International Space Law and the Limitations of Private Conduct in Outer Space Can Contemporary International Space Law Cope with the Ambitions of Private Actors?

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2021-01-08

University of Amsterdam - Amsterdam Law School

International Space Law and the Limitations of Private Conduct in Outer Space

Can Contemporary International Space Law Cope with the Ambitions of Private Actors?

Anton Ydersten

L.L.M International and European Law: Public International Law 2021

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Abstract

The activities of outer space have since the onset of space exploration with the launch of Sputnik 1 been dominated mostly by state actors. There is now however a shifting trend towards exploration and use of space by private actors. These private actors are dreaming of using space as a domain for profit seeking and they do so in several different ways. A particular area of interests is the resource extraction of minerals and metals from celestial bodies. This thesis has therefore examined whether the current international space law regime as founded by the Outer Space Treaty (OST), can cope with such new ambitions. The OST is a multilateral treaty with provisions that have come to be considered as customary international law. The OST is thus binding upon all and have created a global commons regime mostly termed as rex extra

commercium which implicates joint access for everyone, encouragement of resource

exploitation but a prohibition of national appropriation. This thesis explains how the OST is an outdated treaty with broad and vague provisions that does not really specify how to regulate situations that can come along with competition of resources in global commons regime with joint access. The thesis is presenting how private actors are bound by the permission of State actors through an authorization requirement in Article VI of the OST and how States have international responsibility over their authorized private actors. The final part of the thesis gives an insight into two global commons systems, the Deep Seabed Authority managing the commons of the deep seabed and the ITU system which regulates satellite allocations in the geostationary orbit. These two systems have then been discussed to see if they can work as a benchmark for a regulatory framework of space mining regime.

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It is widely considered that humankind achieved spaceflight capability with the launch of the first artificial satellite Sputnik 1 by the Soviet Union in 1957.1 More than 60 years have passed since then and the human civilization is crucially dependent on the use of outer space in a variety of different manners. During the onset of the progress and actual conduct of space use and exploration, the actors were exclusively limited to State actors but there is now a shifting trend towards the use of space by private actors.2

Corporations and companies have grown substantially more powerful and greater in quantity since the early days of space exploration which is leading to greater ambitions of outer space use among private actors. For instance, Elon Musk’s SpaceX, with its high-speed broadband Starlink mission have the ambition to launch 40,000 satellites around low earth orbit which is 13 times more than the number of currently active satellites combined.3_{Besides the satellite use} of outer space for orbital slots, private actors like Planetary Resources have plans to extract resources from various celestial bodies near Earth’s orbit.4 These cases are but a fraction of the vast number of private actors with ambitions of outer space use. Outer space is, at least while considering the observable universe, infinite in possibilities and resources. However, it is not reasonable to think in terms of infinite possibilities. The only resources that will be considered as attainable because of economic and technological feasibility are the resources in proximity of the Earth. Expansion of private activities in space may therefore lead to competition of those resources and it is not so certain that the current state of international space law is adequate to cope with that kind of competition.

The first legal attempt to regulate outer space activities came in 1967 with the Outer Space Treaty as an answer to the infamous space race between the U.S and the Soviet Union.5 The treaty has been ratified by 110 states including the leading spacefaring states like China, Russia

1_{See i.e. F Lyall and P.B Larsen, Space Law: A Treatise (2}_nd_{edn, Routledge, 2018) 1.}

2_{See i.e. European Space Policy Institute ‘Executive Summary: The Rise of Private Actors in the Space Sector’}

July 2018, p 3-5.

3_{See i.e. Bloomberg on ‘Elon Musk’s Next Big Thing is 40,000 Satellites Beaming Broadband’ available at}

https://www.bloomberg.com/news/articles/2020-09-17/elon-musk-s-starlink-wants-to-beam-broadband-internet-from-40-000-satellites, and see also ‘Starlink’ available at https://www.starlink.com/, last accessed 20 October 2020.

4_{See Plantery Resources ‘ Why Asteroids’, available at}_{https://www.planetaryresources.com/why-asteroids/}_{, last}

accessed 20 October 2020.

5_{The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,}

including the Moon and other Celestial Bodies, (adopted 19 December 1966, entered into force 10 October 1967) 610 UNTS 205 (hereafter OST).

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and the U.S. The OST is the foundational instrument of international space law and covers a range of fundamental principles in outer space.6 Such principles include the prohibition of an appropriation regime in outer space meaning that no state or private entity can claim any part of outer space as its own and it shall be considered as a global common.7 Moreover, the OST supports the notion of freedom of use and exploration of outer space, the Moon and other celestial bodies without discrimination of any kind and with free access to all areas of celestial bodies.8 This implies that all actors have the same freedom to explore and use whichever part of outer space it desires even if it means exploration and use of the same resource as another actor. Yet the treaty itself do not provide any regulation of competition. In that sense, the OST is lacking compared to the United Nations Convention on the Law of the Sea, which covers a similar domain considering that both outer space and parts of the sea are recognized as global commons.9_{It has been acknowledged that the vagueness of the OST or the lack of certain} extensive regulatory provisions, may give rise to certain doubts whether the current framework can legally cope with competition among private actors and their growing ambitions.

As of now, the only true use of outer space resources is the usage of orbital slots for satellite communications and the current regulation has historically been determined by principle of the first come, first served.10 This system of resource use is not sustainable as we are already experiencing problems with space congestion as a consequence of uncontrolled space use.11 Moreover, the use of orbital slots is not the only concern since other use of outer space resources like space mining, could possibly also become subject to the first come, first served principle if no changes or additions to the regime are made. Even if it is not an imminent problem, it is but a matter of time until other usages will become economically and technologically feasible and a new ‘gold rush’ for spacefaring states and private actors alike will challenge the OST as rather vague and seemingly outdated.

6_{See i.e., UNODA ‘United Nations Office for Disarmament Affairs’ available at}

http://disarmament.un.org/treaties/t/outer_space, last accessed 20 October 2020.

7_{OST, supra note 5, Article II.} 8_{Ibid, Article I.}

9_{United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16}

November 1994) 1844 UNTS 3 (UNCLOS), see i.e. Part VII ‘High Seas’ ‘ Section 2 ‘Conservation and the Management of Living Resources of the High Seas’, Part XI ‘The Area’ Sections 1-4 or Annex VI. ‘Statute of the International Tribunal for Law of the Sea’.

10_{See Edith Walter ‘The Privatization and Commercialisation of Outer Space’ in Christian Brünner & Alexander}

Soucek (eds), Outer Space in Society, Politics and Law (Springer-Verlag/Wien, 2011), 506-507.

11_{See generally, A Report by a Panel of the National Academy of Public Administration for the United States}

Department of Commerce ‘Space Traffic Management’ August 2020, available at

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This paper thus considers if the current international space law framework can successfully deal with the growing expansion of private outer space activity.

1.2 Analyzing the Limits of Private Conduct and Competing Interests in Outer Space The overarching theme of this paper is the analyzation of how the current international space law framework now and in the future, address issues and conflicts rising from competition and claims among actors in outer space with specific focus on private actors. The reasoning for the specific approach to private actors is due to the fact of the increasing ambitions of outer space use by private actors and the potential of them being instigators of a new gold rush in outer space. Private actors have already caused overexploitation problems with overfishing by unsustainable use on the global common of the high seas which is a comparable regime to the global common of outer space.12 Yet the private sector can also bring development progress and be a resource for the whole of humankind. It is therefore desirable to examine whether the current regime is sustainable and prepared for the future and how much regulation is desirable with regards to private activities in outer space. Hence, reasonable concerns are raised about regulation, sustainability and potential competition in relation to private activities in outer space.

To answer the overarching theme, the following questions has been addressed:

1. Which resource use of outer space are permitted according to the OST? 2. To what extent does Article VI of the OST limit the freedom of private actors?

3. Does the freedom of exploration and use of outer space invite competition problems and unsustainable use of outer space?

4. What can a desired regulatory framework for outer space use by private actors look like?

This list of questions is not exhaustive as other questions with a more descriptive approach are answered to clarify certain fundamentals of international space law that are relevant for the comprehension of the listed questions.

12_{See i.e. International Institute for Environment and Development (IIED), ‘It is time to control the fishing on}

the high seas to protect the life of the ocean and coastal people who depend on it’ available at

https://www.iied.org/it-time-control-fishing-high-seas-protect-life-ocean-coastal-people-who-depend-it, last accessed 30 December 2020.

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1.3 Methodology: The Classic Legal Research Method

The papers underlying research method is the traditional legal research method sometimes also referred to as the legal dogmatic method. It can in this case be described as the examination of legal provisions through the lens of generally accepted sources of international law as stated by Article 38 (1) of the Statute of the International Court of Justice while addressing legal issues and possible solutions.13 The thesis will apart from the use of the traditional legal dogmatic method and being descriptive, have a normative assessment. Moreover, public international law has what is called extra-terrestrial application in outer space and thus affirming the method to examine international space law by the same methods as any other field of international law.14 The sources of law that has been consulted the most are undoubtedly the primary sources of international law as expressed in Article 38 (a-c) of the ICJ Statute.15 As for the examination of treaty law, the general rules of treaty interpretation as apparent in the Vienna Convention on Law of Treaties will be applied.16 Also a substantial amount of works of legal scholars in the legal doctrine will be considered since judicial interpretation through case law is scarce when dealing with international space law.17 Apart from the examination of international space law, other international law fields such as the law of the sea will also be considered.

1.4 Disposition

The paper consists of three main parts when not considering the present introductory chapter and the final concluding chapter. The main content of the paper begins in chapter two with an overview of the fundamentals of space law in order to fully address its relation to the accepted conduct of outer space use by private actors. The chapter also gives examples of use in space that is permitted. Chapter three explains thoroughly the context of Article VI of the OST and what authorization and state supervision over a private actor truly entails. Chapter four explains how the current OST system may be inadequate in terms or resource management in outer space. The chapter will also present how other global commons systems can serve as an inspiration for future changes to the OST and turn it more desirable.

13_{Jan Kleineman,’Rättsdogmatisk metod’ in Fredric Korling & Mauro Zambino (eds), Juridisk metodlära}

(Studentlitteratur, 2013) 21 and Statute of the International Court of Justice (ICJ) (entered into force 24 October 1945) § 38 (1) (a-d).

14_{International Co-operation in the Peaceful Uses of Outer Space, UNGA Res 1721 (XVI) (20 December 1961)}

UN Doc A/RES/1721, A (1) and see also OST, supra note 5, Article III.

15_{See supra note 13, ICJ Statute Article 38(1) (a-c) which are treaties, customary international law and general}

principles.

16_See_{Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980)}

1155 UNTS 331 (hereinafter VCLT), Article 31.

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2. The Fundamentals of International Space Law and the Permitted Use of

Outer Space

There are currently five major space treaties in force that lay down the rules of legal conduct in outer space and are looked upon for guidance. These five instruments are the Outer Space Treaty, the Rescue Agreement, the Liability Convention, the Registration Convention and the Moon Treaty. 18 However, only four of those instruments have been signed and ratified by most states including the actual leading spacefaring states such as China, Russia, the U.S and the relevant EU states for the joint organization of the European Space Agency. Moreover, even while the Rescue Agreement, the Liability Convention and the Registration Convention are relevant in general for the legal rules of outer space conduct, none of them touch upon on the subject matter of the paper which is why every treaty will not be considered when laying down the fundamentals of international space law. Also, the Moon Treaty is a most relevant treaty for the questions of use of outer space and its resources. However, there are as of now only 18 ratifications and none of the leading spacefaring States have considered of becoming a state party. Therefore, the Moon Treaty which try to incorporate the ideas of UNCLOS and the common heritage of mankind,19_{has weak legal significance for a binding outer space regime.} The OST on the other hand incorporate a general set of rules that have acquired customary international law status. Thus, the OST remains the only sincere source of international space law to consider when examining and answering the questions related to the foundational rules of space law and its relation to the conduct of private actors. Hence, the fundamentals of international space law are in this chapter laid out with reference to the most important space law source, the OST.

2.1 The Outer Space Treaty as Customary International Law

One of the most foundational pillars of the international space law regime is that it heavily relies upon customary international law. It is certainly crucial for its function since outer space surely is a domain filled with potential of chaos if there was not a coherent system binding upon all,

18_{See generally}_{Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects}

Launched into Outer Space (adopted on 19 December 1967, entered into force on 3 December 1968) (hereinafter Rescue Agreement), see Convention on International Liability for Damage Caused by Space Objects (adopted 29 March 1972, entered into force 1 September 1972) 961 UNTS 187 (hereinafter Liability Convention), see Convention on Registration of Objects Launched into Outer (adopted on 12 November 1974, entered into force on 15 September 1976) and see also Agreement on governing the Activities of States on the Moon and Other Celestial Bodies (adopted 5 December 1979, entered into force 11 July 1984) 1363 UNTS 21 (hereinafter Moon Treaty).

19_{For common heritage of mankind, see UNCLOS, supra note 9, Preamble and Article 136 but also Michael W.}

Lodge, ‘The Common Heritage of Mankind’ (2012), The International Journal of Marine and Coastal Law 733-742, 7

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that obligate actors to follow a certain set of rules. The main framework of the regime carries fundamental space law provisions that are widely considered to have become customary international law norm.20 Such particular important provisions of the OST are Article I; the freedom of exploration and use and for the benefit of all mankind, Article II; the prohibition of national appropriation, Article III; the extra-terrestrial applicability of international law and, Article VI; international responsibility for national activities in outer space as well as requirement of authorization and supervision of non-governmental entities.21

There are several reasons that promote the view that these norms are binding upon all because of customary international law status. First it may be emphasized that the notion of the mentioned provisions above was all expressed in United Nations General Assembly Resolution 1962 (XVIII) prior to the creation of the OST.22_{Furthermore, the resolution was adopted by the} UNGA unanimously thus confirming that all members of the UNGA which involves almost all States, did not object to the notions. The resolution showed that there was a greater consensus among the members and thus cohesive opinio juris.23_{In addition to the unanimously adopted} UNGA resolution XVIII, the OST with its 110 ratifications has high membership participation by States. Multilateral treaties such as the OST, have been widely discussed to possibly be capable of creating customary international law norms as it is something that has been confirmed by the ICJ. Such creation by a treaty depends on the normative value and others requirements such as substantial participation by states, the absence of any persistent objectors and a consideration of the passage of time between the treaty’s coming into force and the time the norm has been said to appear.24 The OST has high numbers of participants which includes the leading-space faring states and according to doctrine there exists state practice in conformity with the treaty. There seems therefore to exist both opinio juris and adherence to the treaty in

20_{See i.e. Lyall & Larsen, supra note 1, 63-64 and Bin Cheng, Studies in International Space Law (Oxford}

University Press, 1997) 125-145.

21_{OST, supra note 5, Articles I-III and VI.}

22_{Declaration of Legal Principles governing the Activities of States in the Exploration and Use of Outer Space,}

UNGA Resolution 1962 (XVIII) UN Doc A/RES/18/1962 (13 December 1963), for further and earlier endorsement of freedom to explore and use, extra-terrestrial application of international law and prohibition of national appropriationsee alsoInternational Co-operation in the Peaceful Uses of Outer Space, UNGA Res 1721 (XVI) UN Doc A/RES/1721 (20 December 1961).

23_{Even if declarations and resolutions by the UNGA are not binding, the ICJ have stressed that it can show signs}

of binding customary international law or at least expression of opinio juris, see i.e. Accordance with

International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 ICJ 403, para 80, Legality of the Threat or Use of Nuclear Weapons case, ICJ Reports, 1996, pp. 226, para 75 and Military and Paramilitary Activities in and against Nicaragua, 1986 ICJ 14, para 188.

24_{North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of}

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form of state practice and thus fulfilling both requirements of customary international law.25 Even if there would be lack of clear evidence of actual state practice among all members of the treaty, some scholars suggest that signing of resolutions and treaties can amount to state practice and that a substantial amount of opinio juris alone, may be enough to crystallize customary international law norms, even so in an instance when the treaty has been created.26

There is thus compelling evidence and support to suggest that the OST has one way or the other truly become customary international law even if an interpretative authority such as the ICJ has yet to confirm such thing. The norms of the treaty are seemingly binding upon all irrespective of treaty relations.

2.2 Outer Space as a Global Commons

Outer space is often compared with the Earth-bound high seas and the resource rich deep seabed as outer space has been described by many with the roman law terminology of res communis and res extra commercium.27 The terms have been used seemingly without a coherent consensus

among the doctrine.28 Both are not without considerable distinction but they nevertheless imply similar notions that purports the idea of outer space as a domain free from national appropriation and right to access for everyone which is endorsed by the OST.29

The term res communis entail that an area or an object is owned by the entire community and belonging to all. It hails from the old roman idea that such philosophy is desirable since it would benefit the entirety of the community if everyone could be benefactors of the use of rivers, the seas and the air.30 At first glance res communis seems to be synonymous with the well-established common heritage of mankind principle of the UNCLOS regime, which implies equitable participation and sharing of economic benefits as well as rational use of resources.31A

25_{See Lyall & Larsen, supra note 1, 70.}

26_{See i.e. David Harris, Case and Materials on International Law (7}th_{ed, Sweet & Maxwell, 2010) 52-56 and}

Bin Cheng, supra note 20, 137-146.

27_{High seas definition can be found in i.e. Geneva Convention on the High Seas (adopted 29 April 1958, entered}

into force 30 September 1962) 450 UNTS 82 Art. 1, for the deep seabed or ‘The Area’ see UNCLOS, supra note 10, Article 1(1).

28_{For incoherent terminology use see i.e. James Crawford, Brownlie’s Principles of Public International Law}

(8th edn, Oxford University Press, 2012), 251 cfr. supra note 10 Thomas Neger & Edith Walter, ‘Space Law: An

independent branch of the legal system’ in Brünner & Soucek, 251 Cf. Lyall & Larsen, supra note 1, 170 and also Bin Cheng, supra note 20, 80-83.

29_{OST, supra note 5, articles I & II.}

30_{Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (Kluwer International,}

1998) 40–41.

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global commons regime protected by the common heritage of mankind also requires supervision of an established authority which is most apparent in the UNCLOS with the International Seabed Authority.32 Res communis implies no such authority or even equitable sharing since instead it purports the idea that everyone have the right by their own desire, seek out and use the global common for its own benefit without intervention of an authority.33 Res

communis as used to sometimes to describe the outer space regime, is despite its similarity, thus

not synonymous with the global commons of the UNCLOS regime since the OST lacks any provisions of an international authority. Nonetheless, res communis may seemingly not be the accurate terminology to describe outer space either since the OST does not strictly entail the concept of communal ownership. Article I of the OST indeed include that the exploration and use of outer space, the Moon and other celestial bodies are ‘province of all mankind’ which may seem like a joint ownership expression. Yet it does not explicitly express that outer space as a global common implies joint ownership by all States. Moreover, paragraph two of Article I OST, implies that everyone shall have free access to all areas of outer space and celestial bodies which implies the notion of the roman term res extra commercium purporting a non-ownership regime with joint access instead.34 Irrespective of which terminology to use, the two roman terms implicates similar meanings, prohibition of national appropriation of outer space, including the Moon and the celestial bodies and free access to everyone.

As has been illustrated above, outer space is a global common usually described with the roman terminology of res communis or res extra commercium with the latter seemingly being more accurate. This regime clearly invites freedom of both state and private actors to use and explore whichever part of space or celestial bodies they desire if they do not violate the non-appropriation rule. Since these very important provisions reflect customary international law, it is binding upon all, irrespective of treaty relations.

2.3 The Freedom of Exploration, Different Use of Outer Space and Non-appropriation The freedom of exploration and use, without discrimination of any kind and with free access to all celestial bodies is as presented above, entailed in Article I, second paragraph of the OST. 35

32_{UNCLOS, supra note 9, Section IV.} 33_{Kemal Baslar, supra note 30, 41.}

34_{OST, supra note 5, Article I and for res extra commercium see also Lyall & Larsen, supra note 1, 170 and}

Michael Laver, ‘Public, Private and Common in Outer Space: Res Extra Commercium or Res Communis Humanitatis Beyond the High Frontier? (1986), Political Studies, XXXIV, 359-373-

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While the word ‘exploration’ is rather self-explanatory the word ‘use’ has often been up for debate since the word alone can be adopted in a very broad sense. The meaning of the word ‘use’ is also not elaborated more upon in the OST. Something that is however certain is that humankind is making a lot of use of outer space in different ways. Leading scholars on the subject suggest that all kinds of activities that make use of outer space may be covered by the word ‘use’ thus purporting the idea of the word in the broadest possible terms.36_{The most} frequent ‘use’ of outer space is the use of frequencies and orbital slots of satellites as a spatial resource in the geostationary arc. Such use of outer space remains uncontroversial since there seems to be no objection by any state or entity to such use thus confirming endorsement of state practice.37 While satellite and orbital slot use is uncontroversial and very much feasible, the acceptance of potential resource extraction by mining operations on celestial bodies is more clouded.

2.3.2 Acceptability of Space Mining as entailed by the word ‘Freedom of Use’

The Chair of the Space Law Committee of International law was once asked if the OST is a sufficient legal framework for the use and exploration of the Moon and celestial bodies. The Committee answered that the OST provisions is sufficient in general but that the ownership rights and the legal status of extracted resources from celestial bodies remains uncertain because of the non-appropriation rule of Article II.38 This lacunae implicates that there is an uncertainty for state and private actors alike to carry out resource exploitation from celestial bodies. While the prohibition of appropriation of the Moon and celestial bodies as a whole is clear, the provisions of the OST alone do not specify whether resources in situ, when removed from the non-appropriable body and ‘exploited’ is an acceptable conduct.39

The word ‘exploitation’ as synonymous with extraction of a resource is not present in the OST as such conduct was probably not the most important concern at the time of the drafting and negotiation of the treaty. Nor does the word ‘use’ or the preamble give any clarification if the freedom entails exploitation. Consequently, both the ordinary meaning of the provision and

36_{See i.e. Hobe, ’Article 1, Rights Granted’ in Hobe, Schmidt-Tedd and Schrogl (eds), Cologne Commentary on}

Space Law Volume I (Carl-Heymanns Verlag, 2009) 37.

37_{See Edith Walther, in Brünner & Soucek, supra note 10, 506-507.}

38_{UNCOUPOS ‘Status and application of the five UN treaties on outer space’, Answers from the Chair of the}

Space Law Committee to questions by the Chair of the Working Group LSC (13-24 April 2015) 54th session, UN

Doc A/AC.105/C.2/2015/CRP.25, para 1.1. and OST, supra note 5, Article II.

39_{Latin expression for ‘in place’,}_{for definition and translation see, Aaron X Fellmeth and Maurice Horwitz,}

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object and purpose of the treaty in relation to ‘use’ and ‘exploitation’ are non-telling.40 However, the negotiation history suggests that the word ‘use’ shall include the notion of ‘exploitation’ since most delegates agreed to that notion. Also endorsed by a United Nations General Assembly Resolution preexisting the OST. Commentary to the OST also seems to suggest that the word ‘use’ includes the commercial and non-commercial use of outer space. Thus, suggesting that outer space use for reasons of economic profit shall include exploitation of outer space and celestial bodies. 41 Moreover, some scholars have compared the outer space regime and its freedom of use to the freedom of use of resources on the high seas such as fishing, by acknowledging that ‘use’ as in ‘exploitation’ of a resource in both commons are the same. Thus, implicating that just as the resource extraction in the form of fishing is acceptable on the global commons of Earth, so may it also remain for resource extraction or exploitation in outer space.42_{It may also be suggested that since the use of orbital slots as a spatial resource is} permissible, it may remain the same for the exploitation of natural resources such as solid minerals and metals on celestial bodies as well.43

In relation to the permissibility of ‘exploitation’ as endorsed by the freedom of use, it is important to note that prohibited conduct in the OST regime is usually explicitly expressed in the treaty and such prohibition of ‘exploitation’ or ‘use’ of resources does not exist. It can for instance be observed in Article IV that the placement of nuclear weapons or other weapons of mass destruction is prohibited. This also applies to the installation of military bases and the use of military personnel for scientific research.44 Moreover, Article I of the OST seems to make a distinction between freedom of exploration and use and the freedom of scientific investigation. Such a distinction may implicate that ‘use’ of outer space includes all kinds of activities except scientific investigation and thus suggesting that ‘use’ can imply ‘exploitation’ when also considering that such prohibition is absent in the treaty.45

40_{See OST, supra note 5, Article 1 and Preamble VCLT, supra note 16, Articles 31 and 32 clarifies that the}

treaty must first be interpreted through the ordinary meaning of the provisions and secondly in light of the object and purpose of the treaty which is often reflected in the preamble. Since both are non-telling, use of Article 32 (travaux prèpartoires or preparatory works) may be applied instead.

41_{See Hobe, ’Article 1, Rights Granted’ in Hobe, Schmidt-Tedd and Schrogl, supra note 36, para 26, 189 and}

also Question on the Peaceful Use of Outer Space’ UNGA Res 1348 (XIII) (13 December 1958).

42_{See UNCLOS, supra note 9, Art. 87.1.e see also Armel Kerrest, ‘Space law and the law of the sea’ in}

Brünner & Soucek, supra note 10, 251.

43_{See i.e.}_{Otto Koudelka,’ Space, a natural resource’ in Brünner & Soucek, supra note 10, 92 and Frans G. Von}

Der Dunk,’ Private Property Rights and the Public Interest in Exploration of Outer Space’ (2017) Biological Theory, Volume 13, Issue 2, pp 142-151.

44_{OST, supra note 5, Article IV see also Hobe, ‘Article 1 Rights Granted’ in Hobe, Schmidt-Tedd and Schrogl,}

supra note 36, p 38, 197

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In sum, as ‘exploitation’ seems to be endorsed by the negotiators of the OST as well as the doctrine, it should not be unreasonable to assume that ‘use’ also includes the activities of ‘exploitation’. Also, res extra commercium is supportive of the activity of exploitation and since many scholars seems to refer outer space as res extra commercium, ‘use’ by exploitation as in terms of resource extraction of solid material seems to be permissible. 46

2.3.3 Non-appropriation and Limitations to Resource Extraction

Even if its plausibly that the word ‘use’ accepts the notion of exploitation and resource extraction, the approval of such conduct is not without conditions. When examining whether there is a limitation to resource exploitation or not, both Article I and II of the OST must be considered. First, in its entirety Article 1 of the OST contains two elements that may be considered when determining the permissibility and the limitations of resource exploitation in space mining activities. Those elements suggest that activities such as exploration and use must be ‘carried out for the benefit and in the interests of all countries’ and ‘without discrimination of any kind’.47_{Secondly, Article II of the OST connote that outer space, the Moon and celestial} bodies is not subject to national appropriation by ‘claim of sovereignty’, by ‘means of use or occupation, or by ‘any other means’48_{With regards to the latter, it is quite evident by the} wording alone that non-appropriation of outer space, the Moon and celestial bodies as a whole is firmly forbidden. However, Article II nor any other provision of the OST for that matter, specify if resources when removed in situ amounts to appropriation. Some scholars suggest that no matter how much ‘use’ of outer space and celestial bodies in it, an entity carries out, it can never amount to any claim of ownership rights. Yet, the same scholars also proclaim that even if something cannot be ‘appropriated’ and assigned to oneself as an ownership right, it can still be extracted and exploited as supported by the freedom of use in the OST.49 Thus, exploitation as in ‘use’ should not be prohibited per se, it does not however give any ownership rights and could certainly pose an obstacle for self-serving states and private entities alike to exploit for their own gain. It has also been suggested that appropriation during exploitation takes place when the natural resource is ‘abused’ meaning that it is depleted to the point of destruction or exploited ‘out of existence’.50 Regardless, even if an entity exercise their right of ‘use’ to exploit

46_{See Kemal Baslar, supra note 30, 41–42, Lyall & Larsen, supra note 1, 170 and Laver, supra note 26, 359-373.} 47_{See OST, supra note 5, Article I}

48_{Ibid, Article II}

49_{See Steven Freeland and Ram Jakhu, ‘Article II’ in Hobe, Schmidt-Tedd and Schrogl, supra note 36, 53} 50_{Ibid, 54 and see also Armel Kerrest in Brünner & Soucek, supra note 10, 252.}

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a resource removing it from its place, such conduct must still consider to deal with the ‘province of all mankind’, ‘carried out for the benefit and in the interests of all countries’ and ‘without discrimination of any kind’.51 The former may imply, depending on interpretation, that all countries shall benefit for such resource extraction activity and not beneficial for one single entity. In such a case the resource extractor would therefore have to share their earning benefits.52 Furthermore, depletion as in extracted to the point of destruction of for example an asteroid, would certainly be a violation of other states freedom of exploration and use since that object would seize to exist and thus giving no opportunity for others to use that object.53

In sum, the use of outer space in accordance with the OST, permit exploitation of the resources in outer space and on the Moon as well as other celestial bodies with the condition that it is carried out for the benefit of all countries and without infringing on other States right to freedom of exploration and use. Thus, resource extraction as in space mining may not able to be carried out by an entity seeking own economic gain. However, this does not seem to apply for the use of orbital slots since there is substantial accepted practice of private entities that are using orbital slots a means for commercial use and private economic gain.54 It is elaborated upon more below.

51_{See OST, supra note 5, Article I.}

52_{According to commentary by Stephen Hobe, due to the ‘benefit for and in the interest of all countries’ clause}

being so vague and general in formulation, it is doubtful that the article amounts to an obligation of sharing of benefits. Thus, clear interpretation can only be made in light of subsequent state practice, see Hobe, ’Article 1, Rights Granted’ in Hobe, Schmidt-Tedd and Schrogl, supra note 36, 49.

53_{See OST, supra note 5, Article 1 and consider ‘free for exploration and use without discrimination of any}

kind’.

54_{See i.e. Elon Musk’s ‘Starlink Mission’, supra note 3, which is providing a private high-speed broadband}

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3. Private Conduct in Outer Space as regulated by the OST Article VI

It can be observed that the international space law regime has emerged during a time when public international law and especially outer space activities, was almost exclusively state-centric. This is something that can be seen from the language of the OST with its emphasis on the ‘interest of all countries’, ‘use by all States’ and that outer space ‘is not subject to national appropriation by claims of sovereignty’.55 This state-centric notion is not unique to the space law regime but still very much an overall dominating approach to most fields of international law since the whole basis and purpose of it, is the regulation between sovereign States. Also, it must be noted that private actors as in companies or corporations are generally not considered to have international responsibility in the same manner as States have. International corporate responsibility is not yet truly an accepted or concretely developed concept in public international law which applies the same in outer space with possibly even more of a strict approach there.

During the negotiations of the OST, the private sphere opposing Soviet Union supported the idea to completely ban private conduct in outer space. The capitalist US was unsurprisingly against this which then led to the compromise of Article VI. With the article, all kinds of activities in outer space came to be seen as ‘national activities’ thus limited to State actors but also ‘non-governmental entities’ that had authorization by an appropriate State. The article also emphasized that the ‘appropriate state’ must have ‘continuing supervision’ over the ‘non-governmental entity’, bear international responsibility for it and ensure that it acts ‘in conformity with the provisions set forth in the present Treaty’.56_{Consequently, activities}

conducted by private entities are lawful in outer space, granted that they have a nexus link to an ‘appropriate State’.57 Moreover, according to commentary to the OST, ‘national activities’ carried out by ‘non-governmental entities’ as prescribed by Article VI, should bear the same meaning as it has for state actors, including the freedom of exploration and use of outer space.58 Thus private entities has the same right of freedom to use the global commons of outer space as state actors as long as it has authorization and is under continuing supervision by an

55_{OST, supra note 5, Articles I-II.}

56_{Ibid, Article VI and see i.e. Peter Jankowitsch, ‘The Background and History of Space Law’ in F von der}

Dunk and F Tronchetti (eds), Handbook of Space Law (Edward Elgar Publishing, 2015) p 6.

57_{In this context the ‘appropriate state’ has been interpreted by some as the State that have jurisdiction over the}

activity, whether it is personal jurisdiction, territorial jurisdiction or jurisdiction over objects registered in a national registry, see Michael Gerhard, ‘Article VI’, in Hobe, Schmidt-Tedd and Schrogl, supra note 34, para 58, 414.

58_{Ibid, para 38, 389 and see also Stephen Hobe, ‘Article I’, in Hobe, Schmidt-Tedd and Schrogl, supra note 36,}

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appropriate State. This do not however mean that private entities in outer space are subject to any international responsibility in outer space since such expression is clearly absent from Article VI and leaves private entities only as international right holders of the outer space regime.

3.1 State Authorization and Continuing Supervision

The wording of Article VI of the OST does not explain or elaborate any further on the specifics of what authorization or continuing supervision truly entails. The absence of any further textual explanation makes it rather unclear of what kind of position private entities have in outer space at the international law level. However, the provision does make it clear that States Parties have positive obligations to ensure that ‘non-governmental entities’ when conducting ‘national activities’ in outer space, do so with conformity of the treaty.59_{Commentary to the article} suggests that the reason for use of the term ‘national activities’ is to distinguish such activities from activities of international organizations as also included in Article VI.60 Considering the

travaux prèpartoires in which it is known that Article VI is the compromise between the private

entity opposing Soviet and the capitalist friendly US, it is reasonable to assume that this was the only manner for private entities to operate in space. Moreover, since private entities as in ‘non-governmental entities’ needs authorization it is only reasonable to assume that all activities in outer space are considered to have a nationality nexus while private companies are mostly used as state-contractors. Thus, private actors have no sincere freedom to venture into space without the approval of an ‘appropriate state’.

As for the lack of any specifics of what “authorization” entails it should be without controversy to assume that Article VI remained that way in order to leave it up to the States Parties themselves to decide how such procedure shall look like. Commentary to the article seems to suggest that states in this regard have a certain ‘discretion’ on how to create national space law that set the conditions of the authorization. Same commentary also emphasizes that while States have discretion they still have to ensure that the conditions for the authorization of a certain activity is in conformity with OST provisions and that the activity is considered ‘safe’.61 Important provisions when considering the activities of profit seeking private entities are certainly freedom of exploration and use, for the benefit of all mankind, (Art. I) and the

59_{See OST, supra note 5, Article VI.}

60_{Michael Gerhard, ‘Article VI’, in Hobe, Schmidt-Tedd and Schrogl, supra note 36, para 31, 391.}

61_{Ibid, para 59, 414 see also Stephan Hobe, The ILA Model Law for National Space Legislation, 62 ZLW 81}

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prohibition of national appropriation (Art. II).62 Authorization as expressed in Article VI seems therefore to have a rather strict obligation to be in compliance with the rest of the treaty. The discretion of how authorization should manifest seems thus to be limited to procedural and administrative rules only, which is something that also applies for continuing supervision.63 Considering with what has been elaborated above, Article VI clearly indicates that States have no discretion to give possibilities to private actors that are not in conformity with the treaty. Authorization and continuing supervision are the promotion of administrative and procedural rules through national space law with the purpose of establishing a responsibility link for the activities of private actors to an appropriate state. Moreover, according to some scholars, there is a vast amount of state practice that is seemingly adhering to the idea that the ‘authorization’ within their respective national space law legislation, needs to be in conformity with the OST.64 3.2 Limitations to profit seeking Private Entities

Private entities as in this context, companies and corporations are generally and most frequently driven by self-centered economic goals meaning that they will always seek investments and projects that will be economical beneficial for themselves. Freedom and lesser regulation are factors that can be important for the success of such goals, yet the current outer space regime as endorsed by the OST, does not seem to invite such factors. As has been illustrated above, the access for private actors to conduct operations in the global commons domain of outer space is heavily dependent on the permission of a state actor. Private entities are not only required to seek authorization to conduct space activities, but States are also required to supervise that private actors follows the state obligations as enshrined in the OST. Thus, the current outer space regime is very strict, especially in the sense that a private actor cannot even freely move around in outer space without a state’s permission. This is perhaps even more strict than how private actors can operate on the global commons of the Earth.65_{This strict authorization in}

62_{See OST, supra note 5, Articles I-II}

63_{Michael Gerhard, ‘Article VI’, in Hobe, Schmidt-Tedd and Schrogl, supra note 36, para 69, 421.} 64_{See i.e. Stephan Hobe, supra note 61, 85.}

65_{I.e. on Earth there are the global commons of Antarctica, High Seas and The Area where the first two}

mentioned are free to explore as a private entity whether as a natural or legal person. Antarctica do however have permit limitations for ‘exploring’ if one would be a national of a State which is party to the Protocol on

Environmental Protection to the Antarctic Treaty but as this is not customary international law compared to the Article VI of the OST, such comparison is thus not fair, see The Protocol on Environmental Protection to the Antarctic Treaty (signed 4 October 1991, entered into force 1998) UNTS 2941, Article 3(4) and OST, supra note 5, Article VI. As for the ‘exploration’ or freedom of movement on the high seas, there is no limitation or authorization requirement for a private entity other than for ships that fly under a State’s flag and are not ‘excluded from international regulations on account of their small size’ see UNCLOS, supra note 9, Articles 87, 91-92 and 94. The exploration of the Area as in the deep seabed has similarly to the OST regime, a very strict approach since even exploring requires approval by the Authority, which includes exploration conducted by private actors in form of natural or legal persons, see UNCLOS, supra note 9, Article 153 (1-2) (b).

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outer space should however be considered as fairly reasonable since the operation and activities of launching flying and orbiting objects into space can have enormously harmful consequences if something would go wrong.

As for actual operations of use of outer space and exploitation as in space mining, it has been illustrated above that such conduct is acceptable under the freedom of use according to Article I of the OST.66 As it is acceptable for states to do so, it also applies for private entities if they acquire authorization as supported by Article VI of the OST. 67 However, the permission to conduct such activities do not without doubt mean that the OST support the activity in the manner profit seeking companies probably would like it be. There exist some hurdles that could possibly scare away companies from further investing in resource extraction operations such as space mining. First, the non-appropriation rule as found in Article II of the OST should prevent any private entity to assign themselves the right to claim ownership over a mineral rich asteroid. This may however not prevent an private entity to for example extract portions of resources when removed in situ and assign them to oneself since that is seemingly possible.68_Resources can thus be removed by a private entity if it also considers that the object is not extracted to the point of destruction as that would be a violation of others right to freedom of exploration and use.69 Secondly, the potential economic gain for a private company depends very much on the interpretation of the ‘benefit of all mankind’ clause found in OST Article I. If the article would imply an obligation to share the benefits of the freedom of use as in exploitation of resources, then that could prove to be an obstacle to profit seeking private entities. When trying to determine the purpose and object of the treaty it can be found in the preamble that the OST do recognize principles such as ‘common interest of all mankind’ as well as the’ benefit of all

66_{OST, supra note 5, Article I and see also section 2.3.2.} 67_{Ibid, Article VI.}

68_{Removal of resources in situ is endorsed by the doctrine, see i.e. Steven Freeland and Ram Jakhu, ‘Article II’}

in Hobe, Schmidt-Tedd and Schrogl, supra note 36, 53 and Armel Kerrest in Brünner & Soucek, supra note 10, 252. It is also authorized by some states national space law legislation while even giving its citizens the right to sell such removed resources which could be contrary to the OST if it would mean that the ‘benefit of all mankind’ principle would not have been considered. It would moreover also be contrary to Article VI and the law of treaties since such domestic authorization would be used to potentially contradict an international obligation, see i.e. U.S. Commercial Space Launch Competitiveness Act of 2015, Pub. L. No 114-90 (hereafter US Space Act 2015), Title IV ‘Space Resource Exploration and Utilization’ §§ 51301-51303, see OST, supra note 5, Article I and VI, VCLT, supra note 16, Article 27 and see also Statement by the Board of Directors of the International Institute of Space Law on the Claims to Property Rights Regarding the Moon and Other Celestial Bodies’ available at https://www.iislweb.org/docs/IISL_Outer_Space_Treaty_Statement.pdf last accessed 30 December 2020.

69_{It has also been acknowledged by one author that based on historical practice, temporary occupation of a}

global commons area in order to extract resources from the surface does not amount to any claims of sovereignty rights and thus no national appropriation of the area, see Edwin W. Paxon III ‘Sharing the benefits of Outer Space Exploration: Space Law and Economic Development (1993), Michigan Journal of International Law, Volume 14 Issue 3, 494-495 and OST, supra note 5, Article I

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peoples’.70 However, while also the ordinary meaning of the provision may seem direct, it is still very vague and general in formulation which has made many scholars reluctant to endorse such view entirely.71 One author has described the principle as an ‘enabling’ clause to make space-faring states encourage non-space-faring states to participate more actively in the use of outer space without possibly having the technology themselves. The same author also states that the formulation of Article I makes it clear that the common benefit principle provides equal opportunities for all states.72 Equal opportunities for all state do not necessarily mean equitable sharing or even sharing of resources but more of an equal right to explore and use outer space irrespective of development level. Another author refers to the currently existing use of the spatial resource of orbital slots by private actors as evidence to suggest that commercial use of extraction of minerals in outer space might in the future follow the same way.73 Authors and scholars are seemingly unsure of how to interpret the ‘benefit of all mankind’ expression. The indecision to entirely support a positive obligation to equitable sharing or at least some sharing, should serve as an indication that there is yet no such obligation. Some authors recognize that when industrialized space mining becomes truly feasible, subsequent practice and state interpretation, will determine the reach of the principle.74 Such reasoning is understandable since the rules on treaty interpretation clearly indicates that when the ordinary meaning of the text cannot answer the question, the purpose of the treaty shall be taken into account with any subsequent practice.75 Individual states are more self-serving than humankind would prefer them to be. It would thus be unsurprising if developed countries and authorized private actors would commit to serve themselves in relation to the benefits of space mining rather than sharing the benefits with others.

Considered of what has been discussed above, private entities are limited by the conditions set by an ‘appropriate state’ through ‘authorization’. Private actors are also limited by the state obligations in the OST, as the treaty demands compliance also through private actors. Moreover, since resources in situ does not necessarily count as appropriation, private actors

70_{OST, supra note 5, Article I and Preamble.}

71_{I.e. Bin Cheng do emphasize that ‘for the benefit of all’ is a binding obligation but is reluctant to express what}

it entails while also recognizing that opinions differ on what it constitutes. Stephen Hobe uses the word ‘doubtful’ to describe that the ‘for the benefit of all’ imposes an obligation to share benefits. see Bin Cheng, supra note 20, 234-236 and Hobe, Schmidt-Tedd and Schrogl, supra note 36, para 51, 206.

72_{Ibid, Hobe, paras 50–51, 205–206.}

73_See_{Frans G. Von Der Dunk,’ Private Property Rights and the Public Interest in Exploration of Outer Space’}

(2017) Biological Theory, Volume 13, Issue 2, 144.

74_{See i.e. Hobe, Schmidt-Tedd and Schrogl, supra note 36, para 51, 206 and Edwin W. Paxon III, supra note 69,}

492 and 494.

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with permission of a State may remove resources from a celestial body. Since there is no consensus or clear answer to the ‘benefit of all mankind’ principle, it cannot be said with certainty that there is an obligation to share the benefits of resource extraction. The OST regime can thus, depending on actual practice and interpretation of mentioned principle, be said to allow private actors to financially profit from exploitation of outer space resources.

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4. Current Global Commons System and the Desirable System for Outer

Space

As explained in a previous section, outer space is often considered a global common of res

extra commercium which is the encouragement of an area free from national appropriation but

joint access for everyone and the promotion of exploitation.76 This current classification of outer space is the same as the freedom of use of the high seas which also promotes exploitation. 77 The freedom of the high seas has caused recent problems of overexploitation through overfishing.78 Such behavior as promoted by res extra commercium is possibly not an encouraging sign for the future of resource extraction in outer space which leads to question if

res extra commercium by its definition promotes problems of unsustainability. The questioning

of the unsustainability of global commons is an old debate and sometimes referred to as ‘tragedy of the commons’ which was coined by ecologist Garrett Hardin in one of his work from 1968. Hardin claimed that a joint access regime will always lead to ruin due to the inherent egoistical behavior of ‘each man’.79_{Not only can unregulated global commons contribute to depletion of} finite resources but it can also promote conflict and disputes due to competition among self-centered actors when considering the equal freedom of exploration and use of the same resource domains.80 However, this does not necessarily mean that such a system is and always will be inherently flawed since complementary rules and systems could make it more stable without possibly stripping res extra commercium of its essence. Exactly how such a system should be created in order to be deemed successful will always be divided between different ideas. Nevertheless, it should be certain to state that the OST treaty and the customary international law norms it carries, are by themselves not capable of answering specifics about management of common pools of resources. It is probably so deficient in that regard that it can be said that the OST does not regulate at all but only grants freedom except for Article VI and limitation of private actors. The OST does after all, grant states together with authorized private actors, the fundamental right to explore and use whichever part of space or celestial body they desire. There seems moreover to be no obstacle for actors in outer space to exploit natural resources by removing them in situ in order to circumvent the non-appropriation rule.81 Also, since it

76_{See Section 2.2 and 2.3.}

77_{UNCLOS, supra note 9, Article 87 (1) (e).} 78_{See i.e. IIED, supra note 12.}

79_{See Garret Hardin, ‘The Tragedy of the Commons’ (1968), p 1244-1245, available at}

https://science.sciencemag.org/content/sci/162/3859/1243.full.pdf, last accessed 3 January 2021.

80_{OST, supra note 5, Article I.}

81_{Ibid, the fundamental rule of freedom of exploration and use is however subject to delimitation such as not}

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seems that the extent of the ‘benefit of all mankind’ principle will be determined by the interpretation and subsequent practice of state and authorized private actors, there is no obstacle for self-centered actors to commercially use space for their own benefit.82 The OST does also not contain a binding dispute mechanism with regards to most probable future scenarios of competing usage claims over resources on celestial bodies. Such dispute mechanism is particularly fundamental for a successful global commons system according to economist Elinor Ostrom’s eight principles for managing a common.83 Hardin’s prognosis on the ‘tragedy of the commons’ could therefore prove to be much accurate for the resource pool of outer space if it keeps being unregulated.

However, even if the OST regime proves problematic and insufficient for global commons managing, there exist other global commons regime that could pose as an inspiration for future amendments to the OST or the introduction of a separate complementary system. Such systems are the UNCLOS regime managing the deep seabed and the International Telecommunications Union Regulation (ITU) managing the geostationary orbit were as the latter is frequently more used than the other.

4.2 The UNCLOS Regime and Global Commons Management of the Deep Seabed

The UNCLOS has currently 168 States parties to the treaty which is a sign of diverse representation and overall acceptance of the treaty’s essence among the states of the world.84 The treaty contains over 300 provisions which shows how more developed the treaty is compared to the OST with its 17 provisions.85 The UNCLOS governs two different types of global commons with the high seas and the deep seabed. 86 As for the resources contained in the deep seabed, they are similar to resources in outer space, highly difficult to attain which is evident in the fact that so far exploitation of those resources has only been experimental. The management of those resources are governed by an extensive section of provisions that lay

82_{See the elaboration in section 3.2. It has also to be acknowledged that both the US and Luxembourg have}

made it rather clear that their ‘nationals’ have the right to own and sell resources which shows their stance on the matter, see US Space Act, supra note 67, §§ 51301-51303 and Luxembourg’s Draft Law on the Exploration and Use of Space Resources (July 2017) § 1, available at

https://gouvernement.lu/dam-assets/fr/actualites/communiques/2016/11-novembre/11-presentation-spaceresources/Draft-law-space_press.pdf, last accessed 3 January 2021

83_{See On the Commons ‘Elinor Ostrom’s 8 Principles for Managing a Commons’ Principle 7, available at}

https://www.onthecommons.org/magazine/elinor-ostroms-8-principles-managing-commmons, last accessed 3 January 2021.

84_{See i.e. United Nations Treaty Collection ‘United Nations Convention on the Law of the Sea’, available at}

https://gouvernement.lu/dam-assets/fr/actualites/communiques/2016/11-novembre/11-presentation-spaceresources/Draft-law-space_press.pdf, last accessed 3 January 2021.

85_{See generally, OST, supra note 5, which only has}

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down clear rules on how to implement management of the deep seabed.87 The high seas have been expressed as a domain of res extra commercium while the deep seabed is governed by the common heritage of mankind principle. Even though the two principles have similar traits, they are very much different in their essence. As mentioned before, res extra commercium is a joint access regime with prohibition of any sovereignty claims but still in favor of exploitation. The common heritage of mankind while also being a domain free from sovereignty claims and in favor of exploitation, have several different traits. Such a domain is owned by the whole community, demands rational use of resources and equitable sharing of economic benefits.88 Equitable sharing does no per se means equal sharing since that could allow ‘free-riders’ to equally benefit from doing nothing. UNCLOS does not however elaborate further on what ‘equitable sharing’ entails but it is safe to assume that it means some sharing of resources with all mankind.89_{The use of the deep seabed is also open for non-state actors with the state party} as international responsible, which is certainly similar to the demands of Article VI of the OST.90_{Moreover, all these activities in the deep seabed is governed by the International Seabed} Authority (ISA) which all States parties are ipso facto member to.91_{Apart from the resource} managing ISA, the UNCLOS regime also provides the global commons of the deep sea bed through an extensive dispute mechanism with the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. The Seabed Disputes Chamber has the jurisdiction to settle disputes between State parties or its contractors about interpretation or the application of the treaty regarding the management of the deep seabed.92

This brief presentation of the ISA and its management of the global commons should confirm that the deep seabed regime is a well-equipped system to manage global commons. It would certainly tick several boxes of Ostrom’s eight principles for successfully managing a common. This includes principles such as “clearly defined group boundaries,” which can be interpreted as clearly defined duties and rights of the states, but also “rules governing use of common gods to local needs and conditions” which may imply a common benefit for the whole community notion.93

87_{See generally, UNCLOS, supra note 9, Part XI.}

88_{See Michael W. Lodge, supra note 19, 7 and UNCLOS, supra note 9, Articles 136-137 and 140.}

89_{Equitable sharing in the UNCLOS regime must also consider the needs of developing countries, thus implying}

that sharing with ‘free-riders’ is an obligation, see UNCLOS, ibid, Articles 140 (2) and 160 (f) (i).

90_{Ibid, Article 139 and OST, supra note 5, Article VI.}

91_{Ibid, Article 140 (2), Article 156 and see generally Section 4 ‘The Authority.} 92_{Ibid, Articles 186–187.}

93_{See On the commons, supra note 83, Principles 1-2 but also 7 which implies a dispute mechanism for}

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The UNCLOS regime with the ISA, could serve as a sustainable benchmark for the management of the commons in outer space. Following the model of UNCLOS, the OST can expand on its already established but vague principles such as the ‘benefit for all mankind’ and ‘in the interest of all countries irrespective of economic degree’.94_{There are however some} points that must be considered. First, the common heritage of all mankind is vastly different from the already existing system of res extra commercium in outer space since the former provides a strict obligation to share the benefits of exploitation. It is something that would clearly be discouraging for states that wants to promote exploitation in outer space through use of private actors. It will all depend upon how an ‘equitable sharing’ system would work. Secondly, actual endorsement of the common heritage of mankind of outer space resources has already been proposed by the Moon Treaty and has been met with a lot of reluctance.95 None of the leading space-faring states have signed the treaty since its adoption in 1979. That alone should give an indication of what global commons of outer space are heading. Most leading spacefaring states have ironically signed the UNCLOS thus accepting the common heritage of mankind as a principle in the deep seabed but not in outer space.96

The UNCLOS model is maybe not be a probable model that the outer space community will consent to for outer space.

4.3 ITU Regulation of the Geostationary Arc

The International Telecommunications Union is one of the oldest international organizations in existence. The organization started out in 1865 dedicating itself to the telegraph which was the only long-distance communication form at the time but with technological advancement of communication, ITU became the foundational international organ for satellite and frequencies management. It has today 193 member states which also includes ratifications of its foundational treaties such as the ITU Constitution and the Convention.97_{The ITU’s went from} managing the use of radio frequencies to management of allocating satellites in orbital slots of

of smaller scales of commons which may make some of the principles not entirely suitable to apply for global commons. Ostrom’s research is however an answer to dispute Hardin’s ‘tragedy of the commons’ principle which is often used as a model for global commons, see generally Garrett Hardin, supra note 79.

94_{OST, supra note 5, Article I.}

95_{See Moon treaty, supra note 18, Article 11.6}

96_{Except for the U.S, see UN Treaty Collection, supra note 84.}

97_{See Frans von der Dunk, ‘Legal Aspects of Satellite Communication’ in Handbook of Space Law, supra note}

56, 460-464, Lyall & Larsen, supra note 1, 200-206 and ITU Membership ‘ List of Countries having ratified, accepted, approved (or acceded) to the Constitution and Convention of the International Telecommunications Union (Geneva, 1992) available at, https://www.itu.int/online/mm/scripts/gensel25?agrmtid=0000925204, last accessed 7 January 2021.

International Space Law and the Limitations of Private Conduct in Outer Space Can Contemporary International Space Law Cope with the Ambitions of Private Actors?