BE WARY OF THE TROJAN HORSE: A COMMERCIAL-FRIENDLY READING OF THE OUTER SPACE TREATY AS THE KEY TO DE-ESCALATING THE EMERGING SPACE RACE BETWEEN THE UNITED STATES AND CHINA.

• Author: Callif, William M.

1. INTRODUCTION

   The appropriate mediator for the modern, developing, commercial space race between the United States and China is the long-dead, Enlightenment philosopher John Locke. (1) Briefly put, Locke's theory on property rights frames the entire emerging conflict. (2) When the United States and the former Union of Soviet Socialist Republics (U.S.S.R.) signed the 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 or OST) during the Cold War, Lockean verbiage's suitability to property issues in space began to present itself. (3) Since then, nations have either argued that outer space is mankind's common heritage, infinite yet unclaimable, or that it is a claimable, endless cornucopia of resources and profit. (4)

   In his seminal Second Treatise on Government, Locke began his discussion on the State of Nature with the precept that God created the earth for mankind's "common Support and Comfort." (5) Expanding upon nature's commonality, he writes, "all the Fruits it naturally produces, and Beasts it feeds, belong to Mankind in common... and no body has originally a private Dominion, exclusive to the rest of Mankind, in any of them, as they are thus in their natural state." (6) The caveat to this Utopian view of the universe, however, is that matter only stays common for as long as it remains undisturbed by human hands. (7) Locke continues,

   [t]he Labour of [man's] Body, and the Work of his Hands, we may say, are properly his. Whatsoever then [man] removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby makes it his Property. (8) Matter + Physical or Mental Exertion = Property is a useful formula for framing both China and the emerging U.S. view of property rights in outer space from Locke's statements, together commonly dubbed the Labor Theory of Property. (9) This legal theory is quickly bringing the United States and China closer to a military conflict in outer space through a private-sector Trojan horse. (10) A proper understanding of the legality of private property rights in space could help settle international discrepancies before any shots are fired. (11)

   This Article explores how legal ambiguities within the OST may create an opportunity for China to use its commercial activity in space as a Trojan Horse mechanism for national territorial claims on celestial bodies, and further discusses what proactive measures the United States can take to combat this potential threat. (12) Part II explores the history of the OST and what ways commercial activity has existed within its parameters, until today. Part III illustrates a reading of the OST that allows for individual property rights to flourish and dispels competing "common heritage" arguments. Part IV proposes the United States should lead the way in the commercialization and exploitation of space's resources by adopting clear policy and regulatory measures, spearheading a commercial-friendly reading of the OST, and putting international pressure on China to comply with its treaty obligations. (13) In conclusion, Part V will reiterate the legality of space's exploitation by private companies as well as the importance of the United States' role in the new, modern space race.

2. HISTORY

   1. Property Rights

      Property rights derive from different historical sources depending on the legal tradition, more specifically whether the jurisdiction is civil or common. (14) These differences in turn create diverging, distinct legal consequences. (15) For example, civil law countries, like France, base their property rights on the natural law principle of use and occupation (pedis possessio) and thus merely recognize property rights, rather than grant them. (16) This is ultimately because civil law countries trace their system back to Roman law, which places a "heavy emphasis on ownership (dominion) and [is] highly grudging in giving in rem effect to lesser interests." (17) In contrast, common law countries, like the United States, derive much of their property law from the feudal law tradition. (18) Under the common law, "the crown holds the ultimate title to the land, and the proprietary rights of the subject are explained in terms of vassalage." (19)

      In essence, a "top-down" versus "bottom-up" distinction exists between the two property law systems. (20) For example, "civil law starts with a strong notion of full ownership--dominion--and then grudgingly carves out of it (iura in re aliena)." (21) Common law, on the other hand, "defines estates from the bottom up: they are carved out of larger estates, but their definition in terms of length and various features is not seen as tightly bound up with full ownership." (22) Under a full feudal interpretation of the common law, only the monarch/sovereign has full ownership. (23) The subsequent sections of this piece will discuss how these differences are not trivial, especially when it comes to their application in outer space. (24)

   2. The Antarctic Treaty as the Framework for the Outer Space Treaty

      Currently "[a]s a spatial area, outer space serves as the final frontier of legal development; unlike land, sea, and air, it is the last medium of existence that the human civilization has yet to truly conquer." (25) And yet, it was not until 1820 that a Russian expedition discovered the last great land mass here on planet Earth. (26) Since the late discovery of Antarctica, countries have longingly looked at the vast, icy continent as not only a potential source of scientific discovery or an economic boon, but also as a means to significantly expand strategic territory. (27) During the 19th and 20th centuries alone, France, the United Kingdom, New Zealand, Norway, Australia, Chile, and Argentina all made territorial claims over various swaths of Antarctica. (28) During the Cold War, both the United States and the former U.S.S.R. began to look at Antarctica as militarily advantageous. (29) The ice-bound desert, however, remained largely untouchable because of its extreme environment and isolation. (30)

      As a result of mounting tensions over Antarctica, on December 1, 1959, the United States and former U.S.S.R., along with ten other countries, drafted and signed the Antarctic Treaty. (31) The Antarctic Treaty attempts to diplomatically balance a number of competing interest groups: the terra-nullius-contingent, the potential claimants, the no claims contingent, and lastly, the common-heritage-of-mankind-contingent. (32) In order to balance these competing interest groups, the Antarctica Treaty establishes three governing tenants:

      First, Antarctica... is to be a zone of peace... [s]econd, the Treaty, while not restricting the types of peaceful activities that may be conducted in Antarctica, emphasizes the importance of scientific research... [and] [t]hird, the Treaty does not attempt a final resolution of territorial claims, but puts the issue on hold. (33) Both the former U.S.S.R. and the United States reserved the right to make territorial claims when they signed the Antarctica Treaty, and thus both fit into the "potential claimants" interest group. (34)

      Ironically, while the law was reaching the last unconquered lands on planet Earth, the U.S.S.R. and the United States were already considering legal questions related to outer space. (35)

      While tensions were rising in Antarctica, the launching of Sputnik 1 in 1957 and Explorer 1 in 1958 marked the beginning of the space race. (36) In 1959, the same year that the Antarctic Treaty was signed, the U.S.S.R. had reached the surface of the moon. (37) By 1965, the United States had sent Mariner 4 to capture the first close up pictures of Mars. (38) Space, becoming increasingly accessible, was quickly becoming another new strategic front just like Antarctica, one which nations hoped could also be controlled by a similar legal framework. (39)

   3. Treaties Governing Conduct in Outer Space: The Outer Space and Moon Treaties

      In 1967, with major nuclear proliferation concerns rising, and the space race in full force, both the United States and the former U.S.S.R. signed the OST. (40) The two countries looked to the Antarctic Treaty as a template, specifically borrowing its "province of all mankind" language and inserting vague dictates in relation to commercialization efforts. (41) The ambiguity surrounding property rights was the primary reason why in 1979, after several UN-sponsored conferences, several countries agreed to sign the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (hereinafter the "Moon Treaty"). (42) The Moon Treaty attempts to create an explicit framework to deal with outer space's resources. (43) Notably, China, the United States, and other major spacefaring nations are not signatories to the Moon Treaty. (44)

   4. Other Legal Relevant Analogies

      1. The Deep Seabed Hard Mineral Resources Act

         The underlying legal principles found in the Antarctic Treaty and the OST can also be found in the document which created the semi-autonomous International Seabed Authority. (45) Like in Antarctica and outer space, when scientists discovered vast mineral resources on the deep seabed in the 1960s, the international community found itself dealing with another conflict between a terra-nullius-camp and a common-heritage-of-mankind-camp. (46) Initially, after much debate, the common-heritage-of-mankind-camp won out, and the deep seabed was designated as a place to be used only for peaceful purposes. (47) Ultimately, though, after an international increase in world metal prices, the terra-nullius-camp was able to secure a large, designated area (called, rather unimaginatively, "the Area") where companies could extract minerals upon discovery. (48)

         The United States responded quickly by enacting the Deep Seabed Hard Mineral Resources Act...