson and
Eriksson, 2013 p. 282: Smith, 2010; p. 20: Venet, 2011; p. 63). The
importance of the sector is in place, hence if states want further
commercialization of outer space affairs they will need to be more transparent
and allow competition and not be in direct competition with the private
companies.
Air sovereignty is another point of discussion for the outer space regime and
how possibly it could change. After the WWI the US campaigned for complete
freedom of air traffic at the Versailles Peace Conference. Ten years later at
the International Air Conference the US continued the fight, now with the
support of England, The Netherlands and Sweden (Goedhuis, 1978; p. 578:
Jönsson, 1987; pp. 27-30). With technological changes and increased
demand for civil aviation, foreign countries began to request landing rights in
the US, which led to policy change on behalf of the US, which then adopted
protection policy (Goedhuis, 1978; p. 578: Jönsson, 1987; pp. 40-41). This
rapid shift after increased number of actors is interesting and undoubtedly
shows that regime can and is willing to alter itself in order to adapt to changed
circumstances, such as increase number of actors and technological changes.
Therefore it is not unlikely that the current regime will alter itself when
circumstances are in favor of the big space powers. On the other hand the
securitization of the space might slow down the development down.
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VII. Discussion
In the previous chapter I suggested the creation of Outer Space organisation,
institutionalizing the space even further than has been until today. This
suggestion is controversial, based on the development after the end of the
Cold War, where decreased institutionalization has taken place. This lack of
institutionalization could be explained with the increased complexity of the
field, where both old space powers along with emerging states and private
actors, are interacting with each other, creating a complex field to manage and
make decision-making more difficult than when no more than the US and
USSR were the only actors. The rapid development of the technical sector
and emerging aspects of space security are not sufficiently addressed by the
OST and other agreements. Aforementioned US withdrawal from the AntiBallistic Missile treaty that restricted those states with capabilities to deploy
nuclear warheads and increase militarization of space make the field even
more difficult to manage. The UN has made attempts to make new treaties for
arms control in space. These attempts have been blocked by the US, China
and Russia. The US view any plans to prohibit arms in outer space as a threat
to their national security, which cause status quo as China and Russia are not
willing to negotiate new treaties when the US block any attempts by the UN.
These actions by the US and the four concepts mentioned here above are the
main acts that have affected the lack of institutionalization of outer space
(Evers, 2013; p. 11-12).
Lack of institutionalization could affect the peace in the near future, as
James Moltz does not see any difference from the exploration of the former
colony powers, which later led to commerce, then to conflict and finally to
warfare and future exploration and exploitation of outer space (Moltz, 2014;
loc. 1159). The situation will not get any simpler from now, and when the
technology to remove space debris will become available, the lack of
regulations and norms will be completely absent if not institutionalized. When
the technology will be deployed it could be seen as act of aggression when
states would remove old satellites that belong to other states and lead to
unwanted tension between those two states. This could even happen despite
54
the fact the satellite is not functioning and occupying valuable orbital space.
Which is exactly my point concerning the orbits. Even though they are for
everyone to explore and use under the concept of res extra commercium, the
state occupying that orbital space can decide not to remove their previous
satellite, either to prevent other states to occupy it or keep the space until they
deploy their next generation of satellites to that same spot and remove the
previous one at same time. By this act, that state has claimed ownership over
that orbital slot and is the only one who can decide what to do with it, due to
the complexity of the outer space and technology. The same arguments can
be applied for the removal of anything from outer space, whether it is a
dormant satellite, metals, gases or water from asteroids or other planets.
Which is why it is necessary to establish rules and norms on how space debris
should be controlled and removed, which goes for the outer space in general
(Evers, 2013; pp. 17-18: Mutschler, 2010; pp. 3-12).
It is paramount to discuss the likelihood of establishing a new regime based
on willingness of the great powers to establish one and therefore at the same
time, limit themselves from certain decision making in outer space. The most
likely scenario would lie within the field of securitization where current system
serves the US very well, as most of their modern military capabilities are
dependent on their space assets. With any changes of current system, the US
could jeopardize their military capabilities, which, if not taken into
consideration, would prevent any changes of the regime as it is now.
With the current situation where the Cold Wars has ended and US is
not controlled by competing with other states’ space programs as it was during
the Cold War. Other countries are also either allies in space or not a
significant threat to US power in space. The US and Russia are still by the far
the biggest spenders on space-related activities with around 0.23% of GDP,
which has fallen rapidly during the last decades with around close to 5% in the
1960s. France comes next with 0.10% and other big space powers with the
average of 0.05% (Venet, 2011; p. 63). This factor is a significant lead to when
it comes to determining which actors will fight the hardest against systematic
changes.
55
Management of the Commons
The management of the commons has been discussed earlier in this thesis,
especially the Hugo Grotius ideas. His ideas, from management of the high
seas, were applied to outer space and from where the Outer Space Treaty is
derived from. Following the Grotian approach further and explaining his ideas
to establish the OSO: Based on his ideas the nation states and their rulers are
bound by the rules and form a society or community with one another (Bull,
1990; p. 71) Following the Grotian approach to see if the establishment of
OSO is advisable, he would say: that if there was no institutionalization of
outer space affairs, it would be difficult to balance the power between the
space-faring nations and those who are do not embark into soace(Bull, 1990;
p. 89-91). According to Grotius, the concept of first one to arrive could claim
the new medium as its own sovereign, as when companies or states would
land on asteroids or other planets. Which at the same time raises the
question, if that was the case, why should supranational organisation be
allowed to hold those same rights and collect taxes from activities happening
where no one should be allowed to exercise sovereignty (Butler, 1990; p.
214). Grotius partly answered the question himself by seeking to take the
international society and the nation states duties’ from a society where rules
and norms could be created which the states would be bound by (Bull, 1990;
p. 71). This does, however, not answer the question completely, it does not
take into consideration the emerging actors in the field, both governmental
and non-governmental and possible clashes between all actors when
activities increase and more actors are competing for the same resources, as
history has shown us repeatedly over the centuries. If those clashes can be
prevented, the regime should focus on how to enforce it, and the
establishment of OSO is one of the feasible possibilities.
The status of the more technological advantageous states has
previously been discussed and Grotius does not leave that aspect untouched.
If the system is left unchanged, the states with the technological advantage,
e.g. in most cases, the more wealthy countries would be given extra benefit to
conquer the space, especially when it comes to orbital slots (Röling, 1990; p.
281-282). By institutionalizing the field and regulating the activities and taxing
them in accordance to the social contract, the investment fund could make the
56
gap smaller between the more developed and the less developed states. By
creating the investment fund the less developed states could acquire the
technology by developing it themselves and create the knowledge instead of
insisting on technology transfers, which would create wealth in the less
developed countries and still protect property rights of the more developed
ones.
A functioning market
The possibility to make a profit is what drives many entrepreneurs forward.
The current system, where states have monopoly over the field, with access
and property rights in outer space to be unclear, may cause lack of motivation
for those entrepreneurs to go forward with their ideas (Arrow, 1962; pp. 616618).
The information behind space travels and capabilities to launch space
vehicles to orbit have tremendous economic and military value, bearing the
second fact alone and the dual use of space assets, it is understandable that
the states have been unwilling to share their information with other states or
private companies.
Today, private companies either hire national space agencies or other
companies specialized in launching to get their satellites to orbit, as long as
national regulations comply with the activity of the satellite. The companies
that are focused on outer space mining are likely to use that path and, for
example, use SpaceX facilities to get their mission out of Earth’s gravity field
to save money and development cost. As it happens when information
becomes wider knowledge, the prize tag on that information goes down, which
will cause mission costs to drop and therefore make the mission more likely to
become economically viable.
At the same time as more private actors engage in space launches,
more actors will have access to the technology and the same goes for the
technology to build ballistic missiles. This is the dilemma the spacefaring
states are facing now, it secures their monopoly over the field as well and
therefore creates an imperfect market for space launch.
57
One of the biggest points of discussion, if the current regime should be altered
in order for emerging private companies to enter the field, are property and
access rights. The main argument against establishing a property regime for
the extra-terrestrial is the concept of the common heritage of mankind. The
other main argument is how big the asteroid belt is and how short a time each
asteroid could be mined, which raises the voices that there are enough
resources for everyone who desires them. However, orbital slots are fewer
and the most valuable ones could fill up in the very recent future.
Taxation Policy
In my proposal for OSO I suggested a taxing mechanism that would be the
backbone of OSO’s income. By having direct independent income the OSO
would be more credible and secure its neutrality against the more powerful
states in the system.
By taxing the users of the resource and use it to improve the
environment and invest in new technologies the common heritage is
respected. The asteroid belt might be big enough to sustain human activities
until the end of human life. However, the mining companies are only planning
on landing on asteroids that pass by Earth and are heading back to the
asteroid belt. Orbital slots for satellites would fall under the same category as
the orbital slots will eventually run out and orbital slots would be in favor of the
technological advanced actors in the system.
By institutionalizing the outer space via establishing the OSO, this
resource would be taxed in order to support the commons to provide a
common ground for technological future and to prevent the tragedy of the
commons and environmental disaster to occur in outer space.
Any form of taxation policies on the orbital slots will be controversial, as
occupants of these slots are not paying for them today. The operators of the
satellites are only bound to register them according to the Convention on the
Registration of Objects Launched into Outer Space. It would be difficult to get
spacefaring countries to agree on taxation of the orbital slots, as the US and
Russia would probably never agree on that, with the highest number of
58
satellites in orbit. That would, as well, create questions about satellites that
are used for improving life in developing countries and monitor climate
changes if they were exempt from taxation. Concerning outer space mining,
creating a single taxation policy that would be used on those who extract
before the missions starts, would be more likely to gain acceptance, even from
the US and Russia.
This can only be done if the major space faring countries among the
less developed ones agree on this taxation format, as it would change the
implementation of the general rule of the treaty, the common heritage of
mankind. When the taxation system is created, the risk of over-taxation
happens as LDCs are more likely to demand higher taxes in hope of extra
revenues for them. When this is examined, the creators of the tax system will
have to consider the Laffer curve that explains how tax revenue changes
when tax rates are increased.
Figure VII.I The Laffer Curve
(Forbes, 2011)
By creating this social contract the taxation system for outer space is,
the human race would be taking a giant step towards defining how to use the
commons, both here down on Earth and in those mediums the human race is
likely to conquer in the future.
59
Political reality
The political reality as it is today is unlikely to support the creation of a
supranational organisation that would oversee outer space affairs. However,
the states might support institutionalization of the field, similar to ISA. If
established though, that institution would have limited powers to regulate the
mining and access rights to orbital slots, the real resources of outer space as
the reality is today. It is also paramount to discuss the establishment of this
supranational organisation to explore the possibilities and see what it might
bring us in developing the concept of the common heritage of mankind and
make it economically viable to exploit and use the resources that exist. The
common heritage of mankind is, however, an uncertain term, which is difficult
to grasp on and define exactly what is included in the concept (Su, 2010; p.
81).
One of the questions I have asked myself was why we should try again to
establish a supranational power if the Soviet Union already proposed that idea
back in 1985. First of all, it is necessary to take into consideration that the
landscape has changed dramatically since then, first with the collapse of the
Soviet Union and then with the current multi-polarization of the world, with the
BRICS countries being both traditional and emerging actors in the global
arena, both politically and economically.
The fact that the US and Russia are no longer the two lone actors in
space is worth mentioning again and the private actors among those
emerging states which have already entered space, or are planning on doing
so in the near future. This all reduces the dominant power in space for the two
super powers, which could be obliged to re-enter negotiation talks on outer
space regime, when the power structure has changed.
The EU as the leading power
In a 2009 speech, José Manuel Barroso said that the EU should develop their
own capacity to monitor satellites as the EU’s space assets and space
structure are indispensable for its economy and security (Barroso, 2009). By
acting more towards the security agenda, the EU would be getting closer to
60
the reality of space affairs. This is claimed to be a more comprehensive sense
of looking at the security agenda than the traditional conception of military
security (Peoples, 2010). The question remains how the EU will combine its
hard and soft power tools.
It is no secret that the EU wants to become a significant actor in outer space
affairs. The Treaty of Lisbon gave the EU a legal ground to directly negotiate
international space agreements (Evers, 2013; p. 21: Mutschler and Venet,
2012; p.118). With the draft of the Code of Conduct (CoC) the European
Union has established their presence in the debate on space security. CoC is
a soft policy that mainly focuses on the security agenda of outer space. The
question is if it is applicable to ‘high’ politics. In addition, the CoC should serve
to strengthen the current UN treaties on outer space, especially The Outer
Space Treaty. By proposing the CoC, the EU is building up a bilateral
confidence building and trust between the nation states (Mutschler and Venet,
2012).
It seems though that academics are more eager to criticize the initiative taken
by the EU to draft the CoC than to support it. When listening to these
comments, it seems that the EU will have to change their tactics if it wants to
become a leading power in the field.
The main critique is that the EU lacks a coherent space security
strategy, which is crucial if the EU wants to be successful in facing the
upcoming challenges (Evers, 2013; p. 21: Mutschler and Venet, 2012; p.118).
The CoC is still a long way from being implemented into strategy, especially
given the difficulty to consider the EU a credible international actor when its
member states can unilaterally still take up uncoordinated actions.
Furthermore, the risk of being undermined by conflicting interests prevails, not
exclusively between different member states but also the various stakeholders
and interests involved (Evers, 2013; p. 21-22).
In the beginning, the US was involved with the EU in drafting the CoC.
The US opted out before the draft was introduced and the Secretary of State
at the time, Hillary Clinton, said the US would rather join the EU developing an
international CoC for space activities rather than supporting the European
CoC (Arnold and Hays, 2013; p. 148). This could be explained, for example,
61
by the fact that the EU consulted with the Asian-Pacific region when drafting
the CoC, where many of the newer space powers are located. Furthermore,
the CoC is a voluntary measure where states can choose to adhere to it. The
US and India believe voluntarily measurements will not work and cannot serve
as the basis for future space security guidelines (Arnold and Hays, 2013; p.
148: Evers, 2013; p. 24).
The EU is a nascent actor in space security and the notion of security in space
is a recently introduced idea to Europe and indeed underdeveloped compared
to other areas, such as space science and other space applications. This has
also caused the EU to be more focused on specific functions rather than on
the society and the EU as whole (Mutschler and Venet, 2012: Evers, 2013).
This can be explained by the fact that the EU did not have any power to create
a concrete space policy until the Treaty of Lisbon was introduced, and the
reason for political structures and different institutions that regulate the use of
space in the EU. This then makes the security issues more difficult to handle
since these typically require a political and legal framework that can
coordinate collective solutions (Evers, 2013; p. 10: Gallagher, 2005; pp. 2-4).
The question is whether the EU should keep up their efforts to develop and
lobby for their CoC that already seems a dead initiative and what the EU could
do instead to gain credibility in outer space issues. The Swedish Institute of
International Affairs (UI) suggests a couple of policy changes in order for the
EU to gain additional weight in the international arena when it comes to outer
space. First, it should establish an operational European space situational
awareness and link up with partners. Secondly, formulate and implement a
cohesive European space security strategy. Third, it should improve
governance of space issues in the EU to consolidate resources and outreach.
Fourth, establish institutional bonds between space security policies and other
EU-frameworks. Fifth, develop the EU’s various diplomatic initiatives in space
issues, both in bilateral and multilateral contexts, and consider the space
component in negotiations in other issue-areas. Sixth, take lead in policy and
technology initiatives to remove space debris in order to gain additional
credibility in space security issues and lastly, enhance governance and
facilitate development of the European space industry (Evers, 2013; p. 6).
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If the European Union wants to be taken seriously in outer space affairs it
needs to take a step back and look at what it already has and whether its
policies can be changed. The EU has potential to take the lead as a normative
power within this field as it is not running a full-blown security agenda and
developing space weapons like China, Russia and the US. But even if the EU
manages to address the security agenda in a way that the most powerful
actors would agree, it would still be missing the commercial side of outer
space and ownership related issues as other major spacefaring nations are
considering.
If the EU became a leading power in the field of changing the outer space
regime, it is paramount to discuss that the EU countries are among the few
spacefaring powers that are not discussing space weapons as part of their
space strategy. That fact alone could be seen as an important factor to be
taken seriously, as today it is known that the US and China have already tried
ASAT weapons, and India and other Asian states want to pursue them
because China has them (Moltz, 2014; loc. 1115). If this is the trend, the EU is
unlikely to take the lead in changing the regime as, at this point, it seem
unlikely with the lack of political support from within and EU capabilities to
create credibility (Moltz, 2013; pp. 347). It is paramount to discuss the policy
changes the Swedish Institute of International Affairs suggested, that the EU
should focus on cleaning up debris in space to create a soft power within the
field in order to implement their CoC (Evers, 2013; p. 6). Because the EU
would never have a say in the field without paying ‘the prize’ and show that
they are serious about becoming a spacefaring superpower (Moltz, 2013; pp.
348).
The removal of the huge number of debris from Earth’s orbit is not an
easy task, both very expensive and technologically challenging. When the
Space Shuttles were operating they could have been capable to remove
bigger debris from orbit, such as old satellites. That was however, both
expensive and could have been seen as an act of aggression, if not done up
on request from the home state. The owner of the satellite could also just have
been occupying the orbital slot until they would put a new satellite in orbit and
at the same time steer the old one into super GEO orbit or push it down to
63
burn up in re-entry into Earth’s atmosphere14. Other tools that are on the edge
of becoming technologically available, and not as expensive, is to use
powerful lasers to heat up the debris, which would slow them down and
therefore de-orbit faster and re-enter the Earth’s atmosphere for burning up
(Moltz, 2014; loc. 1643). Those tools are also both expensive and time
consuming, though nothing in comparison to safety for outer space missions.
However, due to the dual use of outer space those lasers could be seen as
weapon capabilities and could cause an arms race in the field (Moltz, 2014;
loc. 1659). This problem of debris removal in orbit demonstrates only a
fraction of the problems the outer space regime is facing as there are no
regulations for debris removal or legal obligations to do so (Evers, 2013; pp.
17-18) John, 2012; p. 711).
The future vision of Japan
Japan has taken an interesting approach to managing the commons, by
constructing a 400 km wide belt of solar panels around the moon to harvest
solar energy with more efficiency than here on Earth. The energy would then
be beamed down to Earth by using lasers. Japan has for a long time been
focusing on solving their energy need for the future, and after the Fukushima
incident in 2011, Japanese scientists introduced the idea of building solar
panels on the moon. This futuristic plan would not serve Japan alone, and
their energy needs, but a couple of receiving stations would be built around
the Earth, based on weather conditions and feasibility to host those receiving
stations. This new source for renewable energy would make energy shortage
a history for quite some time and reduce the need for fossil fuel resources.
Developing countries could have access to clean renewable energy as well
and it would speed up development in those countries (Ryall, 2013: O’Neill,
2013).
14
The newest satellites are required to have enough extra propellant to
navigate them up to super GEO orbit or push them down. Despite these new
requirements not all satellites have this extra propellant due to the cost of
getting that extra propellant to outer space, as discussed in ch. III. (Moltz,
2014; loc. 486).
64
It is a relevant concern that this technology will offer the dual use of the
laser, e.g. the ability to beam power down to Earth and as weapon
capabilities. Another concern is who would fund a project like this and who
would benefit from selling the solar power. This highlights the necessity to
have a functioning regime overseeing the outer space where I believe the
model of OSO could be used to oversee both aspects.
Westphalia, the best option?
In outer space politics the controversies are quite many to fit to the classical
Westphalian system, for example the res commercium that allows satellites
and other properties to pass freely through this neutral territory of space.
However, when it comes to the responsibility for the same object, the
responsibility is back to the launching state. Which takes us straight back to
the Westphalian system and is possibly outdated and does not fit the territory
which the outer space is (Stuart, 2009; p. 12: Held, 2006; pp. 304-305).
David Held is highly critical towards the Westphalian system and claims
that international laws already undermine the traditional sovereignty with the
concepts of common heritage of mankind. He suggests more of a liberal
sovereignty, which he calls cosmopolitan sovereignty. He suggests this new
type of world order in order to delimit political power as it currently is on the
international arena. This would cause the states having less to determine
ownership rights in outer space and moving them to individuals, who would be
the rightful holders of the resources (Stuart, 2009; p. 15).
65
VIII. Conclusion
If we stretch our way of thinking all the way back to the roots of democracy to
Aristotle’s endoxa of the form of government, which is often forgotten today:
That governments are not only the government: of, by and for their people, the
government is also for future generations. Meaning the consensus of the
society if the current generation can satisfy their basic needs, they must
ensure that future generations can do the same (Risse, 2012; p. 333). We live
on a planet that has not received the best treatment for the last decades,
overfishing and hunting and polluting to sustain our living standards. Those
mistakes might not harm us very much today. However, as the changes on
global level happen slowly, compared to our short life, it could affect next
generations in a way we would panic if the same happened to us (Risse,
2012; p. 167). We cannot focus too much on the thinking ‘what if’ and turn
ourselves towards skeptical thinking. Instead, we should work towards
improve living conditions of our planet to secure future generations access to
the same goods we have access to (Risse, 2012; p. 168). This can be
achieved by aforementioned outer space mining. However, to ensure fair
distribution and decent management of the resources we need a system that
ensures that distribution. This is where the implications starts to show,
because the legal status of the commons is not completely clear, and the
nation states have yet not found how to use the commons fairly. Antarctica is
one of those areas among the high seas and up to a certain limit, the Arctic.
Despite the uncertainty of the legal status, the states have gone with the
definition of the Common Heritage of Mankind, which includes following: nonappropriation, international management, benefits sharing, peaceful purposes,
and intergeneration equity (Su, 2010; p. 81).
In this master thesis I used Ronald Dworkin’s methods of constructive
interpretation of social practice to help me reach a conclusion to my research
question of if the space regime should be altered; if yes, how it should be
altered; and if not, what the arguments for status quo were.
66
I first used Dworkin’s “pre-interpretative” stage to discuss the literature
written on the subject, what I used and what I had to leave out. Additionally, in
the first stage the outer space regime was identified and technological
development discussed in order to examine what possible problems the future
might have.
The interpretative stage is Dworkin’s second stage where I provided
the main elements of why the regime exists, with legal overview of the outer
space treaties and comparison with the Law of the Sea and the concepts of
common heritage of mankind and res extra commercium. Furthermore, at this
stage I introduced and discussed Everett C. Dolman’s, Nayef R. F. AlRodhan’s, Sarah Coffey’s and Zach Meyer’s reform proposals to the space
regime, with possible implications their proposals might have, and what I
thought could be useful in my proposal of formation of the Outer Space
organisation.
Following Dworkin’s methods I arrived to the “post-interpretive” or the
“reforming” stage, where I introduced the formation of the Outer Space
organisation, a supranational entity that would oversee both mining operation
in outer space and manage the orbital slots for satellites.
In the formation of the Outer Space organisation I go through arguments for
the formation of the entity and discuss the idea what would support the idea
and disadvantages of creating a supranational union to oversee outer space
affairs. I mainly use economic and philosophical approaches for arguing
regime changes and establish the Outer Space organisation.
The dual use of space assets has caused states with space capabilities
to keep a monopoly on the technology behind space launch and space travels
in name of security. The cost of operations in outer space has kept private
actors out of the game as well, at least until recently, with numerous
companies working towards providing human spaceflight, asteroid mining and
rocket launches. By lifting the restriction which the private spaceflight has had,
the states are not only opening up on new market but as well creating better
found for the welfare economy (Arrow, 1962).
By having a monopoly over the technology, governments have kept
private actors out of the market for a remarkable long time, though this is all to
67
change with private companies having managed to develop the technology by
themselves and through private-public partnerships. France and Russia gave
private actors access to their launches, which brought costs down and gave
them a cheaper option for those actors which wanted to get a satellite to orbit
(Lipsey et.al. 1999; p. 400). After Columbia disintegrated, when re-entering
the atmosphere in 2003, the US started focusing on more cooperation with the
private sector to carry out individual part of the programs, to being an
important actor like SpaceX, which carried out everything from the launch to
deliver cargo to the International Space Station (Lipsey et.al. 1999; p. 736:
Moltz, 2014; loc. 2027, 2044).
This demonstrates that states should not be frightened to contract
private companies to carry out their missions to some extend or entirely,
because it will be, in most cases, economically more efficient with other side
benefits such as less fuel usage, lighter compartments, increased capabilities
and technological advantages.
Property rights have to be well defined according to many Nobel laureates in
economics, as they claim competitive markets would not exist without them
and the existing resources would suffer from inefficient use, with future
implication both for us humans as well as the nature. Lack of property rights
would cause tragedy of the commons to occur with possible devastation for
future human space travel (Arrow, 1984; p. 217: Scheraga, 1987; p. 893:
Lipsey et.al. 199; 388).
Currently, the outer space is defined by the definition of common
heritage of mankind, which is the point I focused on in my arguments, if space
is eligible to be defined as a common ownership of mankind. According to
Mathias Risse, a resource has to fall under three different definitions to be
considered a part of the commons: The resource should be necessary for
humans for survival. The second claim is that the resource should be morally
more important than environmental or sentimental value as long it is
necessary for our survival. Risse’s last claim is that the human race has not
done anything to deserve the resource that can be found in outer space
(Risse, 2012; p. 113-114). These claims support the idea that nobody should
68
be able to claim ownership in outer space. This does not, however, hinder
anyone from exploiting the resources if it is done for human survival.
Other philosophical theories discuss arguments in favor of exploiting
natural resources through improvement-based claims, which are the most
suitable arguments for asteroid mining. Improvement-based claims provide
arguments in favor of exploiting. However, the same philosophers argue, that
nation states cannot use the improvement-based claims, as would be likely to
happen when asteroid mining becomes reality, on the basis the states would
not be creating capital with their investments. Nevertheless, if the companies
want to exploit the asteroids and they can claim they can improve the
resource by mining out valuable gases, metals and water, they should be
allowed to do so (Armstrong, 2014; p. 9-10).
Creating a social contract and a fair taxation system, where the tax revenues
would be used with the aim of improving this new medium, both through
cleaning up the environment, investing in new technologies and pulling LDCs
up to the same level, with the intention of making them technical equals.
Based on the different opinions on taxation from country to country, taxation
has to be modest, with clear aim from the beginning of what the outcome
should be, and should not be used to turn anything back to the states, forming
the new regime, unless in the form to achieve the aforementioned goals.
Creation of a supranational organisation is the most feasible option to alter the
regime, which is needed, based on it was created under pressure during the
Cold War where possibilities of nuclear war were imminent. The global
political environment is different with the Soviet Union broken apart and other
emerging actors playing bigger role in the global arena. The rise of the private
sector in outer space could challenge the inflexible existing treaty system,
which does not specifically address commercial ventures and states, all
companies are on their home state’s responsibility (John, 2012; p. 711).
Business is though not likely to let an imperfect treaty structure hinder their
space adventures and keep working towards their goals and at the same time,
challenge the regime as it is built up now.
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The Westphalian system is inflexible when it comes to space where both law
and politics are focused on the securitization of part of space, which makes it
feasible to alter the regime in order of commercialization of outer space. That
is though not a likely scenario unless the great powers will see it in their
interests to voluntarily restrict their power and actions in space (Burzyowska,
2009). It has to be born in mind that all regimes throughout history have been
challenged in one way or another, despite not all of them having been
successful.
My findings are that the outer space regime should be altered and a property
regime established to manage both the orbital slots and to oversee outer
space mining. By establishing the new regime, private actors and other
emerging states would have a clear framework to work after when outer space
mining starts and all actors would have equal access to orbital slots at market
rate. The current regime is both incomplete and does not fit the newest actors
in the system.
Changes in the Westphalian system are close to come but not likely to happen
in the near future. That might change when private companies have mastered
the technology to land on an asteroid or other planets in order to exploit
possible resources that they can find there. Due to how slow changes happen
in the international system it is likely that outer space and colonization of outer
space will not be regulated until after exploitation have started, creating an
optimal environment for the first-comers in the space.
There is no single model of success and no right answer as to how the new
regime ought to be altered. I look at the model I presented as a point of
discussion how the space regime could be altered, not necessary how it
should be. Nevertheless, I believe that the creation of the Outer Space
organisation would be an ideal way to change the regime, to create a common
ground between the nation states as to how the outer space should be
managed.
70
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