Peter Sutch is a Professor of Political and International Theory at Cardiff University. He writes and teaches international political theory and the politics of international law. His most recent work examines justice and the laws of war, the notion of moral responsibility in international affairs and the politics and ethics of global commons governance.
There is plenty to worry about with the current state of politics on this planet and so it is understandable that the posturing of super-powers over the direction of space policy doesn’t garner headlines. However, along with a colleague and co-author (Peri Roberts of Cardiff University) I have been pushing people to take the time to think about the consequences of the militarisation and commercialisation of space before it is too late. Our concern is that the space-going powers, led by the USA, are wresting control from the international community which had begun to work on ways to ensure that the injustices of colonialism were not transferred to the future of humankind’s journey into Outer Space.
This might seem a little far-fetched. However, when we look at the steps that the international community took to build a legal regime for Space, and then at the ways that current US policy undermines the key values of that regime, there is considerable cause for concern. Above all, the US approach would see the lion’s share go to the advanced space-going nations and private capital, a change which departs fundamentally from previous efforts to attend to the legacies of historical colonial injustice.
On a more philosophical note we also want to challenge the thought that because the context in which the existing space law regime was made has changed, the principle of managing the evolution of space policy with special regard for the injustices of colonialism is no longer relevant. There are a wide variety of resources in contemporary political theory that challenge this underlying thought, but it is an argument that needs to be made now before the direction of politics in space is set.
Clearing the ground for American Dominance in space is not simply an aberration of the Trump regime – even though that administration lends a certain style of rhetoric to the policy field. The evolution of a ‘Space Force’ – a new branch of the military – is designed (in the words of Vice-President Pence) to ensure dominance for the USA in what is viewed as ‘a war-fighting domain just like land air and sea’. The second development, less sensational but arguably more significant, is captured in a speech by Scott Pace, the executive secretary of the National Space Council, to the Cosmos Club on 13th December 2017. He said, “it bears repeating: Outer space is not a ‘global commons,’ not the ‘common heritage of mankind,’ not ‘res communis,’ nor is it a public good”. These statements are important because, as we shall see, they challenge existing commitments both to pacific use and to benefit-sharing.
Nothing surprising here perhaps as technology permits ever greater exploitation of space and as that tech becomes vulnerable to attack. Senator Ted Cruz made the link in widely derided fashion by raising concerns about space pirates interfering with commercial and military activities. But the mindset is clear. Space is like the wild west frontier – to be tamed and commercialised by individual entrepreneurs enduring the hardships and risks of the task and deserving of protection. But before we concede the sense of this point let us examine the existing law of outer space and its intention.
Space law has its origins in the debates that began in the 1950’s about how to govern areas and entities without individual national ownership that serve as general or global resource pools and sinks, such as the deep seabed, Antarctica and outer space. The key innovation was the development of idea of the global commons.
The central feature here is that these areas, and the resources found there, need to be managed for the common good. Two related principles were important to the development of such regimes. First, the thought that the international community needed to respond to the inequalities associated with colonialism. Second, the need to avoid the consequences for both security and justice of a scramble for dominium over these spaces, a prospect explicitly likened to the colonial ‘scramble for Africa’ (Pardo 1967). These principles were widely understood to be important drivers in the debates at the time, although their centrality was not uncontentious. The states advocating a ‘New International Economic Order’ (NIEO) in the aftermath of post-war decolonisation had a distinctive take on the commons ideal, very different from that of many of the more powerful states. Socialist states took a different view to the liberal-capitalist states. Key states (perhaps most tellingly the USA) took contrasting views at different points in the debates over the period from the 1950s to the present day. Several alternative statements of the broad ideals have also been proposed, such as the idea that such resources might be considered the ‘common interest of mankind’ (Antarctic Treaty 1959) or the ‘common province of all mankind’ (Outer Space Treaty 1967), or ‘the common heritage of mankind’ (UNCLOS III 1982 , The Moon Treaty 1979) and related but more general terms such as ‘the common concern of humanity’ (Shelton 2009), and these alternatives have found expression in these key international instruments.
Space law (in a simplified form) rolls out 3 stages. The first is the so-called constitution of outer space – the Outer Space Treaty 1967 – which provides that ‘The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind’ (article 1). The second is the Moon Treaty 1979 which goes further, using the phrase ‘common heritage of mankind’ when providing for the use of the natural resources of the Moon and other celestial bodies that seeks ‘an equitable sharing by all States Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration’ (article 11). This latter treaty was heavily imbued with an anticolonial aspiration that was central to the then very powerful coalition of proponents of the NIEO. The NIEO Declaration stated that ‘the remaining vestiges of alien and colonial domination, foreign occupation, racial discrimination, apartheid and neo-colonialism in all its forms continue to be among the greatest obstacles to the full emancipation and progress of the developing countries and all the peoples involved’ and demanded that ‘the political, economic and social well-being of present and future generations depends more than ever on co-operation between all the members of the international community on the basis of sovereign equality and the removal of the disequilibrium that exists between them’. The global commons solution was a way of harnessing these vast unowned resources to that end.
The power of the NIEO movement hit the buffers of an international legal order that cannot compel the powerful to accept norms they prefer not to consent to. The rapidly emerging concern of the developed states, that the common heritage rules that required benefit sharing and technology transfer would hamper private investment and lead to inequitable burdens for those at the vanguard of sea and space exploration, coincided with the sudden collapse of communism and a decline in the value of the metals market. As the balance of power and interest changed so did the will to resist the insistence of ocean-going and space-faring states. The notion of ‘common heritage’ thereafter gained a distinct tenor downplaying the strong commitment to benefit sharing. These are found expressed in the 1994 implementation agreement concerning part XI of UNCLOS III and in the 1996 Declaration on Space Benefits. Both, against the explicit ambitions of the NIEO advocates, are liberal regimes that reduce the burden on those developed ‘investor’ states most likely to be in a position to access and exploit resources from space or from the deep seabed. Most commentators acknowledge that while some principles favouring developing states exist on paper their practical form, as a result of these implementation negotiations, means that the common heritage of mankind ideal has lost much of its significance (Benko and Schrogl 1996:143, Tronchetti 2009:123).
The momentum of the NIEO in the UN may have faltered but does the argument that the economic injustices of colonialism still persist in the global order fall with it? The recent signals from Washington suggest the final abandonment of any commitment to addressing the injustices of gross inequalities propped up by a legal system that frames the actions of those who created this inequality as legitimate. Surely now is the time to refuse the extension of the damage of colonialism past the final frontier.
Critiques of the existing international economic and political order abound in political theory. From Antony Anghie’s explicit attacks on post-colonial economic law to Thomas Pogge’s mainstream liberalism, most serious thinking, confronted with the persistent challenge of post-colonial global inequality, finds it necessary to reassert the redistributive and benefit sharing elements of commons regimes in very similar terms to advocates of the NIEO. The core questions and drivers in these debates have proved remarkable persistent, as have the commons values that consistently emerge in response.
But given the resilience of the liberal-capitalist state model isn’t the move to a ‘wild west’ approach inevitable? Encouragingly, just at the time that common heritage and common province ideas were being diluted, a broader notion of common interest was beginning to take deeper root in international law in ways that incorporate but go beyond global commons regimes. The language of common interest dominates environmental, human rights and humanitarian law as challenges requiring common solutions arise and as the injustices of inequality become ever more apparent. It is vital that we think seriously about the exploitation of space in ways that recognise the potential amplification of economic injustice. As those who gained their position through imperialism, colonialism and the creation of economic and political institutions that cement that privilege exploit the free-market wild-west myth to dominate space the next stage of humanity will remain enslaved to the injustices of the past. Unless, that is, we remember that our common humanity requires a different approach.