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Bainbridge on Revising the Outer Space Treaty

Stephen Bainbridge

Stephen Bainbridge

My dear friend, Steve Bainbridge, has posted a very thoughtful commentary on the question I raised in the previous post about whether the Outer Space Treaty needs to be revised. Bainbridge writes:

I think that human space exploration in the West increasingly will be privatized. Budget constraints in an era of burgeoning deficits likely mean that massively costly human space exploration will not be funded in the near term. Obama is already shifting NASA priorities from planetary to earth science and, moreover, has ordered a blue ribbon review of the whole agency’s purpose and goals.

At the same time, we see a host of private space endeavors, including Virgin Galactic, XCOR, and the like.

It’s not at all clear that the Outer Space Treaty as currently fashioned is adequate to deal with private exploitation of space. The ABA Journal explains that:

In viewing space as the province of mankind, the Outer Space Treaty borrows principles from customary maritime law, which guarantees peaceful passage through navigable waters by ships of all nations. But in application, the Outer Space Treaty is more similar to the Antarctic Treaty System, a series of international agreements that call for cooperative management of Antarctica as a nonmilitarized environment and put off claims of sovereignty for an indefinite period.

But as the prospects for commercial ventures in space increase, it will be necessary to address the issue of who will be allowed to profit from the fruits of those ventures, say lawyers in the field.

“The current system works if nations accept a détente in space and all the resources are only used for the benefit of all mankind,” Keefe says. “If that’s the case, then there will never be commercialization of space and there will be little benefit for mankind. I know that’s a cynical capitalist viewpoint, but I think if everyone is afraid to launch a venture because they might not be allowed to profit from it, then nothing will happen.”

Not that that’s going to stop Richard Branson:

Branson and other space entrepreneurs plan to launch their space ventures whether the law is ready for them or not, says Heidi Keefe, a partner in the Palo Alto, Calif., office of White & Case who chairs the Special Committee on Space Law in the ABA Section of Science and Technology Law. “Branson’s approach has been that he’d rather beg for forgiveness later than ask for permission now, and that is what may be needed to give space law a kick,” she says.

The obvious risk is that space will become the next arena in which the tragedy of the commons plays out. Indeed, we are already getting there, as The Economist observed:

The tragedy of the commons meets the final frontier

THE Earth’s orbit is getting crowded. The past few years have witnessed huge growth in the number of satellites. Unfortunately, wherever civilization ventures it leaves a trail of rubbish. Of the 18,000 tracked objects travelling around the Earth that are larger than 10cm (4 inches), only about 900 are active satellites. The rest is debris—everything from fragments of paint to entire dead satellites and bits of old rockets. Smashed bits of space equipment orbit along with items dropped by astronauts, including tools and the odd glove.

As the pile of rubbish grows, so does the risk of collisions. In the 1970s one NASA scientist pointed out that debris from one collision could go on to create a second, which would create still more debris and more collisions, and so on. Eventually, an entire orbit would be rendered useless for generations.

The orbits around the Earth are too valuable to let this happen. Space is a public common and humanity needs to value it.

In order to encourage private exploration and exploitation of space and to address tragedy of the commons, I propose that a new Outer Space Treaty create a regime for creating and enforcing private property rights in space. After all, private property rights are a recognized solution both for providing incentives for commercial activity and for preventing the tragedy of the commons:

Why was the American buffalo nearly exterminated but not the Hereford, the Angus, or the Jersey cow? Why are salmon and trout habitually overfished in the nation’s lakes, rivers, and streams, often to the point of endangering the species, while the same species thrive in fish farms and privately owned lakes and ponds? Why do cattle and sheep ranchers overgraze the public lands but maintain lush pastures on their own property? Why are rare birds and mammals taken from the wild in a manner that often harms them and depletes the population, but carefully raised and nurtured in aviaries, game ranches, and hunting preserves? Which would be picked at the optimum ripeness, blackberries along a roadside or blackberries in a farmer’s garden? In all of these cases, it is clear that the problem of overexploitation or overharvesting is a result of the resource’s being under public rather than private ownership. The difference in their management is a direct result of two totally different forms of property rights and ownership: public, communal, or common property vs. private property. Wherever we have public ownership we find overuse, waste, and extinction; but private ownership results in sustained-yield use and preservation. Although it may be philosophically or emotionally pleasing to environmentalists to persist in maintaining that wildlife, the oceans, and natural resources belong to mankind, the inevitable result of such thinking is the opposite of what they desire.  …

Some experts recognize that “In order to facilitate commercialization and colonization, there needs to be a property rights regime established,” but argue that a system of pseudo-property rights could be jerry-rigged under the current treaty. But wouldn’t it make more sense to have a treaty that was designed from the ground up to promote private property rights? As that same expert observed:

If we do nothing, space will look a lot more like Antarctica than Alaska. Without property rights there will not be adequate investment and space resources will be underutilized. Establishing property rights in space will cost millions, not billions, and can be done decades ahead of any commercialization or colonization. It’s time to set the stage to break out of the exploration mode of Columbus and get on with establishing the regulatory regime to lay the foundation for the next Plymouth Rock.

I think Bainbridge makes a great deal of sense. It strikes me that it would be useful to get a serious conversation going among all potential stakeholders– from both the public and private sectors– to discuss the way forward.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.