E&T on why the principle of space as 'mankind's common heritage' is not always conducive to exploration.
Outer space is infinite and humankind still cannot grasp its dimensions. Nevertheless, people have always aspired to 'reach' it, and life on Earth has always been defined by solar energy and light, gravity and threats of asteroids crossing the Earth's orbit.
But it is not always easy to reconcile wishes with abilities; for centuries we did not have technology that would allow us to leave Earth. The day the Soviet Sputnik was launched brought a dramatic change; for the past half a century we have made enormous progress and conquering space seems to be a reality... with just one little hitch - the issue of ownership.
Here on Earth a lot of activities start with the determination of proprietary issues. A lot of undertakings - such as quests to discover new continents or expeditions to explore mineral resources in remote areas - would not have taken place without the decision as to who was going to own new lands or the extracted resources. Well, space law has something to say on this matter and it is very different from what we are used to hearing here on Earth.
Law as showstopper?
When the age of space exploration started, the countries involved had to agree on a property regime that would govern their space activities. It was not easy, for the main space powers - the USSR and the USA - were in fierce competition. Nevertheless, they managed to agree on the core principles and adopted the Outer Space Treaty. This Treaty is important in governing exploration and use of outer space. It also addresses ownership issues and declares space 'the common heritage of mankind'.
What are the consequences of adopting this rule as a standard? They are quite profound as its main feature is that nobody may claim property rights over celestial bodies. As a result, space explorers, unlike those on Earth, have to acknowledge that outer space belongs to everybody in exchange for equal rights of access to it and its use. Do states really agree with this? Yes, they do, and the landing of men on the Moon is a proof. When the US Apollo programme drew to a head and the first men landed on the surface of the Moon, NASA specifically explained that putting the US flag on that planet did not have any legal significance for ownership rights. The Earth's natural satellite remains in the common ownership of mankind. International law, as it presently exists, states to conduct space activities in conformity with the principle of non-appropriation of outer space.
Literally nobody - be it a state, an organisation of any kind or an individual - can claim property rights over any natural bodies floating in space, including planets and their satellites, comets or asteroids. It might not come as a surprise that in the country where almost everybody litigates, a US court recently had to deal with ownership rights over an asteroid.
US citizen Gregory W. Nemitz claimed that NASA owed him money in the form of parking fees for the NASA orbiter that landed on the asteroid EROS 433. Nemitz claimed that the asteroid was his property because he discovered it. Despite the boldness of the claim, the court dismissed it as ungrounded, for according to the existing international space law norms and as a party to the Outer Space Treaty, the USA is bound by the principle of non-appropriation and therefore cannot recognise private property rights in EROS 433 as claimed by Mr. Nemitz.
By analogy, any acts of selling land on the Moon or stars do not have the legal consequence of emergence or transfer of ownership. According to the legal regime governing the use of outer space, people who 'buy' acres of the Moon from the company Lunar Properties are not able to enforce their claim.
Use of space
The principle of the common heritage of mankind goes hand in hand with that of equal access to outer space. In practice, even activities that do not necessarily involve appropriation, like mining of and placing permanent stations on the celestial bodies, may violate it, for while one space actor is mining or places a station on, say, the Moon, all other actors will be deprived of access to that part of it. Even if today this does not seem realistic, very soon equal access to space might become an issue, because space activities develop very quickly and the ever growing number of space actors are turning outer space into a crowded area. A way to resolve this issue may be to set up a special authority that would license space actors to conduct relevant activities and monitor their compliance with the space law .
Such an approach has already been chosen in the allocation of slots in the geostationary orbit (GEO) and of the radio frequencies in which satellites operate. The International Telecommunication Union (ITU) is mandated to ensure fair distribution of these valuable, scarce and finite space resources. The legitimacy of this ITU mandate is reinforced by the development of a dispute regarding property rights over GEO. In 1976, eight E F equatorial countries signed the Bogota Declaration in which they claimed ownership over the parts of GEO above their territories. To do so, they took advantage of the failure of the international law instruments to define outer space.
As a result, these countries claimed to have the right to interpret GEO as an Earth's natural resource over which they have exclusive jurisdiction as per the United Nations Charter. However, the Bogota Declaration was not received well by other countries and is not accepted as a source of binding international law, which only reinforces the ITU mandate. It is, therefore, the principle of the common heritage of mankind that still governs the use of GEO.
How about ISS?
Does launching of manmade objects, like satellites or space stations, affect the ownership rights over them? Do they cease to belong to anybody once in space? These questions are legitimate and important.
Fortunately, there is a clear answer: the principle of the common heritage of mankind does not determine the destiny of manmade objects in outer space. The International Space Station (ISS) is a vivid example of how states retain their jurisdiction and apply their national rules to the objects they send into space.
An intergovernmental agreement established that each module of the ISS is the territory of the state to which it belongs. Therefore, the laws of the country which owns a particular module are applicable to all the activities that are carried out there, be they inventions or crimes. This rule is based on the well-established principle of extra-territorial jurisdiction applicable to ships and other vessels in high seas and individual satellites launched into outer space. Laws of the responsible country govern the issues of property rights over privately-owned and launched space objects (for example, space hotels).
A private space hotel will therefore remain private property even while in orbit, and the question of how property rights over this asset are enforced, transferred or terminated will be determined by the nation whose subject the owner of this space hotel is. The question of whether Mr Bigelow can let non-US citizens stay on board his space hotel 'Galactic Suite' is a matter of the relevant US legislation, not of international space law.
The principle of the common heritage of mankind might not work well in reality, for its enforcement may be affected by the concept of the tragedy of the commons. Introduced by Garrett Hardin, it assumes that people by nature are egotistic. Because our activities are largely driven by self-interest alone, if we use resources in common (read: no one's) ownership, we will inevitably - maybe even against our own desires and plans - spoil them. So, if in our quest for outer space we are not able to appropriate its resources, we will have a careless attitude towards the space environment and will eventually impair it.
This theory is often used to explain the unpopularity of the Moon Agreement (1979) that provides a detailed explanation of what the principle of common heritage of mankind is. It expressly states that 'neither the surface nor the subsurface of the Moon, nor any part thereof or natural resources in place, shall become property' of anybody. Even if a government, an international organisation or a company puts personnel or equipment on the Moon, it will not create any ownership rights over it.
Furthermore, it obliges states to establish an appropriate international regime for the actual exploration of the Moon resources. The emphasis on the principle of non-appropriation led to the situation where, up until now, the Moon Agreement has been ratified - i.e. accepted as a binding source of law - by only 13 states and none of them is a significant space-faring nation.
Air and space
Outer space starts where airspace ends, and the two areas are governed by very different regimes. Airspace is under the sovereign jurisdiction of the state underneath it, and outer space is free for everyone to explore and use. The problem is that no one knows where one starts and the other ends.
In addition, not all the states agree that this delimitation is necessary, and there are hardly any official proposals as to how it should be accomplished.
In practice, the unofficial border between airspace and Outer Space lies at the altitude of around 100km. Shortly after the success of SpaceShip One, the first privately-owned object that reached this border, the UN Committee on Peaceful Uses of Outer Space (COPUOS) set up within its Legal Subcommittee a Working Group on Matters Relating to the Definition and Delimitation of Outer Space. Its task is to address the issue, facilitate the discussion and exchange views among the member states. Its work is not finished yet and it lacks clarity as to how to approach the issue of delimitation.
To progress, the Working Group requested that states answer the question of whether their governments would be prepared to adopt a lower limit of outer space, but retain the ability to enact rules governing missions carried out by objects in both outer space and airspace.
The question targets the issue of hybrid vehicles, like SpaceShip Two, unveiled in March 2010, which continue to be developed and operated. This trend needs regulatory attention, because it is pursued by private entities that usually need a license to conduct them. Unfortunately, the workings of COPUOS are slow and the formal resolution of this issue will most likely take a long while.
According to the current international legal framework that governs space activities, we cannot appropriate outer space, be it the Moon and its natural resources, an asteroid or GEO. It is also true that we do not lose our property rights over objects made on Earth simply by placing them into outer space: the issue of use of the objects owned by states or private persons rests with national property regulations. Hopefully, the principle of the common heritage of mankind will be seen as hampering our quest of exploring outer space, and humankind, while respecting this underlying principle of space law, will still be able to set up working legal regimes to govern space exploration.
Catherine Doldirina works at the Institute of Air and Space Law at McGill University in Montreal, Canada. She has lectured on European copyright, competition and space law at the University of Bremen, the European Humanities University and at the European Space Law Centre Summer School.