Document Type

Article

Disciplines

International Law

Abstract

Poets are fond of speaking of outer space as infinite. Having a diameter of billions of light years, the vastness of the universe might just as well be described as infinite. As a practical matter, however, space is finite. That portion of the universe which can be touched by mankind given current technological prowess is comparatively minuscule; encompassing (if one is charitable) only our own solar system. Given the limits imposed by the current state of technology and economic realities, the resources of outer space should be construed as exhaustible, and the acts of one spacefaring nation can and often do infringe upon the rights of another. The 1967 Treaty Governing The Activities Of States In The Exploration And Use Of Outer Space Including The Moon And Other Celestial Bodies (hereinafter the "Outer Space Treaty") laid down some vital, basic principles in recognition of these realities. Space was declared the "province of mankind."1 Therefore, space was not subject to national appropriation,2 weapons of mass destruction were banned,3 and international liability" and jurisdiction5 were defined. The Outer Space Treaty and its brethren6 form a basic code of conduct for activities in space.

However, the Outer Space Treaty, has its drawbacks. Out of necessity, the document contains vague language. It includes all of space, and treats the space environment as a homogeneous void. The nature of sovereignty and the extent of national responsibility under the "province of mankind" provision bears conflicting interpretations. Even worse, outer space remains undefined; it has never been authoritatively established precisely where the Earth's atmosphere ends and outer space begins.

As exploration progressed under the aegis of the Outer Space Treaty it became apparent to the exploring nations that space was not homogeneous. In addition to planetary and other nonrenewable resources (e.g. asteroids) which possess their own unique characteristics, some areas of space itself are more valuable than others. Different areas offer different opportunities for exploitation given their varying combinations of gravity, sunlight, and proximity to the Earth, the Moon, or other planetary or non-planetary objects. When these regions are exploited, a hierarchy of value develops. Most areas of interplanetary space, for example, offer no unique advantages and therefore are relatively valueless. Other resources, such as the Moon and the asteroids, though huge, are ultimately exhaustible. Still other areas are inexhaustible from a traditional (i.e. Earthbound) standpoint, but the technology of exploitation limits the number of users that can take advantage of the resource at any one time, thereby producing an artificial scarcity.' The non-spacefaring countries recognized that, absent some sort of control, the spacefaring nations could overuse or dominate these "scarce" resources.

The international accords formulated since the 1967 Outer Space Treaty reflect the concerns of the developing nations.9 The Outer Space Treaty remained in effect, but sections of its effective jurisdiction were carved out by the wording of more specific agreements. Each new accord employed a framework unique to its jurisdiction.

In addition, non-treaty oriented accords have developed to supplement the Outer Space Treaty and its brethren. For example, in the region known as geostationary orbit, an object placed in orbit 22,300 miles above the Earth travels at exactly the same speed as the rotation of the planet below. This unusual characteristic permits a single satellite to relay signals across one third (113) of the planet. The orbit is used primarily for communications and broadcast satellites. 10 An entire body of law consists of regulations pertaining to these crafts. In contrast, The Agreement Governing Activities of States on the Moon and Other Celestial Bodies (hereinafter the "Moon Treaty") is a far more general document. The Moon Treaty does not extend significantly the restrictions on use first set forth in the Outer Space Treaty. Rather, the Moon Treaty attempts to regulate by designating property rights and the distribution of resource benefits. The form of regulation reflects each region's component characteristics: the industry involved, type of technology, physical environment, and "geographic" area all help define a particular regulatory scheme.

All except one of the value-laden regions of outer space have been covered by an accord or ad hoc agreement supplementing or supplanting the Outer Space Treaty. The unregulated region is actually a group of regions in the Earth-Moon system called the Lagrange Points. A Lagrange Point is "a point in space at which the effects of Earth gravity, the Moon's gravity and centrifugal force acting on a body in orbit cancel each other out."' 1 It has escaped notice in the international community largely because humanity has not yet demonstrated the ability to exploit the properties of these points.

Regardless of the reason, the Outer Space Treaty is poorly structured for the allocation of this resource. The same political and economic forces which shaped the status of geostationary orbit and the Moon will shape the development of the Lagrange Points. The result, however, cannot conform to any of the schemes currently in use. Though the same considerations of efficiency and fairness define our objectives, the unique character of the points suggests a "unique" solution. That solution has as its source the traditional Law of the Commons.

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