On January 20, 1788, Captain Arthur Philip sailed into Botany Bay at the helm of the British flagship Sirius and a convoy of transports to realize the United Kingdom’s new claim to Terra Australis. After a 252-day journey to the farthest known edges of the Earth, the freshly appointed colonial governor must have been shocked to see, only a few days later, the arrival of two French ships, La Boussole and L’Astrolabe, led by explorer Jean-Francois de la Perouse. In order to forestall French claims to the territory and recognizing the value of a recently explored harbor to the north, Philip quickly departed to establish a colonial seat at Port Jackson, also known as Sydney Harbor. In a lesser-known act of history, Philip also moved to secure Norfolk Island, resting in the South Pacific above New Zealand. During the earlier voyages of Captain James Cook, the island was identified as possessing the critical resources of pine wood and flax, commodities underpinning British naval power – the equivalent of oil and uranium in today’s strategic environment, according to author Robert Hughes.
This race for territory and resources by world powers was not the first nor would it be the last. It was a message I relayed to the 68th International Astronautical Congress (IAC) recently held in Adelaide, Australia. The IAC is the world’s most important gathering of the international space community, attended by leaders from national space agencies, academia, and the burgeoning industry of commercial space, represented by titans such as Elon Musk of Space X, who announced his lofty intention to send the first colonists to Mars by 2024. This year’s IAC also coincided with the 50th anniversary of the Outer Space Treaty, the international agreement aimed at establishing principles governing the exploration and use of outer space. As such, the international forum provided a timely opportunity for me to address the development of space law.
Even as technology can propel us beyond the boundaries of our earthly domain, we cannot escape our human nature and the attendant consequences. However, the international community can learn from and improve upon our history by anticipating the coming legal and geopolitical debates in outer space. We can do so by examining our experience in the South China Sea dispute. Accordingly, we must acknowledge five key principles applicable to shared domains beyond national boundaries like outer space.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Exercise of Freedoms, Increased Use and Technology Advancement
First, we can expect the propagation of proprietary claims in shared domains beyond national boundaries at the expense of legal norms to the contrary. These claims will be driven by the exercise of freedoms and the increased use of shared domains, as enabled by technological advancement.
The high seas freedoms, like navigation, and the prohibition on sovereign appropriation of the high seas, have long been recognized as customary international law. But these norms have been subject to contestation. During the Western age of exploration, Grotius, Freitas, Selden, and others debated how the exercise of high seas freedoms supported by advanced technology – such as the ocean-fairing ships, the chronometer and the cannon – led to competing claims based on the use and control of “territory” traditionally thought to be beyond national jurisdiction. This tension between technologically enabled use of the seas and attempts to preserve the “common heritage of mankind” lies at the heart of the South China Sea dispute.
After decades of negotiation, the United Nations Convention on the Law of the Sea (UNCLOS), with its 1994 supplement, was adopted as a “constitution for the oceans” in order to “settle all issues relating to the law of the sea,” including in relation to sovereign rights beyond national boundaries. On January 22, 2013, the Philippines commenced arbitration proceedings under Annex VII of UNCLOS to challenge China’s territorial claims, based on historic title, to nearly the entirety of the South China Sea. After lengthy deliberations, on July 12, 2016, the arbitral tribunal ruled that China’s so-called “nine-dash line” claim was contrary to the convention, which “superseded any historic rights, or other sovereign rights or jurisdiction in excess of the limits imposed therein.” In effect, the tribunal upheld the bargain on the allocation of rights to maritime areas negotiated by states party to UNCLOS – which include China and the Philippines (but not the United States).
From a substantive legal perspective, this aspect of the arbitral award was an easy one. The UNCLOS regime codifies the progressive development of the law of the sea, provides a highly detailed structure of maritime entitlements and reflects an accepted, if tenuous, political consensus (notwithstanding China’s exceptional claims in the South China Sea). In contrast, the Outer Space Treaty’s terms – which similarly seek to enable and constrain human activity in a shared domain – are sparse, dated, and increasingly contested.
The Outer Space Treaty, for instance, broadly establishes the freedoms of exploration and use of outer space, while banning any claims of national appropriation in outer space, including with regard to the Moon and other celestial bodies. But these general “principles” were drafted relatively quickly, within a decade of Sputnik-1’s launch, at the beginning of the Cold War’s space race. Overall, the treaty’s principles lack the qualities leading to “compliance pull” as described by the legal scholar Thomas Franck, particularly with respect to determinacy (clarity in terms), adherence (interpretation and implementation through secondary rules), and symbolic validation (a deep-rooted history conferring status).
Indeed, the indeterminate guidelines of the Outer Space Treaty may prove insufficient to address evolving proprietary claims or effectively govern emerging “new space” technology that will effectuate these claims. Within this context, we can confidently predict that the freedoms of exploration and use will encroach upon norms designed to preserve outer space as a global commons.
Competing Claims and Legal Uncertainty
Second, resolving legal uncertainty arising from new and competing claims in shared domains will require the fresh negotiation of defined sovereign and economic rights. This deliberation must begin sooner than later.
Among the findings of the tribunal in the South China Sea arbitration was that China unlawfully interfered with the enjoyment and exercise of the Philippines’ sovereign rights with respect to the living (fishing) and non-living (extractive) resources of its exclusive economic zone (EEZ) and continental shelf, as defined under UNCLOS. These maritime zones reflect a compromise between maritime powers and coastal states. In the post-colonial era, newly independent coastal states took umbrage with industrialized states’ unilaterally declaring exclusive fishing zones in the high seas, enabled by their long-distance fishing fleets.
The tribunal in the South China Sea arbitration explained how UNCLOS’ maritime zones sought to mitigate the “unregulated propagation of claims to maritime rights and jurisdiction” and “the prospect that technological developments would rapidly enable the greater exploitation of the resources of the seabed, which would fall to those States most capable of claiming them.” The legal certainty and rights in the traditional high seas gained by coastal states came with conditions. Functional jurisdiction in the EEZ, for example, is subject to limitations such as respect for the freedoms of navigation and overflight of other states.
But as the South China Sea dispute indicates, these issues are not completely resolved, due in part because maritime disputes are linked to land disputes. Maritime zones are based on the principle of “la terre domine la mer” (the land dominates the sea), as noted by the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases. For example, the EEZ extends no farther than 200 nautical miles from the coastal state’s baseline from which the breadth of the territorial sea (12 nautical miles) is measured, so controlling the land means controlling the rights at sea.
Importantly, during the South China Sea arbitration, the tribunal concluded that none of the Spratly Islands were “fully-entitled islands” generating maritime zones like EEZs. As such, the Philippines EEZ did not overlap with a competing Chinese EEZ in the South China Sea. In reaching this decision, the tribunal performed a technical analysis of whether certain Chinese-claimed maritime features were naturally formed “islands” or mere “rocks” unable to sustain “human habitation” or “economic life.” In effect, Chinese-claimed “land” in the South China Sea could not trump Philippine maritime entitlements under UNCLOS.
One can easily envision similar definitional debates with regard to human activity on celestial bodies like asteroids. But what will be the terms of this debate? If the land dominates the sea in maritime law, how will the Earth dominate space in space law? In other words, what methodology will we employ to address the unregulated propagation of claims to outer space and its resources? These questions are no longer theoretical.
In November 2015, for example, President Barack Obama signed into law the Space Resource Exploration and Utilization Act, which created new property “rights” for U.S. citizens to space and asteroid resources. Planetary Resources, the asteroid mining venture funded by Silicon Valley giants like Google’s Larry Page, has called the U.S. law the “single greatest recognition of property rights in history.” During his tenure President Obama actually put America first in an unprecedented manner. Others are following. In July, Luxembourg enacted an asteroid mining law that builds upon the U.S. example. At the IAC, ispace Europe, S.A., based in Luxembourg, described its goal of establishing exclusive “safety zones” on celestial bodies to ensure a return on investment. Traditional energy powers like Saudi Arabia and United Arab Emirates are also considering asteroid mining laws.
These novel legal claims seek to maneuver through a perceived loophole in the Outer Space Treaty’s ban on national appropriation, which would only prohibit sovereign “occupation” of celestial bodies, as opposed to private “extraction” of their resources. Based on the South China Sea dispute and debate over maritime zones, it is doubtful that such legal schemes will reflect the ultimate political consensus on exploitation of space resources. This conclusion is even more evident in light of the potential wealth and strategic benefits at stake.
Militarization and Enforcement
Third, states will rely on military power in order to enforce contested claims and competing rights in shared domains. A related corollary is that security interests soon follow economic interests.
One of the key issues in the South China Sea arbitration was China’s extensive island-building activities. The tribunal’s analysis of China’s land reclamation and fortification efforts was revealing. In order to retain jurisdiction, the tribunal relied on Beijing’s assertions that its actions were for civilian purposes. Given the potential dual-use nature of aircraft runways and other installations, this was a credible, if thin, line of reasoning. At the same time, the tribunal took Beijing to task for escalating construction activities in response to the proceedings and permanently altering features within the Philippines EEZ. It was evident to all that in the face of a legal challenge, China was willing to resort to the threat of force to impose its claims.
In return, the United States has stepped up the pace and depth of its military maneuvers to challenge excessive maritime claims in the South China Sea. These Freedom of Navigation operations (FONOPs) implement Washington’s long-standing policy of exercising and asserting its freedom of navigation and overflight rights in international waters and airspace, respectively. For instance, on May 24, 2017, the U.S. Navy destroyer USS Dewey conduced a FONOP within 12 nautical miles of Chinese-controlled Mischief Reef in the Spratly Islands. This exercise was clearly “non-innocent” – involving military maneuvers – and effectively enforced the arbitral tribunal’s finding that the aptly-named Mischief Reef was a “low-tide elevation” and, therefore, not entitled to a 12-nautical mile territorial sea under UNCLOS.
In both instances, China and the United States are seeking to protect their respective economic interests in the region. For Beijing, for example, the military build-up serves as an armed defense of Chinese fishing interests and the prospective extraction of oil and natural gas from the sea bed below. For Washington, force projection in the South China Sea ensures that the world’s most important trading lane remains open for business. This all occurs in the face of clear terms in UNCLOS reserving maritime domains for peaceful purposes.
The Outer Space Treaty similarly attempts to reserve outer space for “exclusively” peaceful purposes. The treaty prohibits weapons of mass destruction, weapons testing, military installations or military maneuvers in outer space. But if the economic interests of great powers are challenged – like in the instance of competing rights for space resources – such rules will fall by the wayside. And given the dual-use nature of space technology, the militarization of space may occur under the color of civilian purposes, despite official assurances to the contrary.
Fourth, the expanded use and exploitation of shared domains, and actions to enforce these interests, unavoidably lead to environmental impact. Norms of state responsibility and due regard are insufficient to prevent this outcome.
The South China Sea arbitration found that China violated its obligation to protect and preserve the marine environment under UNCLOS. As the tribunal noted, the convention’s obligations apply to “all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it.” The tribunal found that China’s land reclamation and construction of artificial islands, installations, and structures in the South China Sea had “caused severe, irreparable harm to the coral reef ecosystem.”
For example, the tribunal observed that prior to Chinese actions, Fiery Cross Reef was mostly submerged in its natural state, with a rock exposed a high tide. By November 2015, however, approximately 2,740,000 square meters of land had been created at Fiery Cross Reef, with sand and rock dredged from the seabed covering virtually the entire platform of the southwestern reef flat. This vast complex includes a three-kilometer runway, a 630,000-square-meter harbor, and related installations to support China’s enforcement of its claims in the Spratly Islands.
Moreover, the tribunal found that China knowingly tolerated, protected, and failed to prevent Chinese flagged vessels from “harvesting endangered species on a significant scale” in instances that were “severely destructive of the coral reef ecosystem.” In holding China responsible, the tribunal cited the precedent of the International Tribunal for the Law of the Sea (Fisheries Advisory Opinion) holding that the flag State must ensure its fishing vessels not be involved in activities which will undermine a flag State’s environmental responsibilities under the Convention.
The Outer Space Treaty sets forth standards of due regard and state responsibility for environmental harm, including with respect to continuing supervision of non-governmental actors, similar to those of UNCLOS. If the South China Sea dispute offers any clues, these norms are unlikely to prevent adverse changes to the environment of outer space and celestial bodies. Thus, practical tasks for developing space law will involve determining what environmental changes we are willing to actually tolerate in outer space and identifying the scale to measure the related damages and liability. The human footprint has already reached the Moon and will soon expand to near-Earth objects.
Peaceful Dispute Resolution
Fifth, formal dispute resolution mechanisms are important to institutionalizing conflicts involving shared domains, but we should expect challenges of jurisdiction, competency and efficacy. Ultimately, the peaceful resolution of disputes beyond national boundaries is unlikely without political will.
China refused to participate in the South China Sea arbitration and vigorously challenged – through the publication of a “Position Paper” in December 2014 and in other official statements – the jurisdiction of the tribunal. The tribunal rejected Beijing’s arguments that the dispute was actually about territorial sovereignty or the delimitation of overlapping maritime zones, which would have made the matter beyond the concern of UNCLOS or excluded from dispute resolution due to a declaration filed by China under the convention.
As a matter of treaty interpretation and construction, the tribunal was correct on the merits. However, as I have noted, the tribunal’s technical legal conclusions on the status of Chinese-claimed features in the South China Sea seriously damaged China’s sovereignty claims. As such, Chinese objections, as a political protest against the competency of the arbitral tribunal to practically resolve the dispute, were prophetic. In order to strike home its point, within days following the Philippines’ unilateral instigation of the arbitration, China initiated its large-scale land reclamation and construction program.
In response, the tribunal ruled that China’s “intensified construction” of artificial islands during the course of its proceedings had “unequivocally aggravated the disputes between the Parties” in violation of international legal norms of good faith, non-aggravation and peaceful dispute resolution. Having “permanently destroyed evidence on the natural status of features” China had “undermined the integrity” of the arbitral proceedings. In the end, the tribunal was forced to acknowledge that Beijing’s actions had “created a fait accompli” in portions of the South China Sea, even if in violation of international law.
In the case of the Outer Space Treaty, there is ample room for further development of dispute resolution procedures. The treaty does not include any formal dispute resolution mechanism but instead provides for discretionary “consultations.” Parties are expressly required by the treaty to act in accordance with the United Nations Charter, which mandates peaceful dispute resolution under Article 2(3). The UN Charter also provides an array of options, such as negotiation, mediation, conciliation, arbitration, and judicial settlement, with the potential for Security Council intervention or referral to the ICJ. It remains to be seen whether any of the existing mechanisms or forums can effectively address territorial and proprietary conflicts in outer space. They may not.
The institutionalization of territorial and proprietary disputes will be important for identifying key interests, defining legal issues, developing technical expertise, and providing an international spotlight to hold parties accountable. Ultimately, as the South China Sea arbitration shows, formal dispute resolution mechanisms and legal norms of restraint may prove powerless when great powers resort to unilateral action in pursuit of their own national interests.
In short, political will is the critical ingredient. In a similar vein, by acknowledging the five principles identified above and remaining clear-eyed about human nature – even amidst the stars – we can help build a more durable international consensus to support the present and future development of space law.
Roncevert Ganan Almond is a partner at The Wicks Group, based in Washington, D.C. This article is based on his remarks and presentation at the 60th International Institute of Space Law Colloquium on the Law of Outer Space at the 68th International Astronautical Congress in Adelaide, Australia. The views expressed here are strictly his own.