Geopolitics of Outer Space

From the SelectedWorks of Scot Shackelford
February 2012
Governing the Final Frontier: A Polycentric
Approach to Managing Space Weaponization and
Debris
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1
GOVERNING THE FINAL FRONTIER:
A POLYCENTRIC APPROACH TO
MANAGING SPACE WEAPONIZATION
AND DEBRIS

SCOTT J. SHACKELFORD*

Abstract

Effective space governance has become increasingly important
to spacefaring and non-spacefaring powers alike given the interrelated
problems of space weaponization and debris management, but thus far
the applicable legal regimes remain amorphous and outdated. For
example, the 1967 Outer Space Treaty (OST) establishes space as being
free from national appropriation, while setting out certain property
rights. But legal ambiguities persist, such as regarding what weapons
are permitted in space since the military use of space has not been
forbidden, only the placement of weapons of mass destruction in orbit
and the establishment of military bases on the moon or other celestial
bodies. Consensus has been difficult to build since the failure of the
Moon Treaty limiting the effectiveness of the United Nations that has
been central to the development of space law. As a result, polycentric
regulation is increasingly been undertaken at multiple levels. This move
away from the United Nations is accelerating resulting in the potential
fragmentation of governance, which has been brought about at least in
part by resistance to the Common Heritage of Mankind concept in the
Moon Treaty. It is critical to assess whether polycentric action is
addressing the outstanding security and environmental issues in outer
space, including space weaponization and junk. Significant scholarly
attention has not been paid to the evolution of space law in this manner,
nor holistically comparing the changes in space law to what is
transpiring in the rest of the global commons, including the atmosphere.

2
Table of Contents

INTRODUCTION................................................................................................ 3
I. THE IMPACT OF TECHNOLOGY, POLITICS, AND RESOURCE SCARCITY ON
THE GOVERNANCE OF OUTER SPACE............................................................ 10
A. TECHNOLOGICAL ADVANCEMENTS IN SPACE TRANSPORTATION........ 10
B. DEMAND FOR SERVICES AND RESOURCE SCARCITY ............................ 12
C. FROM GEOPOLITICS TO ASTROPOLITICS............................................... 13
D. A COMPARATIVE ANALYSIS OF THE IMPACT OF TECHNOLOGY,
SCARCITY, AND POLITICS ON ATMOSPHERIC GOVERNANCE........................ 14
E. SUMMARY ............................................................................................. 15
II. THE EVOLUTION OF SPACE LAW........................................................... 15
A. EARLY REGULATION AND SOVEREIGNTY IN SPACE ............................. 15
B. DEFINING OCCUPATION AND PEACEFUL USE.................................... 18
C. THE EMERGING SPACE REGIME COMPLEX........................................... 21
D. A POLYCENTRIC APPROACH TO SPACE GOVERNANCE......................... 23
III. PROPERTY RIGHTS AND THE NATIONAL REGULATION OF SPACE ....... 28
A. SPACE, INC.: PROPERTY RIGHTS IN SPACE LAW................................... 28
B. ANALYSIS OF NATIONAL SPACE LAWS................................................. 29
1. Commercial Space and the Market Rationalist Approach................ 32
2. Liberal Institutionalists ..................................................................... 33
3. Communal Neorealists ...................................................................... 34
IV. AVOIDING THE ULTIMATE TRAGEDY OF THE COMMONS: MANAGING
SPACE WEAPONIZATION, JUNK AND PROMOTING PEACEFUL, SUSTAINABLE
DEVELOPMENT.............................................................................................. 35
A. THE TRAGEDY OF SPACE COMMONS .................................................... 36
B. INTERNATIONAL COOPERATION AND CONFLICT IN SPACE................... 38
1. The U.S. Approach to International Space Cooperation and its Impact
on Space Governance ............................................................................... 38
2. U.S.-Soviet Space Cooperation and the Role of Nuclear Non-
Proliferation in Space Governance .......................................................... 40
3. The Second Space Race and Chinese Space Policymaking in
International Relations ............................................................................. 43
C. THE END OF THE PEACEFUL USE OF OUTER SPACE?: WEAPONIZING THE
FINAL FRONTIER AND ITS CONSEQUENCES................................................... 47
D. SPACE JUNK AS A COLLECTIVE ACTION PROBLEM .............................. 51
E. REGIME EFFECTIVENESS OF SPACE GOVERNANCE ............................... 56
F. THE FUTURE OF THE FINAL FRONTIER.................................................. 64
CONCLUSION................................................................................................. 67

3
Fifty years after the creation of NASA, our goal is no
longer just a destination to reach. Our goal is the capacity
for people to work and learn and operate and live safely
beyond the Earth for extended periods of time, ultimately
in ways that are more sustainable and even indefinite.
1

President Barack Obama
Introduction
China performed a successful anti-satellite (ASAT) test on
January 11, 2007 destroying an aging Chinese weather satellite target at
an altitude of more than 500 miles with a kinetic kill vehicle launched
on board a ballistic missile.
2
At a stroke, the amount of total space
debris was increased by 25 percent to more than 35,000 pieces larger
than one centimeter each traveling at as much as 17,500 mphthe
equivalent of a 400-pound safe travelling at 60mph.
3
The event
continues to reverberate with resulting debris causing ongoing alerts for
the International Space Station (ISS),
4
threatening satellites and
potentially hindering space commerce, tourism, and exploration.
5
But

*Scott J. Shackelford is an Assistant Professor of Business Law and Ethics at Indiana
University, Kelley School of Business. Professor Shackelford graduated with
distinction from Stanford Law School, and has earned a Ph.D. in politics and
international studies from the University of Cambridge. This article is based off of
chapter four of his 2011 doctoral dissertation, Governing the Global Commons in
International Law and Relations (Nov. 15, 2011) (unpublished Ph.D. dissertation,
University of Cambridge) (on file with University Library, University of Cambridge).
A prior version of portions of this analysis may be found in the authors 2006 Masters
thesis, New Frontiers of International Relations and the Law of Special Sovereignty
Areas (July 17, 2006) (unpublished M.Phil. thesis, University of Cambridge) (on file
with author) (analyzing applicable legal regimes to manage natural resources in special
sovereignty areas). The Article should be considered as a comparative case study to
Scott J. Shackelford, Was Selden Right? The Expansion of Closed Seas and its
Consequences, 47(1) STAN. J. INTL L. 1 (2011) [hereinafter Closed Seas], which was
based on chapter three of his doctoral dissertation and raises similar issues and
arguments. The author wishes to thank Professors James Craford and Michael
Oppenheimer, Dr. Markus Gehring, Dr. Sandra Bunn-Livingstone, Sergiy Negoda,
Steve Doyle, and Michael Mineiro for their invaluable comments and advice on this
text, as well as the invaluable research support of Evan Sarosi. All mistakes are, of
course, my own.
1
NATIONAL SPACE POLICY OF THE UNITED STATES OF AMERICA 5 (June 28, 2010).
2
See Craig Covault, Chinese Test Anti-Satellite Weapon, AVIATION WEEK, Jan. 17,
2007, available at
http://www.aviationweek.com/aw/generic/story_channel.jsp?channel=space&id=news/
CHI01177.xml.
3
United Nations Adopts Space Debris Mitigation Guidelines, 11(2) NASA ORBITAL
DEBRIS Q. NEWS 1, 2 (Apr. 2007) [hereinafter NASA Orbital Debris].
4
Clara Moskowitz, Space junk alert called off for space station crew, MSNBC,
http://www.msnbc.msn.com/id/45407947/ns/technology_and_science-space/ (Nov. 23,
2011, 10:29 AM).
5
See PHILIPA OLLA, COMMERCE IN SPACE: INFRASTRUCTURES, TECHNNOLOGIES, AND
APPLICATIONS 288-289 (2008).
4
the Chinese ASAT test is only the latest in string of incidents that has
led to the proliferation of orbital debris, which is becoming so
commonplace that it may even be crashing through rooftops in
Massachusetts.
6
Governance regimes have thus far failed to effectively
manage the interrelated problems of space weaponization and debris,
raising concerns about a brewing tragedy of the space commons and
underscoring the need for sustainable development of the final frontier.
7

During UNISPACE III, the first U.N. conference on space held
after the end of the Cold War, former U.N. Secretary General Kofi
Annan called Earth, A tiny sanctuary of life in the midst of the
magnitude of the heavens, an oasis beset by rising sea levels,
deforestation, pestilence and war.
8
With the human population
continuing to grow and resource scarcity increasing, space technology
with myriad applications in health, education, disaster management,
communications, and energy has been lauded as an essential tool for
promoting sustainable development.
9
As Anthony Dolman argues, the
key to the worlds wealth and power has shifted to the heavens.
10
This
fact renders global cooperation in space, including the proactive
development of appropriate legal frameworks, a primary imperative for
policymakers. Thus far though, applicable governance regimes remain
amorphous and outdated.
11
This Article analyzes how and why this is
the case by investigating the impact of technology, politics, and resource
scarcity on space law, examining the growth and effectiveness of
polycentric
12
networks to manage the pressing collective action
problems of space weaponization and junk, and arguing for the
application of sustainable development policies to better manage the
space commons.
13

National and commercial interests are increasingly tied to space
in the political, economic, and military arenas. Beyond fanciful notions
of solar energy satellites, fusion energy, and orbiting hotels,

6
Natalie Wolchover, Space junk? Mysterious object crashes into warehouse roof,
MSNBC, (Dec. 2, 2011, 6:40 PM),
http://www.msnbc.msn.com/id/45529518/ns/technology_and_science-science/.
7
The commons may be defined as resource domains in which common pool
resources are found, which may be overexploited and degraded unlike pure public
goods. See for example Paul A. Samuelson, The Pure Theory of Public Expenditure,
36(4) REV. ECON. & STAT. 387 (1954).
8
Proc. Vienna Declaration Space & Human Dev., Vienna, Austria 1999, available at
http://www.un.org/events/unispace3/pressrel/e30pm.htm.
9
See Joseph Bosco, International Law Regarding Outer Space: An Overview, 55 J. AIR
L. & COMM. 612, 621 (1990).
10
See ANTONY DOLMAN, RESOURCES REGIMES WORLD ORDER 17 (1981).
11
Eric Sterner, Beyond the Stalemate in the Space Commons, in THE CONTESTED
COMMONS 116 (CNAS ed., 2010).
12
See, e.g., Elinor Ostrom, A Polycentric Approach for Coping with Climate Change 40
(World Bank Policy Research Working Paper 5095, Oct. 2009).
13
See Closed Seas, supra note 1 (taking a similar approach to analyze the expansion of
closed seas and its consequences).
5
contemporary political issues such as nuclear non-proliferation,
economic development, and human rights are also intimately intertwined
with outer space.
14
Space is now instrumental in global
communications, trade, and the capabilities of the worlds leading
militaries.
15
It has become vital to every nation relying on weather
forecasting, remote sensing, and satellite telecommunications, the latter
of which alone was a more than $150 billion market in 2010.
16
To
underscore its importance, consider the early loss of a satellite in 1998
that affected 45 million people. Those impacted ranged from on-call
doctors who could not be contacted via their pagers to gas station
owners who lost pay-at-the-pump functions.
17
The worldwide space
industry already has a tremendous degree of economic and political
importance and potential, employing over one million people and
growing at an annual rate of 16 percent according to one study.
18

Indeed, in some ways the commercial sector is overtaking national
governmentsthe private sector has been spending more than
government in space since 1997, a sum that surpassed $250 billion in
2008.
19
NASA officials applauded this development. Former
Administrator Michael Griffin stated, Sooner rather than later,
government space activity must become a lesser rather than a greater
part of what humans do in space.
20
That process is now unfolding as
nations around the world reassess, and in some cases reassert, national
space policies leading to an emerging polycentric system featuring
greater regionalization.
The United States continues to be dominant in space, according
to one study spending 81 percent of total worldwide expenditures on
space operations.
21
As such, U.S. space policy has a disproportionate
impact on space governance. President Obama announced a new U.S.
Space Policy on April 15, 2010, which includes plans to contract with
private companies to resupply the ISS and to build an advanced heavy-

14
See Ty S. Twibell, Space Law: Legal Restrains on Commercialization and
Development of Outer Space, 65 UMKC L. REV. 589, 591 (1996-1997).
15
Outer space is defined as the area above airspace. Since the composition of the
atmosphere changes gradually as elevation increases, defining exactly where airspace
ends and outer space begins has proven problematic. Proposals have ranged from 80 to
100 kilometers, as well as simply the point at which artificial satellites may be placed
into orbit. See James Kraska, Indistinct Legal Regimes, in SECURING FREEDOM IN THE
GLOBAL COMMONS 58 (Scott Jasper ed., 2010).
16
See Keny Fuchter, Chinas Military Space Strategy, 12(2) RAF AIR POWER REV. 53,
62 (Summer 2009).
17
See Mike Manor & Kurt Neuman, Space Assurance, in SECURING FREEDOM IN THE
GLOBAL COMMONS 100 (Scott Jasper ed., 2010).
18
W. HENRY LAMBRIGHT & SCOTT PACE, THE FUTURE OF SPACE COMMERCE: SPACE
POLICY IN THE TWENTY-FIRST CENTURY 90 (2003).
19
See THE SPACE REPORT 2008: THE AUTHORITATIVE GUIDE TO GLOBAL SPACE
ACTIVITY 1-2 (2008) [hereinafter THE SPACE REPORT].
20
Michael Griffin, Remarks at Center for Strategic and International Studies, Workshop
on Space Exploration and International Cooperation (Nov. 5, 2005).
21
THE SPACE REPORT, supra note 19.
6
lift rocket for human deep space exploration.
22
Absent from the speech
were any references to the military use of space, though the Obama
Administration has promoted a policy of banning space weapons that
interfere with satellites.
23
Nor did President Obama discuss the growing
problem of orbital debris,
24
which is now at a tipping point according to
a 2011 U.S. National Research Council report.
25
This speech
underscores both the changing nature, and continued difficulties of space
policymaking. Under the Presidents plan, the task of accessing near-
Earth space is given over to private firms, while security and
environmental problems are sidestepped. This Article investigates
whether space is reminiscent of the other parts of the global
commons,
26
such as the deep seabed,
27
in that it is transitioning from a
multilateral system centered on the United Nations to a polycentric
regime complex, defined here as a collective of partially overlapping
and non-hierarchical regimes
28
that vary in extent and purpose but
embrace bottom-up governance. The basic idea of polycentric
governance according to Professor Michael McGinnis is that a group
facing a collective action problem should be able to address it in
whatever way they see fit, which could include using existing or crafting
new governance structures; in other words, the governance regime
should facilitate the problem-solving process.
29
If applicable to outer
space, this advent may represent a watershed moment in the history of
space governance.

22
See Remarks by the President on Space Exploration in the 21
st
Century, John F.
Kennedy Space Center, Apr. 15. 2010, available at
http://www.nasa.gov/news/media/trans/obama_ksc_trans.html.
23
See U.S.-China Joint Statement, THE WHITE HOUSE (Nov. 17, 2009), available at
http://www.whitehouse.gov/the-press-office/us-china-joint-statement; and Tim Dobbyn,
Challenges loom as Obama seeks space weapons ban, REUTERS, Jan. 25, 2009,
available at http://uk.reuters.com/article/idUKTRE50O15X20090125.
24
See NASA Orbital Debris Program Office (July 2009),
http://orbitaldebris.jsc.nasa.gov/faqs.html (last visited Sept. 21, 2011); and James
Oberg, Space station dodges controversial junk, MSNBC, Feb. 3, 2009, available at
http://www.msnbc.msn.com/id/26441443/.
25
See LIMITING FUTURE COLLISION RISK TO SPACECRAFT: AN ASSESSMENT OF NASAS
METEOROID AND ORBITAL DEBRIS PROGRAMS 1 (Natl Res. Council, 2011) [hereinafter
ASSESSMENT].
26
See ROBERT O. KEOHANE & DAVID G. VICTOR, THE REGIME COMPLEX FOR CLIMATE
CHANGE 10 (Harvard Kennedy School ed., 2009), available at
http://belfercenter.ksg.harvard.edu/files/Keohane_Victor_Final_2.pdf (arguing that a
global commons is a descriptive term referring to a resource that it is difficult or
impossible to exclude others from enjoying but that is degraded by use.); and
CHRISTOPHER JOYNER, GOVERNING THE FROZEN COMMONS: THE ANTARCTIC REGIME
AND ENVIRONMENTAL PROTECTION 221, 255 (1998).
27
See Closed Seas, supra note 1.
28
Kal Raustiala & David G. Victor, The Regime Complex for Plant Genetic Resources,
58(2) INTL. ORG. 277, 277 (2004).
29
Michael D. McGinnis, Costs and Challenges of Polycentric Governance, Workshop
on Analyzing Problems of Polycentric Governance in the Growing EU, Humboldt
University, in Berlin, Ger. (June 16-17, 2005), at 1-2.
7
After the failure of the Moon Treaty due in part to resistance to
the Common Heritage of Mankind (CHM) concept requiring the
peaceful and equitable use of global common pool resources,
30

consensus has been difficult to build in regulating space thereby limiting
the effectiveness of the U.N. Committee for the Peaceful Uses of Outer
Space (COPUOS) that had been central to the development of space law.
Instead, many States are becoming increasingly active in regulating
space nationally, with the number of national space laws tracked by the
U.N. Office of Outer Space Affairs (OOSA) quadrupling from the 1980s
through the 1990s as shown in Figure 1.
31
But these regulations have
failed to address mounting security and environmental problems. For
example, the OST establishes space as being free from national
appropriation, while setting out certain property rights in space, such as
for objects launched into space, structures built on planets and asteroids,
and in situ resource utilization.
32
But it remains unclear to what extent
property rights exist for other activities, such as mining. Moreover,
existing treaties are ambiguous as to exactly what weapons are permitted
in space since the military use of space was not forbidden by the OST,
only the placement of weapons of mass destruction in orbit and the
establishment of military bases on the moon or other celestial bodies.
33

The U.S. Space Commission Report has surmised that since air, land,
and sea become battlegrounds, space will too.
34
U.S. General Joseph
Ashy, Commander-in-Chief of U.S. Space Command, agreed with the
Reports findings when he stated, Absolutelywere going to fight in

30
See Christopher C. Joyner, Legal Implications of the Concept of the Common
Heritage of Mankind, 35 INTL & COMP. L.Q. 190, 190199 (1986). A precise
definition of the CHM concept has never been specific as applied to outer space. In its
most positive form, it fosters international cooperation to develop and equitablly
distribute the benefits to common pool resources. Most conceptions of the CHM share
five primary elements. First, there can be no private or public appropriation of the
commons.

Cf LAURI HANNIKAINEN, PREEMPTORY NORMS (JUS COGENS) IN
INTERNATIONAL LAW 562 (1988) (noting that the global commons may in fact be
appropriated under international law). Second, representatives from all nations must
manage common resources. Third, all nations must share in the benefits acquired
through exploitation of the area. Fourth, the commons must be used for peaceful
purposes. Fifth, the commons should be preserved for the benefit of future generations.
See Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed,
Outer Space, and Antarctica: Will Developed and Developing Nations Reach a
Compromise?, 21 WIS. INTL L.J. 409, 411 (2003); and Linda Billings, How Shall We
Live in Space? Culture, Law and Ethics in Spacefaring Society, 22 SPACE POLICY 249,
251 (2006).
31
See infra p.30.
32
The 1967 Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967,
18 U.S.T. 2410, 610 U.N.T.S. 205, arts. 2, 4 & 7 (entered into force Oct. 10, 1967)
[hereinafter OST].
33
See See OST, supra note 32, art. 4; and Kraska, supra note 15, at 59.
34
See REPORT OF THE COMMISSION TO ASSESS UNITED STATES NATIONAL SECURITY
SPACE MANAGEMENT AND ORGANIZATION, EXECUTIVE SUMMARY 8-9 (Jan. 11, 2011);
and MICHAEL ROMANCOV, FROM GEOPOLITICS TO ASTROPOLITICS 5 (1999).
8
space.
35
If the United States continues to exploit its military
advantages and rising powers such as China feel compelled to respond, a
space race could commence making China the third man in the fourth
battlefield.
36
Similarly, orbital debris has not been mitigated, though
new bilateral initiatives show some promise such as the Space
Situational Awareness Partnerships between the United States,
Australia, and France.
37
Indeed, it could be argued that given the fact
that space law is not responding to the modern challenges of space
activities, effective governance is becoming increasingly bilateral.
This Article analyzes the evolution of space law and builds a
contemporary picture of space governance by assessing how and why
space law has developed in the way that it has along with examining
how effective emerging polycentric regimes have been in sustainably
and peacefully managing the final frontier.
38
As such, this analysis may
be considered a first step in moving beyond the appeal of polycentric
space regimes in the abstract and begin to, in the words of Professor
William Boyd, offer more thick description of how these forms of
governance are taking shape, and pay more attention to the connective
tissues that bind and hold these forms together.
39
I argue that there is
not a legal vacuum in the regulation of space. Instead, the primary
question is regarding the application of vague rules in the face of strong
national and commercial interests that are engaged in building
polycentric systems.
Three variables are considered to answer Professor Boyds
charge and to provide a useful analytical framework for investigating
whether and how they are influencing the legal regimes governing
space, including regulatory responses to the collective action problems
of space weaponization and orbital debris.
40
These include: (1)
technological advancements opening up space to commercial operations

35
Karl Grossman, Master of Space, THE PROGRESSIVE, May 1, 2005, available at
http://www.hartford-hwp.com/archives/27c/537.html.
36
See Strength of International Space Law to Prevent Militarization of Outer Space,
U.N. GENERAL ASSEMBLY PRESS RELEASE GA/SPD/458, Oct. 14, 2010, available at
http://www.un.org/News/Press/docs//2010/gaspd458.doc.htm; and Scott J. Shackelford,
From Asian Politics to Astropolitics: The History and Future Shape of Asian Space
Policy, 58 PROC. INTL ASTRONAUTICAL FEDN 8 (2007).
37
See, e.g., US, France to sign accord on tracking space debris, AFP, Feb. 7, 2011,
available at
http://www.google.com/hostednews/afp/article/ALeqM5i1kZsPIpzSF0KIcer_ZZ26XtA
u7g?docId=CNG.421844de3e38acde175203b0eacf6239.501.
38
Regime effectiveness studies, though, are limited to modest conclusions due to the
presence of confounding variables among other concerns and must not be interpreted as
being causal, as is explained further below. See infra p.56.
39
William Boyd, Climate Change, Fragmentation, and the Challenges of Global
Environmental Law: Elements of a Post-Copenhagen Assemblage, 32 U. PA. J. INTL L.
457, 516 (2010).
40
See JOHN VOGLER, THE GLOBAL COMMONS: A REGIME ANALYSIS 101 (1995).
9
and potentially dual-use military applications
41
, (2) growing demand for
space-based commercial services and orbital slots
42
, and (3) the role of
domestic and multipolar politics in influencing space governance.
43
I
argue that together these variables contribute to a more robust
understanding of the reasons behind the growth of the space polycentric
regime complex with significant implications for the peaceful and
sustainable use of the area. Comparisons and contrasts with the deep
seabed, atmosphere, and cyberspace regimes are offered to couch the
analysis in greater context and determine what if any trends may be
present. Other outstanding issues in space law such as defining property
rights are beyond the scope of this Article.
To summarize, this Article analyzes the evolution of space
governance and investigates how and why it is changing through the
analytical framework of technology, scarcity, and politics. The study
then moves on to examine what space governance is evolving into
through the lens of polycentric analysis. Finally, I evaluate some of the
consequences of space governance remaining in flux, focusing on the
security and environmental problems of space weaponization and orbital
debris. In economic terms, I ask how well current legal regimes are
functioning to avoid collective action problems. Legally, does the
proliferation of national regulations represent a challenge to the CHM
concept in space, and might sustainable development be a more robust
vehicle for managing the space commons than the CHM concept? And
politically, is a regime complex forming thereby challenging the central
role of the U.N. in space governance, and if so, what have been the
consequences of this system to date? Significant scholarly attention has
not been paid to the evolution of space law in this manner.
44
This
Article thus makes an original contribution to the field by applying
polycentric governance to the space commons including the analysis of
national space laws,
45
offering new data on regime effectiveness in outer
space with necessary caveats due to the presence of confounding
variables, and analyzing how and why space governance is changing
through a novel analytical framework. This analysis is critical given the
importance of orbital space to economic and scientific development, as

41
See DEV. CONCEPTS AND DOCTRINE CTR., U.K. MINISTRY OF DEFENCE, STRATEGIC
TRENDS PROGRAMME: GLOBAL STRATEGIC TRENDSOUT TO 2040, at 11 (4th ed. 2010)
[hereinafter DCDC] (noting that since most of the remaining unexploited resources
across the world are located within the global commons, technology could move these
areas long at the frontiers of international relations to the core).
42
Id. at 15, 40.
43
Cf. at 15.
44
See for example Kraska, supra note 15, at 58-59.
45
But see Charity T. Ryabinkin, Let There Be Flight: Its Time to Reform the
Regulation of Commercial Space Travel, 69 J. AIR L. & COM. 101, 118 (2004) (noting
that space tourism exists within a polycentric universe of international obligations and
economic limitations); and Ellen P. Goodman, Spectrum Rights in the Telecosm to
Come, 41 SAN DIEGO L. REV. 269, 399 (2004) (noting that spectral pollution presents
the kind of polycentric problem that courts have difficulty resolving).
10
well as geopolitics. Space is in some ways the ultimate commons.
Ensuring its sustainable development and peaceful use is a critical case
study in commons management.
46

The Article is structured as follows. Part One investigates the
impact of the variables of technology, scarcity, and multipolar politics
on space governance. Part Two discusses the evolution of space law
from the OST to the present. Part Three analyzes the extent to which the
governance structures of space are evolving, with increasing national
and private sector control. Finally, Part Four examines whether the
emerging space regime complex is mitigating the collective action
problems of space weaponization and junk, and discusses what more
might be done to help avoid the tragedy of the space commons.
I. The Impact of Technology, Politics, and Resource Scarcity
on the Governance of Outer Space
Three variables provide a useful analytical framework for
investigating the evolution of space governance. First, technological
advancements are allowing for increased commercialization and dual-
use military activities. Second, growing demand for space-based
services is driving intensified space operations. And third, the end of the
so-called golden age of space law and the subsequent rise of
multipolar international relations has made managing outstanding
security and environmental issues difficult.
47
Each variable is
introduced in turn, and returned to throughout the Article.
A. Technological Advancements in Space Transportation
Technological advancements are driving interest in the global
commons, which are spaces situated beyond the limits of national
jurisdiction, open to use by the international community but closed to
exclusive appropriation by treaty or custom.
48
At its height the global
commons comprised more than 75 percent of the Earths surface,
including: the deep seabed, Antarctica, and outer space.
49
Advances in

46
See Closed Seas, supra note 1, at 6.
47
The phrase golden age, while popular in the literature is misleading since this
period of progress in multilateral treaty making in the deep seabed and outer space was
also marred by deep political divides and security concerns. It is used here merely as
shorthand referring to the period extending from the 1967 Outer Space Treaty to the
1982 Moon Treaty.
48
JOYNER, supra note 26, at 255.
49
See Paul A. Berkman, International Spaces Promote Peace, 462(26) NATURE 412,
412 (Nov. 2009); U.S. National Oceanographic and Atmospheric Administration
(NOAA), Ocean, available at http://www.noaa.gov/ocean.html; and U.S. DEPT OF
DEFENSE, THE STRATEGY OF HOMELAND DEFENSE AND CIVIL SUPPORT 12 (2005),
available at http://www.defenselink.milinews/Jun2005 [hereinafter 2005 U.S. DEPT OF
11
rocketry and the threat of intercontinental ballistic missiles and nuclear
weapons in space have influenced space treaty making since the dawn of
the Space Age.
50
While companies such as U.S.-based Space
Exploration Systems (SpaceX) are working to dramatically lower the
cost of launching payloads into low-Earth orbit, which currently stands
at approximately $10,000/pound.
51
Already, Virgin Galactic is
reportedly offering a lower rate of $1,000/pound for sub-orbital fights,
52

while NASA is working to develop a series of Next-generation Launch
Vehicles to lower this cost to $100/pound by 2025.
53
Governments are
also directly supporting burgeoning space industry. For example,
NASAs Commercial Crew and Cargo Program manages Commercial
Orbital Transportation Services partnership with U.S. industry investing
over $500 million in commercial cargo transportation,
54
and funding
everything from launch vehicles to orbiting fuel depots.
55
Boeing is
developing a commercial space taxi under this program as other
companies are moving to mass-produce commercial space station
modules.
56
Thus, space technology and industry are moving ahead
rapidly, challenging space law to keep up.
57
Technological
advancements prompted Judge Manfred Lachs, former President of the
International Court of Justice (ICJ) to say, As science and technology
open up space at an enormous speed, much more remains to be done.
58

Ultimately, technology may even help address the collective action
problems that have resulted from governance lapses, such as orbital
debris.
59
But in addition to technological capabilities, space governance
is also influenced by commercial demand for space-based services and
resource scarcity.

DEFENSE] (noting that international airspace and cyberspace are also often considered to
be extraterritorial areas of the global commons).
50
See SUSAN J. BUCK, THE GLOBAL COMMONS: AN INTRODUCTION 138 (1998).
51
See SpaceX Company Overview, http://www.spacex.com/company.php (last visited
Sept. 21, 2011).
52
See Jonathan Coopersmith, Obama in space: bold but not bold enough, SPACE REV.,
Apr. 12, 2010, available at http://www.thespacereview.com/article/1603/1.
53
See NASA Advanced Space Transportation Program: Paving the Highway to Space,
http://quest.arc.nasa.gov/aero/virtual/demo/research/youDecide/advSpacTrans.html (last
visited Sept. 21, 2011).
54
See Overview of NASA Commercial Crew and Cargo Program,
http://www.nasa.gov/offices/c3po/home/ (last visited Sept. 21, 2011).
55
See NASA Offers $200 Million for Gas Station Depot in Space, Space.com, May 9,
2011, http://www.space.com/11608-space-gas-stations-nasa-orbital-refueling.html.
56
See Irene Klotz, Boeing Tapping Heritage Programs for Space Taxi Design, SPACE
NEWS, Nov. 25, 2011, available at http://www.spacenews.com/civil/111125-boeing-
heritage-space-taxi-design.html.
57
See Remarks by the President, supra note 22.
58
See NANDASIRI JASENTULIYANA, SPACE LAW: DEVELOPMENT AND SCOPE 103 (1992).
59
See Charles Q. Choi, Earth-based Lasers Could Zap Space Junk Clear From
Satellites, Space.com, Mar. 17, 2011, available at http://www.space.com/11157-nasa-
lasers-shooting-space-junk.html.
12
B. Demand for Services and Resource Scarcity
From now ubiquitous GPS-enabled devices,
60
to the prevalence
of telecommunications satellites, space-based services are already a
huge and fast growing business with the overall market in Europe alone
estimated to be 21 billion in 2005.
61
Going forward, this business will
be dwarfed by the demand for resources as commodity prices increase.
The global commons is increasingly a resource domain vital to the world
economy, securing access to which may be the signal security
challenge of the twenty-first century.
62
A U.K. Ministry of Defense
think tank predicts, The economic prosperity of many states will
depend on functioning globalized markets and access to the global
commons[and that] access to the global commons. will be a
priority for virtually all states.
63
Some studies have determined that
three to five trillion barrels of oil remain on Earth, while contested
estimates suggest production will peak within 35 years.
64
Other
resources, such as silver, tin, and copper could conceivably be nearing
exhaustion sooner depending on demand.
65
Technological advances
could alter these predictions, but the salient point remains: the Earths
resources are finite. Even if it takes centuries, at some point it will no
longer be economically feasible to acquire necessary resources from
traditional sources. When the marginal cost is sufficiently high, private
and public entities will look to new resource areasto the deep seabed,
and eventually the inexhaustible resources of outer space. According to
one study, Halleys comet contains hydrocarbons comparable in quantity
to the Earths entire reserves.
66
China is reportedly pursuing the
development of space-based infrastructure to access these resources.
67

Developing space industry could also help alleviate ongoing concerns

60
See U.S. Space-Based PNT Policy, NATL EXEC. COMM., available at
http://pnt.gov/policy/.
61
See Charlotte Matthieu, Space-Based Services in Europe: Addressing the Transition
Between Demonstration and Operation, EUROPEAN SPACE POL. INSTITUTE, Mar. 17,
2009 at 10, available at http://www.eomag.eu/articles/896/espi-report-17-on-the-
development-of-space-based-services-in-europe-online.
62
Patrick M. Cronin, Foreword: SECURING FREEDOM IN THE GLOBAL COMMONS ix
(Scott Jasper ed., 2010).
63
DCDC, supra note 41, at 15, 46.
64
See Jean-Paul Rodrigue, World Annual Oil Production (1900-2009) and Peak Oil
(2010 Scenario), (Hofstra Univ., 2011), available at
http://people.hofstra.edu/geotrans/eng/ch5en/appl5en/worldoilreservesevol.html.
65
E.g., Thomas D. Kelly & Grecia R. Matos, Historical Statistics for Mineral and
Material Commodities in the United States, U.S. GEO. SURVEY SERIES 140 (Jan. 10,
2011), available at http://minerals.usgs.gov/ds/2005/140/.
66
See LOTTA VIIKARI, FROM MANGANESE NODULES TO LUNAR REGOLITH: A
COMPARATIVE LEGAL STUDY OF THE UTILIZATION OF NATURAL RESOURCES IN THE
DEEP SEABED AND OUTER SPACE 158-62 (2002).
67
See Wei Long, China Eyes Territorial Claim of Outer Space, SPACE DAILY, Jan. 21,
2001, available at http://www.spacedaily.com/news/china-02f.html.
13
over climate change by moving polluting industries off planet, impacting
atmospheric governance.
68
The legal regime that the international
community creates now will govern the manner and rate at which space
develops. The question then becomes whether ambiguities in space law
are impeding development, and whether it is politically possible to
address this issue given the multipolar state of international affairs.
C. From Geopolitics to Astropolitics
Both domestic politics and multipolar international relations play
an important role in space policymaking. For example, U.S. rejection of
and eventual support for a space weapons ban has been instrumental in
the slow progress in regulating this area.
69
The Cold War shaped space
policymaking for decades, as is explored in Part Four. The failure of the
Moon Treaty due in part to its inclusion of the CHM concept has, as is
discussed below, called into question the continued validity of the CHM
concept in space law,
70
while the rise of multipolar politics has made it
increasingly difficult to reach consensus through the U.N. Office of
Outer Space Affairs.
71
The U.K. Ministry of Defense sums up the
situation succinctly: Out to 2040, the locus of global power will move
away from the United States and Europe towards Asia, as the global
system shifts from a unipolar towards a multi-polar distribution of
power.
72
With the rise of multipolar politics and the Rest,
73

distinctions between West and East, developing and developed
countries, and even the North and the South are impacting international
lawmaking.
74
This changing distribution of power among States is a

68
See IPCC, Climate Change 2007: Synthesis Report, Summary for Policymakers (Nov.
17, 2007), http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ar4_syr_spm.pdf.
69
E.g., Turner Brinton, Obamas Proposed Space Weapon Ban Draws Mixed Response,
Space.com, Feb. 4, 2009, available at http://www.space.com/news/090204-obama-
space-weapons-response.html.
70
But see Robert N. Haass, The Age of Nonpolarity: What Will Follow U.S. Dominance,
87 FOREIGN AFF. 44, 44 (2008) (arguing for a nonpolar world order, and stating that
States are being challenged from above, by regional and global organizations; from
below, by militias; and from the side, by a variety of NGOs and corporations. Power is
now found in many hands and in many places.).
71
See Gp. Capt. Ian Shields, Book Review: ASTROPOLITIK: CLASSICAL GEOPOLITICS IN
THE SPACE AGE, 12(2) RAF AIR POWER REVIEW 124, 124 (2009) (defining geopolitics
as the study of states as spatial phenomena, with a view towards understanding the
greographical bases of power, and astropolitics is the study of the relationship
between outer space terrain and technology, and the development of political and
military policy and strategy.).
72
DCDC, supra note 41, at 10.
73
Fareed Zakaria, The Rise of the Rest, NEWSWEEK, May 12, 2008, available at
http://www.newsweek.com/id/135380.
74
See S. CARLLSON, ET AL., OUR GLOAL NEIGHBOURHOOD: THE REPORT OF THE
COMMISSION ON GLOBAL GOVERNANCE 10 (1995).
14
major factor influencing the development of international law generally,
and space law specifically.
75

D. A Comparative Analysis of the Impact of Technology, Scarcity,
and Politics on Atmospheric Governance
To compare and contrast how the forces of technological
advancement, politics, and scarcity are playing out in different areas of
the global commons, consider atmospheric governance. During the 15
th

Conference of the Parties to the United Nations Framework Convention
on Climate Change (UNFCCC) held in Copenhagen in December 2009,
delegations from 192 nations came together to address the mounting
problem of global climate change.
76
With temperatures by 2100 set to
rise between 1.1 and 6.4 degrees Celsius, weather patterns changing, and
global sea levels rising at twice the average rate, climate change is a
problem affecting the whole world but one in which benefits are diffuse
and the harms concentrated.
77
As such, it is a classic collective action
problem in which it is in the best interest of individual nations to free
ride. This behavior was on display at COP15, with the actions of a few
nations, including Saudi Arabia, Bolivia, and Nicaragua, able to block
progress for days underscoring the difficulties of treaty making in a
multipolar world. At the heart of the issue was how the atmosphere
should be governed: what form should regulation take, what is the most
appropriate level for regulation to take place, and how can compliance
be enforced? In the end, COP15 proved unable to answer these
questions.
The issues that COP15 underscored are not limited to the
atmosphere but also apply to outer space, including: the changing role
of the United Nations; the rise of multipolar global politics and its effect
on commons governance; and rapid technological advancements
alongside growing scarcity. For example, COP15 demonstrated the
difficulty of reaching consensus between major emerging markets such
as the BASIC group (Brazil, South Africa, India, and China) with the
other power centers comprising the United States, European Union, and
the G77. The difficulty in reaching consensus across such an array of
interests has led to the development of more targeted forums both in
terms of membership and subject matter, what could be considered a
polycentric approach to atmospheric management. Moreover, COP15
demonstrated the extent to which negotiations over implementing the

75
OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 9 (1991).
76
See Emma Duncan, Getting Warmer: Special Report on Climate Change,
ECONOMIST, Dec. 5. 2009.
77
See IPCC Special Report on Climate Change,
http://www.ipcc.ch/ipccreports/tar/wg2/index.php?idp=55. See also IPCC WORKING
GROUP III IN CLIMATE CHANGE 1994: RADIATIVE FORCING OF CLIMATE CHANGE AND
AN EVALUATION OF THE IPCC IS92 EMISSIONS SCENARIOS 233 (J. T. Houghton et al.
eds., 1995).
15
CHM concept have changed over time, according to Professor Michael
Oppenheimer, lead author of the third and fourth Intergovernmental
Panel on Climate Change assessments.
78
[P]ragmatism and efficiency
has led to the uptake of emissions trading, which some view as
privatization of the commons, argues Professor Oppenheimer.
79
On
the other hand, the other four principles remain more or less embedded
in current understanding. What has fallen by the wayside is that the
principle of equity is seen as a very distant objective.
80
COP15 is
thus a microcosm both of what is at stake in the commons, and how
politically, economically, and legally difficult it is to create new
governance structures to address these collective action problems.
E. Summary
In summary then, technological progress, resource scarcity, and
the rise of multipolar politics are all putting pressure on space
governance, which is explored further in Part Four. Regulatory change
must keep pace with technical, political, and economic change if the
tragedy of the space commons is to be avoided.
81
In order to determine
whether this is taking place, the evolution of space law to date must be
reviewed to provide a foundation for analysis.
II. The Evolution of Space Law
This Part provides an overview of space law, with particular
emphasis on the evolution of property rights and the regulation of space-
based weapons and orbital debris. Section A analyzes the birth of space
law and its origins in the freedom of the seas concept through to the
Outer Space Treaty. Section B then briefly examines property rights and
the contemporary position of the CHM concept in space law. Finally,
Section C critiques the emerging space regime complex.
A. Early Regulation and Sovereignty in Space
Space law is based on the principle that outer space, including
celestial bodies, should remain open and freely accessible for

78
Telephone interview with Michael Oppenheimer, Albert G. Milbank Professor of
Geosciences and International Affairs, Princeton University, in Raleigh, N.C. (Feb. 7,
2010).
79
Electronic interview with Michael Oppenheimer, Albert G. Milbank Professor of
Geosciences and International Affairs, Princeton University, in Raleigh, N.C. (Jan. 23,
2012).
80
Id.
81
See infra p.35; and Garett Hardin, The Tragedy of the Commons, 162 SCI. 1244,
1244-45 (1968).
16
exploration and use by all peoples.
82
This principle is even broader than
the original Law of the Sea (LOS) concept, prior to resource discoveries
and technological progress incentivizing layered jurisdiction.
83
And like
the LOS, space law is based on multilateral treaties, bilateral accords,
and national regulations due in part to the rapid pace at which
technology has opened up space to exploration and exploitation.
84
As
the proposed usages of outer space multiplies, so too do the complexity
of claims and challenges to existing norms. Differing interpretations of
the general principles that guide space law abound. A brief review of
these principles undergirding space law provides a useful framework for
analysis.
The first article calling for a legal regime for outer space
appeared in 1910.
85
Yet it was not until before the 1958 launch of
Sputnik that the push for regulation commenced when the international
community began to realize the dangers of unregulated, open access
space.
86
This process was crystallized by the International Geophysical
Year (IGY) 1957-1958. The superpowers were initially supportive of
international space cooperation, and sought to promote the peaceful use
of space.
87
In 1957, the U.N. took the then radical position that outer
space was to be used only for peaceful purposes, also barring national
appropriation.
88
Over time, this viewpoint was confirmed by State
practice, which showed that outer space could be used for peaceful and
scientific purposes without regard to subjacent sovereignty due to the
high cost of enforcing national sovereignty in space and the benefits of
orbiting satellites.
89

International lawmaking in space began with U.N. General
Assembly (UNGA) Resolutions creating the United Nations Committee
on the Peaceful Uses of Outer Space, which became the locus for the
advancement of international space law.
90
COPUOS became a
permanent U.N. committee in 1959 and now boasts 71 Member States,

82
See BUCK, supra note 50, at 148.
83
See PHILIP C. JESSUP & HOWARD TAUBENFELD, CONTROLS FOR OUTER SPACE AND
THE ANTARCTIC ANALOGY 211 (1959).
84
But see BUCK, supra note 50, at 137; and MORRIS R. COHEN & FELIX S. COHEN,
READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 12-13 (1954).
85
See Bosco, supra note 9, at 612 n.17; and BUCK, supra note 50, at 164, n.4.
86
87
See ANDREW HALEY, SPACE LAW AND GOVERNMENT 65-66 (1963).
88
See G.A. Res. 1148[XII] of Nov. 14, 1957, par. I[f]; and G.A. Res. 1348, 13 U.N.
GABR Supp. (no. 18) at 5 U.N. Doc. A/4090 (1958).
89
See HALEY, supra note 87, at 73l; BUCK, supra note 50, at 141-42; and C. WILFRED
JENKS, SPACE LAW 97-98 (1965).
90
These include G.A. Res. 1348, para. 13, U.N. GAOR, 13th Sess., Supp. No. 18, U.N.
Doc. A/4090 (Dec. 13, 1958), G.A. Res. 1472, para. 13, U.N. GAOR, 14th Sess., Supp.
No. 16, U.N. Doc. A/4354 (Dec. 12, 1959), G.A. Res. 1721, para. 16, U.N. GAOR,
Supp. No. 17, U.N. Doc. A/5100 (Dec. 20, 1961), G.A. Res. 1802, para. 17, U.N.
GAOR, 17th Sess., 1192d plen. mtg., U.N. Doc. A/RES/1802 (1962), and G.A. Res.
1962, para. 18, U.N. GAOR, Supp. (No. 15) at 15 U.N. Doc. A/5515 (Dec. 13, 1963).
17
with Thailand, Azerbaijan, and Tunisia joining in 2010.
91
Throughout
the 1960s and 1970s, COPUOS engendered cooperation and consensus
building, as seen in the five primary international treaties, six UNGA
Resolutions, and numerous bilateral and multilateral agreements
concerning outer space that were enacted between 1962 to 1979.
92

Progress was made easy in part due to the fact that the technology for
economical space travel had not yet been realized, underscoring the
central importance of technology in developing space.
93
As with
Antarctica, scientists fought to have science become the currency of
public diplomacy in space. But the cost of space exploration limited the
pool of nations that were capable of taking part.
94
Other factors that
contributed to the rapid evolution of space law included the fact that
precedents in the form of the Antarctic Treaty and customary air law
already existed.
95

Table 1: Chronology of the Golden Age of Space Law
96

Year Event
1957-58 International Geophysical Year
1957 USSR launches Sputnik I
1958 U.N. Resolution 1348 (XIII) establishes the ad hoc
Committee on the Peaceful Uses of Outer Space
1959 COPUOS becomes a permament UN body
1967 Treaty on Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies (Outer Space Treaty) (in
force 1967)
1968 Agreement on the Rescue of Astronauts, the Return of
Astronauts, and the Return of Objects Launched into Outer
Space (Rescue Agreement) (in force 1968)
1969 Apollo 11 lands on the Moon

91
United Nations Committee on the Peaceful Uses of Outer Space: Members,
http://unoosa.org/oosa/COPUOS/members.html (last visited Nov. 7, 2011). The
original COPUOS Member States included: Argentina, Australia, Belgium, Brazil,
Canada, Czechoslovakia, France, India, Iran, Italy, Japan, Mexico, Poland, Sweden, the
United Arab Republic, the United Kingdom, the United States, and the USSR. See
BOSCO, supra note 9, at 613. Membership grew gradually, with China joining in 1980,
and many developing nations becoming involved to increase regional representation.
92
VIIKARI, supra note 66, at 87-89. See BIN CHENG, STUDIES IN INTERNATIONAL SPACE
LAW 155-57 (1997). For a more complete analysis of the golden age of space law and
the failure of the Moon Treaty, see Scott J. Shackelford, The Tragedy of the Common
Heritage of Mankind, 28 STAN. ENVTL. L.J. 109, 131-36 (2009) [hereinafter Tragedy].
93
VIIKARI, supra note 66, at 13 (noting the role of scientists as well as military
industrial complexes in pushing space exploration and development).
94
BUCK, supra note 50, at 145.
95
Id. at 152.
96
Figure redrawn from Id. at 143.
18
1972 Convention on International Liability for Damage Caused
by Space Objects (Liability Convention ) (in force 1973)
1974 Convention on Registration of Objects Launched into Outer
Space (Registration Convention) (in force 1976)
1979 Agreement Governing the Activities of States on the Moon
and Other Celestial Bodies (Moon Treaty) (in force 1984)

Today, the outer space legal regime is defined by five major
treaties: the Outer Space Treaty, the Rescue Agreement, the Liability
Convention, the Registration Convention, and the Moon Treaty. None
of these explicitly regulate orbital debris, effectively manage space
weaponization, or define property rights. However, several of the
treaties, such as the OST and the Moon Treaty, bear some relation to
these topics and are examined next.
B. Defining Occupation and Peaceful Use
Space law broke new ground beginning after the launch of
Sputnik in 1958 by considering the welfare of humanity as a whole
breaking with traditional notions of Westphalian sovereignty. Consider
Articles 2 and 4 of the Outer Space Treaty.
97
Article 2 bars national
appropriation of the moon and other celestial bodies by claim of
sovereignty, by means of use or occupation or by any other means,
98

leading to contrasting interpretations between commentators as to the
sufficiency of property rights for commercial development.
99
Space
lawyers remain divided on the question of occupation. This dispute was
addressed by UNGA Resolution 1721 and partially resolved by the OST,
which proclaimed outer space to be the province of all mankind,
100
but
not a CHM.
101
Indeed, the phrase common heritage of mankind is
only included once in all of the U.N. treaties, General Assembly
Resolutions, and principles that comprise the corpus of space law.
102

And its single iteration in Article 11(5) of the Moon Treaty was derailed
by a combination of domestic politics and a growing rejection of the
traditional CHM concept by developed States due to concerns over
disincentivizing development by curtailing free enterprise.
103
Instead,

97
See OST, supra note 32, arts. 2 & 4.
98
See id. at art. 2; and Tragedy, supra note 90, at 132.
99
See, e.g., Jonathan C. Thomas, Spatialis Liberum, 7 FLA. COASTAL L. REV. 579, 592
(2006).
100
OST, supra note 32, art. 1.
101
See generally HALEY, supra note 87.
102
See United Nations Treaties and Principles on Outer Space, U.N. OOSA,
http://www.oosa.unvienna.org/oosa/en/Reports/publications.html#treat (last visited
Sept. 21, 2011).
103
See Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, Including the Moon and Other Celestial Bodies, art. 11(5), Jan. 27,
19
nations including the United States have adopted resource distribution
policies that bar the extension of national sovereignty to outer space but
permit the reasonable exploitation of resources under certain conditions.
This diversity of approaches conflicts with the classic CHM approach,
and may lead to growing tensions if the spacefaring powers of the U.S.,
Russia, European Space Agency, Japan, India, and China were to
exclude developing States from the benefits of accessing space-based
resources.
104
Such an outcome would prove detrimental to the space
commons, particularly with regards to peaceful use, and highlights the
need for equitable sustainable development policies as has been
recognized by the Obama Administration.
105

Analyzing the peaceful use of space may be broken down into
two areasorbital space, and the moon and other celestial bodies.
106

Article 4(1) of the OST allows for the nonaggressive military use of
orbital space, unlike the Antarctic Treaty,
107
and prohibits the placement
in orbit around the earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction.
108
While Article 4(2) is
reminiscent of Article 1 of the Antarctic Treaty in that it preserves these
areas exclusively for peaceful purposes.
109
As applied to the issues of
orbital debris and space weaponization, which may be described as
placing weapons in space that target either space-based or terrestrial
assets,
110
OST Articles 3 and 9 also come into play. Article 9 addresses
the harmful contamination of outer space, though the OST entered
into force before orbital debris became a common concern as is shown
in Figure 7, and was due to Cold War politics over U.S. experiments and
Soviet high atmosphere nuclear weapons testing.
111
But Article 9 falls
short of requiring action to mitigate debris and merely requires that the
offending party undertake international consultations.
112
This due
regard standard as applied to orbital debris is both broad and vague, and

1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Moon Treaty]; and Tragedy, supra
note 90, at 136-39.
104
See Statement of the G-77 and China during the Forty-eighth session of the Scientific
and Technical Subcommittee of the United Nations Committee on the Peaceful Uses of
Outer Space, Feb. 7-18, 2011, delivered by H.E. Ambassador Ali Soltanieh, Permanent
Representative of the Islamic Republic of Iran, available at
http://www.g77.org/vienna/OOSAFEB11.htm (arguing that nations should work
together to ensure that all countries are able to have equitable access to the limited
natural resources of outer space).
105
See NATIONAL SPACE POLICY, supra note 1, at 5, 10.
106
Armel Kerrest, Outer Space as International Space: Lessons from Antarctica, SPACE
DIPLOMACY 133, 136 (2011)
107
See OST, supra note 32, art. 4; and Antarctic Treaty art. 1(1)., Dec. 1, 1959, 12
U.S.T. 794, 402 U.N.T.S. 72.
108
See OST, supra note 32, art. 4.
109
Id.
110
See Kerrest, supra note 104, at 136.
111
See infra p.69; and Id. at 137. Article 7(1) also addresses harmful contamination of
the space commons during exploration activities. See OST, supra note 32, art. 7(1).
112
OST, supra note 32, art. 9.
20
thus controversial.
113
Article 3 is more generic but also is applicable to
peaceful use since it calls on States Parties to carry out space exploration
and activities in accordance with international law, including the U.N.
Charter, so as to promote international peace and security as well as
international cooperation.
114
ASAT testing may threaten international
peace and security and could run afoul of the U.N. Charter and thus OST
Article 3.
115
Thus far though, these OST provisions have not led to the
sustainable, peaceful use of space. Nor has the CHM been a particularly
useful vehicle to equitably develop space, other than laying out common
but differentiated responsibilities. Thus, the generation of space debris
is likely not illegal under international law, and according to Professor
Ram Jakhu, currently applicable international space law does not
establish a sufficient and appropriate legal regime to internationally
regulate the serious risks created by space debris.
116

As a result of persistent resistance, only the moon and other
celestial bodies of the solar system as well as the deep seabed beyond
national jurisdiction are explicitly proclaimed as common heritage areas
under international law.
117
Thus, the international community has
rejected the two most direct tests of the CHMthe 1982 U.N.
Convention on the Law of the Sea (UNCLOS III) was, after all, only
saved by the New York Agreement.
118
This rejection has soured
international support for further multilateral efforts in regulating the
commons through the classic CHM concept featuring supranational
management and mandatory technology transfer. Indeed, some have
gone so far as to argue that the OST itself is destined to fail, and that the
benefit of all mankind language in the OST has created a space anti-
commons.
119
The international community has proven unable to

113
See Ram Jakhu, Towards Long-term Sustainability of Space Activities:
Overcoming the Challenges of Space Debris, IAASS Legal & Regulatory Comm., at 10
(Feb. 15, 2011), available at http://www.oosa.unvienna.org/pdf/pres/stsc2011/tech-
35.pdf.
114
Id. at art. 3.
115
See Sandeepa Bhat & Kiran Mohan V, Anti Satellite Missile Testing: A Challenge to
Article IV of the Outer Space Teraty, 2 NUJS L. Rev. 205, 211 (2009).
116
Jakhu, supra note 113, at 10-11 (noting that space debris may be illegal if it was
generated purposefully with the intent to interfere with the peaceful use and exploration
of space).
117
See Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space, G.A. Res. 1962, para. 18, U.N. GAOR, 18th Sess.,
Supp. No. 15, U.N. Doc. A/5515 (Dec. 13, 1963); OST, supra note 32, art. 1;
Declaration on Principles Governing the Seabed and Ocean Floor, G.A. Res. 2749, para.
25, U.N. GAOR, 25th Sess., Supp. No. 28, U.N. Doc. A/8028 (Dec. 17, 1970); and
Moon Treaty, supra note 103.
118
United Nations Convention on the Law of the Sea art. 137, 2, Dec. 10, 1982, 1833
U.N.T.S. 397 [hereinafter UNCLOS].
119
See Adam G. Quinn, The New Age of Space Law: The Outer Space Treaty and the
Weaponization of Space, 17 MINN. J. INTL L. 475, 488 (2008). But see United Nations
Office of Outer Space Affairs,
http://www.oosa.unvienna.org/oosa/SpaceLaw/treaties.html (last visited Sept. 21, 2011)
21
produce any new multilateral instruments regulating space since the
Moon Treaty, preferring the development of a space regime complex
that has important ramifications for the sustainable, peaceful use of outer
space.
C. The Emerging Space Regime Complex
Regime complexes occur when several different regimes coexist
in the same issue area. Given the current state of international politics,
loosely coupled regime complexes have significant advantages over
unitary regimes such as some U.N. consensus-driven multilateral
treaties. In the context of climate change for example, Professors
Keohane and Victor argue, the structural and interest diversity inherent
in contemporary world politics tends to generate the formation of regime
complexes rather than a comprehensive, integrated climate regime.
120

States construct international regimes on the basis of their own
interests.
121
As a result they argue, rarely does a full-fledged
international regime with a set of rules and practices come into being at
one period of time and persist intact.
122
More often, international
regimes emerge as a result of codifying informal rights and rules that
have evolved over time through a process of converging expectations or
tacit bargaining.
123
Consequently, regime complexes are becoming
more popular due to divergent interests and multipolar politics, which
may have some benefits since negotiations for multilateral treaties could
divert attention from more practical efforts to create flexible, loosely
coupled regimes to manage common problems such as orbital debris.
124

But there are also costs of regime complexes to consider. In
particular, they must still meet standards of coherence, effectiveness,
determinacy, sustainability, and epistemic quality.
125
And there are
moral considerations. For example, in the context of climate change,
smaller forms may omit nations that are not major emitters, such as the
least developed nations that are the most at-risk to the effects of a
changing climate.
126
Verification is also an issue, along with the myriad
problems associated with foregoing multilateral negotiation in favor of
more targeted initiatives, such as incentivizing nations to become free
riders. Regime complexes are also laden with legal inconsistencies

(demonstrating that as of December 2011 the OST has had 100 ratifications and 26
signatures giving it the strength of customary international law).
120
KEOHANE & VICTOR, supra note 26, at 1.
121
Id. at 2.
122
Id. at 3.
123
See ORAN R. YOUNG, GLOBAL GOVERNANCE: DRAWING INSIGHTS FROM THE
ENVIRONMENTAL EXPERIENCE 10 (1997).
124
125
Id.
126
Interview with Steve Schneider, Professor of Biology, Stanford University, in
Copenhagen, Den. (Dec. 8, 2009).
22
because the rules in one regime are rarely coordinated closely with
overlapping rules in related regimes, causing negotiators to adopt broad
rules that allow for multiple interpretations.
127
Consequently, the
benefits regime complexes must be critically analyzed as applied to
space governance.
128

The corpus of space law to date represents a regime in terms of
legal usage, but is not in keeping with Professor Keohanes definition of
regimes, i.e., sets of issues that are in fact dealt with in common
negotiations and by the same or closely coordinated bureaucracies.
129

Instead of a single governing entity or system of tightly knit
bureaucracies, what have emerged are a number of overlapping, often
uncoordinated and sometimes contradictory or competing regimes
130
; in
other words, a polycentric regime complex.
131
Whether the different
aspects of the system operate independently, work together, or are in
competition with one another is an empirical question taking into
account the regime effectiveness of space law, which is discussed in Part
Four.
132
This argument may be illustrated by examining the evolving
role of COPUOS in space governance.
U.N. space-lawmaking is a cumbersome process requiring
COPUOS to approve a text by consensus, after which time it is sent to
the U.N. General Assembly. But despite some successes during the
golden age of space law,
133
more recently the consensus required in
COPUOS has become a straight jacket though addressing that problem
is politically difficult.
134
This became apparent in 1982 when the
UNGA bypassed COPUOS in adopting a resolution regarding direct
television broadcasting from space.
135
COUPOS was largely silent in
the early 1990s after the end of the Cold War led to a necessary
realignment of interests, according to Sergei Negoda, Legal Officer at
COUPOS.
136
But beginning with the UNISPACE III Conference in
1999,
137
COPUOS has made significant progress in certain areas, such

127
Raustiala & Victor, supra note 28, at 277.
128
See infra p.35.
129
ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN WORLD
POLITICAL ECONOMY 61 (1984).
130
EDWARD W. PLOMAN, SPACE, EARTH AND COMMUNICATION 155 (1984)
131
See Vincent Ostrom, Charles M. Tiebout, & Robert Warren, The Organization of
Government in Metropolitan Areas: A Theoretical Inquiry, AM. POL. SCI. REV. 831, 831
(1961).
132
See infra p.35.
133
Tragedy, supra note 90, at 135.
134
BUCK, supra note 50, at 147 (noting that majority rule can be used in COPUOS
when consensus is impossible to attain, but this has never been done before).
135
See NATHAN GOLDMAN, AMERICAN SPACE LAW: INTERNATIONAL AND DOMESTIC 26
(1996).
136
Telephone interview with Sergiy Negoda, Chief Counsel for the U.N. Office of
Outer Space Affairs, in Vienna, Austria, (Jan. 27, 2012).
137
See supra p.4.
23
as with the non-binding 2007 Space Debris Mitigation Guidelines.
138

Some States were eager to convert this document into a binding treaty,
but political resistance scuttled such talks. The Czech Republic, long a
proactive leader in the arena of space debris, tried again for a binding
treaty but met resistance from the European Union among other actors
calling for more national regulation.
With the announcement of the NASA Vision for Space
Exploration (VSE) and the Obama Administrations space policy, space
law has once again become a pressing topic.
139
This time, however, the
focus is not on U.N. rulemaking, but on more informal soft law
approaches as well as national action plans, bilateral, and regional
agreements.
140
This lack of multilateral cooperation is now threatening
core principles of space law as technology leapfrogs existing governance
regimes. Due to the influences of technological advancement, resource
scarcity, and multipolar politics, States have begun bypassing the U.N.
consensus-driven system in favor of polycentric regulation. The
curtailed scope of COPUOS is a phenomenon recognized by Steve
Doyle, a member of the U.S. delegation to the OST and now an
Executive Vice President at Clean Energy Systems, who argues:
As COPUOS has grown, it has lost vigor and
vitality. The initial problems dealt with were of broad
scope and immediate concern. Over time, the issues
became narrower and with operational implications,
which lead to real constraints on states Treaty writing
gave way to principles drafting, which has now been
reduced substantially to discussions and expressions of
opinion for the record.
141

Yet the future of international cooperation in peacefully and sustainably
managing space depends on the interactions within this regime complex,
and the ability of stakeholders to embrace best practices while
understanding the benefits and drawbacks of polycentric governance.
D. A Polycentric Approach to Space Governance
Professor Ostrom and others have argued for the adoption of
polycentric solutions to common pool resource problems stemming from
the global commons, particularly in reference to global climate change.

138
See COPUOS Space Debris Mitigation Guidelines (2010), available at
http://www.oosa.unvienna.org/pdf/publications/st_space_49E.pdf.
139
See HENRY HERTZFELD, SPACE ECONOMIC DATA 9 (2002).
140
See David S. Weitzel, Where No Lawyer Has Gone Before? What A Cyberspace
Attorney Can Learn from Space Laws Legacy, 10 COMMLAW CONSPECTUS 191, 191
(2002).
141
Electronic interview with Steven Doyle, Executive Vice President, Clean Energy
Systems, in Sacramento, Cal. (July 3, 2006).
24
This is because a single governmental unit is often incapable of dealing
with global collective action problems due to the problem of free
riders.
142
The central problem, as identified by Ostrom, is that waiting
too long could mean that global solutions negotiated at the global level,
if not backed by a variety of efforts at national, regional, and local
levels, are not guaranteed to work well.
143
In other words, there does
not necessarily need to be one comprehensive global solution to the
global commons: You dont need big brother to step in to protect the
commons, explained Stephen Schneider, the imminent late Stanford
Biology Professor.
144
Instead, local institutions may be created to
promote good governance. Such a polycentric approach would be
mutually reinforcing at local, national, regional, and global levels. Thus,
according to Professor Ostrom polycentric regulation is useful when
considering governance questions in the global commons as the
complexity of these problems lends itself well to many small, issue-
specific units working autonomously as part of a network It is an
application of the maxim, think globally, but act locally.
145

Proponents claim that, at least within these contexts, top-down
planning by national officials with extensive external resources is
unnecessary to build efficient regimes to sustainably govern common
pool resources.
146
If done correctly by incentivizing systems where
governmental and nongovernmental enterprises engage in diverse
cooperative as well as competitive relationships, such a bottom-up
polycentric management approach can lower transaction (rule
enforcement) costs relative to a monocentric hierarchy.
147
An example
is the reformation of the E.U. Common Fisheries Policy to encourage
greater stakeholder involvement.
148
Polycentric governance thus builds
from the regime complex literature recognizing both the benefits and
drawbacks of multilevel regulation, and the importance of local self-
organization, which is why this study uses the term polycentric regime
complex. Originally developed for the domestic commons, recently
Professor Ostrom and others including Professor Victor have worked to
extend these principles to the atmospheric commons arguing for targeted
measures through small, issue-specific forums to help manage global
collective action problems lest inaction hasten a worst-case scenario.
149

142
Ostrom, supra note 12.
143
Id. at 4.
144
Schneider, supra note 126.
145
146
Elinor Ostrom, Polycentric Systems as One Approach for Solving Collective-Action
Problems 2 (Ind. Univ. Workshop in Political Theory and Policy Analysis, Working
Paper Series No. 08-6, 2008).
147
Bruno S. Frey & Reiner Eichenberger, FOCJ: Competitive governments for Europe,
16(3) INTL REV. L. ECON. 315, 315 (1996).
148
Doug Wilson, Predictions about European Commons, 77 COMMON PROP. RESOURCE
DIGEST 7, 8 (2006).
149
See Ostrom, supra note 346; and KEOHANE & VICTOR, supra note 26.
25
However, there are both moral and political problems with this
approach, including an application of Garrett Hardins lifeboat
ethics,
150
and the lack political will by some States to be pressured in
smaller forums. Nevertheless, there is a potential for more targeted
treaties to emerge on the path to binding multilateral agreements.
151
But
there is no perfect forum in a multipolar world; both a top-down
multilateral approach and a bottom-up polycentric one have benefits and
drawbacks. To determine its applicability to space governance, the first
and most recent analysis of polycentric regulation in the global
commons is within the context of global climate change. Thus it is
instructive to review the application of polycentric theory to the problem
of global climate change introduced above.
Although the atmosphere is by its definition global, the effects of
climate change vary from region to region, as do the causes at a micro
level including individuals, families, and firms.
152
Actions taken on a
small scale could have an impact on the climate change problem
insulating housing or buying more fuel-efficient cars could reduce
energy consumption worldwide by 30 percent alone.
153
Millions of
actors affect the atmosphere, just as they affect content and activity on
the Internet, and the health of oceanic ecosystems. Trying to solve the
problem of a public good is a classic collective action dilemma, which
can vary in scale from very small problems involving only a few
individuals to extremely large problems involving global resources, such
as the atmosphere and the oceans.
154

No single country acting alone can solve climate change. But
waiting for a consensus to emerge within the U.N. also has
disadvantages since, at least for the near term, a coherent, effective and
legitimate comprehensive regime for climate change is politically
unobtainable.
155
Disagreements begun during the Kyoto Protocol to
the UNFCCC continue to this day,
156
including over who should pay for

150
See Garrett Hardin, Lifeboat Ethics: the Case Against Helping the Poor,
PSYCHOLOGY TODAY (1974).
151
See, e.g., Christopher Joyce, Climate Strategists: To Cut Emissions, Focus On
Forests, NATL PUB. RADIO, Dec. 10, 2011, available at
http://www.npr.org/2011/12/10/143454111/climate-activists-to-cut-emissions-focus-on-
forests?sc=17&f=1001 (reporting that some nations such as Norway are looking outside
the U.N. framework for action on climate change).
152
Aran Agarwal, The Role of Local Institutions in Adaptation to Climate Change,
WORLD BANK REPORT (2008).
153
See Michael P. Vandenberg & Anne C. Steinemann, The Carbon-Neutral Individual,
82 N.Y.U. L. REV. 1673, 1674 (2007).
154
Ostrom, supra note 346, at 5. See generally UNDERSTANDING KNOWLEDGE AS A
COMMONS: FROM THEORY TO PRACTICE (Charlotte Hess & Elinor Ostrom eds., 2007).
155
156
W.J.W. Botsen, et al., Cumulative CO2 Emissions: Shifting International
Responsibilities for Climate Debt, 8 CLIMATE POLICY 569, 569 (2008).
26
the mitigation atmospheric pollution,
157
and what the solutions should
be, such as afforestation
158
or the Payment for Ecosystem Services
(PES).
159
Given the decades-long delay at the global level to find
mechanisms for efficient, fair, and enforceable reductions of greenhouse
gas emissions, waiting longer may lead to tragedy. Likewise, given the
pressing problem of space weaponization and orbital debris, inaction
may hasten the worst-case scenario.
Professor Victor joins Professor Ostrom in arguing that interim
measures should be taken short of a global agreement on climate change.
His idea in essence is to assemble the major greenhouse gas emitters.
Together, they could reach an agreement more easily than is possible
through the UNFCCC process, though COP17 underscored the
continuing importance and potential of multilateral engagement as well
as the fluidity of multipolar politics with the alliance between the
European Union and less developed countries.
160
This approach is being
tried in the Major Emitters Forum (MEF), and at COP15 itself when
President Obama met with the BASIC group.
161
Such efforts have lately
met with some success, which is why Professor Ostrom has argued that
polycentric regulation is the best way to address transboundary
problems, be it the overexploitation of fisheries, or climate change.
162

Whether the same holds true for addressing the conjoined challenges of
space weaponization and orbital debris is analyzed in Part Four.
163

In summary, the advantage of a polycentric approach is that it
encourages experimental efforts at multiple levels, as well as the
development of methods for assessing the benefits and costs of
particular strategies adopted in one type of ecosystem and comparing
these with results obtained in other ecosystems.
164
This is an important
lesson, in that simply recommending a single governmental unit to
solve global collective action problemsbecause of global impacts
needs to be seriously rethought and the important role of smaller-scale
effects recognized.
165
There is no central authority at the global level
making authoritative decisions about payments for energy use and
investments in new technologies, and enforcing those decisions.
166
Nor

157
A. Najam et al., Climate Negotiations beyond Kyoto: Developing Countries
Concerns and Interests, 3 CLIMATE POLICY 221, 230 (2003).
158
See G. Bala et al., Combined Climate and Carbon-Cycle Effects of Large-Scale
Deforestation, 104(16) PROC. NATL. ACAD. SCIENCES 6550 (2007).
159
Erik Nelson et al., Efficiency of Incentives to Jointly Increase Carbon Sequestration
and Species Conservation on a Landscape, 105(28) PROC. NATL. ACAD. SCIENCES
9471, 9472 (2008).
160
See, e.g., Climate Talks End with Deal, BBC NEWS, Dec. 11, 2011, available at
http://www.bbc.co.uk/news/science-environment-16124670.
161
Id.
162
163
See infra p.35.
164
Ostrom, supra note 12, at 40.
165
Id. at 35.
166
Id. at 9.
27
is there such a central regulator of outer space, and only the beginnings
of one for the deep seabed through the International Seabed Authority
(ISA).
167
This is a fundamental problem of open access regimes.
168

The move to polycentric space governance is a dramatic change
of affairs from the U.N. system that has long encouraged the progressive
development of international law and its codification.
169
The
fragmentation of this system could foreshadow what would occur in the
governance regimes of the global commons generally without concerted
multilateral action. It is imperative that traditional conceptions of the
CHM concept give way to a modern system that guarantees property
rights and stimulates sustainable development while also promoting
international peace and security. This for example could include
infusing sustainable development at multiple regulatory levels, including
nationally as the Obama Administration has recently attempted in its
2010 National Space Policy.
170
Whether the existing space regime
complex can foster such outcomes remains to be seen.
171

By way of conclusion, the 2010 COPUOS declaration is
instructive as to the current state of space governance. There, the United
States argued, the international community must come together to
measure and reduce the risks to space operation for all,
172
while also
urging States to use national laws to implement needed reforms. Russia
called for the implementation of existing agreements in the face of
technological advancement and growing commercial interest lest a space
arms race commence. The former Libyan government stressed the need
to address space junk. Pakistan argued that space was part of the CHM,
and so all military activities should be forbidden. In the end, Zimbabwe
called for the resolution to be tabled, which it then was.
173
This meeting
underscores that COUPOS is now little more than a talking shop as
maintained by Mr. Doyle, but also that there is recognition that space
law is incomplete, especially with regards to space weaponization and
space junk.
174
Despite these failures, new norms may be emerging in
space to clarify legal ambiguities through the influence of state and non-
State actors, including the private sector. Many of the space treaties,
including the OST, are more aspirational political documents than
binding accords laying out obligations. This leaves States to fill in

167
See UNCLOS, supra note 118, art. 137.
168
See also Lon Fuller, The Forms of and Limits of Adjudication, 92 HARV. L. REV.
353, 397-98 (1978) (noting the applicability of polycentricity to the law and
adjudication).
169
U.N. Charter, pmbl & art. 13. See also Tragedy, supra note 90, at 135 (arguing that
the move away from UN-centered multilateral treatymaking is a dramatic change in
affairs in the governance of outer space).
170
See NATIONAL SPACE POLICY, supra note 1, at 5.
171
See infra p.35.
172
U.N. GENERAL ASSEMBLY PRESS RELEASE, supra note 36.
173
Id.
174
See infra p.35.
28
governance gaps, resulting in movements to increase commercialization
and national regulation in outer space, the extent and effectiveness of
which is investigated in the following sections.
III. Property Rights and the National Regulation of Space
This Part analyzes the evolution of property rights in response to
increasing commercial activity in space, and investigates the extent to
which national regulation is taking the place of COPUOS in regulating
the final frontier as one component of an emerging polycentric system.
Section A explores the current legal regime of property rights applicable
in outer space, and how the Obama Administrations emphasis on the
commercialization of near-Earth space has added new urgency to this
vexing issue. Section B then analyzes the growth in the national
regulation of space.
A. Space, Inc.: Property Rights in Space Law
Commercial ventures in space are increasing even as regulatory
frameworks lag behind. This activity has been encouraged by the
United States: In order to reach the space station, we will work with a
growing array of private companies competing to make getting to space
easier and more affordable, President Obama exclaimed in his speech
on the future of NASA.
175
Indeed, Mr. Obama referenced the
importance of companies in developing space five times in his 15-
minute address.
176
This new space industry includes start-up companies
like SpaceX, branches of established multinational corporations like
Virgin Galactic, and some of the biggest names in Aerospace including
Boeing and Lockheed Martin. The United States is attempting to
unleash the power of private enterprise to drive down the costs of
accessing space.
177
But are the legal regimes in space, most importantly
the OST and the Moon Treaty, up to the challenge of a suddenly more
crowded final frontier? I argue that sufficient property rights likely do
exist in space law to support this burgeoning industry, but that they are
often ambiguous and in need of definition through polycentric regulation
and multilateral collaboration to promote sustainable development and
avoid collective action problems.
178

The Moon Treaty does not prohibit the commercial utilization of
space resources.
179
Indeed, existing space law establishes certain

175
Obama, supra note 22.
176
Id.
177
See John Logsdon, The Decision to Develop the Space Shuttle, 2(2) SPACE POLICY
103, 104 (1986).
178
See Tragedy, supra note 90, at 146-52.
179
Moon Treaty, supra note 103, art. 11(7).
29
property rights in space, such as for objects launched into space,
structures built on planets and asteroids, in situ resource utilization, and
scarce orbital slots.
180
Regarding the latter, the International
Telecommunication Union (ITU) allocates available spectra to satellites.
Satellite frequencies cannot be separated from orbits since any change
would change the power of the frequency needed to reach the receiver
on Earth, creating an indirect property right. The market administered
by the ITU is in some ways a model of effective polycentric governance,
though States are reluctant to relinquish regulatory control over their
communications systems to external actors while problems of backlog
and delay continue to plague the organization.
181
Other States, such as
Tonga in 1990, have claimed orbital slots as bargaining chips for use in
other policy arenas, rather than as efforts to pursue access underscoring
the influence of politics on regulating the space commons.
182
And the
domestic situation can change such as with the importance of property
rights in the Bush Administrations Commission on Space Exploration,
compared to the Obama Administration, which omitted the issue in its
2010 National Space Policy.
183
But it remains unclear whether
commercial enterprises would be able to operate effectively within
existing frameworks given confusion over the CHM framework found in
Article 11 of the Moon Treaty among other ambiguities.
184
The
situation is further complicated by the widely differing geopolitical
bents of the spacefaring powers.
185
Examining differing national
interpretations of property rights is thus an effective vehicle not only to
weigh the relative merits of these arguments as applied to the space
commons, but also to gauge the growth of this component of the space
regime complex.
B. Analysis of National Space Laws
In July 21, 1969, humans first set foot upon the moon. This
seminal moment in history was unique in more ways than one. The
occasion marked one of the first times that a nation did not claim

180
OST, supra note 32, arts. 2, 4 & 7
181
See, e.g., OECD INTERNATIONAL FUTURES PROGRAMME, SPACE 2030: TACKLING
SOCIETYS CHALLENGES 189 (2005).
182
Id.
183
Presidents Commn on Implementation of U.S. Space Exploration Poly, Report, A
Journey to Inspire, Innovate and Discover 34 (Appendix A) (June 2004),
http://govinfo.library.unt.edu/moontomars/docs/M2MReportScreenFinal.pdf. See also
Joel D. Scheraga, Establishing Property Rights in Outer Space, 6 CATO J. 889 (1987)
(providing an early survey of theories about property rights in space).
184
Moon Treaty, supra note 103, art. 11.
185
See Robert J. Samuelson, The Spirit of Capitalism, FOR. AFF., Jan. 2001, available at
http://fullaccess.foreignaffairs.org/20010101fareviewessay2001010112/robert-j-
samuelson/the-spirit-of-capitalism.html; and Tragedy, supra note 90, at 140-41.
30
territory when making landfall on an uninhabited area.
186
This was
because the OST was already in place barring such appropriation. But
this and the other principal multilateral space agreements have not
negated the need for national legislation in space. In fact, national space
laws are a valuable vehicle for assessing the direction and effectiveness
of the emerging space regime complex. Analyzing national space laws
also helps develop a culturally relative theoretical framework to aid in
explaining differing approaches toward space governance. Contrary
perspectives are apparent when comparing developed and developing
countries, though an East-West divide is also prevalent. In an effort to
explain this divergence, this section categorizes the space powers into
three camps: liberal institutionalists, market rationalists, and communal
neo-realists. This is far from a perfect system, but it helps to illustrate
how the varying legal cultures of these countries have and are
influencing their national space policies. This also illuminates the
difficulty in international law of providing a cohesive, uniform approach
to space governance within such a divergent culturally relative
paradigm.
187

According to the OOSA Compilation of National Space Laws
from the U.N. Nigeria Workshop on Space Law, 18 countries have
passed 45 relevant space acts or executive orders since the beginning of
the Space Age.
188
The most active governments, defined as those that
have enacted three or more laws during this period, have been:
Australia (4), Brazil (3), France (3), Italy (4), Russia, (6), Ukraine (3),
and the United States (7).
189
The comprehensive mission statements on
national space activity passed in Canada, Chile, and China are also
relevant.
190
Together, the content of these decrees reveals how these
national governments approach the issue of managing global CPRs, the
growth of which is illustrated in Figure 1. Spacefaring countries such as
France, Germany, Japan, Israel, India, Russia, China, and Brazil have
diverse economies and fall at varying points in the political-economic
spectrum. This is reflected in how these governments approach
regulating space activities. Through this lens, it is possible to gain new
insights into how space might unfold as an astropolitical arena of
international cooperation and conflict.
191

186
187
See Astropolitics, supra note 36, at 3-4 (representing the first iteration of this
analysis).
188
Hundreds more acts have also come into effect during this period, but do not deal
with international cooperation, the private sector or natural resources, and so are beyond
the scope of this case study.
189
Meeting International Responsibilities and Addressing Domestic Needs, United
Nations Nigeria Workshop on Space Law, in Abuja, Nigeria (Nov. 21-24, 2005).
190
Id.
191
See generally NATIONAL REGULATION OF SPACE ACTIVITIES (Ram S. Jakhu ed.,
2010). See Astropolitics, supra note 36, at 10-13 (publishing the analysis from New
Frontiers in the IAF conference proceedings).
31

Figure 1: Number of National Space Laws by Decade
192

Space policies must fit within a States laws, as well as within its
political and economic interests.
193
As these interests vary, so too do the
content and style of space legislation. Belgium has passed laws on
launching, flight operations, and the guidance of space objects,
194
while
Germany has been more concerned with governing the transfer of
responsibilities for space activities.
195
One common area of legislative
action is promoting international space cooperation. Belgium, Canada,
Chile, China, Russia, the Ukraine, and the United States have all
included such provisions in bills and executive orders.
196
During the
1980s and 1990s, many of these acts dealt with the ISS.
197
Nations such
as Chile have also been codifying these provisions to advocate for
peaceful use and as a way to reinforce the channeling of international
scientific, technological, and economic cooperation.
198
This is
consistent with the original OST, and may bode well for multilateral
progress in managing common problems such as orbital debris.
Another important area, notably for Russia and the Ukraine, has
been national bans on placing weapons of mass destruction in space or

192
Figure redrawn from data available at U.N. OOSA National Space Law Index,
http://www.oosa.unvienna.org/oosaddb/browse_all_js.jsp?dims=COUNTRY_CODE|D
ATE (last visited Nov. 22, 2011).
193
Id. at 2.
194
See Law on the Activites of Launching, Flight Operations or Guidance of Space
Objects (2005) (Belg.).
195
See Raumfahrtaufgabeneubetragungsgestz [Law Governing the transfer of
responsibilities for space activities], Aug. 22, 2008 RGBI I at 89, 1 (F.R.G.).
196
United Nations Nigeria Workshop, supra note 189.
197
See id.
198
Supreme Decree No. 338 on the Establishment of the Chilean Space Agency (Chile).
32
on celestial bodies.
199
This topic is addressed in Part Four.
200
But the
most recent and prevalent phenomenon among these 45 decrees by far
are the number related to commercial activity: nearly half implicitly and
one fifth, numbering nine, directly.
201
This may reflect the growing
influence of the private sector in space as an important actor in this
emerging polycentric system.
1. Commercial Space and the Market Rationalist Approach
The private sector has been a driving force behind the
proliferation of domestic space legislation designed to stimulate
competition and commercialize government space operations. Although
not universal, the list of countries with commercial space laws include
most of the major spacefaring powers such as the United States, United
Kingdom, the Russian Federation, Japan, Australia, and China. The
U.S. Congress has been among the most proactive legislating bodies, as
seen with the 1998 Commercial Space Act and the Commercial Space
Competitiveness Act.
202
These acts include provisions dealing with the
ISS and space development: A priority goal of constructing the
International Space Station is the economic development of Earth orbital
space free and competitive markets create the most efficient
conditions for promoting economic development.
203
Such laws have
been helped by extensive lobbying efforts, showcasing the effect of
domestic politics alongside multipolar relations in space governance.
204

Japan is similar to the United States in that its long-range space
program calls for promoting space access and helping other nations
develop space resources. The Japanese Long Term Vision for Space
Development sets out a basic philosophy regarding space exploration:
To enable access to the vastness of space and use the infinite potential
of space as the common property of mankind.
205
Like in the United
States, industry-lobbying groups have been active in ensuring a market-
oriented approach to negotiations. This is evident in Article 4 of the

199
See Regulations of the Russian Space Agency 1995, No. 468 (Russ.); Decree of the
President of Ukraine on Regulations for the National Space Agency of Ukraine 1997,
No. 665/97 (Ukr.); and United Nations Compilation of National Space Laws, available
at
http://www.oosa.unvienna.org/oosaddb/browse_all_js.jsp?dims=COUNTRY_CODE|D
ATE [hereinafter Compilation].
200
See infra p.35.
201
These include: Argentina, Australia, Canada, Chile, China, Russia, Ukraine, and the
United States. See Compilation, supra note 199.
202
Id.
203
Commercial Space Act of 1998, 14 C.F.R. 431.31 (2009).
204
See John Leonard, Establishing a global space lobbying organization: Yuris
Foundation, SPACE REV., Mar. 30, 2009, available at
http://www.thespacereview.com/article/1336/1.
205
See Law concerning Japan Aerospace Exploration Agency, Law No. 161 of 2002
(Japan).
33
Japanese Aerospace Exploration Agency (JAXA) Charter, which states,
Commercial space development and utilization are a primary aim of
JAXA.
206

Both the United States and Japan may be termed market
rationalists in that they recognize the value of international
management, but are wary of imposing any constraints on entrepreneurs.
The CHM concept is thus viewed with disfavor as applied to space
governance. This fact could prove useful in forming a coalition when
and if the issues of property rights, orbital debris, and weaponization
reach the level of multilateral negotiations.
2. Liberal Institutionalists
In Europe, the Brussels institutions have expressed a strong
desire for policy at the multilateral level.
207
This has carried over to
regulating outer space. The need for an effective European space
policy never has been greater, said Philippe Busquin, the European
Research Commissioner for the European Commission.
208
In a joint
ESA-EU statement, the ESAs Director General, Jean-Jacques Dordain,
stated:

Space is an international field. A coherent European
Space Policy does not make any sense if not grounded in
the larger global contextUnlike in the days of the Cold
War, getting to the Moon and Mars is not about proving
ones superiority over a political enemy. It is
aboutworking together for the common benefit.
209

Much of Europe (with the potential exception of the U.K.), as well as
many developing nations, may be deemed liberal institutionalist insofar
as they favor establishing international regimes for the benefit of all
humanity as a solution to managing the space commons. Australia,
along with the other signatory nations of the Moon Treaty, may also be a
liberal institutionalist, since it has gone so far as to codify aspects of the
Moon Treaty into its national legislation.
210

206
JAXA Law No. 161 of 2002 (Japan).
207
See John H. Jackson, Sovereignty-Modern: A New Approach to an Outdated
Concept, 97 AM. J. INTL L. 782, 798 (2003)
208
Id.
209
Europes United Response to U.S. Space Plans, E.U. Commn Press Release, Feb.
18, 2004; Marcia S. Smith, Potential International Cooperation in NASAs New
Exploration Initiative, CONG. RES. SERVICE 3 (Apr. 27, 2004).
210
See Space Activities Regulations 2000, Austl. D.3d, No. 186 (Austl.).
34
3. Communal Neorealists
China, and to a lesser extent India and Brazil, are representative
of a third group as they are major emerging markets and relative
newcomers to outer space activities. Given the status of these powers,
they are naturally predisposed to supporting an international regime that
promotes their continued rapid economic development. But these
nations already reap major benefits from space. This special situation
gives rise to their label as communal neo-realists in that they are
sympathetic to the equitable component of the CHM but place economic
development as their priority. Russia could belong in this grouping,
given its history of State-sponsored development, wariness of limitations
on its sovereignty, prohibition on property rights during the Soviet era,
and drive for rapid development. But Russia stands apart due to its
stance on the CHM.
211
Given the rising power of communal neorealists,
this group requires special analysis using Chinas space policy, being
among the most active and robust, as an illustrative example.
Chinas official philosophy regarding space activities was
published in a white paper in which the Chinese National Assembly
states that space technology has become an important endeavor in the
modernization drive of countries all over the world.
212
The Chinese
government directs its space agency through a socialist market economic
mechanism as part of a comprehensive development strategy.
213
Given
that private property rights do not exist in Mainland China except in
specially designated enclaves, it seems unlikely that China would choose
to advance such rights in the commons. Yet elements within the
Chinese government have criticized the CHM.
214
As China continues its
transformation, so too might its conception of property rights evolve
alongside its stance on space weaponization, described in Part Four.
215

China has participated in international space cooperation since the mid-
1970s, and has since that time joined bilateral, regional, multilateral, and
international agreements, even recently becoming more active in
COPUOS. Starting in 1983, China acceded to the OST and three other
principal space treaties, but not the Moon Treaty. This refusal is despite
the white papers call for international space cooperation based on
mutual benefit and common development
216
along the lines of OST
Article 9, but may be interpreted as being in keeping with Maoist
philosophy.
217

211
CARL Q. CHRISTOL, SPACE LAW: PAST PRESENT AND FUTURE 314 (1991).
212
Chinas Space Activities (White Paper) Nov. 2000, available at
http://www.spaceref.com/china/china.white.paper.nov.22.2000.html.
213
Id.
214
See Long, supra note 67.
215
See infra p.35.
216
White Paper, supra note 212.
217
See RAYA DUNAYEVSKAYA, PHILOSOPHY AND REVOLUTION: FROM HEGEL TO SATRE,
AND FROM MARX TO MAO 153 (1989).
35
Chinas situation is comparable to India as both countries have
active space programs and large emerging markets.
218
Indias former
President Kalam and Prime Minister Vajpayee made statements alluding
to an ambitious national space policy.
219
The Indian Space Research
Organization now has a deep relationship with NASA, pursued on the
U.S. side for political reasons. India though cannot yet match Chinas
economic prowess or potential as a space power, while Indias army
chief of staff has said with time we will get sucked into a military race
to protect our space assets and inevitably there will be a military contest
in space.
220
South Korea is not far behind India, whilst Malaysia,
Singapore and Taiwan also have impressive satellite capabilities.
221

Brazil, being a signatory of the Bogot Declaration, has argued in favor
of the CHM concept while also maintaining its belief in the principle of
national sovereignty over natural resources.
222
But it also has a
burgeoning commercial space sector, and being another large emerging
market may cause it to also fall into the communal neorealist camp.
223

The interplay between market rationalists, liberal
institutionalists, and communal neorealists will do much to shape space
governance. Loose coalitions could be formed between these camps. In
an era of increasing national attention to space, multilateral cooperation
is critical to avoid the tragedy of the space commons. While the lack of
consensus on new multilateral treaties will likely increase the
importance of effective polycentric regulation.
224
Beyond differences
over national regulations though, the overarching factors of advancing
technology, resource scarcity, and multipolar politics are also
influencing space governance, as seen in the ongoing debates over space
weaponization and orbital debris investigated in Part Four.
IV. Avoiding the Ultimate Tragedy of the Commons:
Managing Space Weaponization, Junk and Promoting
Peaceful, Sustainable Development
In this Part, I argue that technology and international relations,
particularly bipolar politics during the Cold War and the subsequent rise
of multipolar politics, have shaped space governance even more so than
resource scarcity. I then move on to examine the applicability of
polycentrism to managing the issues of space weaponization and orbital
debris. To support this analysis, section A introduces the tragedy of the

218
See Indian-US Space Cooperation Can Benefit Developing World, AFX NEWS LTD.,
June 20, 2004.
219
Id.
220
Fuchter, supra note 16, at 66.
221
Id.
222
See KEMAL BASLAR, THE CONCEPT OF THE COMMON HERITAGE OF MANKIND IN
INTERNATIONAL LAW 129-30 (1998).
223
See LAMBRIGHT, supra note 18, at 99.
224
See U.N. Compilation, supra note 199.
36
space commons concept. Section B analyzes the history of international
cooperation and conflict in space, focusing on how international
relations have influenced the legal regimes governing the final frontier.
Section C examines outstanding governance issues in space law,
focusing on space weaponization, and whether the current legal
framework is effectively managing this emerging problem. Section D
then considers one consequence of the unregulated status of space
weaponry, namely the collective action problem of orbital debris.
Finally, section E analyzes the effectiveness of the space weaponization
and orbital debris regimes, while section F concludes the investigation
by offering a proposal based on polycentric governance to more
sustainably manage the final frontier.
A. The Tragedy of Space Commons
The classic tragedy of the commons model predicts the eventual
overexploitation and degradation of all common pool resources. Hardin
illustrated the tragedy of the commons scenario through a thought
experiment involving a metaphorical village in which each herder
sought to maximize individual profits while only bearing a fraction of
the cost of overgrazing thus highlighting the divergence between
individual and collective rationality.
225
The model is often theorized as
a prisoners dilemma in which it is more advantageous to defect than
cooperate.
226
This beguiles economists as it means that people acting
rationally do not necessarily reach rational results, leading to more than
2,000 papers being published on this subject.
227
For the purposes of this
study though, a key insight from Hardins work is that absent coercion,
rational self-interested individuals will not act to achieve their common
or group interests.
228
Hence Hardins famous insight that freedom in
the commons brings ruin to all.
229
Given that space is largely an open
access system, the dire predictions of applying the tragedy of the
commons are self-evident. Professor Robert Bird for example has
argued that nations treat orbital space as a kind of communal pasture that
may be overexploited and polluted through debris resulting in a
tragedy.
230
But this model also applies in terms of space weaponization,
since individual nations may benefit from introducing space weapons

225
See David Feeny et al., The Tragedy of the Commons: Twenty-Two Years Later,
18(1) HUMAN ECOLOGY 1, 2 (1990).
226
See MARTIN J. OSBORNE, AN INTRODUCTION TO GAME THEORY 1 (2002).
227
See OSTROM, supra note 12, at 5.
228
MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE
THEORY OF GROUPS 2 (1965).
229
Garett Hardin, The Tragedy of the Commons, 162 SCI. 1244, 1244-45 (1968).
230
See Robert C. Bird, Procedural Challenges to Environmental Regulation of Space
Debris, 40 AM. BUS. L.J. 635, 657 (2003).
37
while spreading the associated negative externalities among space faring
and non-space faring nations alike.
231

The tragedy of the commons became part of the conventional
wisdom in environmental studies, resource science and policy,
economics, ecology, political science, and to an extent international
law.
232
More importantly, it has been used in formulating resource-
management policies around the world, including in the Atlantic
Canadian fisheries.
233
But since its introduction more than 40 years ago,
the theory has been critiqued and modified, resulting in important
insights for management of the space commons. As with many seminal
models, Hardins analysis is powerful, yet simplistic. His conclusions
ring true for open access areas, but not common property systems.
234

Hardin for example failed to recognize the potential for communication
and self-organization at various levels to avoid the tragedy from
unfolding. These omissions caused other scholars, led by Nobel
Laureate Elinor Ostrom, to modify the tragedy of the commons.
The liberal reaction to Hardin, which he himself promoted,
argued for the necessity of governmental control of the commons to
avoid overexploitation.
235
While the conservative reaction favored
privatizationif everything is enclosed, then the commons falls
away.
236
Nations are increasingly favoring the former approach to
commons management, with national regulation becoming more
prevalent in the oceans and outer space eventually leading to negative
environmental consequences given that the State is both the developer
and protector of natural resources.
237
But what of the third way
pioneered by Professor Ostrom in Governing the Commons?
238
That
middle ground is polycentric governance featuring self-organization.
Rather than seeing all common pool resources as being open
access in an anarchic state of overexploitation, Ostrom posits that

231
See Lori Scheetz, Infusing Environmental Ethics into the Space Weapons Dialouge,
19 GEO. INTL ENVTL. L. REV. 57, 67 (2006).
232
E.g., ARTHUR F. MCEVOY, THE FISHERMANS PROBLEM: ECOLOGY AND LAW IN THE
CALIFORNIA FISHERIES, 18501980 214 (1986).
233
See Ralph Matthews, Federal licensing policies for the Atlantic inshore fishery and
their implementation in Newfoundland, 19731988, 17 ACADIENSIS 83, 83 (1988).
234
See id. at 7; and Kenneth Ruddle, Solving the Common Property Dilemma: Village
Fisheries Rights in Japanese Coastal Waters, Common Property Resources, in
COMMON PROPERTY RESOURCES ECOLOGY AND COMMUNITYBASED SUSTAINABLE
DEVELOPMENT 168 (Fikret Berkes ed., 1989).
235
See Carl Jay Bajema & Garrett Hardin, Ecologist, Educator, Ethicist and
Environmentalist, 12(3) POPULATION & ENVIRONMENT 193, 211 (1991).
236
Jeffrey Weiss, Elinor Ostrom and the Triumph of the Commons, POLITICS DAILY,
Oct. 14, 2009, available at http://www.politicsdaily.com/2009/10/14/elinor-ostrom-and-
the-triumph-of-the-commons/.
237
See J.H. Huebert & Walter Block, Space Environmentalism, Property Rights, and the
Law, 37 U. MEM. L. REV. 281, 298 (2007) (arguing that national governments,
including the United States, may not sustainable manage celestial resources by evoking
comparisons with the national parks).
238
OSTROM, supra note 12 at 20.
38
resources are embedded in complex, social-ecological systems operating
on multiple levels. These systems include users, governance structures,
and resource units, which together interact to produce outcomes.
239

Ostrom addresses the inherent complexity by combining results from the
social and natural sciences,
240
offering tailored solutions to commons
problems instead of a single one-size-fits-all approach.
241
Such
polycentric solutions to the tragedy of the space commons are being
shaped by technology, scarcity, and politics. The next section analyzes
the history of international cooperation and conflict in space to illustrate
how these forces have influenced space governance and investigate what
that might portend for addressing outstanding environmental and
security issues in the space commons.
B. International Cooperation and Conflict in Space
In this section I argue that international relations and
technological advancement are shaping space policymaking more so
than resource scarcity, unlike what is transpiring in the deep seabed.
242

This conclusion is supported through historical examples, emphasizing
the roles that the principal spacefaring powers of the United States,
Russia, and China have had in developing space law. The goal is to
provide historical context for the following discussion of contemporary
efforts of regulating space weaponization and junk through polycentric
action, and to demonstrate the utility of these factors as analytical tools
to investigate space governance.
1. The U.S. Approach to International Space Cooperation and
its Impact on Space Governance
President, then Senator, Lyndon Johnson stated in 1959, Men
who have worked together to reach the stars are not likely to descend
together into the depths of war and desolation.
243
The conviction that
international space cooperation would limit misunderstanding, project a
positive image of the U.S. abroad, and advance the cause of world peace
was a leitmotif of early arguments for an international component to the

239
See Elinor Ostrom, A General Framework for Analyzing Sustainability of Social-
Ecological Systems, 325(5939) SCI. 419, 420 (2009).
240
See Richard B. Norgaard, Finding Hope in the Millennium Ecosystem Assessment,
22(4) CONSERV. BIOL. 862, 862 (2008).
241
Ostrom, supra note 239 at 420. See generally NATIONAL RESEARCH COUNCIL, THE
DRAMA OF THE COMMONS (2002).
242
See for example Closed Seas, supra note 8, at 17-22.
243
Eilene Galloway, Sputnik and the Creation of NASA: A Personal Perspective, NASA
HISTORY DEPARTMENT, http://www.nasa.gov/50th/50th_magazine/gallowayEsaay.html.
39
U.S. space program.
244
International space cooperation was seen then,
as now, as a way of reducing tensions by cooperating in a visible,
challenging arena for the benefit of all humanity. Space has long been a
powerful symbol of national prestige and international solidarity in
divisive times.
245
From its inception, space cooperation and
policymaking has been linked to broader foreign policy and national
security objectives, notably in the United States, which continues to
influence space governance.
There have been three paradigm shifts in U.S. space policy. The
first comprehensive post-Sputnik U.S. space policy, NSC 5814, stated:
International agreements could have the effect ofenhancing the
position of the United States as a leader in outer space.
246
Implicit in
this statement is the belief that the United States should remain
dominant in space technology, demonstrating how technology has
influenced the course of space policymaking. This philosophy informed
the first definitive shift in U.S. space policy that began in 1961 with
President Kennedys decision to go to the moon, transitioning the U.S.
space agency from the post-Sputnik National Advisory Committee on
Aeronautics to the mighty NASA of the Apollo years.
247

The second shift began with the dissolution of the Soviet Union
in 1991. The Cold War to that point had provided a long-term
continuity within which incremental change was possible,
248
allowing
for a proxy arena of superpower competition to demonstrate technical
prowess and national wherewithal. When this competition abruptly
ended, a new rationale for international space cooperation was
constructed featuring increased partnership with strategic allies such as
India. Both of these earlier shifts have been cataloged by
commentators.
249

The third shift in U.S. space policy, I argue, began with the
terrorist attacks of September 11, 2001 and was accelerated by the
Columbia Space Shuttle accident that led to the NASA Vision for Space
Exploration. This new set of policy priorities brought security threats
more to the forefront and cemented the role of multipolar politics in
space cooperation. Howard McCurdy sees the globalization of space as
a dominant theme in the present century.
250
New State and non-State
actors are entering the arena of space policy formulation through the
growth of multipolar politics, further diffusing power and creating both
new norms and regime complexes. The private sector has become more

244
EXPLORING THE UNKNOWN: SELECTED DOCUMENTS IN THE HISTORY OF THE U.S.
CIVILIAN SPACE PROGRAM, VOLUME II: EXTERNAL RELATIONSHIPS 5 (John M. Logsdon
et al. eds., 1996)
245
Id.
246
National Security Council, NSC 5814, US. Policy on Outer Space, June 20, 1958.
247
LOGSDON, supra note 244, at 6.
248
Id. at 8.
249
See id.
250
LAMBRIGHT, supra note 18, at 10.
40
the focus of space law and policy, shifting from scientific investigation
and national prestige to considerations based on return on investment.
251

As a result, international space cooperation has become increasingly
political and market-driven. This stands in contrast to the original
technical criteria, but holds true to the longstanding interplay between
space cooperation and ensuring the peaceful use of the global commons.
Contemporary analyses of U.S.s motives for space collaboration
combine realpolitik with a tendency toward normative views about
NASAs behavior. Technological sharing and foreign policy concerns
have become the material substrates of international space
collaboration.
252
When NASA was created in 1958, there was no
overriding scientific or financial reason for NASA to collaborate with
any other country in the exploration of space. From its inception, U.S.-
led cooperation in space has been political in nature, driving governance
to this day given NASAs still dominant role in civilian space flight.
Legislation ab initio allowed this international cooperation out of self-
interest as a means of influencing the space programs of partner nations.
NASA alone has negotiated approximately 4,000 agreements with more
than 100 countries including both traditional U.S. allies and
competitors.
253
Currently, NASAs 10 earth science missions now in
orbit involve partnerships with 14 nations.
254
These agreements have
allowed astronauts and cosmonauts from 33 countries to travel into
space,
255
with the majority of these agreements being with actors from
major spacefaring nations with the notable exception of China.
256
As the
third era in U.S. space policymaking unfolds, this is changing to an
extent. Now, agreements are being targeted at U.S. allies and major
emerging markets, from India to Turkey. Although more prevalent since
9/11, this transition has its roots in the Cold War. As superpowers
competition ebbed and flowed with the geopolitical tides, so too have
the motivations that have spurred space governance and development
forward.
2. U.S.-Soviet Space Cooperation and the Role of Nuclear Non-
Proliferation in Space Governance
Superpower rivalry was increasing by the end of the 1950s,
257

which was accompanied b the rise of Mutually Assured Destruction
(MAD) underscoring a frequent argument for international space
cooperationnuclear non-proliferation. Soviet Premier Nikita

251
Id. at 33.
252
Logsdon, supra note 205
253
254
Sterner, supra note 11, at 110.
255
256
Id.
257
See MICHAEL DEAN MCGINNIS & JOHN TAYLOR WILLIAMS, COMPOUND DILEMMAS:
DEMOCRACY, COLLECTIVE ACTION, AND SUPERPOWER RIVALRY 2 (2001).
41
Khrushchev stated, The scale of our [US-Soviet] cooperation in the
peaceful conquest of spaceis related to the solution of the
disarmament problem.
258
President Kennedy attempted to bridge the
superpower divide by stating in his inaugural address, Let both sides
seek to invoke the wonders of science instead of its terrors. Together let
us explore the stars.
259
Such lofty rhetoric cloaked the Kennedy
Administrations original political justification for space exploration.
A recently released recording from the John F. Kennedy Library
affirmed that politics, more than technology or scarcity, fuelled the first
space race. The conversation between President Kennedy, NASA
Administrator James Webb, Vice President Johnson, and others was in
the White House Cabinet Room on November 21, 1962.
260
Evident in
the recording was Administrator Webbs belief that landing on the moon
should not be a top NASA priority. Administrator Webb said of the
Moon landings, I think it is one, but only one, of the top priority
programs.
261
In response, Mr. Kennedy stated, This is important for
political reasons; international political reasonsWhether we like it or
not, this is an intensive racewe want to beat them, to demonstrate that,
starting behind, by God we passed them.
262
In their discussion, Mr.
Kennedy reminds Administrator Webb of the fantastic amounts of
money the federal government had spent on NASA and asserts that
future funding should be directed toward the lunar landings.
Otherwisewe shouldnt be spending this kind of money because Im
not that interested in space.
263
Although evidence is limited, it is likely
that the Soviets viewed space operations similarly as a means of
increasing legitimacy and prestige on the international stage.
264

The orbital flight of Yuri Gagarin on April 12, 1961 raised the
issue of space cooperation to a new level of visibility and importance.
Khrushchev stated in a letter to Kennedy, If our countries pooled their
efforts to master the universe, this would be very beneficial for the
advance of science and would be joyfully acclaimed by all people.
265

In response, the Kennedy Administration proposed joint projects,
including weather satellites, tracking services, and satellite
communications. After the signature of the Nuclear Test Ban Treaty in
August 1963, President Kennedy began seeking a broader dtente with
the Soviet Union, including turning project Apollo into a joint U.S.-

258
259
LEWIS COPELAND ET AL., THE WORLDS GREAT SPEECHES 741 (1999).
260
Marc Selverstone, JFK and the Space Race, WHITE HOUSE TAPES: PRESIDENTIAL
RECORDINGS PROG., http://whitehousetapes.net/exhibit/jfk-and-space-race.
261
262
Id. (emphasis added).
263
Id.
264
Id.
265
Krushchev-Kennedy Letters: Feb-Mar. 1962, SP-4209 The Partnership: A History of
the Apollo-Soyuz Test Project, NASA History Office, http://history.nasa.gov/SP-
4209/ch2-2.htm.
42
Soviet program. Before the U.N. General Assembly, he stated, Why
should mans first flight to the Moon be a matter of national
competition?
266
The Soviets were silent, but Kennedy was undaunted
and proposed a new program to Webb that included a broad array of
multilateral space initiatives. Ten days later Kennedy was
assassinated.
267

Though President Johnson was also supportive of U.S.-Soviet
collaboration, without the personal attention of Kennedy the proposals
died. The Nixon Administration tried as well to attract international
participation in space exploration.
268
Then NASA Administrator
Thomas Paine visited Europe, Canada, Japan, and Australia for
discussions of cooperative opportunities. Progress was slow as
countries were reluctant to devote the substantial resources required for
space exploration. Instead of a truly international space program, U.S.
space dominance convinced leading European countries to pool their
resources into a multilateral space alliance for economic development,
the precursor to the European Space Agency. This approach continues
to be evident with the European preference for multilateral international
regimes to effect governance change.
Collaboration in space itself is often dubbed a double-edged
sword. The benefit is in foreign policy and nuclear non-proliferation,
but the cost lay in technological transfer that could subvert U.S.
leadership, endanger national security by proliferating dual-use
technology, and hurt industry.
269
For example, NASA Administrator
Webb stated that enhanced international collaboration in space would be
a means whereby foreign nations might be increasingly involved in
space technology and diverted from the technology of nuclear weapons
delivery.
270
The relationship between space governance, peaceful use,
and nuclear non-proliferation continues today and may be seen through
the evolving U.S.-Russian space partnership.
The 1975 Apollo-Soyuz handshake in space proved to be the
high-water mark for U.S.-Soviet space cooperation as relations
deteriorated during the Carter Administration with concerns over Soviet
human rights abuses and the Reagan Administration as part of the Evil
Empire tilt.
271
It took until 1994, more than 40 years after Kennedys
proposals, for cooperation to replace competition as the central focus of

266
267
Id. at 10.
268
Id.
269
Id.
270
John Krige, Technology, Foreign Policy, and International Cooperation in Space, in
CRITICAL ISSUES IN THE HISTORY OF SPACEFLIGHT 249 (Steven J. Dick & Roger D.
Launius eds., 2006).
271
G. Thomas Goodnight, Ronald Reagans re-formulation of the Rhetoric of War:
Analysis of the Zero Optin, Evil Empire, and Star Wars Addresses, 72(4) Q. J.
SPEECH 390, 390 (Nov. 1986).
43
U.S.-Russian space relations.
272
Even now, integrating Russia into the
core of the ISS program is largely done to strengthen Russias adherence
to non-proliferation guidelines and to encourage Russian scientists and
engineers to work on peaceful projects rather than selling their talents
abroad.
273
International space cooperation then may have helped build
confidence for the superpowers to work together in other areas such as
non-proliferation, though technical advances in reconnaissance satellites
also buoyed verification as well as the strategic arms limitations field.
What is not in doubt is that international space cooperation from the
U.S. viewpoint is a politically driven means of linking the space
programs of other countries to U.S. goals and activities. Now, however,
in this third era of space policymaking there are an increasing number of
space actors with varying degrees of capabilities led by the Peoples
Republic of China (PRC),
274
which are influencing the growth of the
space regime complex.
3. The Second Space Race and Chinese Space Policymaking in
International Relations
The first space race began in October 1957 when the USSR
launched Sputnik I, and ended when Neil Armstrong set foot upon the
Moon in July 1969. In 1957, two space vessels were launched; in 1984,
129 launched successfully, falling to 78 by 2009.
275
Compiling a list of
contenders in a 21
st
century space race comprises the spacefaring powers
of the present and burgeoning space programs. Over 50 countries are
now investing in domestic space programs, an increase of more than 30
nations since 1980, with six leading space powers (the United States,
Russia, Japan, China, and Europe) spending over $1 billion each in
2009.
276
But few of these space powers are contenders for a second
space race. Although Russia is a likely candidate, the countrys space
program has only recently begun receiving stable funding
277
and has
been marred by setbacks such as the failure of its Mars probe.
278

European Space Agency efforts have long been restricted by a lack of
coordination among the Member States.
279
Japans program is plagued

272
See LOGSDON, supra note 244, at 12.
273
See Krige, supra note 270, at 250.
274
Joan Johnson-Freese, Chinas Manned Space Program: Sun Tzu or Apollo Redux?,
SPACE POLITICS 113, 114-15 (2005).
275
See BUCK, supra note 50, at 143; and 2009 Space Launch Report, available at
http://www.spacelaunchreport.com/log2009.html.
276
See Governments Worldwide Invest a Record $68 billion in Space Programs,
ECOCONSULT, Feb. 23, 2010.
277
E.g., No cut in Russian 2009 space spending, $2.4 bln on 3 programs, RIANOVOSTI,
Mar. 18, 2009, available at: http://en.rian.ru/russia/20090318/120627935.html.
278
See, e.g., Russian Mars probe crashes into Pacific, CNN WORLD, Jan. 15, 2012,
available at http://articles.cnn.com/2012-01-15/world/world_europe_russia-mars-
probe_1_russian-mars-probe-crashes?_s=PM:EUROPE.
279
Johnson-Freese, supra note 274, at 114.
44
with delays.
280
India has an aggressive space program, but Indian
politicians share the same concerns as their U.S. counterparts: in a
democracy, space is positively viewed by the public but considered
expendable relative to other spending areas.
281
China, on the other hand,
has made space exploration and development a priority. But whether or
not this interest is the launching pad for a second space race with
implications for managing space weaponization and orbital debris is
another matter.
Figure 2: Civil and Military Combined 2009 Spending on Space by
Country
282

A telling example of U.S. views on space occurred when the
House Appropriations Subcommittee that oversees NASA met to review
the agencys 2007 budget request. There, fiscal inquiries quickly gave
way to alarmed rhetoric aimed at Chinas human spaceflight program.
Former House Majority leader Tom Delay declared that the United
States was engaged in a space race with China. Rep. Frank Wolf added
If China beats us to the Moon; we will have lost the space program.
They are basically, fundamentally in competition with us.
283
Other
Representatives called for NASA to take the lead in keeping Congress
and the public informed about the space programs of China, India and
Russia, saying that such a step was in Americas vital national
interest.
284
Such sentiments are in response to polls finding that 55
percent of Americans consider China to either be an adversary or a

280
E.g., Japan recommends scrapping moon mission, ASSOC. PRESS, Jan. 15, 2007,
available at http://www.msnbc.msn.com/id/16634223/ns/technology_and_science-
space.
281
See Krige, supra note 270, at 250.
282
Figure redrawn from Ecoconsult, supra note 276; and Sterner, supra note 11, at 111.
283
Jeff Foust, China, Competition, and Cooperation, SPACE REV., Apr. 10, 2006,
http://www.thespacereview.com/article/599/1.
284
Id.
45
serious threat,
285
though more recently views of China have become
more balanced with 49 percent of Americans viewing China
favorably.
286
Lambasted, former NASA Administrator Michael Griffin
answered the Congressmen by stating, China is working vigorously on
its human spaceflight program with over 200,000 engineers because they
have seen the international respect accorded to nations which can
conduct such activities.
287
The Chinese Shenzhou spacecraft, which is
closely related to the Russian Soyuz, can technically send people to the
moon.
288
The United States has not had this capability since the last
Apollo flight in 1972, and will not regain this capacity until after
2017.
289
The U.S. Congress has been reluctant to seek out joint U.S.-
Sino space cooperation,
290
going so far as to ban any NASA
collaborations with China for the 2011 fiscal year.
291
Competition in
space still holds political payoffs comparable to Kennedys space
exploration mandates of the 1960s.
292

In only 25 years, China has gone from having no
geosynchronous orbital satellites, to advanced space systems including
ASAT weapons. Chinas space program now reportedly aims to have an
orbiting space station by 2020, a manned lunar landing by 2024, and a
manned mission to Mars by 2050,
293
though precise targets are
malleable. This rapid development is a result of the lessons learned
from the first Persian Gulf War. The U.S.-led coalition in that conflict
was so successful because of its networked systems, with outer space
and cyberspace being both advantages and potential weaknesses.
294
This

285
Pew Research Center/Council on Foreign Relations Survey, PRINCETON SURVEY
RESEARCH ASSOCIATES INTL, July 8-18, 2004, available at
http://www.pollingreport.com/china.htm.
286
See Strengthen Ties with China, But Get Tough on Trade, PEWRESEARCH CENTER
PUBLICATIONS, Jan. 12, 2011, available at http://pewresearch.org/pubs/1855/china-poll-
americans-want-closer-ties-but-tougher-trade-policy.
287
See Foust, supra note 283.
288
Id.
289
See Yudhijit Bhattacharjee, Heavy Lifting at NASA Yields a Rocket Design, But No
Price Tag, SCI. INSIDER, Sept. 14, 2011,
http://news.sciencemag.org/scienceinsider/2011/09/heavy-lifting-at-nasa-yields.html;
and Orbital Paths of U.S., China Set to Diverge, WALL STREET J., Oct. 29, 2010,
available at
http://online.wsj.com/article/SB10001424052702303891804575575904021690456.html
.
290
Foust, supra note 283.
291
See Jeffrey Mervis, Spending Bill Prohibits U.S.-China Collaborations, SCI.
INSIDER, Apr. 21, 2011, http://news.sciencemag.org/scienceinsider/2011/04/spending-
bill-prohibits-us-china.html.
292
Foust, supra note 283.
293
See Trefor Moss, The Asian Space Race, JANES DEFENSE WEEKLY, Oct. 29, 2008, at
27.
294
See Kevin J. Kooney, Chinese-American Hegemonic Competition, in THE RISE OF
CHINA AND INTERNATIONAL SECURITY: AMERICA AND ASIA RESPOND 42 (Kevin J.
Cooney & Yoichiro Sato eds., 2009).
46
realization hastened the development of Chinas space program, and its
cybersecurity efforts.
295

The U.S. response to Chinese space efforts has been varied but
has followed political fault lines. This is reminiscent of the Carter and
Reagan Administrations stance toward international space cooperation
with the Soviet Union. Then, as now, nuclear non-proliferation and
human rights concerns were underscored as a hindrance toward bilateral
cooperation. With debate over the veracity of the China threat thesis
intensifying,
296
future bilateral space cooperation between the United
States and China is contentious along similar lines,
297
even as ties
between Europe and China deepen.
298

Historian Stephen Pyne has argued, Exploration is a specific
invention of specific civilizations conducted at specific historical times.
It is not ... a universal property of all human societies.
299
Fifteenth
century Ming China is an often-cited case study.
300
Arguably elements
within the Chinese government may be interested in regaining lost
glories by setting out on new voyages, not over vast oceans, but 62 miles
up into space.
301
Discovering Chinas true motivations is difficult in
such a large and complex country. Chinas evolving space strategy, or
Project 921 as it is known to the Peoples Liberation Army (PLA), is
deliberately opaque, making determining whether it is resources,
military dominance, commercial opportunities, or all of the above that
are motivating forces behind Chinese efforts.
302
Untangling this web
though is critical to develop partnerships that address common collective
action problems.
In the first space race, space became a Cold War battlefield
where scientists were the frontline soldiers, fighting for national prestige
and global influence flowing from technical prowess.
303
Now, economic
might and development are tied to the rationale for space exploration:
If China goes to the Moon because the US and former Soviet Union
have gone there, that would be wrong. The only real reason should be
for resources,
304
said Fei Binjun, Vice Chancellor of the Beijing

295
Id.
296
See, e.g., Ming Xia, China Threat or a Peaceful Rise of China?, N.Y. TIMES
COMPANION, available at http://www.nytimes.com/ref/college/coll-china-politics-
007.html.
297
Id.
298
See WALL STREET J., supra note 289.
299
Stephen Dick, Why we Explore: The Importance of Exploration, NASA HISTORY
DEPARTMENT, Oct. 1, 2004, available at
http://www.nasa.gov/mission_pages/exploration/whyweexplore/Why_We_01pt1.html.
300
Id.
301
See generally Johnson-Freese, supra note 274.
302
Id. at 65.
303
Id.
304
Zhuhai, China plans 3 Moon programs by 2020, JAPAN ECONOMIC NEWSWIRE, Nov.
1, 2004.
47
University of Aeronautics and Astronautics.
305
The PRC is keenly
aware of the relationships between space, technology, and economic
growth, as it is due to surpass the U.S. as the worlds largest economy as
early as 2016.
306
Yet China does not have to be an enemy of the United
States; it could be at worst a competitor and at best a partner.
Opportunities for space cooperation abound. Since 1985, China has
established long-term cooperative relations with more than a dozen
countries. The objectives of these agreements are diverse and differ
from Soviet space designs.
307

In summary, the United States is not entering a space race with
China since the U.S. enjoys massive superiority, reportedly spending 24-
times the amount on space operations annually as China,
308
though these
estimates are contested. But NASA is taking a cautious tone with China
since the Chinese space program is perceived as a threat to U.S. interests
in Congress. A deeper partnership though holds the promise of better
managing space weapons, enhancing cooperation on the related problem
of orbital debris, and clarifying property rights in the space commons.
Without such cooperation, history could repeat itself.
C. The End of the Peaceful Use of Outer Space?: Weaponizing the
Final Frontier and its Consequences
Who controls low-Earth orbit controls near-earth space.
Who controls near-Earth space dominates Terra. Who
dominates Terra dominates the destiny of humankind.
309

From its beginnings, space law has been shaped by military
imperatives.
310
The OST stresses the peaceful use and exploration of
space such as in the banning of orbiting WMDs in Article 4,
311
as was
discussed in Part Three. But space law is becoming more similar to the
LOS in that space is an arena in which the great powers want to preserve
their freedom of access through increasing national regulation as shown
in Figure 1, and in which peaceful purposes have been conflated to mean
non-aggressive.
312
The United States, for example, interprets Article 4
so as not to bar U.S. defense and intelligence-related activities in

305
Id.
306
See Brett Arends, IMF bombshell: Age of America nears end, WALL ST. J., Apr. 25,
2011, available at http://www.marketwatch.com/story/imf-bombshell-age-of-america-
about-to-end-2011-04-25; and Save the date, ECONOMIST, Dec. 16, 2010, available at
http://www.economist.com/blogs/dailychart/2010/12/save_date.
307
See Logsdon, supra note 205.
308
Ecoconsult, supra note 276.
309
EVERETT CARL DOLMAN, ASTROPOLITIK: CLASSICAL GEOPOLITICS IN THE SPACE
AGE 8 (2002).
310
311
See VOGLER, supra note 40, at 105.
312
Kraska, supra note 15, at 60.
48
space.
313
In this section, I analyze the debate over space weaponization
in juxtaposition to the LOS in order to determine whether polycentric
governance may help bring peace to the final frontier.
Unlike the LOS, the rules and prohibitions regulating military
activity in space did not come from a multilateral forum like UNCLOS
III, but rather were the result of bilateral agreements between the
spacefaring powers. Many of these agreements were part of larger arms
control treaties, like the 1963 Atmospheric Test Ban Treaty prohibiting
nuclear detonations in outer space,
314
and Article 5 of the 1972 SALT I
agreement forbidding the testing or deployment of anti-ballistic missile
systems (ABMs) in space.
315
But this agreement did not end interest in
ABM technology. Both superpowers had been experimenting with
ABM technology since the 1960s, with the Soviet Union staging at least
20 ASAT tests from 1968-82. The United States had a successful test of
a direct ascent ASAT homing missile in 1985, but development stopped
after Congress refused to fund further flights.
One of the biggest challenges to the peaceful use of space was
President Reagans Strategic Defense Initiative (SDI), or Star Wars.
Critics argued that the policy violated the spirit of the OST, while
supporters maintained that the program did not involve any WMDs with
the controversy centering on whether the aborted initiative involved x-
ray lasers.
316
This episode demonstrates the difficulty in framing the
debate on space weaponry. The term is so broad that it could include
nearly anything from jammers to lasers and physical ASAT weapons,
frustrating regulation. A nightmare scenario would be a nation
detonating a nuclear weapon in orbit, as this would generate an
electromagnetic pulse sufficient to knock out most orbiting satellites.
Such a test was carried out in 1960, disabling all three then orbiting
satellites and disrupting television signals in Hawaii for months.
317
The
potential for such dire outcomes underscores the fragility of the space
commons.
318

The Obama Administration has been more receptive than the
Bush Administration to addressing space weaponization in a multilateral
format. Shortly after President Obama was inaugurated, the White
House website was updated with a pledge to restore U.S. leadership on
space issues including a ban on weapons that interfere with satellite

313
Manor & Neuman, supra note 17, at 100.
314
See 139 CONG. REC. 8319, S8321 (1993).
315
See Pub. L. No. 92-448, 86 Stat. 746 (1972).
316
See generally Abraham D. Sofaer, ABM Treaty and the Strategic Defense Initiative,
99 HARV. L. REV. 1972, 1972-75 (1985-86). See also Thomas B. Coughlin et al.,
Strategic Defense Initiative, 13(1) JOHNS HOPKINS APL TECHNICAL DIGEST 200, 200-
205 (Mar. 1992).
317
See G.F. Pieper, A Second Radiation Belt from the July 9, 1962, Nuclear Detonation,
68(3) J. GEOPHYSICAL RES. 651, 651 (1963).
318
See Sterner, supra note 11, at 109.
49
operations.
319
But enacting such a global ban is difficult with issues
ranging from defining what a weapon is to the eccentricities of
multipolar politics. President Obama acknowledged these challenges
during his election campaign. A simpler and more expedient solution,
he suggested at that time, might be a code of conduct for responsible
space-faring nations.
320
Thus far though there have not been many
tangible fruits from this policy shift, though the E.U. developed a draft
code of conduct for spacefaring nations in 2010 that includes the need to
reduce orbital debris.
321

One of the reasons for this impasse is, from an international
relations perspective, a divergence between realist States that view space
as a zero-sum game in which U.S. ability to dominant space preserves
the peace, and liberals who see space cooperation as a positive-sum
game that furthers mutual interests.
322
At the root of the problem is
preserving access to the space commons by exerting space power, which
the U.S. Joint Chiefs of Staff defines as the total strength of a nations
capabilities to conduct and influence activities to, in, through, and from
space to achieve its objectives.
323
Defending this strategic high ground,
they argue, is an imperative to U.S. national security, making
multilateral cooperation problematic even as it is explicitly championed
in the U.S. 2010 National Space Policy as is strengthening measures to
mitigate orbital debris.
324

The legal regime on space weaponization now includes an
allowance for overhead surveillance and a prohibition on the
deployment of WMDs. But as has been stated, space weapons are
broader than just WMDs. Differentiating weapons from debris is legally
and technically dauntingthere is not yet a common definition for
space activity, to say nothing of military activity. To combat
diverse threats, Surrey Satellite Technology Limited, a small U.K.-based
satellite firm, wants to create a program called Angels and Demons.
325

In this system, a cloud of coke-can sized satellites would be launched
into orbit encircling a larger spy satellite. These small satellites would
then be able to tap the spy satellites data stream, allowing operators to
know when it is taking pictures and of whatin other words, spy on the
spy satellite. To counter such a system, Eves envisions a protecting

319
Dobbyn, supra note 23.
320
Id.; see also Michael Krepon, A Code of Conduct for Responsible Space-Faring
Nations, 50 Years of Space Technology, 40 Years of the Outer Space Treaty, Conf.
Rep. 165, in Geneva, Switz. (Apr. 2-3, 2007).
321
See Council Common Position (EC) No. 14455/10 of 11 October 2010, art. 4(2),
2010 O.J., available at www.consilium.europa.eu/uedocs/cmsUpload/st14455.en10.pdf.
322
323
See Dean Cheng, Spacepower in China, in TOWARD A THEORY OF SPACEPOWER 450
(Charles D. Lutes et al. eds., 2011); and id. at 113.
324
NATIONAL SPACE, supra note 1, at 4.
325
See, e.g., Paul Rincon, Military satellites may get stealthy, BBC NEWS (Feb. 21,
2008, 7:28pm GMT), http://news.bbc.co.uk/2/hi/science/nature/7257666.stm.
50
cloud of small angel satellites to attack the demons,
326
thus
potentially perpetuating a space arms race. Negotiations over the
continued peaceful use of space have been ongoing at the U.N.
Disarmament Committees Ad Hoc Committee on the Prevention of an
Arms Race in Outer Space, but without significant result.
327
With the
rise of the Chinese space program and a renewed interest in ASAT
technology, U.S. hegemony in space is being challenged.
328
This is in
part due to the dual-use nature of outer space, with some commercial
satellites being equally capable of producing meteorological
observations as monitoring troop movements.
329
Consider China again
as an illustrative example.
There is evidence that China views space weapons as a means to
achieve information dominance by 2050, which would likely be used
as part of integrated network electronic warfare.
330
Major General Liu
Jixian has observed, Whoever controls space controls initiative in
war.
331
Overall, an analysis of Chinese sources on space warfare brings
two main conclusions: China views space warfare as inevitable, and
China must prepare for this by developing space weapons.
332
It is the
prospect of a U.S.-backed Taiwanese declaration of independence that
the PRC views as the greatest threat to Chinese national security.
333

This concern is driving the PRCs interest in space weapons. Chinas
burgeoning capabilities might foreshadow what other countries such as
Russia, Iran, and North Korea could do in the future.
334
Yet despite its
investment, China has also favored a ban on space weapons since 1985.
Some argue that its January 2007 ASAT test was to coerce the United
States into negotiating such a treaty, but the breadth and depth of
Chinas efforts undermine this notion.
335

Some have argued that the time has come for a new multilateral
push for a treaty on the Prevention of an Arms Race in Outer Space

326
Id.
327
VOGLER, supra note 40, at 106.
328
See Craig Covault, Chinese Test Anti-Satellite Weapon, AVIATION WEEK, Jan. 17,
2007, available at
http://www.aviationweek.com/aw/generic/story_channel.jsp?channel=space&id=news/
CHI01177.xml.
329
330
Chinas Defense White Paper 2006, PEOPLES REPUBLIC OF CHINA (PRC)
INFORMATION OFFICE OF THE STATE COUNCIL (IOSC), Ch. 2, para. 1 (P.R.C.).
331
Liu Wortzel, The Chinese Peoples Liberation Army and Space Warfare, AM.
ENTERPRISE INSTITUTE, Oct. 17, 2007, at 1.
332
Fuchter, supra note 16, at 57.
333
Id.
334
Id. at 58.
335
Id.; see also Stephen Jones, Can the UK remain a First Division player in military
operations without significant additional investment in space-based capability?, 12(2)
RAF AIR POWER REV. 16, 16 (Summer 2009); and Ross Liemer & Christopher F.
Chyba, A Verifiable Limited Test Ban for Anti-Satellite Weapons, WASH. Q. 149, 150
(July 2010).
51
(PAROS) to counter the growing problem of space weaponization.
336

Russia and China proposed such a treaty in 2002 at the U.N. Conference
on Disarmament, which included provisions banning any kinds of
weapons in orbit, but omitted ground-based systems.
337
This would
mean that Russia and China, both of which have ASAT capabilities,
would be able to continue developing these systems unhindered. It is
therefore doubtful that this proposal as it currently stands would prevent
war in space. U.S. political scientists Nancy Gallagher and John
Steinbruner have proposed an alternative version of PAROS that
prohibits all interference with space assets and includes a robust
verification, monitoring, and inspection regime.
338
While an
improvement, this proposal similarly has a number of loopholes, such as
leaving out jamming and other technologies, making U.S. support
doubtful.
Space is already weaponized,
339
and existing international law is
inadequate to address this and other outstanding issues in the space
commons.
340
So far, the emerging space regime complex has proven
unable to arrest this trend, owing both to domestic and multipolar
politics. Space systems include satellites, launch facilities, command
and control facilities, and data downlink nodes. The most difficult way
to interfere with these systems is by attacking satellites directly with
ground-based missiles. Instead, the easiest way would be to attack
ground-based command and control facilities, or launch cyber attacks to
gain control of vulnerable commercial satellites that could then be
directed to crash into valuable military spy satellites.
341
This technique
would create a cloud of debris reminiscent of the 2007 Chinese ASAT
test causing other satellites to be destroyed or damaged as well and
exacerbating the problem of space junk.
D. Space Junk as a Collective Action Problem
States are required to avoid activities that would be harmful to
the Earths environment, or that of celestial bodies under international

336
337
See Prevention of Outer Space Arms Race, Ratification of Nuclear Test-Ban Treaty
Among Issues Addressed by Texts Introduced in First Committee, U.N. PRESS RELEASE
GA/DIS/3233, Oct. 15, 2002, available at
http://www.un.org/News/Press/docs/2002/gadis3233.doc.htm.
338
See Nancy Gallagher & John Steinbruner, Reconsidering the Rules for Space
Security, (Am. Acad. of Arts & Sciences Monograph, 2008).
339
340
See U.N. COPUOS Report No. A/65/20, 9-18 July 2010, at para. 43, available at
http://www.oosa.unvienna.org/oosa/Reports/gadocs/coprepidx.html#A_65_20.
341
See for example SkyGrabber Software Used By Terrorists to Hack Drone Video
Feeds, WALL STREET PIT, Dec. 17, 2009, available at http://wallstreetpit.com/13015-
skygrabber-software-used-by-terrorists-to-hack-drone-video-feeds.
52
law.
342
This provision is a key part of fostering sustainable development
in space, but it is also left undefined like so much of space law,
particularly regarding accurate and timely space tracking. States have
been reticent to share detailed space tracking information. Some
progress was made during the 2002 World Summit on Sustainable
Development when the Group on Earth Observations (GEO) was created
to coordinate the work of researchers from 79 governments, the
European Commission, and 56 intergovernmental and regional
organizations on the sustainable space habitat.
343
But the GEO has yet
to deal multilaterally with space junk, leading to the private sector
forming the Space Data Association to protect the multi-billion dollar
investment in satellite hardware.
344
The private sector taking the lead in
this way could become a more common feature of norm development in
this emerging polycentric system, but it also highlights the limitations of
progress without multilateral coordination. For international regimes to
contribute to the effective management of the space commons as has
been called for by the U.S. National Research Council, they must focus
on behavior, notably battling this common enemy of all spacefaring
nations: orbital debris.
345
In this section, I argue that space junk is a
collective action problem that may only be solved through concerted
action embracing the sustainable development of orbital space at each
regulatory level, including multilaterally.
Given that the space commons is a largely open access regime, it
is prone to three well-studied issues in the economics literature,
including: the collective action problem, free riders, and the prisoners
dilemma. Collective action problems are a classic social dilemma.
346

People tend to maximize their short-term personal interests instead of
the collective good. This is a dilemma, in economic terms, since there is
at least one outcome that yields higher returns for all who are involved,
but participants maximizing their short-term benefits make individual
decisions that are not predicated on achieving this joint outcome. The
socially optimal outcome could be achieved if participants
cooperated.
347
But since the suboptimal joint outcome is in equilibrium,
no one is motivated to change their choice, given the predicted choices
that others will make.
348
The essence of social dilemmas then is this

342
See Kraska, supra note 15, at 60.
343
344
See SDA Overview, http://www.space-data.org/sda/about/sda-overview/ (last visited
Nov. 22, 2011).
345
See Abraham M. Denmark, Managing the Global Commons, WASH. Q. 179 (July,
2010); and Assessment, supra note 25.
346
See Ostrom, supra note 12, at 6 (referring to settings where uncoordinated decisions
motivated by the pursuit of individual benefits generate suboptimal payoffsin the long
run.).
347
OSBORNE, supra note 226, at 20 (explaining that the Nash equilibrium states that if
everyone else adheres to it [some belief], no individual wishes to deviate from it.).
348
53
conflict between individual rationality and optimal group outcomes.
349

At the micro level, rational individuals free ride. So too do States.
Closely connected then with the concept of collective action
problems is the problem of free riding, and the prisoners dilemma.
According to Professor Ostrom, free riders enjoy the benefit of others
restraint in using shared resources or others contribution to collective
action.
350
But if many individuals decide to free ride in this way, the
others may stop contributing to the collective good, until eventually no
one contributes, resulting in collective inaction.
351
Mutual benefit
then is not achieved, such as peacefully and sustainably managing outer
space. One illustration of free riding behavior is the classic prisoners
dilemma in which there are gains from cooperation, but each player has
an incentive to free ride.
352
Aside from an interesting theoretical
exercise, the prisoners dilemma is important because it can be modeled
on any instance in which two (or more) players have an incentive to free
ride, even though cooperation is in their best interest. Such examples
range from the arms race between the United States and the former
Soviet Union discussed above, to the climate change negotiations.
353

Collective action predicts that behavior will not change without
an external authority imposing enforceable rules that change the
incentives faced by individuals. It is this animating problem that causes
many scholars to call for global regulation of the global commons, such
as Professor Bird advocating for a new multilateral treaty to address the
problem of space junk.
354
But the classic theory of collective action
should not be uncritically assumed. Professor Ostrom identifies two
broad reasons why reliance on this conventional theory is unwise,
namely: (1) a lack of empirical support especially in small-to-medium
size environmental social dilemmas since a surprisingly large number
of individuals facing collective action problems do cooperate,
355
and
(2) the existence of multiple externalities at all scales.
356
Moreover,
rational choice theory is used as a foundation for the conventional theory
of collective action.
357
The theory works well with regards to private
goods in competitive environments, but works less well when
participants know and trust one another.
358
As the number of space
powers multiplies while multipolar politics continues to hamper

349
See generally ARILD VATN, INSTITUTIONS AND THE ENVIRONMENT (2005).
350
351
Id.
352
OSBORNE, supra note 226, at 13.
353
Id. at 15.
354
See Bird, supra note 230, at 685; and Jonathan Wiener, Think Globally, Act
Globally: The Limits of Local Climate Policies, 155 UNIV. PENN. L. REV. 1961 (2007).
355
356
Id. at 9.
357
Id. at 10.
358
Elinor Ostrom, A Behavioral Approach to the Rational Choice Theory of Collective
Action, 92(1) AM. POL. SCI. REV. 1, 1-12 (1998).
54
consensus-building measures, orbital debris represents a collective
action problem in which it is in the best interest of all participants to
cooperate, not defect through polycentric governance.
As with the number of space actors, the number of space objects
is going up. The U.S. Congress Office of Technology Assessment
estimates that in total, as many as 4,500 spacecraft have been launched
into space since 1957; nearly 2,200 of which remain in orbit. Of these,
about 450 are still functional; the rest are considered debris.
359
But these
non-functional spacecraft constitute only a small fraction of the junk
orbiting the Earth. At least 50,000 objects one-inch or more in diameter
are in orbit, ranging from spent rocket boosters to nuts and bolts.
360

Some estimates place the total number of objects capable of damaging
spacecraft at over 35 million, making attribution and dispute settlement
key components of international space law.
361
But the applicable
international space law offers no formal dispute resolution authority;
save for articles 14 through 20 of the Liability Convention that gives
authority to establish an ad hoc claims commission.
362
Orbital debris
can cause substantial damage to spacecraft, including the ISS. The
Space Shuttle was struck during its inaugural flight with a fleck of paint,
cracking its windscreen and resulting in the Shuttle from then on always
being flown backwards while in space to protect the astronauts. U.S.
and French officials admitted to moving spacecraft eight times in 2008
to avoid debris.
363
This debris can be a weapon in its own right,
clogging the arteries of GSO slots and decreasing the effectiveness of
space-based assets. But as with space weaponry generally, due to the
multipolar state of international relations little progress has been made
on addressing the problem of space junk, as demonstrated by examining
the aftermath of Chinas 2007 ASAT test.
As was mentioned in the introduction, China performed a
successful ASAT test on January 11, 2007 that destroyed an aging
Chinese weather satellite.
364
The test resulted in at least 2,317 pieces of
orbital debris big enough to be tracked, but the likely total is likely far
higher. NASAs Orbital Debris Program Office is estimating more than

359
Orbital Debris: A Technical Assessment, U.S. CONGRESS OFFICE OF TECHNOLOGY
ASSESSMENT, available at
http://www.nap.edu/openbook.php?record_id=4765&page=11. But see David Wright,
Space debris, PHYSICS TODAY, available at
http://physicstoday.org/journals/doc/PHTOAD-ft/vol_60/iss_10/35_1.shtml (estimating
850 active satellitles in orbit as of 2011).
360
361
Jakhu, supra note 191, at 4. But see Jakhu, supra note 113, at 11 (noting that States
bear international responsibility for their national activities and are liable for damage
caused by their space objects).
362
See The 1972 Convention on International Liability for Damage Caused by Space
Objects, arts. 14-20, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered into
force Sept. 1, 1972) [hereinafter Liability Convention].
363
364
Covault, supra note 328.
55
35,000 pieces larger than one centimeter, making this the largest debris-
generating event in history and increasing total orbital debris by 25
percent at a stroke.
365
Estimates show that the strike has increased the
chances of catastrophic collisions from once every 19 years to once
every 12-14 years
366
: the ISS is already regularly dodging fragments.
367

The Chinese took this act after years of protestations about the
destabilizing effects of ASAT technology. Yet this was a single ASAT
test on a non-nuclear satellite. The open question is what the
environmental results would be in a space-based conflict in which
multiple satellites are destroyed, some of which may be nuclear. NASA
estimates that the breakup of a single large satellite of 5-10 tons could
roughly double the amount of orbital debris now in low-earth orbit.
368

And after the breakup occurred, models predict that the debris would
spread out to affect all satellites using the same altitude within a matter
of days.
369

Figure 3: Map of Orbital Debris Resulting from 2007 Chinese
ASAT Test
370

More than 50 satellites with radioactive components have been
launched into orbit, and at least six nuclear-powered satellites have had
uncontrolled re-entries. The first major problem with radioactive space
debris occurred in January 1978, when the Soviet satellite Cosmos 954,
which was powered by a nuclear reactor, disintegrated over Canada.
371

Estimates of the amount of radioactive material now in orbit range as

365
NASA Orbital Debris, supra note 3, at 2.
366
See Wright, supra note 359.
367
Covault, supra note 328.
368
See SAFETY FRAMEWORK FOR NUCLEAR POWER SOURCE APPLICATIONS IN OUTER
SPACE, COPUOS & IAEA 1 (2009), available at
http://www.iaea.org/Publications/Booklets/Safety/safetyframework1009.pdf.
369
370
Chinese ASAT Test, CENTER FOR SPACE STANDARDS & INNOVATION (CSSI), Dec. 5,
2007, available at http://www.centerforspace.com/asat/.
371
See BUCK, supra note 50, at 150 (noting that the USSR eventually agreed to
reimburse Canada $3 million in cleanup costs, but to date Russia has not followed
through on this promise demonstrating the difficulty of sanctioning in space law).
56
high as one metric ton.
372
Other debris was placed into orbit
deliberately. For example, in 1961 Project West Ford launched a
payload of small copper filaments to reflect radio waves to test the
usefulness of passive reflectors. The experiment was a failure, but 350
million copper filaments continue to orbit the Earth.
373
Even though
space is immense, the sheer amount of junk now in orbit makes close
calls nearly a daily occurrence. In February 2010 alone, a Iridium
communications satellite collided with a dead Russian military satellite,
an event that went largely unreported. Such instances have prompted a
retired NASA official to comment, Weve lost control of the
environment.
374

The 1972 Liability Convention offers several legal avenues to
address space junk. First, the Convention provides a process for
presenting claims against launching States.
375
Second, it defines the
rights and obligations of launching and victim States. The difficulty
comes in determining the origin of the space debris at issue.
376

Identifying the nationality of a screw travelling nearly 18,000 mph is no
easy matter. Attribution then is a key problem in dealing with space
junk. This issue is in part addressed by the 1974 Registration
Convention, which elaborates on Article 11 of the OST and requires
States parties to report the nature, conduct, locations, and results of
space-related activities to the United Nations, the public, and the
international scientific community.
377
But given the minimal size
needed to damage spacecraft, and the fact that debris are not individually
labeled, the Registration Convention helps the problem more in theory
than practice. There is also the fact that the Liability Convention covers
only States and some international organizations like the ITU, not
explicitly private corporations. This is a substantial omission since, for
example, in the United States nearly all launch vehicles are now
contracted for from the Delta/Atlas United Launch Alliance.
378
Given
these governance gaps, how well then has the space regime complex
performed to date?
E. Regime Effectiveness of Space Governance
The literature on international regime effectiveness has not yet
dealt extensively with space governance as applied to orbital debris and

372
Id. at 150.
373
Id.
374
Space junk at tipping point, says report, BBC NEWS, Sept., 2, 2011, available at
www.bbc.co.uk/news/world-us-canada-14757926.
375
See Liability Convention, supra note 362, arts. 14-20.
376
CHRISTOL, supra note 211, at 119.
377
See The 1975 Convention on Registration of Objects Launched Into Outer Space,
Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1976)
[hereinafter Registration Convention]; and BUCK, supra note 50, at 151.
378
See United Launch Alliance, available at http://www.ulalaunch.com/site/.
57
space weaponization that I could identify.
379
Thus, I propose examine
the literature on regime effectiveness, drawing from the international
environmental and human rights literatures in particular, to gauge how
effective evolving regimes have been in managing collective action
problems arising in the space commons.
380
Measuring the effectiveness
of regime complexes is a difficult proposition though since the
governance structures at work are unique and not easily amenable to
quantifiable comparison, unlike the impact of environmental treaties on
emissions reductions.
381
Moreover, myriad other economic and political
forces are doubtless influencing the governance regimes of the space
commons than those identified here. At best correlations may be
highlighted since general conclusions cannot be inferred from the
absence of a governance structure as they can from close study of it.
Ultimately the success or failure of the space regime complex cannot be
adequately measured in terms of the volume of space debris.
Nevertheless, qualitative and quantitative analysis of the performance of
legal regimes governing the space commons is possible, if incomplete
and with the above caveats, by comparing the performance of that
regime to an ideal type as well as a no regime counterfactual. Creating
such an ideal type is difficult, but a candidate would be a system in
which collective action problems are mitigated, development made more
sustainable, and the risk of international conflict is minimized through
effective dispute resolution allowing sustainable development to proceed
equitably.
382
There are significant drawbacks to this approach as is
discussed below,
383
and it should be noted that this investigation is used
here only to add complexity and depth to the analysis. Such qualitative
studies of regime effectiveness are common, even conventional.
384

Regime effectiveness has become a driving force in the analysis
of international relations,
385
since it is imperative that governments find
out which of the international regimes they have joined actually yield
results.
386
Much of the research to date has been carried out in the
environmental field, largely in three waves. The first wave consisted of
studying regimes as instruments for managing or resolving conflicts

379
But see EDWARD L. MILES, ENVIRONMENTAL REGIME EFFECTIVENESS:
CONFRONTING THEORY WITH EVIDENCE 224 (2002) (analyzing the effectiveness of the
regime for satellite communications since 1957); and VOGLER, supra note 40.
380
See for example Oona Hathaway, Do Human Rights Treaties Make a Difference?,
111 YALE L.J. 1870, 1871-72 (2002).
381
See Carsten Helm & Sprinz Detlef, Measuring the Effectiveness of International
Environmental Regimes, 44(5) J. CONFLICT RES. 630, 630-33 (2000).
382
See Stephen J. Kobrin, Territoriality and the Governance of Cyberspace, 32(4) J.
INTL. BUS. STUD. 687, 687 (2001).
383
See infra p.63-66.
384
Helm & Detlef, supra note 381, at 647.
385
Michael Zrn, The Rise of International Environmental Politics: A Review of
Current Research, 50(4) WORLD POLITICS 617, 617-18 (1998).
386
58
over environmental problems.
387
Second, scholars looked into regime
implementation and compliance.
388
The third phase asks the question of
whether these regimes matter.
389
Scholars in this strand of research
argue that the function of a regime is to overcome the collective action
problemand to enable countries to enter into mutually beneficial
agreements.
390
Empirical studies have concluded that there is modest
support that such agreements improve on the status quo.
391
This
research is also relevant to the debate between neorealist and neoliberal
institutionalist scholars. Neorealist scholars are generally pessimistic
about the effect of institutions and would expect that institutions do not
matter, while institutionalists assert that they do in fact matter.
392
The
fact that scores typically fall somewhere in between suggests that neither
extreme is accurate, and instead a nuanced view of the benefits of
institutions is more appropriate.
Given the above caveats, the literature on international
environmental regime effectiveness presents a prescient comparison to
space law. Professor Oran Young has been among the most prolific
scholars in this area, positing five main approaches for measuring
effectiveness: the problem-solving, legal, economic, normative, and
political approaches.
393
First, the problem-solving approach seeks to
determine how well a regime has solved a particular problem, such as
fostering sustainable, peaceful development in space. Second, the legal
approach is similar to the problem-solving approach, but relies on an
analysis of how well a given problem has been solved through the
creation of binding, contractual obligations.
394
The economic approach
builds off the legal approach by adding an efficiency criterion. In
application, the economic approach is difficult because measures of
efficiency require empirical observations of alternative regimes or
calculations based on theoretical models that are difficult to attain. The
normative approach, on the other hand, uses qualitative analysis to
capture the less quantifiable factors underlying regimes, such as how

387
See generally ROBERT O. KEOHANE & JOSEPH S. NYE, POWER AND
INTERDEPENDENCE (1989).
388
See Abram Chayes & Antonia H. Chayes, On Compliance, 47(2) INTL. ORG. 175
(1993); and THE IMPLEMENTATION AND EFFECTIVENESS OF INTERNATIONAL
ENVIRONMENTAL COMMITMENTS: THEORY AND PRACTICE (David G. Victor, K.
Raustaiala, & E. B. Skolnikoff eds., 1998).
389
See Peter Haass, Do Regimes Matter? Epistemic Communities and Mediterranean
Pollution Control, 43(3) INTL. ORG. 377 (1989); and Helm & Detlef, supra note 381, at
631.
390
391
Scott Barrett, Self-Enforcing International Environmental Agreements, 46 OXFORD
ECON. PAPERS 878 (1994); Helm & Detlef, supra note 381, at 639.
392
See, e.g., MATTHEW PATTERSON, GLOBAL WARMING AND GLOBAL POLITICS 6-7
(1996).
393
See ORAN R. YOUNG, THE EFFECTIVENESS OF INTERNATIONAL ENVIRONMENTAL
REGIMES: CAUSAL CONNECTIONS AND BEHAVIORAL MECHANISMS 6 (1999).
394
Id.
59
well they incorporate principles of justice, stewardship, and
participation. This approach is rarely used as a stand-alone measure of
regime effectiveness.
395
Finally, the political approach posits that
effective regimes cause changes in the behavior and interests of actors,
or in the policies and performance of institutions. As Professor Young
argues, Effectiveness in a political sense means spurring action towards
achieving these objectives.
396
This approach thus offers a better
measure of State practice than, for example, the legal approach.
Measuring effectiveness is difficult given that it is necessary to
make causal inferences to say anything about effectiveness under a
variety of conditions.
397
There are tools, though, to help decrease the
chances of making spurious claims. These include conducting a quasi-
experiment that explores comparisons across different issue areas or
over time within a single evolving regime in such a way as to take
advantage of variation on the independent variable.
398
To that end, I
use a combination legal-political approach to analyze the regime
performance of space governance relating to space weaponization and
junk. For that purpose, I have built a quantitative analysis of the major
legal mechanisms at issue. My results are juxtaposed against data
showing the proliferation of space weapons and junk from 1957 to 2009.
Finally, I use a qualitative analysis centered on the counterfactual: what
if the space legal regime did not exist? What would space governance
look like without them?
The primary treaties relating to space weapons and orbital debris
as well as their relative legal strength are summarized in Table 2.
Table 2: Space Laws and Weapons Treaties
399

Name
Limited Test
Ban Treaty
Outer
Space
Treaty
Rescue
Agreement
Liability
Convention
Registration
Convention
Moon
Treaty
Subject Disarmament
Space
governance
Rescue of
astronauts
Definition of
liability
Establish
registration
requirements
Governance
of the Moon
Year 1963 1967 1968 1972 1976 1984
Number of
Ratifying
States 94 100 92 90 55 13
Number of
Signatures 108 26 24 23 4 4
Ratification
for EIF 3 5 3 5 5 5
Signature to
EIF
(months) 2 8 7 6 20 55

395
Id. at 4-6.
396
Id.
397
Id. at 16.
398
Id. at 20.
399
United Nations Treaties and Principles on Space Law, supra note 102.
60
Amendment
Requirement None
Simple
majority All
Simple
majority
Simple
majority
Simple
Majority
Reservations
Allowed? No Yes No No No No

Analyzing these data illustrates several important trends in space
governance, most notably the decline in multilateral efforts to manage
the space commons. The progressive decline in the amount of
international support for multilateral space lawmaking may be
exemplified by the increase in the amount of time it took treaties to enter
into force, going from eight months for the OST to 55 months for the
Moon Treaty as shown in Figure 4.
Figure 4: Number of Months for Selected Treaties to Enter into
Force from 1963 to 1984
400

This trend is also exemplified by the decrease in both the number of
ratifying and signatory States to the principle space law treaties from
1967 to 1984 as is illustrated in Figure 5. And by the fact that there has
not been a major multilateral treaty related to space governance
negotiated since the end of the golden age of space law in 1982.
Figure 5: Number of Ratifying States for Space Law Treaties
401

400
See id.
401
Id.
61
Given these data there is empirically little apparent international support
for a new round of international space policymaking, though the
growing prevalence of orbital debris may change the suboptimal status
quo. How have these existing treaties managed the problems of space
weapons and junk since their ratifications?
Measuring the extent of space weapons is difficult given the
definitional problems stated above. Focusing solely on launched
spacecraft helps illustrate one facet of the overall picture. Of the
spacecraft that have been launched worldwide since the dawn of the
space age in 1957, approximately 56 percent have been military in
nature.
402

Figure 6: Chronology of Military Spacecraft Launched
403

As Figure 6 exemplifies, there was a decline in military satellite
launches beginning in the late 1980s when the United States and the
Soviet Union halted ASAT testing, fuelled by congressional bans and
voluntary Russian moratoria.
404
More recently though, there has been an
uptick with emerging powers such as China and India alone launching
more than 40 spacecraft since 2007.
405
In some ways this is nothing
newaccording to Joan Johnson-Freese, a space policy analyst at the
U.S. Naval War College, Space has been militarized since before
NASA was created.
406
But some argue that these figures allude to a
new space weapons race heating up.
407
Due to the often-covert nature of
ASAT capabilities, it is difficult to ascertain a clear picture as to current

402
See CLAUDE LAFLEUR, SPACECRAFT ENCYCLOPEDIA, available at
http://claudelafleur.qc.ca/Spacecrafts-index.html.
403
Id.
404
See Laura Grego, A History of Anti-satellite (ASAT) Programs, UNION OF
CONCERNED SCIENTISTS, available at
http://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/technical
_issues/a-history-of-anti-satellite.html.
405
Id.
406
Jeremy Hsu, Is a New Space Weapon Race Heating Up?, Space.com, May 5, 2010,
available at http://www.space.com/businesstechnology/space-war-weapons-heats-up-
100505.html.
407
Id.
62
levels of ASAT testing. Beginning with the Chinese ASAT test in 2007
though, the United States, China, Russia in March 2009, and India in
January 2010, have all either begun or reinvigorated their ASAT
programs.
408
Some recent progress has been made at the U.N.
Conference on Disarmament to counter this growing problem as well as
through Missile Technology Control Regime,
409
but so far relatively
little progress has been made to arrest the specter of a space arms
race.
410

These data may be compared to the rate of orbital debris
proliferation since the golden age of space law ended in 1982:
Figure 7: A Failure of Collective Action: Trends in Orbital Space
Debris
411

Unlike the rapid decline and recent uptick in military spacecraft, orbital
debris has shown a dramatic increase, rougly quadrupling over the past
30 years as shown in Figure 7.
412
With over 50 nations now participating
in the space commons, the amount of debris is expected to triple again by
2030 if current trends continue.
413
Neither the Registration nor the
Liability Conventions have proven effective in mitigating this uptick, and
with the growing risk of ASAT attacks in future international conflicts,
the space environment is ripe for a tragedy of the unmanaged commons
scenario to unfold. Without concerted multilateral action, Marshall
Kaplan, an orbital debris expert within the Space Policy Department at
the Johns Hopkins University argues, There is a good chance that we
may have to eventually abandon all active satellites in currently used

408
Id.
409
See Missile Technology Control Regime, About,
http://www.mtcr.info/english/index.html.
410
E.g., Jeremy Hsu & Jeanne Bryner, Space Arms Race Heats Up Overnight,
Space.com, Feb. 21, 2008, available at
http://www.space.com/news/080221-asat-aftermath.html.
411
Figure redrawn from Grego, supra note 404, at 128 (note that the period from 2011
to 2030 is projected). For a more detailed chart, see Historical Growth of Catalogued
Objects, NASA ORBITAL DEBRIS Q. (Jan. 2011).
412
But see Jakhu, supra note 113, at 16 (noting that [f]rom the mid-90s until 2006,
there was a gradual decline in the growth rate of space debris.).
413
63
orbits.
414
There has been a recent move towards bilateral and regional
partnerships to address orbital debris, such as the Space Situational
Awareness Partnership between the United States, France, and Australia,
which could include development of a joint tracking facility.
415
Whether
these partnerships in conjunction with the public and private sector
initiatives mentioned above along with technological advancements
prove sufficient to mitigate orbital debris and weaponization remains to
be seen. But as with the LOS, the regime effectiveness of space law
cannot be measured in reference to debris and weaponization alone. At
best these are useful assessment tools that should be supplemented with
additional research and data to move beyond correlations and begin to
get clearer answers about space governance best practices.
Finally, I move to the no regime counterfactual, asking: how
would the space commons look today if the space and test ban treaties
would not have been ratified? In other words, have these legal regimes
enhanced cooperation consistent with OST Article 9 by mitigating the
collective action problems that stand as barriers to the realization of joint
gains otherwise available to parties engaged in interactive decision
making?
416
Although there are gaps in current space law, such as
regarding space weapons and orbital debris, the space law treaties have
provided a framework for governance that has proven at least partly
effective. There has not yet been a war in space. Nor has any nation
claimed the moon, or another celestial body. Given the true free-for-all
that would be possible in the absence of any regulation, it is clear that
current space laws are preferable to none at all. Moreover, despite the
lack of multilateral progress to manage space weaponization and orbital
debris, it is encouraging that non-State actors and Member States are
negotiating in small groupings, as well as through forums like COPUOS
and the ITU, which has become the primary de facto source for space
law development.
417
This polycentric interaction alone may help speed
progress, as Hugh Ward has argued, When nations participate in
particular regimes they also become part of a wider network. This
network links nations and also individual regimes. It embodies social

414
Leonard David, How to Clean Up Space Junk: DARPA's Orbital Catcher's Mitt,
Space.com, May 13, 2011, http://www.space.com/11657-space-junk-orbital-debris-
cleanup-darpa.html.
415
See Tory Maguire, Australia, US vow to clean up outer space, NEWS.COM.AU,
Nov. 8, 2010, available at
http://www.news.com.au/technology/sci-tech/australia-us/story-fn5fsgyc-
1225949489905. A preference for bilateral treaties is also playing out in investment law
with more than 2,000 bilateral investment treaties (BITs) now in force, symbolizing
another bottom-up regulatory response to a multilateral problem, i.e., guaranteeing
investor property rights to spur investment. See GUS VAN HARTEN, INVESTMENT
TREATY ARBITRATION IN PUBLIC LAW 3-5 (2007).
416
See YOUNG, supra note 393, at 23.
417
Jakhu, supra note 191, at 4.
64
capital that may be used to encourage nations to behave sustainably.
418

This creates a synergistic effect, a virtuous cycle whereby nations and
institutions involved in an international regime like space law have
strong social influences within that regime to abide by its stipulations
and create new ones, such as a common code of conduct. Creating a
Space Forum of like-minded, spacefaring nations in the mold of the
Major Emitters Forum could begin to address issues of common concern
such as orbital debris and weaponization and start developing binding
restrictions.

F. The Future of the Final Frontier
What is the future of outer space? Two approaches seem
evident. The first is to proceed with building polycentric governance
structures featuring both more national regulations and bilateral accords,
which appears the most politically viable option at present. The second
would be to treat outer space comprehensively as part of the global
commons through new protocols and multilateral accords on
weaponization, debris, and property rights designed to incentivize
sustainable development.
419
Space constraints prohibit a comprehensive
discussion of the myriad outstanding issues related to these policy
choices.
420
Instead, I briefly consider interrelated collective action
problems in space governance, and assess different approaches toward
managing these issues more effectively.
Currently, the international legal framework is not in place to
manage orbital debris effectively, meaning that individual spacefaring
States are subject to a modified prisoners dilemma in which they need
to safeguard their assets and by doing so exacerbate the chance of future
conflicts through a destabilizing space weapons race. How might space
weapons and orbital debris be better managed within a polycentric
framework? The leading space agencies of the world have formed the
Inter-Agency Space Debris Coordination Committee (IADC) to address
orbital debris issues and to encourage operations in Earth orbit that limit
the growth of orbital debris.
421
In addition, orbital debris has been a
topic of assessment and discussion at COPUOS since the late 1970s.
Both IADC and COPUOS have published space debris mitigation

418
Hugh Ward, International Linkages and Environmental Sustainability: The
Effectiveness of the Regime Network, 43(2) J. PEACE RES. 149, 165 (2006).
419
See Bird, supra note 230, at 685.
420
See generally Scott J. Shackelford, From Net War to Nuclear War: Analogizing
Cyber Attacks in International Law, 25(3) BERKELEY J. INTL L. (2009).
421
See Inter-Agency Space Debris Coordination Committee, http://www.iadc-
online.org/index.cgi.
65
guidelines, which are multi-year work plans on the long-term
sustainability of space.
422
Making these guidelines binding on
participants, incentivizing States to adopt them through national
legislation to limit free riders, and including verification mechanisms
would improve on the status quo.
423
Other proposals, such as a limited
test-ban treaty for ASAT weapons, have not yet garnered significant
political support.
424
Certain companies are also keen on developing
technologies to clear valuable GSO space of debris.
425
But the problem
is that these same technologies could be used as ASAT weapons. At
present there is no political will to push for globally binding measures to
manage the related problems of space junk and weaponization, bringing
into sharp relief the inadequacies of space governance. Perhaps
recognizing the political infeasibility of negotiating such accords, the
OOSA called upon all States in 2011 to take measures at the national,
regional, interregional and global levels to preserve the space
environment for future generations.
426
The UNGA has similarly added
the objective of sustainable development in 2010 alongside international
cooperation to foster the peaceful use of space.
427
Such action should be
undertaken at each regulatory level, including nationally with the United
States, Russia, and potentially China negotiating to establish best
practices, such as within a Space Forum described above. As with the
Arctic Council, which is a body established in 1996 composed of the
Arctic States, measures designed to enhance sustainability could be
undertaken to build goodwill before negotiations over thorny security
matters such as space weaponization be undertaken.
428
As with climate
change, there is no time to waste.
The CHM concept is a bundle of theories comparable to
sustainable development. The open question then is, given the
decreasing importance of the CHM in negotiations over global common
pool resources, whether sustainable development offers an alternative

422
See NASA Orbital Debris, supra note 365, at 2. But see Jakhu, supra note 113, at 13
(noting that these guidelines are operational and future-oriented, and do not address
space debris generation during armed conflicts).
423
See Jakhu, supra note 113, at 18-19 (advocating for the COPUOS Space Debris
Mitigation Guidelines to be transformed into U.N. Principles, a code of conduct, and
multilevel legal agreements).
424
See Liemer & Chyba, supra note 335.
425
See David, supra note 414.
426
Declaration on the Fiftieth Anniversary of Human Space Flight and the Fiftieth
Anniversary of the Committee on the Peaceful Uses of Outer Space, 44
th
Sess.
COPUOS, A/AC.105/L.283/Rev.1, at para. 16, Vienna, Austria, June 1-10, 2011.
427
See, e.g., International Cooperation in the Peaceful Uses of Outer Space, G.A. Res.
64/86, U.N. Doc. A/RES/64/86 (Jan. 13, 2010); and Nima Nayebi, The Geosynchronous
Orbit and the Outer Limits of Westphalian Sovereignty, 3 HASTINGS SCI. & TECH. L.J.
471, 477, n.33 (2011).
428
See, e.g., Nuuk Declaration, Arctic Council, May 12, 2011 in Nuuk, Green., at 2; and
Evan Bloom, Current Development: Establishment of the Arctic Council, 93 AM. J.
INTL L. 712, 712 (1999).
66
governance model that might better manage orbital space? Sustainable
development is defined in the Brundtland Report as development that
meets the needs of the present without compromising the ability of
future generations to meet their own needs.
429
The term has found
expression in all manner of treaty law, trade agreements, international
jurisprudence, international aid programs, State and local government
planning schemes, corporate mission statements, and NGO policy
documents.
430
In the CHM context, it marks the integration of the
development and environmental dimensions of the CHM,
431
and has
direct and primary relevance for environmental protection in the
economic exploitation of natural resources generally.
432
The
International Law Associations (ILA) New Delhi Declaration on
Principles of International Law Relating to Sustainable Development
bear a striking resemblance to those principles comprising the CHM
concept, namely: non-appropriation, common management, equitable
benefit sharing, peaceful use, and preservation.
433
The only omissions
are non-appropriation, which is neither substantially supported by State
practice nor definitively part of the CHM itself, and peaceful use, which
may be read implicitly into the Declaration. This underscores the degree
to which the core features of the CHM are alive and well in the
sustainable development movementthe two concepts are not mutually
exclusive.
434
Combining the ILA iteration of sustainable development
with common but differentiated responsibility and the precautionary
principle would help foster the sustainable development of the space
commons.
435
Instead of waiting to do so in a future treaty though, these
principles may be infused in the growing polycentric system of private,
national, bilateral, regional, and multilateral regulations without delay.

429
WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE
43 (1998). See also Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 6, 78
(Sept. 25) (Judge Weeramantry defining sustainable development as [the] need to
reconcile economic development with protection of the environment.).
430
See, e.g., John Pezzey, Sustainable Development Concepts: An Economic Analysis
55-62 (World Bank Envt Paper No. 2, Report No. 11425, 1992).
431
See ELISABETH M. BORGESE, OCEAN GOVERNANCE AND THE UNITED NATIONS 21,
173 (1995).
432
Priscilla Schwarz, Sustainable Development in International Law, NON-ST. ACTORS
& INTL L. 127, 127 (2005).
433
See International Law Associations New Delhi Declaration on Principles of
International Law Relating to Sustainable Development, Part Four, available at
www.ila-hq.org [hereinafter New Delhi ILA].
434
See Nina Tannenwald, Law Versus Power on the High Frontier: The Case for a
Rule-Based Regime for Outer Space, 29 YALE J. INTL L. 363, 412 (2004) (arguing that
the province of all mankind could be expanded to incorporate a notion of sustainable
development.); and David Tan, Towards a New Regime for the Protection of Outer
Space as the Province of All Mankind, 25 YALE J. INT'L L. 145, 147-48 (2000)
(stating [a]n essential first step is to make the notions of sustainable development and
intergenerational responsibility applicable to the outer-space environment.).
435
See Scheetz, supra note 231, at 74-76.
67
The future of the final frontier is at a crossroads. The best, most
comprehensive approach to securing outer space is a new multilateral
accord in the guise of the OST designed to mitigate space debris,
weaponization, and define property rights.
436
But as has been shown,
reaching consensus on multilateral space initiatives is becoming
increasingly difficult. As with the Obama Administrations
endorsement of multi-stakeholder governance in cyberspace,
437
the
OOSAs call for polycentric regulation is a necessary step to curtail the
collective action problems of orbital debris. The United States and
Europe should welcome such a dialogue, and make every effort to
reduce risk and win consensus on crafting a regulatory framework for
outer space that is as safe, secure, and sustainable as possible. Without
action, the international community will lurch from crisis to crisis that
may not only challenge the continuation of a peaceful final frontier, but
could also quite possibly shake the Information Age to its foundations.
Conclusion
This Article has shown that it has been international relations and
interrelated national security considerations that have driven space
governance forward both during and after the golden age of space law,
along with advancing technology and scarcity. The evolution of space
law has also illustrated the growth of the space regime complex
featuring a far greater role for non-State actors like commercial
operations and national governments. Instead of multilateral treaties
negotiated through COPUOS, many nations including the United States
and China are negotiating bilateral treaties and are enacting national
legislation to regulate space. Where multilateral action has been taken,
such as the space debris mitigation guidelines, it is non-binding and
often ineffective. Though the private sector has played an important role
in tracking space junk, the problem cannot be solved without
multilateral cooperation. The lack of legally binding regulation has
made addressing the pressing and interrelated problems of space
weaponization and orbital debris difficult, exacerbating these collective
action problems and underscoring the need for sustainable development
policies at all regulatory levels.
438

This Article has also demonstrated some of the benefits and
drawbacks of polycentric governance to mange global collective action
problems. Nations and the private sector working separately cannot
effectively address global collective action problems, like space junk,

436
Id.
437
See Hillary Rodham Clinton, Remarks on the Release of President Obama
Administration's International Strategy for Cyberspace, U.S. DEPT OF STATE, May 16,
2011, available at http://www.state.gov/secretary/rm/2011/05/163523.htm
438
See Jakhu, supra note 113, at 15 (noting that the COPUOS Debris Mitigation
Guidelines call on national legislatures to voluntarily implement the requirements).
68
weaponization, or piracy, without the support of the international
community.
439
The results of this study thus highlight the gridlock and
lack of effectiveness that can result from regime complexes. The United
States, being the dominant space power, should work to engage other
responsible spacefaring nations in a multilateral dialogue to sustainably
develop the space commons and to increase organizational coordination
in keeping with OST Article 9.
440
Efforts should also continue to
negotiate an Agreement on Long-term Sustainability of Outer Space
Activities, given that space debris is a common problem and is thus a
better entry point than a space weapons treaty which must overcome
formidable national security concerns.
There is a dramatic transition underway in international space
policy from being governed by Cold War competition to now being
susceptible to market pressures, scientific endeavors, and multipolar
competition. Though the Space Age is more than 50 years old, the most
challenging years lie ahead. The Shuttle was retired in 2011.
441
The ISS
has been assembled.
442
These advents prompt looming questions. Will
the Americans, Russians, Europeans, Japanese, Canadians, and Chinese
cooperate in space? How will international space law need to transition,
specifically in its definitions of exclusive use and property rights, to
accommodate greater private sector activity in space? How will that
affect the role of government in regulating these industries? Many of
these questions remain to be answered. The outcome of deliberations
now occurring in Beijing, Brussels, and Washington will determine what
balance will be struck between public and private interests in the future
policy environment for space commerce.
443

As Part Four made clear, the ultimate redefinition of sovereignty
in outer space will depend in part on U.S.-Sino relations. Depending on
developments, this could either usher in a true golden age of space law,
or begin a second space race. The only question is whether this
redrafting will occur proactively with the international community
laying out a multilateral legal regime to govern the space commons such
as through a modified PAROS regime, or retroactively, formalizing a
sub-optimal status quo. The answer to this question turns on
international politics, and the changing conceptions of sovereignty over
the global commons in the modern world.
For an international regime to be effective, it must satisfy the
criteria of private industry, and the needs of the developing countries, as

439
Manor & Neuman, supra note 17, at 108 (arguing that space piracy takes the form of
stealing satellite bandwith or jamming communications, similar in theory to roving
bandits at sea given difficulties with enforcement).
440
441
See, e.g., The End of the Space Age, ECONOMIST, at 7, July 2, 2011.
442
Id.; see also ROGER E. BILSTEIN, ORDERS OF MAGNITUDE: A HISTORY OF THE NACA
AND NASA
1915-1990 12 (1989).
443
Lambright, supra note 18, at 83.
69
well as benefit from the political goodwill of the spacefaring powers.
Developing countries receive nothing if commercial operations earn less
than a respectable return on investment. Proposing a regime that
clarifies the CHM and defines property rights could create necessary
stability. This may be done through ratifying the Moon Treaty and then
subsequently negotiating a new protocol in the tradition of the 1994
New York Amendments that modified UNCLOS III.
444
It is still the
cost of accessing space and not legal issues that remains the primary
hurdle to development. If the sustainable development of space is to be
achieved, public and private funds need to be spent on lowering
prohibitive costs.
445
It is necessary to recognize the private sector as a
partner in future space activities and to encourage its participation in
relevant projects. The next space race could be among private sector
interests seeking to exploit space resources, rather than between States.
As technology advances and access to space normalizes, it may become
the true final frontier that has to this point been the purview of science
fiction authors.
Since 1968, annual global conferences have been held to
promote international cooperation and the peaceful development of outer
space. UNISPACE III was held to initiate an action plan promoting
peaceful uses of outer space leading to the adoption of the Vienna
Declaration on Space and Human Development. Part of this was the
1996 Declaration on Space Benefits that supports this contention, which
was a UNGA Resolution seeking to promote the development of space
science and technology and facilitate it among States on a mutually
acceptable basis.
446
The Space Benefits Declaration attempts an
important compromise regarding the CHM by offering a means to
sharing benefits while recognizing market principles. However, it has
not yet become established State practice, and so its ultimate impact
remains uncertain.
447

As the exploration of the solar system continues, the special
conditions that operate in space will come into starker relief.
448
If
resource competition intensifies, an ideological battle may emerge.
Liberal institutionalists favor a formalized international regime. Market
rationalists prefer national management that is in line with capitalist

444
See generally Thomas Gangale, Who Owns the Geostationary Orbit?, 31 ANN. OF
AIR & SPACE L. (2006), available at
http://pweb.jps.net/~gangale/opsa/ir/WhoOwnsGeostationary Orbit.htm. Recognizing
and building from the sustainable development principles present in the Moon Treaty
could also help this purpose, including the orderly, safe, and rational development of
lunar resources. See Eric Husby, Sovereignty and Property Rights in Outer Space, 3
D.C.L. J. INTL L. & PRAC. 359, 371 (1994).
445
See Sam Dinkin, Property Rights and Space Commercialization, SPACE REV., May
10, 2004, available at http://www.thespacereview.com/article/141/1..
446
VIIKARI, supra note 66, at 116.
447
See FABIO TRONCHETTI, THE EXPLOITATION OF NATURAL RESOURCES OF THE MOON
AND OTHER CELESTIAL BODIES: A PROPOSAL FOR A LEGAL REGIME 62 (2009).
448
70
principles. Communal neo-realists seek rapid economic development.
The differences between nations will matter in how disputes are resolved
and governance codified. The proliferation of bilateral agreements
within and between these groupings is threatening the relevance of
traditional institutions of space law such as COPUOS. To promote
viability and good governance in the space commons, COPUOS needs
either coercive power or, more likely, incentives for member nations to
cooperate in solving collective action problems.
449
A new Space Forum
could also be created to resolve shared issues in space governance. This
may prove effective since, as the political economist Mancur Olson
explains, smaller groups may succeed where larger ones fail since
members of smaller groups share can a larger portion of both the burden
and benefit of the good making it easier to reach consensus.
450
The
degree to which these groups cooperate, or come into conflict, will
dictate the pace at which solutions can be implemented.
451

It has been demonstrated that it is international relations in the
form of competition for national prestige more so than a laudable quest
for scientific understanding that has catalyzed space exploration. This
has been the case from President Kennedys original proposals to
President Bushs VSE. Resolving disputes surrounding international
regimes to govern the space commons, and avoid its tragic
overexploitation, requires negotiations comprising myriad contemporary
political issues. Emerging markets will undoubtedly increasingly
influence the trajectory and pace of these talks as power continues to
diffuse to new space powers and the private sector. With a legal
foundation that is now more than 40 years old, space governance is in
need of an overhaul that reflects the role space plays in todays
international system.
452

Outer space and other parts of the global commons are or will be
developed as demand grows. In what manner, and to what extent,
depends on the legal and economic framework created in the near
term.
453
If compromises can be reached, the available resources have
the potential to transform the human condition, as maintained by
UNISPACE III, while preserving the commons for future generations.
Such an advent will also avoid any deterioration of peaceful use, and
benefit international peace and security. Already, U.S. Space Command
maintains that if the United States impedes on the space commons
during a conflict, it must return space to a commons allowing all nations
full access.
454
Myriad other approaches could also be used to preserve

449
Manor & Neuman, supra note 17, at 103.
450
Id. at 110.
451
See Astropolitics, supra note 36, at 12-15.
452
453
Logsdon, supra note 205.
454
General Lance Lord, Commander, The Argument for Space Superiority: Remarks
Prepared for Air War College, USAF Space Command, MAXWELL AFB, AL., Mar. 29,
71
access to space, such as ratifying treaties establishing weapons-free
zones and networking polycentric systems.
As individuals enjoy popular sovereignty in nation States,
communal sovereignty still largely reigns in space. If this continues to
hold, if nations find opportunity in competition rather than threats, then
humanitys development of space and eventual return to the moon could
be less a race than a peaceful march. Not a flags and footprints mission
for one nation, but a destination serving the development of science, the
economy, and the betterment of international relations. If such a
scenario wins the day, then the quotation from Tennyson etched into the
far wall of the U.S. Senate Science Committees Chambers could ring
true the world over, For I dipt into the future, far as human eye could
see, saw the Vision of the world, and all the wonder that would be.
455

2004. See also JOAN JOHNSON-FREESE HEAVENLY AMBITIONS: AMERICAS QUEST TO
DOMINATE SPACE 3 (2009).
455
ALFRED TENNYSON, LOCKSLEY HALL 23 (1869).

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