SPACE LAW: Does Outer Space Belong To Everyone?

At the Galloway Symposium on December 13, 2017, Dr. Scott Pace, the Executive Secretary of the National Space Council gave a keynote address at the luncheon. The Galloway Symposium is an annual conference of space law practitioners, law professors, and other interested persons.  Amongst the many other heartening things Dr. Pace said, he explained that space is not a global commons:

Finally, many of you have heard me say this before, but it bears repeating: outer space is not a “global commons,” not the “common heritage of mankind,” not “res communis,” nor is it a public good.  These concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space.  To quote again from a U.S. statement at the 2017 COPUOS Legal Subcommittee, reference to these concepts is more distracting than it is helpful.  To unlock the promise of space, to expand the economic sphere of human activity beyond the Earth, requires that we not constrain ourselves with legal constructs that do not apply in space.

In 2015, Professor Henry Hertzeld of George Washington University and Christopher Johnson and Brian Weeden of the Secure World Foundation addressed this topic in  Simple Terms Mislead Us:  The Pitfalls of Thinking of Outer Space as a Commons.  A more comprehensive version is available here, but it may lurk behind a paywall.  In their article they discuss how we shouldn’t think of space as a commons and that what really constitutes the “province of all mankind” is not outer space itself but the activity of exploring and using it.  This was an eye opener for me.

First, they start with the text of Article I of the Outer Space Treaty, which says:

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 and scientific development, and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

In explaining this language they note that it is exploration and use that is the province of all mankind:

Consequently, it is not the physical domain of outer space itself— the three dimensional expanse, beginning above airspace and extending infinitely outwards–which is the province of all mankind, but the activity itself, the “exploration and use” of outer space, which is addressed. This subtlety seems all too often lost on those whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both void space and celestial bodies) is free to be explored and used by States Parties to the treaty. Because the OST has been ratified or signed by all space-faring nations and this particular provision in Article I considered to have risen to the level of customary international law, all States across the world (and by inference, all peoples), enjoy this privilege to explore and use outer space. All too often, commentators and pundits remark that outer space itself belongs to everyone. It is in fact just the opposite. Space itself belongs to no one and the right to access, explore, and use space is granted to everyone.

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