Why Isn’t Outer Space a Global Commons?

ARTICLES

Why Isn’t Outer Space a Global Commons?

John S. Goehring*

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573

I. THE VARIOUS MEANINGS OF GLOBAL COMMONS . . . . . . . . . . . . . . . . . . . . 574

A. Global Commons as an Enabling Concept. . . . . . . . . . . . . . . 574

B. Global Commons as a Constraining Concept . . . . . . . . . . . . 577

II. EO 13914’S CONCERN ABOUT “GLOBAL COMMONS” AS A CONSTRAINT 581

A. EO 13914 Targets “Global Commons” as a Constraining

Concept. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 581

B. How “Global Commons” as a Constraining Concept is Ill-

Suited to Outer Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583

III. MOVING ON WITHOUT THE GLOBAL COMMONS . . . . . . . . . . . . . . . . . . . . . 587

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590

INTRODUCTION

The United States does not view outer space as a global commons, according

to Executive Order (EO) 13914 issued by President Donald Trump on April 6,

2020.

1

This policy declaration will be welcomed by some, lamented by others,

and surely many more will simply f‌ind it confusing – an intriguing range of reac-

tions for a seemingly simple term to generate. This article examines the role that

notions of the global commons play in U.S. policy on the recovery and use of

space resources. It argues the term “global commons” has more than one legiti-

mate meaning, and, in failing to account for this complexity, the EO complicates,

rather than simplif‌ies, productive discourse not only about the space domain but

also about other domains.

This article proceeds in three parts. Part I establishes the premise that the term

“global commons” has no authoritative def‌inition and demonstrates how it is

used as a label for two concepts: an enabling concept used in military or geopolit-

ical concepts, and a constraining concept used in economic contexts. Whereas

Part I demonstrates how the enabling concept is grounded in the Outer Space

* John S. Goehring (B.A., University of California, Berkeley; J.D., Tulane Law School; LL.M.,

McGill University, Institute of Air and Space Law) is a space and international law attorney for the

Department of Defense and a judge advocate in the United States Air Force Reserve. The views

expressed are solely those of the author and do not ref‌lect the position of the U.S. Government,

Department of Defense, or Air Force. © 2021, John S. Goehring.

1. Exec. Order No. 13914, 85 Fed. Reg. 20,381 (Apr. 10, 2020) (“Outer space is a legally and

physically unique domain of human activity, and the United States does not view it as a global

commons.”).

573

Treaty, Part II argues the constraining concept, with which the EO is concerned,

provides a basis for denying outer space is a global commons. Part III offers rec-

ommendations on how to navigate discourse involving either the enabling con-

cept or the legality of space resource recovery in light of the EO’s determination

that outer space is not a global commons.

I. THE VARIOUS MEANINGS OF GLOBAL COMMONS

The term “global commons” has no authoritative def‌inition.

2

Consequently,

discourse on the subject is often fraught with misunderstanding because the

intended meanings may be unclear or applied inconsistently. Taking this into

account, it is submitted that “global commons” is best understood as a label for

one of two concepts: an enabling concept or a constraining concept.

3

A. Global Commons as an Enabling Concept

When used in a military or geopolitical context, “global commons” is typically

used as an enabling concept. It refers to domains “that lie outside the exclusive ju-

risdiction of any particular state but may be accessed and used by those states or

their nationals.”

4

The Obama Administration, for instance, referred to the global

commons as simply “those areas beyond national jurisdiction that constitute

the vital connective tissue of the international system.”

5

These domains include the

high seas, the airspace outside of a state’s territorial waters, and outer space.

6

The elec-

tromagnetic spectrum and cyberspace have also been described as global commons.

7

This concept is enabling in the sense that these traits – lying beyond national

jurisdiction and free for access by all – are thought to enable prosperity and secu-

rity. “Prosperity of the United States depends upon its largely uncontested ability

to access and use the global commons,” according to the 2016 Joint Chiefs of

2. E.g., Lieutenant Colonel Patrick Franzese, Sovereignty in Cyberspace: Can it Exist?, 64 A.F. L.

REV. 1, 15 (2009) (“No universally accepted def‌inition exists and, depending upon which dictionary or

non-governmental organization one consults, a slightly different or nuanced def‌inition appears.”).

3. For a different characterization, see P.J. Blount & Anonymous, Another Pyrrhic Victory: The

White House’s Latest Executive Order on Space Mining, SPACEWATCH.GLOBAL, https://perma.cc/3N4V-

7QT4 (distinguishing the idea of a commons “in the economic sense” from the “international law

concept of global commons.”).

4. Major John W. Bellf‌lower, The Inf‌luence of Law on Command of Space, 65 A.F. L. REV. 107, 120

& n.74 (2010) (citing CHRISTOPHER C. JOYNER, INTERNATIONAL LAW IN THE 21

ST

CENTURY: RULES FOR

GLOBAL GOVERNANCE, 224-25 (2005)).

5. U.S. DEP’T OF DEFENSE, SUSTAINING GLOBAL LEADERSHIP: PRIORITIES FOR 21

ST

CENTURY

DEFENSE 3 (Jan. 2012), https://perma.cc/47T3-698E.

6. See JOINT CHIEFS OF STAFF, U.S. DEP’T OF DEFENSE, JOINT OPERATING ENVIRONMENT 2035: THE

JOINT FORCE IN A CONTESTED AND DISORDERED WORLD 30 (July 14, 2016) [hereinafter JOE 2035],

https://perma.cc/JUE9-FLLC.

7. Id. (electromagnetic spectrum); RONALD O’ROURKE, CONG. RSCH. SERV., R43838, RENEWED

GREAT POWER COMPETITION: IMPLICATIONS FOR DEFENSE – ISSUES FOR CONGRESS 1 (Sep. 30, 2020)

[hereinafter CRS REPORT] (cyberspace). SCOTT W. HAROLD ET AL., THE U.S.-JAPAN ALLIANCE AND

DETERRING GRAY ZONE COERCION IN THE MARITIME, CYBER, AND SPACE DOMAINS 105 (2017)

[hereinafter RAND REPORT]; but see Franzese, supra note 2, at 1 (arguing cyberspace is not a global

commons).

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